Inherent Interest in Directors' Decisions Related to Executive Compensation

Nolan M. Jackson, KLJ Staff Editor [i]

Delaware – the hotbed for business incorporation – got it wrong.[ii] In In re Walt Disney Co. Derivative Litigation, the Delaware Supreme Court reviewed a corporate decision on the compensation owed to the Walt Disney Company chief executive by presuming the disinterestedness of the corporate decision-makers. The Court’s opinion wrongly applied the forgiving business judgment rule where it should have scrutinized the Disney directors’ decision on executive compensation under a less deferential standard that recognizes directors’ interest in decisions affecting executive compensation.The business judgment rule presumes that corporate directors decide upon reasonable informedness, in good faith, and disinterestedly (independently). Where a plaintiff shareholder cannot rebut any of the business judgment predicates, Delaware courts measure the rationality between the directors’ decision and the entity’s interests.[iii] The presumption accords considerable deference to directors’ decisions.[iv] It ignores, however, considerable evidence and practical understanding that directors decide the compensation of their executives interestedly.Scholarship suggests and corporate authorities recognize that directors are inherently interested in the compensation of the executives whom they oversee. For example, corporate executives play a significant role in nominating directors of the board, and directors clearly have an interest in retaining directorships that have become increasingly exorbitant.[v] “[D]irectors who displease a CEO will often find it difficult to retain their board seats. Accordingly, a director who has a material financial incentive to retain his directorship will not really be independent of the CEO.”[vi] Critical of the misapplication of the business judgment rule in Disney, D.A. Jeremy Telman addresses Disney Chairman Michael Eisner’s influence over his board members and financial interest in the board’s approval of a lucrative executive compensation package:Eisner stacked his . . . board of directors with friends and other acquaintances who, though not necessarily beholden to him in a legal sense, were certainly   more willing to accede to his wishes   and support him unconditionally than truly independent directors . . . Because Eisner's compensation package would have to be at least as generous as that of his subordinate, Eisner and the board he controlled had every reason to make [the executive’s] compensation package as generous as possible (internal citations and quotations omitted).[vii]Moreover, the New York Stock Exchange’s listing standards – presumably to protect against the chief executive’s influence over the corporate board and its decisions on his or her compensation – require a compensation committee of independent directors charged with approving chief executive compensation.[viii] While the listing standards permit the committee to hire a compensation consultant responsible for independent assessment of the executive’s compensation package, some have recognized the executive’s influence over the hiring of such consultants.[ix]Despite evidence of directors’ interest in decisions affecting the corporate executive’s compensation, still Delaware reviews the reasonableness of directors’ decisions on executive compensation under a standard that presumes directors’ disinterestedness. Simply, Delaware wrongly applies the business judgment rule where it should apply a standard of review that recognizes directors’ interest in decisions affecting executive compensation. Such an alternative, the intrinsic fairness standard, for example, rather than presuming directors’ disinterestedness, requires directors to prove the fairness of corporate decisions.[x] While not necessarily advocating for the application of the intrinsic fairness standard to directors’ decisions on executive compensation, I mention intrinsic fairness to demonstrate that alternatives to the business judgment rule exist – alternatives that do not presume disinterestedness in the face of practical understanding that directors decide the compensation of their executives interestedly.Delaware’s jurisprudence misapplies the business judgment rule in review of corporate directors’ decisions on executive compensation. Misapplication harms shareholders and grows inequity. Demonstrated in Disney, the business judgment rule accords deference to directors’ decisions on executive compensation that leave shareholders on the hook for parachute payouts upon termination.[xi] Also, deferential review of directors’ decisions on compensation grows inequality. Judicial deference encourages corporate executives to manipulate directors’ decision-making (i.e. nominate friendly directors to the board; call for exorbitant benefits, bonuses, and options; and hire consultants receptive to the executive’s suggested compensation package); since 1992, the ratio between the average chief executive and the average large-company employee has ballooned to 500:1.[xii]Admittedly the topic of judicial review of directors’ decisions on executive compensation implicates legal and economic considerations that a blog entry cannot accommodate; a fairer discussion would acknowledge the proportionality standard of review as expanded to directors’ decisions on compensation[xiii], more thoroughly describe the intrinsic fairness standard[xiv], and address the “market”[xv] for chief executive compensation. This brief entry, however, must limit its acknowledgments to the standard of review that the state for incorporation applies to directors’ decisions on executive compensation. Practical understanding suggests that Delaware wrongly applies the business judgment rule.

[i] Second-year law student at University of Kentucky College of Law; Juris Doctor candidate, May 2016; B.A. 2013, University of Kentucky.
[ii] See Melvin Aron Eisenberg & James D. Cox, Corporations and Other Business Organizations (10th ed. 2011), 208-09.
[iii] Id. at 645.
[iv] See id. (“An example of a decision that fails to satisfy the rationality standard is a decision that cannot be coherently explained.”)
[v] See Eisenberg & Cox, supra note 2, at 779; Rutherford B. Campbell, Business Associations 851-001 Fall-2014, (2014) (In 2006, former Georgia Senator Sam Nunn received $536,233 for his service on General Electric’s board of directors. That year, Nunn concurrently served on the boards of Coke, Dell, and Chevron.) (on file with author).
[vi] Eisenberg & Cox, supra note 2, at 778.
[vii] D.A. Jeremy Telman, Note, The Business Judgment Rule, Disclosure, and Executive Compensation, 81 Tul. L. Rev. 829, 883-85 (2007).
[viii] NYSE, Inc., Listed Company Manual § 303A.05(a)(i)(A) (2002).
[ix] Id. at (c)(i); see Telman, supra note 7, at 870. (“[C]onsultants are hired by management. They’re going to be rehired by management . . . [T]he basic goal of compensation consultants is to justify whatever it is the CEO wants to make.”)
[x] See Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983).
[xi] See Eisenberg & Cox, supra note 2, at 693. (Sixteen months into a five-year contract, Disney chief executive Michael Ovitz received $140 million in severance.)
[xii] Eisenberg & Cox, supra note 2, at 775.
[xiii] See generally Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983) (affirming the application of a fairness standard where a predicate of the business judgment presumption is absent).
[xiv] See generally Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (Del. 1986) (recognizing an interest contradictory to shareholders’ interest in wealth maximization when corporate directors implement defensive measures and affirming the application of a standard of review that measures the reasonableness of anti-takeover measures and proportionality to the threat posed by takeover when implemented by a corporate board).
[xv] See 17 Douglas A. Michael, The Corporate Officer’s Independent Duty as a Tonic for the Anemic Law of Executive Compensation, 17 J. Corp. L. 785, 802 (“An observer might be tempted to conclude that a functioning market exists for the CEOs of large United States corporations.”)

What's a Birthday Party with No Cake?

Taylor Poston, KLJ Staff Editor

Students at one Kentucky school are no longer allowed to have their cake and eat it too—at least at birthday parties.Due to a revision in their school’s wellness policy, students at Burlington Elementary School will no longer be able to have food at birthday celebrations.[i] The school decided to change its policy, in part, to comply with federal guidelines.[ii] Parents and school officials said that it was not an easy decision to ban the treats, but practically, it would better serve the students and their learning environment.[iii]Burlington Elementary School, which is part of the Boone County school district in northern Kentucky, is not alone nationally in its decision to ban certain foods from celebrations.[iv] A Seattle suburb has also banned birthday treats, as well as schools in Kalamazoo, Michigan; Boulder, Colorado; Louisville, Kentucky; and Minneapolis, Minnesota.[v]This movement toward banning certain unhealthy foods from schools, though objectionable to some, may be a smart way schools can help promote healthy lifestyles for their students.Obesity, and particularly childhood obesity, has become a significant health concern in the United States. According to the Centers for Disease Control and Prevention, approximately seventeen percent of children (ages 2-19) are obese nationwide.[vi] The percentage of Kentucky children who are obese is even higher, at around 19.7 percent.[vii]Any local educational agency participating in the National School Lunch Program and/or the School Breakfast Program must develop a wellness policy.[viii] The purpose of the policies is to promote “students’ health, well-being, and ability to learn.”[ix] The wellness policy requirement was established by legislation in 2004 and further strengthened by legislation in 2010.[x]In February 2014, the Department of Agriculture proposed certain regulations under the Healthy, Hungry-Free Kids Act of 2010 “to create a framework and guidelines for written wellness policies established by [local educational agencies].”[xi] The proposed rule, titled Local School Wellness Policy Implementation, contained different provisions concerning topics like public involvement and the content of the wellness policy.[xii] For example, local educational agencies must place “wellness policy leadership” in someone who would have the authority and responsibility to ensure compliance with the policy and must permit participation by the general public and the school community in the wellness policy process.[xiii] Nutrition promotion and education and physical activity would be goals of the policies, and local educational agencies would be required to provide annual progress reports.[xiv] In addition, policies would be assessed every three years, and state agencies would play a role in assessing compliance with the wellness policy requirements.[xv]Wellness policies can help schools create a structured course to keep students healthier. A birthday cake ban may seem harsh, but childhood obesity is a legitimate concern for society. Parents at Burlington Elementary School said that on particular days, students could have as many as three parties.[xvi] With the average store-bought cupcake containing 298 calories[xvii], multiple sugary treats add up. And, while students may not be permitted to have cupcakes or ice cream, some schools, like Burlington Elementary, will permit students to have non-food items, such as pencils and erasers.[xviii] One student was creative and brought jump ropes to school for his birthday, which provided a healthy way for his class to celebrate.[xix]By encouraging health in students early on, school bans on items like cupcakes and ice cream can help promote better lifestyles for students, which could allow them to celebrate many more birthdays.

[i] Jessica Brown, Burlington school bans birthday cake, sweets, Cincinnati.com (Oct. 13, 2013, 7:19 PM), http://www.cincinnati.com/story/news/2014/10/10/burlington-elementary-ba....
[ii] Id.
[iii] Id.
[iv] Id.
[v] Id.; Jacoba Urist, Cupcake ban: Schools crack down on sweets, Today.com (Aug. 5, 2014, 8:21 AM), http://www.today.com/parents/cupcake-ban-schools-crack-down-birthday-tre....
[vi] Childhood obesity facts, Centers for Disease Control and Prevention, http://www.cdc.gov/obesity/data/childhood.html (last visited Oct. 29, 2014).
[vii] Childhood overweight and obesity trends, National Conference of State Legislatures, http://www.ncsl.org/research/health/childhood-obesity-trends-state-rates... (last visited Oct. 29, 2014).
[viii] Local School Wellness Policy Implementation Under the Healthy, Hunger-Free Kids Act of 2010: Summary of the Proposed Rule, (March 2014), http://www.fns.usda.gov/sites/default/files/LWPproprulesummary.pdf.
[ix] Id.
[x] Id.
[xi] Id.
[xii] Id.
[xiii] Id.
[xiv] Id.
[xv] Id.
[xvi] Brown, supra note 1.
[xvii] EatingWell Editors, How Many Calories Are in Your Cupcake?, EatingWell.com (May/June 2010), http://www.eatingwell.com/healthy_cooking/kids_cooking/how_many_calories_are_in_your_cupcake.
[xviii] Brown, supra note 1.
[xix] Id. 

With Liberty and Spectrum For All

Dylan Merrill, KLJ Staff Editor

Imagine a world without garage door openers, baby monitors, and Bluetooth headsets. A little strange, right? What about life without wireless Internet? Even stranger. These groundbreaking technologies have become integral to our daily lives, in a way that few of us could have predicted.[1] This phenomenon begs the question: what other groundbreaking inventions will arise in the next decade? And how can our legal and regulatory framework help encourage these innovations?The answer largely depends on how the federal government regulates a scarce but precious resource--not oil, water, or food, but something called “wireless spectrum”. Wireless spectrum is roughly equivalent to radio airwaves. When you think how old-time radio worked, you might imagine a tall tower, signals radiating outward like ripples in a pond, eventually reaching a living room radio antenna. Television signals worked this way, too. And the pathway that these signals traveled on is called “spectrum.” The Federal Communications Commission was created in part to distribute spectrum in a fair manner. Historically, this has meant giving private businesses the opportunity to pay for exclusive licenses to operate on their own chunks of spectrum. However, there simply is not enough spectrum to fill everyone’s needs.[2] As television and radio stations have curtailed their spectrum use, cell phone providers have become avid spectrum licensees, making it more difficult for others to get their own spectrum licenses. Thankfully, however, you do not always need a license if you want to use wireless spectrum. The FCC has taken several swaths of spectrum and, instead of giving handful of companies exclusive rights, has opened them up to “unlicensed” use. This means that anyone can use certain parts of the wireless spectrum without paying for it, as long as they do not interfere with others who are using it. Think of it as a public park. It’s open to the general public. It’s free of admission. And you can have a picnic lunch there with your significant other--as long as you don’t talk to each other using megaphones. If necessity is the mother of invention, then unlicensed spectrum is its midwife. Unlicensed spectrum has sparked the proliferation of innovations like Wi-Fi routers and Bluetooth. To retain this momentum, we need to free up more spectrum for unlicensed use. Unlicensed users also need access to prime, beachfront portions of spectrum. Doing so would give innovators the tools, for example, to offer Super Wi-Fi that cloaks an entire university and transit system in a single hotspot, accessible to the whole community.[3] To encourage innovations like this, regulators would be wise to make two policies a high priority. First, federal agencies should be given incentives to give up some of their spectrum licenses. The government has licenses to a substantial amount of spectrum, some of which it uses for important purposes like missile defense. But federal agencies should get incentives (carrots and not just sticks) to give back its excess spectrum, which in turn should be repurposed for unlicensed use. Second, the FCC should keep the needs of unlicensed users at the forefront when it rearranges the layout of the wireless spectrum next year. Importantly, this “incentive auction” is already slated to put more unlicensed spectrum in the pipeline, to be used in new and exciting ways.[4] But coordinating how this new spectrum is used will be complicated. The FCC would be wise to listen closely to tech startups and other unlicensed users as it prepares to iron out the technical wrinkles. Of course, it is difficult to predict how much of an impact the freeing up of unlicensed spectrum will have on our daily lives. But, similarly, it was all but impossible to predict the influence that fledgling tech companies like Apple and Google would eventually amass. From garage startups to garage door openers, recent history has taught us that you should put any tool you can into the hands of innovators. You never know what they will think of next.

[1] Consumer Electronics Association, Unlicensed Spectrum and the U.S. Economy: Quantifying the Market Size and Diversity of Unlicensed Devices, CE.org 2-3, http://www.ce.org/CorporateSite/media/gla/CEAUnlicensedSpectrumWhitePaper-FINAL-052814.pdf (last visited Oct. 19, 2014).
[2] Marguerite Reardon, Wireless Spectrum Shortage? What Spectrum Shortage?, CNET (Sept. 27, 2011, 5:40 PM), http://www.cnet.com/news/wireless-spectrum-shortage-what-spectrum-shortage/.
[3] Press Release, West Virginia University, Nation’s First Campus ‘Super Wi-Fi” Network Launches at West Virginia University (July 9, 2013), http://wvutoday.wvu.edu/n/2013/07/09/nation-s-first-campus-super-wi-fi-network-launches-at-west-virginia-university.
[4] Marguerite Reardon, FCC Approves Rules for Spectrum Auction, CNET (May 15, 2014,  3:11 PM), http://www.cnet.com/news/fcc-gets-ball-rolling-on-wireless-incentive-auction-rules/.

Whose Line Is It Anyway? The Movie "Selma," Without Martin Luther King Jr.'s Speeches

Jonathon Nunley, KLJ Staff Editor1

So you want to make a movie portraying the life of arguably the most famous civil rights leader and orator in American history, Dr. Martin Luther King Jr. Where do you start? If your thought was to look to Dr. King’s speeches and find an actor who can deliver them with the same emotion and power as Dr. King, not so fast.During production one of the most acclaimed movies of 2015, Selma, Director Ava DuVernay had to deal with a unique intellectual property issue that many would not think of. Dr. King’s speeches are protected by copyright law and cannot be used without paying a licensing fee to Dr. King’s estate.2 The film is being hailed as one of the best movies of 2015, having been nominated for dozens of awards. Furthermore, it is monumental in the fact that it is one of the first movies to portray Dr. King as a main character.3 Yet Ms. DuVernay cannot use Dr. King’s speeches. Why?Dr. King’s speeches are classified as intellectual property and qualify for copyright protection. Materials that are protected by copyright are defined in 17 U.S.C. § 102.4 Dr. King’s most famous speech, the ‘I Have A Dream Speech,’ is considered a performance by way of legal designation. In turn, the description of that particular speech as being a performance, as well as others, allows copyright protection. When a piece of work receives copyright status, reproduction or usage of the copyrighted material is protected by 17 U.S.C. § 106.5 So in the case of Ms. DuVernay, with her purpose being to reproduce the speeches in a movie, law would prohibit it.6Dr. King’s speeches cannot be reproduced or used by others without paying a licensing fee to Dr. King’s estate. Just ask USA Today, who had to pay $10,000 in attorney’s fees and court costs, plus a $1,700 licensing fee, after they reproduced the ‘I Have A Dream’ speech without permission from Dr. King’s estate.7So why can’t Ms. DuVernay license Dr. King’s speeches from his estate? Because Dr. King’s estate licensed his words to DreamWorks and Warner Brothers in 2009 for a film director Steven Spielberg may one day produce. Presumably the agreement has a clause preventing Dr. King’s estate from licensing his speeches to other production companies.What do you do when you can’t use the very words of the man your movie is intended to honor? Well, as Ms. DuVernay, the director of Selma said, “I just unanchored myself from the words and went not even line-byline, but word for word, to try to really understand what he was trying to say and then just say it in a different way.”8So whose words are they? Well for today, and as long as Dr. King’s speeches are protected by copyright, they remain the words of Dr. King’s estate, for their exclusive use and distribution. So until Dr. King’s estate loosens up their control of Dr. King’s speeches, or there is a mammoth revision to copyright law, don’t expect to hear Dr. King’s speeches in any movies, shows, or writings. That is, until Spielberg eventually makes his movie.

1 Universtiy Of Kentucky College of Law, J.D. expected May 2016.
2 Jordan Zakarin, Making ‘Selma’ Without Mart Luther King, Jr.’s Speeches, Yahoo (Dec. 23, 2014), https://www.yahoo.com/movies/making-selma-without-martin-luther-king-jr-s-105965343587.html.
3 Id.
4 17 U.S.C. § 102.
5 17 U.S.C. § 106.
6 See Id.
7 Jason Linkins, Here’s Why You Don’t See MLK’s ‘I Have A Dream’ Speech All The Time, Huffington Post (Aug. 28, 2013), http://www.huffingtonpost.com/2013/08/28/i-have-a-dream-copyright_n_3829901.html.
8 Id.

The War on Drug Makers: Kentucky's New Angle to Hold Big Pharma Accountable Draws on Successes Against Big Tobacco

Katy Meyer, KLJ Staff Editor

While Kentucky may be nationally renowned for its basketball, bourbon, and horses, it has also achieved infamy on the national stage for its continued struggle with prescription drug abuse and addiction.1 To combat this epidemic, Kentucky legislators and government officials have been forced to take new, and often creative, steps. One example of this is Kentucky’s lawsuit against Purdue Pharma, L.P.2To date, there have been very few successful cases holding drug manufacturers accountable for the effects of their drugs, as most have been dismissed on summary judgment.3 However, Kentucky’s lawyers have taken on a new angle, claiming that the drug manufacturer’s “aggressive and deceptive” marketing techniques violate state law by misleading doctors as to the addictive nature of the drug.4 The claims are based on Medicaid fraud and false advertising, among other things.5While Kentucky’s suit is unique in that it brings a new perspective to the myriad of litigation against drug manufacturing companies, the assertions are not entirely novel. By introducing these claims as a framework to recover against the drug companies, Kentucky actually moves litigation against drug companies forward in a way that emulates the pattern of litigation against tobacco companies in the 1990s. While claims against tobacco companies started out with unsuccessful products liabilities claims in the 1950s, plaintiffs saw success in the 1990s when states began suing the tobacco companies under state consumer protection and antitrust laws and arguing that the companies had caused significant costs for public health systems.6 More than forty states were involved in this litigation, which settled in 1996 and cost the tobacco industry billions of dollars.7If the progression of Kentucky’s claim thus far is any indication, plaintiffs seeking relief from drug companies could see similar success under this model. The state won a hard-fought battle to keep the action in Pike County state court over Purdue’s removal and change of venue motion,8 and the court has ruled to allow the state to use Purdue’s admissions of liability concerning misbranding of the drug from a 2007 case.9Kentucky’s suit could set an important precedent for the future of litigation against drug companies and have far-reaching effects. While this suit alone could cost Purdue Pharma $1 billion, the company is worried about its larger, national impact as well.10 Kentucky’s action against the drugmaker has already caused national waves - Chicago and two counties in California have already filed suits based on similar claims.11  The case is not only being compared to the lines of cases against tobacco companies in the 1990s and early 2000s for its approach – many commentators have noted that if the Kentucky suit is successful, it could trigger a similar line of cases and recovery to the tobacco litigation as well.12

1 Kentucky has an age-adjusted drug-poisoning death rate significantly higher than the national average, and the second-highest drug-poisoning rate of all the states, edged out only by West Virginia, according to a study released by the Center for Disease Control’s National Vital Statistics System. See Margaret Warner, et al., Trends in Drug-poisoning Deaths Involving Opiod Analgesics and Heroin: United States, 1999-2012, 4 fig. 2 (December 2014), available at  http://www.cdc.gov/nchs/data/hestat/drug_poisoning/drug_poisoning_deaths_1999-2012.pdf.
2 See Laura Unger, Lawsuit seeks to make drugmaker pay for OxyContin abuse, USA Today, (December 29, 2014), available at http://www.usatoday.com/story/news/nation/2014/12/29/kentucky-battles-purdue-pharma-in-court-over-oxycontin-abuse/20803459/.
3 Richard C. Ausness, The Role of Litigation in the Fight Against Prescription Drug Abuse, W. Va. L. Rev. 1117, 1122 (2014).
4 Amended Complaint at ¶¶ 2, 10, 42, 81, Kentucky ex rel. Conway v. Purdue Pharma, L.P. (In re OxyContin Antitrust Litig.), 821 F. Supp. 2d 591, 594 (S.D.N.Y. 2011).
5 “Plaintiffs assert claims for: (1) violation of the Kentucky Medicaid Fraud Statute, KRS § 205.8463 and § 446.070; (2) violation of KRS § 15.060, which authorizes Kentucky's Attorney General to institute an action to recover fraudulent monies that have been paid out of the state's treasury; (3) violation of the Kentucky False Advertising Statute, KRS § 517.030 and §446.070; (4) public nuisance; (5) unjust enrichment and restitution; (6) indemnity; (7) negligence; (8) violation of state antitrust law; (9) strict liability; (10) common-law fraud; (11) conspiracy and concert of action; and (12) punitive damages. The Commonwealth seeks damages based on the Medicaid-related expenses it has incurred, as well as other equitable and injunctive relief.” Kentucky ex rel. Conway, supra note iv, at 594.
6 Tobacco Litigation: History and Recent Developments, NOLO.com, http://www.nolo.com/legal-encyclopedia/tobacco-litigation-history-and-development-32202.html]
7 Id.
8 Kentucky ex rel. Conway, supra note iv, at 591; See also Jack Brammer, Kentucky’s lawsuit against Purdue Pharma to remain in Pike, Kentucky.com, http://www.kentucky.com/2013/09/30/2852769/kentuckys-lawsuit-against-oxycontin.html.
9 United States v. Purdue Frederick Co., 495 F. Supp. 2d 569, 570 (W.D. Va. 2007).
10 David Armstrong, Drugmaker Warns that OxyContin Suit Could be ‘Crippling’, Bloomberg (October 20, 2014), http://www.bloomberg.com/news/2014-10-20/purdue-says-kentucky-suit-over-oxycontin-could-be-painful.html.
11 Unger, supra note ii.
12 Armstrong, supra note x.

Employers Beware: OSHA is Once Again Flexing its Enforcement Muscles

Kierston Eastham, KLJ Staff Editor

The Occupational Safety and Health Administration (“OSHA”) is known across the country by employers and employees alike as it currently oversees safety and health standards for over 130 million employees.[1] OSHA was established in 1970 under President Nixon in order to increase workplace safety and reduce employee deaths and injuries, and has reduced the number of workers killed on the job daily from about thirty-eight per day in 1970 to about twelve per day in 2010.[2] These results require extensive enforcement efforts on behalf of the agency, which has been criticized in recent years for its laxity.[3]OSHA’s most recent regulatory agenda, however, has been described as “aggressive,”[4] especially in regards to its current key enforcement provisions. The agency implemented the severe violator enhancement program (SVEP) in 2010, which focuses on employers that “willfully and repeatedly” endanger their employees by not complying with OSHA workplace standards. These violators are subject to mandatory follow-up inspections, as well as inspections of other worksites within the same company.[5] OSHA’s penalties have also increased, with the average penalty per serious violation for 2014 being at its highest point in four years.[6] On September 11, 2014, new reporting standards were announced that require employers covered by the Occupational Safety and Health Act to report all work-related fatalities within eight hours, and all work-related hospitalizations, amputations, or the loss of an eye within twenty-four hours.[7] The new rule will take effect on January 1, 2015, and a web portal is being developed to facilitate ease for employers in fulfilling the requirements.[8] OSHA intends to hold employers more accountable by publicly posting the reported data on its website, essentially aiming to embarrass employers into compliance through what some are calling the “name-and-shame approach.”[9] One could argue that this “name-and-shame approach” will discourage employers from properly reporting in order to prevent negative information about their company being released to the public, which would ultimately frustrate the standard’s core purpose. Alternatively, this approach could be extremely effective in pushing employers to comply with OSHA standards through fear of damage to their public reputation and goodwill. This method will certainly be more budget-friendly for the agency as opposed to imposing a physical presence in the workplace through federal safety and health inspectors,[10] but whether or not this new method of enforcement will be effective remains to be seen. One expert predicts that OSHA will continue to increase inspections, impose higher penalties, and be more reluctant to reduce penalties during settlement conferences.[11] As these enforcement efforts increase, so too will the need for competent representation on behalf of employers. Although these strengthened enforcement efforts will likely lead to increased litigation for attorneys representing those employer-clients found to have violated an OSHA standard, workplaces will undoubtedly be safer for their employees. The balance between workplace safety and employer sovereignty is a delicate one, and will certainly require many more years of fine-tuning.[1] U.S. Gov’t Accountability Office, GAO 13-61, Workplace Safety and Health: Further Steps by OSHA Would Enhance Monitoring of Enforcement and Effectiveness, at 2 (2013).[2] Occupational Safety and Health Administration, U.S. Department of Labor, All About OSHA (2013), available at https://www.osha.gov/Publications/all_about_OSHA.pdf.[3] Stephen Labaton, OSHA Leaves Worker Safety in Hands of Industry, N.Y. Times, April 25, 2007, available athttp://www.nytimes.com/2007/04/25/washington/25osha.html?pagewanted=all&_r=1&.[4] Bradford T. Hammock, Occupational Safety and Health Administration's (OSHA) Regulatory Agency Holds Surprise, The National Law Review (June 17, 2014), http://www.natlawreview.com/article/occupational-safety-and-health-administration-s-osha-regulatory-agency-holds-surpris.[5] Occupational Safety and Health Administration, supra note 2.[6] Tressi L. Cordaro, Occupational Safety & Health Administration (OSHA) Continues to Push Key Enforcement Initiatives, The National Law Review (March 20, 2014), http://www.natlawreview.com/article/occupational-safety-health-administration-osha-continues-to-push-key-enforcement-ini.[7] OSHA Final Rule Requires Reporting of all Work-Related Fatalities, Certain Serious Injuries, OSHA Guide for Health Care Facilities Newsletter (Thompson Information Services), Oct. 2014.[8] Id.[9] Josh Eidelston, OSHA Will Put Workplace Safety Data Online as 'Nudge' to Employers, Bloomberg Business Week, September 18, 2014, available athttp://www.businessweek.com/articles/2014-09-18/osha-will-put-workplace-....[10] Id.[11] Pedro P. Forment, What Can We Expect from OSHA in the Next Four Years? 60 Fed. Law. 14, 14-15 (2013).

Gene Therapy and Patents – Upcoming Issues and Concern

Joseph Guthrie, KLJ Staff Editor

In the 1990’s, gene therapy was viewed as the next major step forward in medical treatment, with the potential to permanently cure a wide variety of genetic disorders.  Despite early successful trials, gene therapy suffered a major setback in 1999 following the death of Jesse Gelsinger, an otherwise healthy 18-year-old suffering from a manageable genetic disorder, during a clinical trial.  Considering the technology potentially unsafe, the FDA suspended many ongoing trials and researchers largely abandoned the field.Fifteen years later, gene therapy is back in a huge way, having been used in human trials to successfully cure HIV, cancer, and various rare genetic disorders.  Since the beginning of 2013, investors have poured nearly $700 million into companies focused on developing gene therapy treatments. Like in the pharmaceutical industry, development and testing of these kinds of treatments involves huge amounts of money, and these companies will eventually seek patents to protect their discoveries.  What remains to be seen is whether these treatments can be patented, and if so, whether these patents will spur innovation or merely stifle it. In its most common form, gene therapy involves the use of viruses to deliver DNA to a patient’s cells, replacing mutated, dysfunctional genes with functional ones.  In order to develop these therapies, researchers need to first identify the genes responsible for the disease, find a suitable virus to deliver a healthy gene, and finally tailor that virus to specifically target the patient’s affected cells. Biotech firms can try to patent these therapies in one of two ways: by patenting the method of delivering the DNA to the patient or by patenting the genes or modified viruses themselves.  Two recent Supreme Court decisions, however, create a great deal of uncertainty about whether either of these approaches will work. In Mayo v. Prometheus, the Court invalidated a wide swath of diagnostic method patents on the ground that they involved “well-understood, routine, conventional activity previously engaged in by researchers in the field” and risked “tying up the use of the underlying natural laws”.   Recognizing the far-reaching effects this decision might have, the Federal Circuit in Classen Immunotherapies v. Biogen IDEC clarified that method claims could overcome this obstacle by including an additional treatment step. These cases matter for gene therapy patents because genetic disorders are not always identical across all patients.  Every treatment will require genetic diagnostics to tailor each therapy to each specific patient.  Thanks to Classen, however, the diagnostic aspect of gene therapy method claims seem to be safe as long as they are coupled with the treatment itself. Patentability of the DNA and viruses themselves presents a more serious problem, however.  In Association for Molecular Pathology v. Myriad Genetics, the Supreme Court upset nearly two decades of patent practice by holding that isolated DNA sequences were unpatentable subject matter.  At the same time, the Court found that cDNA, a mirror image of naturally occurring, edited DNA, was patentable since, unlike isolated DNA, it was created in the laboratory and not simply extracted from a human subject. Myriad has important implications for gene therapy patents because many developing gene therapy treatments require the use of naturally occurring DNA.  While Myriad allows patents on cDNA sequences, they are not entirely useful in gene therapy since they are copies of an edited form of DNA found outside the cell nucleus.  For gene therapy to work, it needs to use natural, unedited DNA sequences to overwrite the faulty sequences in the patients’ chromosomes.  Only claims covering the lab-created, genetically engineered viruses are likely to survive post-Myriad. In the end, the gene therapy industry might benefit from limiting the scope of these patents, but this level of uncertainty about it isn’t going to help.

What is a “Burden” on Voters? Reflections on Ohio’s Early Voting Litigation

Professor Joshua A. Douglas, Robert G. Lawson, & William H. Fortune Associate Professors of Law, University of Kentucky College of Law

What does it mean for an election regulation to “burden” voters?  Do the relevant burdens relate to how the election system operated previously, or are they more about the particular burdens of the actual law itself outside of the context of what occurred in the last election?  Put differently, is it the text of the law, or the context of the election scheme, that matters the most?  These questions underlie the Sixth Circuit’s recent decision in NAACP v. Husted invalidating Ohio’s new rules on early voting; they will also likely be the focus of the Supreme Court’s impending review.The current controversy over early voting in Ohio continues a trend of involving the courts in dictating how to operate Ohio’s election system.  In 2012, the Obama campaign won an important case when the state tried to remove early voting on the last three days before the election for everyone besides military voters.  The Sixth Circuit ruled that allowing early voting for some voters but not others violated the Equal Protection Clause.

In 2012, Ohio had 35 days of early voting.  This year, the state is trying to cut back early voting to only 28 days.  This subtraction of seven days impacts “Golden Week,” in which voters could both register and vote early on the same day.Last week, the Sixth Circuit affirmed a district court decision that this scheme violates both the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act.  (This post will focus solely on the constitutional analysis.)Key to the court’s decision on equal protection was its invocation of the “Anderson-Burdick” balancing test, named after two important Supreme Court cases, Anderson v. Celebrezze and Burdick v. Takushi.  In election law parlance, if the burdens a law imposes on voters is “severe,” then the law is subject to strict scrutiny review, but if the burdens are less than “severe,” then the court balances

“the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs’ rights.”

In essence, the court makes two threshold assessments:  what is the burden on voters, and what are the state’s interests in enacting the law?  Normally, under current Supreme Court precedent, the plaintiffs have the burden of persuasion on both prongs:  they must demonstrate that the law imposes a particularized burden on certain voters, and they also must disprove the state’s assertion of election integrity as sufficient to justify the law.These two inquiries – and particularly an assessment of the magnitude of the burden on voters – generally determine whether an election regulation is constitutional.  Yet the Supreme Court has never been clear on what kind of burdens are permissible, or even how to assess the burdens on voters, and it normally defers too readily to the state’s interest to achieve “election integrity.”Last week’s Sixth Circuit decision on early voting broke significant ground on both questions.First, the court made a fact- and record-intensive assessment of the burdens on voters.  It found that, because so many African-Americans relied on early voting in 2012, the cutback on early voting opportunities would disproportionately and negatively affect these minority voters.  That is, the law’s “burden” on a subset of voters was “significant” because it would reduce these voters’ opportunity to vote.But this raises important questions about how to assess burdens in the Anderson-Burdick analysis.  Is the proper baseline the opportunities to vote during the previous election?  Or should the baseline instead be a world in which there are no prior voting rules?  Put differently, should the courts focus on the context in which the legislature enacted the law to see if it imposes additional burdens as compared to prior elections, or is the proper focus solely on the text of the law by itself, as if there was no previous law that granted or took away voting opportunities?If prior context matters, then the plaintiffs likely provided enough evidence to show that Ohio’s cutbacks in early voting will cause greater burdens on African-American voters.  But if the question instead is simply whether this particular law, that grants 25 days of early voting, imposes significant burdens, then the answer is likely no; many states allow no early voting, so providing 25 days seems generous.Determining the proper baseline for analyzing the burdens on voters is particularly significant.  Using the prior election as a baseline would fill a hole left by last year’s decision gutting the protections of Section 5 of the Voting Rights Act, which had prevented election law changes that would have a “retrogressive” effect on minority voters.  That is, plaintiffs seeking to preserve robust federal court protection of minority voters’ rights in the wake of the Court’s Shelby County decision argue that “burden” in the constitutional test means “burdens as compared to the last election.”  Filling Section 5’s void presents a persuasive reason for the Court to incorporate the prior “retrogression” regime into the constitutional Anderson-Burdick “burdens” inquiry.Second, on the state interest prong, the Sixth Circuit put Ohio to the test to justify its law, requiring Ohio to actually demonstrate its interests with specificity, as opposed to forcing the plaintiffs to disprove the legitimacy of the state’s assertions.  As I show in a new paper, in recent years the Supreme Court has been too deferential to states in the interest prong of the constitutional analysis, approving any generalized assertion of “election integrity” to justify a voting regulation.  For instance, in the voter identification litigation from 2008 the Court credited Indiana’s argument that it needed its law to prevent voter fraud even though the state had no evidence whatsoever that Indiana elections were infected with in-person impersonation – the only kind of voter fraud an ID law would prevent.  The Court said that the state could justify its voting regulation simply by saying that its goal is “election integrity.”The Sixth Circuit, however, did not let Ohio say “election integrity” without more.  Ohio defended its law based on its concern of rooting out fraud, reducing cost, and achieving uniformity across the state in early voting.  Regarding fraud, the court found that eliminating Golden Week would not prevent any demonstrable fraud in the state’s elections.  Although a state has a legitimate interest in election integrity, “[t]his does not mean . . . that the State can, by merely asserting an interest in preventing voter fraud, establish that that interest outweighs a significant burden on voters.”  For cost, the state did not explain adequately how 35 days of early voting, including Golden Week, would create a significant cost burden, especially when counties successfully provided these opportunities in 2012.  And for uniformity, the court held that Ohio’s assertion was too abstract to outweigh the burden on voters.  In essence, the state was put to the burden of proving the veracity and need for the justifications it asserted.Ultimately, the Supreme Court’s decision on Ohio’s early voting rules will come down to how to analyze the burdens – both the burden on voters and the state’s burden in justifying its law.  There are strong reasons for the Court to use the prior election as a baseline for the burdens on voters, and to require states to justify its election regulations with specificity.  These twin facets of the Sixth Circuit’s opinion will help to amplify a robust understanding of the fundamental right to vote for all citizens.

Sixth Circuit denies death row appeal; points inmate towards clemency

Charles Krebs, KLJ Legal News Editor

Last week, the Sixth Circuit Court of Appeals made a plea to the Governor to consider clemency for a death row inmate after denying his arguments for relief through the courts.The unique aspect of this decision is the plea to the Governor that the court makes at the end of the opinion. The court systematically, in its analysis, denied relief to Gregory Esparza but in closing the court stated that “[t]oday’s decision is not necessarily the end of the road for Esparza. Among other things, he has the right to file a clemency application with the governor to reduce his sentence from death to life in prison. In light of the many uninvited difficulties in his childhood, this application may be worth a serious look.”Esparza murdered a woman, Melanie Gerschultz, while robbing a restaurant in Ohio of $110 in 1983. Esparza was sentenced to death in 1984 even after his lawyers had presented hundreds of pages documenting an incredibly difficult childhood full of beatings, burnings, abandonment, and more. The state appellate court and Supreme Court both affirmed the sentence on appeal and Esparza eventually filed a habeas petition in federal district court in 1996. This succeeded and was affirmed in 2002 by the Sixth Circuit, however it was reversed by the Supreme Court the next year. On remand, the district court rejected Esparza’s remaining arguments and allowed him to appeal that decision. Yesterday’s decision was a rejection of that appeal with the clemency plea offering a glimmer of hope for Esparza.So, what’s next for Esparza? If the recent pattern by current Ohio Governor John Kasich is any indication, clemency on humanitarian grounds is a likely possibility. Since 2011 Gov. Kasich has commuted five death sentences to life in prison without parole - that is the most by any governor in the same time period. All of the sentences that have been commuted have been in accordance with the 11-member Parole Board of Ohio’s recommendation. With a Governor, and parole board, that is willing to commute death sentences to life without parole, it seems that the Sixth Circuit’s recommendation that clemency be “worth a serious look” is a very likely possibility. It will be interesting to watch what happens with Gregory Esparza’s case and whether or not the Sixth Circuit’s plea helps his chances at being granted clemency.

How Many Judges Are There on the Sixth Circuit Bench?

Charles Krebs, KLJ Sixth Circuit Blogger

Today’s blog answers one deceivingly simple question: How many judges are there on the Sixth Circuit Court of Appeals?The answer, equally simple and yet equally deceiving, is 23.Why is that deceiving? Because technically there are only 16 spots on the court. The Sixth Circuit started with just two judgeships in 1891. Two increased to six over the next 50 years (by 1940). The number of judgeships held at six for 25 years but shot to 16 between 1966 and 1990. Sixteen is where it stands today. Fifteen of those 16 spots are currently filled.So why are there 23 judges currently serving on the court if there are only 16 judgeships? Well, that is because of another position on the court known as senior judge.What is a senior judge? Essentially, a senior judge is a judge who decides to retire but continue working. For a judge to assume senior status they must fulfill the “Rule of 80.” That means that their age (once 65) plus their years of service adds to 80. For example, a 65 year old judge who has given 15 years of service can take senior status, or a 70 year old judge with 10 year of service.A “senior status” judge receives the same salary in retirement as the other judges on the court as long as their work for a year is equal to the same amount of work that an active judge would do in three months. If they are not working in retirement enough to qualify for senior status the judge will receive the same salary in retirement as during their last year of active serivce.Once a judge assumes senior status the President is then able to appoint a new judge to fill in the new senior judge’s spot on the bench.In conclusion, there are only 16 spots on the Sixth Circuit bench, but because of the senior judge position there are actually eight more judges working and drawing equal salary as the active judges. This brings the total number of Sixth Circuit judges to 23.If you have any questions or comments about this post or other questions, send them my way and I’ll hopefully be able to research and write something answering your questions.

Uses and Abuses of Eminent Domain in the Commonwealth

Ben Monarch

Last October, energy industry firms began gauging interest within Kentucky for construction of a natural gas liquids (“NGL”) pipeline.FN1  Operating under the name Bluegrass Pipeline (“Pipeline”), the new Pipeline will span thirteen counties, and connect to an existing interstate NGL pipeline in western Kentucky.FN2  The purpose of the Pipeline is to transport approximately 300,000 NGL barrels per day from northern Appalachia to the Gulf Coast.FN3This commentary does not evaluate the numerous environmental, economic, political, and social issues associated with construction of an NGL pipeline.  Rather, this piece focuses on the ongoing effort by the Kentucky General Assembly to amend Kentucky’s eminent domain statute to prohibit its invocation in developing the Pipeline.FN4Pipeline construction requires easements.FN5 Because an easement right is negotiated and transferred privately the involved parties are typically pleased with the outcome.  In effect, easements readily illustrate the value and efficiency of free market transactions.However, the free market is not always availing.  If even one easement is unattainable, then implementation of a project can be stalled or terminated.  A major reason that easements become unattainable is the holdout problem; if numerous easements are needed and if a landowner waits until he/she is the last (or nearly last) landowner to grant an easement, then he/she can demand an above-market price for the right of easement.  This dilemma undermines efficient pricing and can make otherwise economically feasible projects infeasible.  To overcome this problem eminent domain is often exercised.FN6Many easements critical to the Pipeline have been obtained, but the holdout problem is emerging for the remainder.  Pipeline developers cite KRS 278.502 (eminent domain)FN7 as applicable here, and will invoke it as “a last resort.”FN8  Pipeline opponents bristle at this notion.In December an opponent group filed a declaratory judgment action in the Franklin Circuit Court pleading the court to rule the Pipeline ineligible for eminent domain.FN9  As of this writing, the court has not ruled on the motion.Elsewhere in Franklin County, the General Assembly is pursuing an “emergency” maneuver that may render moot any ruling by the court.FN10 The Senate Judiciary Committee is considering and the House Judiciary Committee has approved an amendment to KRS 278.502.FN11  If enacted, the amendment will preclude eminent domain as a means of building the Pipeline.FN12  The amendment is retroactive to last October—leaving little doubt that it targets the Pipeline.FN13Whether this legislative machination is viewed favorably or disfavorably is largely irrelevant; what is relevant, however, is the damaging precedent it establishes.  For Kentucky to attract economic activity it must be a state with reliable laws; not a state known for retroactively changing its statutes whenever the political winds turn.  Eminent domain may not always be the most equitable solution, but its commercial necessity and legal soundness are well established.  The General Assembly would be wise to handle this important constitutional and economic principle with care; otherwise the Commonwealth may pay dearly for such capriciousness.

FN1. Press Release, Williams, Bluegrass Pipeline Announces Open Season (Oct. 24, 2013), available at http://www.businesswire.com/news/home/20131024006381/en/Bluegrass-Pipeline-Announces-Open-Season#.UyEG-BZRgsQ.
FN2. Id.
FN3. Id.
FN4. Eminent domain is the constitutionally sanctioned taking of private property for “public use” in exchange for “fair compensation” to the party losing the property.  There are always legal questions related to whether a specific taking is within the scope of constitutional language.  Regardless of how these issues are resolved it does not undermine the historical significance of eminent domain in developing the modern United States; for example, the U.S. Interstate system would have likely been impossible without it.  See U.S. Const. amend. V, cl. 4.  See also infra notes 6, 9.
FN5. Fact Sheet, Bluegrass Pipeline, Acquiring Easement or Rights of Way, http://bluegrasspipeline.com/wp-content/uploads/2013/08/bluegrass-fact-sheet_acquiring-easements1.pdf, (last visited Mar. 12, 2914) (discussing that an easement grants the right to use another’s real estate for a specific purpose).
FN6. See Richard Posner, Economic Analysis of Law 70-71 (8th ed. 2011).
FN7. Ky. Rev. Stat. Ann. § 278.502 (West 2013) (eminent domain statute).
FN8. Greg Kocher, House Committee Approves Bill that would Keep Bluegrass Pipeline from Invoking Eminent Domain, Kentucky.Com (Feb 26, 2014), http://www.kentucky.com/2014/02/26/3109779/house-committee-approves-bill.html.
FN9. Complaint at 1, Kentuckians United to Restrain Eminent Domain v. Bluegrass Pipeline Co., LLC, No. 13-CI-1402 (Franklin Cir. Dec. 5, 2013).
FN10. H.B. 31, 2014 Gen. Assemb., Reg. Sess. (Ky. 2014); S.B. 21, 2014 Gen. Assembl., Reg. Sess. (Ky. 2014).
FN11. Supra note 7
FN12. Supra note 8.
FN13. Supra note 10.

The Secret Right to Hybrid Representation

Chas Rutledge

I learned something today. Unlike its federal counterpart the Kentucky Constitution entitles defendants to hybrid representation, a limited waiver of counsel in which the defendant acts as co-counsel with a licensed attorney. A recent defendant attempted to exercise this right by filing a motion against the wishes of his attorney. But in the words of the Kentucky Supreme Court the man was “mislead”:

Counsel explained that it was his ethical duty not to file the motions because he believed they were meritless. . . . Later in the hearing, the trial judge reiterated that Appellant's “only other choice,” if he wanted to file a pro se motion, was to represent himself. Appellant then offered the qualified response that “with this hearing” and “with this motion” he would take his chances representing himself. . . . Appellant's counsel interjected, informing the judge that Appellant could represent himself for purposes of this motion only. The judge responded that this was not an option and . . . [the] decision would mean that “you're going to be going all through this case without counsel.”

These false words of course violated the Kentucky Constitution, even if irrelevant rifts between client and counsel also contributed to the client’s decision to proceed pro se. Yet courts are interestingly not required to inform defendants of their right to hybrid representation. We might presume that this results in fewer frivolous motions. But if nobody knows about it then what's the point? Lawyers have an ethical duty to follow their clients’ objectives. True, the lawyer can choose a different strategy than the client desires. But if I have a client who, after counsel, insists on filing a motion, then I’m filing the motion, unless of course it conflicts with other ethical duties—the restrictions on filing frivolous actions, for example. After all, the alternative is ethically informing the client of his right to “hybrid representation” and having him file the motion himself. Either way, the lawyer loses and the client wins. Right?

"I do. Even in Kentucky." -- Gay Marriage Coming to the Commonwealth

Cassandra Tackett

This month, U.S. District Judge John G. Heyburn II gave gay couples throughout the state of Kentucky an early Valentines Day present to remember. On February 12th, 2014 Heyburn issued a ruling that same-sex marriages legally performed in other states must be recognized in Kentucky.  While a small step, it is certainly a victory in a state that has been so committed to ideas of traditional marriage.In 2004 Kentuckians had voted overwhelmingly in support of amending their state constitution to not only prevent gay marriages from occurring in the state, but to also deny recognition of same-sex marriages performed elsewhere.FN1  Four gay couples, legally married outside of Kentucky but now residing in the state, challenged the law. The plaintiffs alleged the law violated their constitutional rights under the Equal Protection Clause. Among the obvious dignitary and stigmatization concerns, they argued Kentucky’s law denied gay couples many of the same privileges that heterosexual couples enjoy, including access to the same health care and tax benefits.FN2A recent Supreme Court case, United States v. Windsor, had dealt with the same Equal Protection issue, but left the standard of review unclear.  A higher standard of review would only be appropriate if a fundamental right were involved, or if gay individuals qualify as suspect class, issues not outright addressed in the Windsor opinion.  Heyburn then turned to the Sixth Circuit for guidance. As the Sixth Circuit has refused to recognize gay individuals as a suspect class or to recognize the right to a same-sex marriage as a fundamental right, he determined rational basis review was appropriate. Interestingly, Heyburn’s opinion reads of disapproval, suggesting a higher standard of review would likely be adopted if the Sixth Circuit were to reconsider.FN3Despite such a deferential review to the government, the analysis turned in favor of forcing Kentucky to recognizing valid gay-marriages. Judge Heyburn ruled that these laws had no rational relation to a legitimate government purpose.  They merely treated same sex couples in a demeaning way for the purpose of upholding traditional values. He stated, “[i]n a democracy, the majority routinely enacts its own moral judgments as laws. Kentucky's citizens have done so here.”FN4 Choosing to no longer let the majority control the freedom of others by honoring laws that arbitrarily discriminate, Kentucky thus joined the rash of states following Windsor in overturning such laws. The question still remains after Bourke v. Beshear whether gay individuals will be able to marry in Kentucky, not just have their marriages honored there, but the tone of Heyburn’s decision seems to suggest such a change is well on its way.

FN1. Matt Pearce, Gay Marriage Coming to the South? Kentucky Ruling Chips Away at Ban, Los Angelles Times (Feb. 12, 2014, 12:16 PM), http://www.latimes.com/nation/nationnow/la-na-nn-kentucky-same-sex-marriage-20140212,0,6005147.story#axzz2tETvZ9Lk, K.Y. Const. § 233A.FN2. Bourke v. Beshear, 3:13-CV-750-H, 2014 WL 556729 at *1-3 (W.D. Ky. Feb. 12, 2014).FN3. Id. at *4.FN4. Id. at *6.

“Ain’t Nobody Got Time for That”: Probable Cause and the “Reasonable” Timing of Traffic Stops

Staci Miller

Recently, the Supreme Court of Kentucky held that a traffic stop stemming from the defendant running a red light that lasted almost two hours and resulted in the defendant being charged with drug-related offenses was “reasonable” under the circumstances.FN1 Now, it may not be immediately apparent why this holding is alarming, but the facts of this case and the relevant history should further sharpen the point.On April 16, 2009, Ms. Bucalo, along with her six-year-old son were moving from one hotel to a nearby hotel and enlisted the help of her friend Nicholas Duke.FN2As they left in separate cars, the police followed. Earlier in the week the police officers were alerted to the “suspicious” behavior of the parties, which included paying for their bill in cash and declining cleaning service.FN3 The owner of the hotel found this behavior to be indicative of criminal behavior and called the police.On the day in question, as the two parties left in their cars, one officer stayed behind to search the hotel room, finding no drug paraphernalia or residue in the room, he left the location.FN4 However, the officers following Bucalo and Duke witnessed the two cars run a red light and pulled the cars over individually. Although Bucalo declined to allow the officers to search her vehicle, Duke consented to a search of his car. In Duke’s car, the police found a pipe that contained drug residue.FN5 Duke claimed that the item belonged to Bucalo, as he was helping her move, and the officers turned their attention towards Bucalo and her vehicle.Shortly thereafter, one of the officers radioed for a K-9 Unit to come to the location to search Bucalo’s car. After adjusting to the new environment, the K-9 Unit’s dog (Barry) made no alerts to the exterior of Bucalo’s vehicle.FN6 In fact, it was not until the officer pointed to specific places within the car for Barry to sniff that Barry alerted that there were narcotics within the vehicle. The entire exercise lasted about an hour and forty-five minutes.FN7 As a result, Bucalo was charged with and entered a conditional plea to inter alia one count of manufacturing methamphetamine and two counts of first-degree possession of a controlled substance.FN8Despite the fact that there was no drug paraphernalia or residue found in the hotel room where Bucalo and Duke had been staying, the incriminating pipe was found in Duke’s car, the initial drug-sniff done by Barry did not result in an alert, and the entire stop, stemming from a traffic violation, lasted nearly two hours, the Kentucky Supreme Court ruled that the stop was supported by probable cause and “reasonable” under the circumstances. The Court used four factors to determine that the stop was both reasonable and “justified”.The first factor the Court used was the constitutionality of the traffic stop.FN9 Since both parties agreed that the officers had probable cause to stop the vehicles, after witnessing both vehicles run the red light, the Court held that the initial traffic stop was reasonable. Next, the Court looked to the length of the detention to determine whether the timing of the stop was reasonable. On this point, the Court found a previous decision,FN10 in which a detention time of ninety minutes was determined to be unconstitutional, to be controlling. The fact that “the period of detention lasted longer than that which is necessary to issue a basic traffic citation” rendered the stop for the traffic offense unconstitutionally excessive. Likewise, the Court ruled that the detention of Bucalo was “unduly prolonged beyond the appropriate time necessary to complete the purpose of the stop”.FN11However, the Court used the last two factors to redeem the validity of the search of Bucalo’s car. The third factor the Court considered was whether the officers had “reasonable and articulable suspicion”.FN12  This factor was extremely important in this decision because after the Court concluded that the stop exceeded its “reasonable time” requirement the officers were no longer justified in continuing to detain the defendant unless there was a reasonable suspicion that criminal activity had occurred or was going to occur. Here, the Court pointed to three factors that created a reasonable suspicion that a crime had occurred or was going to occur: 1) the call from the hotel management 2) Bucalo claiming that she was leaving one hotel to go to another one and 3) the drug paraphernalia in Duke’s car.FN13Interestingly though, as the dissent points outFN14, neither the first nor the second factor is inherently suspicious standing alone and even the third factor does not cast suspicion on Bucalo because the drug paraphernalia was not found on her or within her belongings!Still, the Court determined that the this circumstance created a “reasonable and articulable suspicion” such that the officers could continue to hold Ms. Bucalo beyond the extent necessary to issue her a traffic ticket for the traffic violation. Thus, the Court reasoned that the fourth factor, the length of the Terry stop, was reasonable as an extension of the investigation into the drug paraphernalia found in Duke’s car.FN15 The Court held that regardless of the fact that the entire search lasted an hour and forty-five minutes total, the fact that the K-9 Unit arrived within ten minutes of the initial stop, legitimized the entire length of the stop.Through this decision the Supreme Court of Kentucky has made clear that the existence of non-criminal “suspicious” behavior, a minor traffic offense, and drug paraphernalia being found in another’s car may give a police officer probable cause to hold an individual for up to two hours, even after their K-9 unit has not alerted to drugs on the individual car. The Court reached this conclusion despite the fact that the officers’ suspicions were not confirmed by a search of the hotel room and the officers lacked probable cause to search Bucalo’s car.  The Court’s ruling unfortunately encourages police officers to unconstitutionally detain citizens beyond the scope of their original purpose for stopping the party in order to search for anything that may be incriminating. This ruling effectively gives police officers unrestrained permission to detain and search a citizen until something incriminating is found. If you are not alarmed by this decision; you definitely should be, the next Bucalo could be you!FN1. Commonwealth v. Bucalo, No. 2012-SC-000123-DG, 2013 WL 6700112 (Ky. Dec. 19, 2013).FN2. Id. at *1.FN3. Id.FN4. Id.FN5. Id. at *2.FN6. Id.FN7. Id.FN8. Id.FN9. Id. at 3.FN10. Epps v. Commonwealth, 295 S.W.3d 807, 813 (Ky. 2009).FN11. Bucalo, No. 2012-SC-000123-DG, 2013 WL 6700112 at *4.FN12. Id.FN13. Id. at *5.FN14. Id. (Nobel, J. dissenting at *7).FN15. Id. at *6.

A Political Solution to a Political Problem: Public Accountability as a Check on Campaign Speech

Chris Carson

Voters, not judges, should be the final interpreters of political speech. Political statements use rhetorical language marked by vague phrases and ambiguous terms to communicate to voters. Political candidates promote their policies in broad strokes in order to meet the expectations of as many potential voters as possible. They evade specific commitments for fear that contradictions will face media backlash during campaigns. These campaigns hold candidates accountable for political mistakes and rhetorical misrepresentations. Seventeen states, however, have lost faith in the electoral process and have enacted statutes to threaten criminal punishment on anyone who “lies” during the course of campaigns.FN1 Susan B. Anthony List (“SBA List”), a non-profit organization, awaits Supreme Court review of its petition to challenge Ohio’s statute,FN2 which the petitioner argues violates its First Amendment right to free speech.FN3 This author agrees that political statements, even lies, are protected speech. To compliment this point, this blog post highlights the practical realities that should compel the Supreme Court to rule in the petitioner’s favor. In sum, the electoral process, not the judicial process, is the appropriate means to regulate political speech.Employing prosecutors to enforce campaign speech laws requires courts to determine “political truths.”FN4 Prosecutors’ decisions to investigate speech cases would be motivated by their own personal political beliefs. In U.S. v. Alvarez, the Supreme Court struck down the Stolen Valor Act of 2005 as an unconstitutional content-based limit on free speech because it imposed criminal liability on anyone who lied about receiving a U.S. military decoration.FN5 Such a broad prohibition of false speech applies to too many contexts like social, family, and other private communications where lies cause little harm.FN6 The Court also expressed concern that prosecution of false statements made in the political context, where lies may cause more harm, still risks “censorious selectivity by prosecutors.”FN7 If prosecutors would predictably enforce the laws in a biased manner, it follows that judges and juries could not answer the pertinent questions without first “adhering to a political decision already made.”FN8The goal of Ohio’s campaign speech law—arguably to pressure speakers to provide accurate information to voters—may be justifiable. Nevertheless, the electoral process achieves this goal in a much less burdensome manner. The Alvarez Court disagreed with the Government’s notion that criminal punishment was a proper means to prevent false claims of military achievement. False statements made in “the political arena” could lead “listeners to vote for the speaker,” but “criminal prosecution is particularly dangerous” because it could radically affect election outcomes and “result in censorship of speakers and their ideas.”FN9 Instead, the Court proposed, “an accurate, publicly available register of military awards, easily obtainable by political opponents”FN10 as a reasonable solution.When the Court hears SBA List v. Driehaus, it should look no further than the electoral process as a “public registry” solution. Campaigns provide the most appropriate public forum for politicians to be held accountable for their speech. They force politicians into the media spotlight through months of interviews, town hall meetings, and debates to answer for any misstatements or lies. In the end, the threat of losing an election, not incarceration, compels candidates to face the facts, albeit rhetorically.FN1.See Alaska Stat. Ann. § 15.13.095 (West 2010); Colo. Rev. Stat. § 1-13-109 (2012); Fla. Stat. Ann. § 104.271 (West 2008); La. Rev. Stat. Ann. § 18:1463 (West 2012); Mass. Gen. Laws Ann. ch. 56, § 42 (West 2001); Minn. Stat. Ann. § 211B.06 (West 2010); Miss. Code Ann. § 23-15-875 (West 2007); N.C. Gen. Stat. § 163-274(A)(8) (2011); N.D. Cent. Code § 16.1-10-04 (West 2007); Ohio Rev. Code Ann. § 3517.21 (LexisNexis 2012); Or. Rev. Stat. Ann. § 260.532 (West 2009); S.D. Codified Laws § 12-13-16 (2004 & Supp. 2012); Tenn. Code Ann. § 2-19-142 (2003); Utah Code Ann. § 20a-11-1103 (LexisNexis 2010); Wash. Rev. Code Ann. § 42.17a.335 (West 2012); W. Va. Code Ann. § 3-8-11 (LexisNexis 2011); Wis. Stat. Ann. § 12.05 (West 2004).FN2. Ohio’s law criminalizes “knowingly and with intent to affect the outcome” of a campaign to make a “false statement concerning the voting record of a candidate or public official . . . .” Ohio Rev. Code Ann. § 3517.21(B)(9) (LexisNexis 2012). It also prohibits disseminating “a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” Id. at § 3517.21(B)(10).FN3. Susan B. Anthony List v. Driehaus, 525 Fed. Appx. 415 (6th Cir. 2013), cert. granted, 134 S.Ct. 895 (2014) (No. 13-193).FN4. Susan B. Anthony List v. Driehaus, 2013 WL 308748 (S.D. Ohio 2013) (holding, as a matter of law, falsely stating that a candidate “voted for taxpayer-funded abortions” amounts to falsely “associating a political candidate with a mainstream political position” and does not constitute defamation).FN5. U.S. v. Alvarez, 132 S.Ct. 2537, 2548 (2012) (holding that criminal liability for lying about receiving an award or decoration from the U.S. Armed Forces constitutes an unconstitutional abridgement of the First Amendment freedom of speech because it is tantamount to criminalizing every day spoken untruths).FN6. Id. at 2555 (Breyer, J., concurring).FN7. Id.FN8. Baker v. Carr, 369 U.S. 186, 217 (1962) (holding that the equal protection clause of the Fourteenth Amendment provides a nonpolitical basis for independent judicial review of malapportioned state legislative districts, despite the inherently political nature of redistricting).FN9. Alvarez, at 2555 (Breyer, J., concurring).FN10. Id. at 2556 (Breyer, J., concurring), citing Id. at 2550-51 (plurality).

Liar Liar Pants on Fire: Ohio's "False Statement" Law

Todd Weatherholt

Let’s be honest, there is a portion of our society that is what you would call not “voter savvy”. Sure, they attempt to keep current with local, state, and national news by reading the paper or watching television, yet we all know the potential bias these sources contain. Additionally, around election season, these sources are flooded with political campaign advertisements either idolizing or criticizing a particular candidate.Some of these claims have merit, some recite half-truths or take comments out of context, and even worse others are complete fabrications aimed at tarnishing a candidate’s record and good name. Those aforementioned uneducated voters tend to take these advertisements at their word, without performing independent research about the issues or candidate’s political history. While this is an unfortunate scenario, a recently decided Sixth Circuit case that has been granted certiorariFN1 has the potential to impact this area of law greatly.The case, Susan B. Anthony List v. Driehaus, involves three highly controversially issues; abortion, free speech, and yes even everybody’s newly cemented favorite, Obamacare. The facts of this case are fairly straightforward. Two organizations, SBA List and Coalition Opposed to Additional Spending & Tax Cuts (COAST), in the build up to the 2010 election, wanted to inform voters in then Congressman Steve Driehaus’s district about his vote in favor of the Affordable Care Act.FN2 They opposed this piece of legislation because they believed that it permitted taxpayer-funded abortions.FN3 SBA List planned to put a billboard up that was supposed to read “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion,” but it was never accomplished.FN4 Likewise, COAST planned to distribute flyers with similar information.FN5 Driehaus filed a complaint with the Ohio Elections Commission, which under state law possessed the authority to criminalize false political speech, against SBA List claiming that the advertisement violated the Ohio's false-statement statute.FN6 Before the commission could hear the case, SBA List filed for declaratory and injunctive relief in federal district court, arguing that its “speech was chilled”.FN7 The district court consolidated both of these organizations claims and subsequently granted the defendant’s motion to dismiss - finding that the matter was not ripe and that the organizations possessed insufficient standing.FN8 The Sixth Circuit affirmed the decision.Currently, this case is about standing and ripeness challenges, but both issues lack that sort of allure desired and their requirements can be easily manipulated. However, if the SCOTUS finds that these organizations have the requisite requirements to challenge the law, then this case may have substantial effects in determining whether false campaign speech can be regulated by the states. But, regulation of this type of speech should be viewed as unconstitutional.Like Ohio, nearly two-thirds of the states have laws that prohibit false statements in political campaigns.FN9 But what exactly is a false statement in the political context? Clearly, with this case as evidence, a false statement is not as easily distinguishable as it would appear. Does Obamacare provide for tax-benefits for abortions? Some organizations would answer this question in the affirmative, while others would emphatically deny this claim. As James Hardiman, Ohio Legal Director of the American Civil Liberties Union said, “Speech is rarely black and white – oftentimes whether a statement is true or false may be a matter of opinion.”FN10 Additionally, is it adequate to leave this determination to an appointed election commission or judge?Even if political speech can correctly be labeled false, based on SCOTUS precedent, it appears that purely false speech is a protected category under the First Amendment.FN11 Political speech is a fundamental right and its usefulness greatly outweighs the inherit dangers it contains. While it may be argued that states have a compelling interest in protecting the integrity of their elections, it should not be through the use of controlling campaign speech. Other actions are available to politicians such as responding to the allegations, filing defamations suits, or even doing nothing. It is important to keep in mind that politicians have put themselves in the limelight and therefore have availed themselves to public scrutiny.FN1. Susan B. Anthony List v. Driehaus, 525 Fed.App’x. 415 (6th Cir. 2013), cert. granted, 82 U.S.L.W. 3094 (U.S. Jan. 10, 2014) (No. 13–193).FN2. Susan B. Anthony List v. Driehaus, 525 Fed.App’x. 415, 417 (6th Cir. 2013).FN3. Id.FN4. Id.FN5. Id.at 418.FN6. Id. at 417.FN7. SBA List, 525 Fed App’x at 417.FN8. Id.FN9. Sabrina Eaton, Should politicians have the right to lie? U.S. Supreme Court could decide in Ohio case, Cleveland Plain Dealer, Jan. 22, 2014, http://www.cleveland.com/open/index.ssf/2014/01/us_supreme_court_case_fr....FN10. Id.FN11. See United States v. Alvarez, 132 S. Ct. 2537, 2551 (2012).

Paying Off Student Debt Not a Business Expense

Charles Krebs

Unfortunately for professionals paying off student loan debt, their payments cannot be claimed as a business expense deduction on their taxes according to the Sixth Circuit Court of Appeals.The court ruled Wednesday that student loans cannot be deducted as a “business expense” on personal income tax statements. Instead, they are to be classified as “personal expenses”.FN1Tripp Dargie accumulated $73,000 in medical school debt in Tennessee and after graduating paid $121,440 to satisfy the loan (compound interest can really hurt). In an effort to lower his income tax liability from the previous year, he tried to amend his tax return and write off the loan repayment as a business expense. The I.R.S. blocked this strategy, which precipitated Mr. Dargie’s lawsuit.FN2Judge Siler of the Sixth Circuit held that Mr. Dargie was unable to prove by a preponderance of the evidence that he was entitled to a refund. Judge Siler specifically stated that “ the payment . . . does not qualify as a deduction because educational expenses that allow an individual to meet the minimum requirements for practicing a given profession are personal.”FN3 More simply, the loan money enabled him to become a doctor, therefore it is a personal expense and not a business one.The decision is especially relevant in 2014 with over $1 trillion of outstanding student loan debt in America. Nearly 20% of that debt which is currently due is delinquent and 10% of loans that became due in 2011 were in default only two years later (default: no payments made in nearly a year).FN4Today almost everyone reading this has had experience with student loan debt, so we have to ask, should Tripp Dargie, and every other student turned professional, be given the tax benefit of being able to deduct loan payments as business expenses? Should the current tax policy highlighted by Judge Siler and the Sixth Circuit be reversed in order to reward students who increase their income because of the loan and pursuant education received? What about the further incentive to pay off loans in order to minimize tax liability right out of law school? What do you think? Let us know below - leave a comment.

FN1 - Dargie v. United States, Nos. 13-5608, 2014 WL 443439 (6th Cir. Feb. 5, 2014)FN2 - Id. at *1FN3 - Id. at *2FN4 -  Josh Mitchell, Student Loan Debt Slows Recovery, Wall St. J. Economics Blog (Dec. 30, 2013, 10:34 AM), http://blogs.wsj.com/economics/2013/12/30/student-loan-debt-slows-recove...

Kentucky's Felons May Enter into the Pool of Eligible Voters in 2014

Michael Hill

In the 2012 presidential election, only 57.5% of eligible voters in the United States cast a ballot. In the Kentucky General Election the same year, 59.7% of eligible Kentucky voters went to the polls. That’s slightly better than the national presidential voter turnout, but nevertheless about 4 out of every 10 Kentuckians decided they would rather stay home than exercise one of their fundamental civil rights. Perhaps many take the right to vote for granted. Maybe it’s one of those “you don’t know what you’ve got until it’s gone” type of things. That could be especially true for felons in Kentucky.Kentucky currently imposes a lifetime voting ban on convicted felons. It is part of a distinct minority of only two states in the entire country that bar all felons from voting, regardless of the type of crime, even after the completion of their sentence. Put simply, if you commit a felony in the Bluegrass State, you are automatically stripped of your right to vote, for life.This policy, known as felony disenfranchisement, has an enormous impact on the pool of eligible voters in Kentucky. More than 180,000 Kentucky residents are currently barred from voting due to felony convictions. Approximately 69% of those disenfranchised have fully completed their sentences, meaning that in all other states but one, those citizens would have already had their right to vote restored. The impact is acute, but also disparate. Kentucky has the second highest rate of African-American disenfranchisement in the nation: almost one in four African-Americans in Kentucky are ineligible to vote due to this policy.The only way a person convicted of a felony may regain the right to vote in Kentucky is by petitioning for an executive pardon from the Governor. This requires the submission of a rather ominous sounding “Application for Restoration of Civil Rights,” which the Governor must approve. As the application itself notes, a felon who registers to vote prior to receiving an official restoration of their civil rights faces up to five years in prison.A felony conviction is certainly not something to be taken lightly. But neither is a lifelong punishment. Comparatively, Kentucky’s current policy treats felons far more harshly than nearly every other state in the union. Kentucky is one of 48 states that do not allow incarcerated individuals to vote. However, Kentucky and Virginia are the only states that continue the voting ban beyond the end of a felon’s sentence.The policy has been quite firmly entrenched in Kentucky. §145 of the Kentucky Constitution expressly prohibits any person convicted of a felony from voting. Thus, a change in the Kentucky rule on felony disenfranchisement would require a constitutional amendment. The process to amend the Kentucky constitution begins with a legislative proposal. If a three-fifths majority of each House approves the proposal, it is placed on the ballot in the next general election during which members of the state legislature are up for election. If the proposed amendment is approved by a simple majority of voters, the amendment takes effect.Representative Jesse Crenshaw (D-Lexington) often begins the process by annually submitting a proposed constitutional amendment that would restore the voting rights of certain felons convicted of nonviolent and nonsexual crimes. Crenshaw’s proposed amendment would not restore voting rights for felons convicted of intentional murder, rape, sodomy or sex offenses with a minor. Such felons would still have to petition the Governor. Each session the proposal fails to get the required three-fifths approval of the state Senate.However, 2014 could be a different story, as the proposal now has a new supporter- Senator Rand Paul. This year’s version of Representative Crenshaw’s proposal passed the state House on January 16th with an 82-12 margin. Backed by Paul, the proposal is showing signs of life in the Senate. "The right to vote is a sacred one in our country and it is the very foundation of our republic," said Paul. “I urge the Kentucky Senate to act on this very important issue.”Rather interestingly, a 2002 study estimated that Senator Paul’s counterpart, Mitch McConnell, might not have been elected to the United States Senate if Kentucky automatically reinstated voting rights for felons upon completion of their sentences. In their article in the American Sociological Review, Uggen and Manza pointed out that ex-felons are far more likely to vote for a Democratic candidate and therefore argued that McConnell may have lost the close 1984 election if ex-felons were permitted to vote. Uggen and Manza point out that McConnell won in 1984 by only 5,269 votes, which is less than one half the number of Democratic votes the authors estimate were lost in Kentucky to disenfranchisement that year.On the other hand, another more recent study suggests the effect would not have been as dramatic in other elections. A 2009 study clearly demonstrated that full participation by felon disenfranchisees would not have altered the outcome of the 2008 senatorial election in Kentucky. This study concluded, “Political concerns about disenfranchisees having significant, sizable effects on election outcomes are unfounded. While very close elections could be swayed by the votes of currently disenfranchised persons, this is likely to occur in only very rare instances.”Perhaps one of those “rare instances” is on the horizon, as McConnell prepares to defend his seat against Democratic challenger Allison Lundergan Grimes. While a change in the law would not affect this election cycle, the tightness of the race could remind Republican lawmakers that a change in Kentucky’s felony disenfranchisement policy would not benefit their party on Election Day.Regardless of the election consequences, the Kentucky Senate appears more open to the proposed amendment this year. Senate Majority Leader Damon Thayer floated the idea of possible success, stating, “This may just be an issue whose time has come, with a few minor changes, if people are willing to compromise.” Thayer elaborated that he doesn’t support the proposal in its current form, but raised the possibility of changing the proposal to include a waiting period between the end of a felon’s sentence and the restoration of voting rights. Thayer also revealed that the Senate might hold a hearing on the Bill.A Senate hearing would likely feature vigorous arguments from critics of Kentucky’s harsh brand of felony disenfranchisement. The ACLU of Kentucky, The League of Women Voters of Kentucky and other groups point out that permanent felony disenfranchisement hinders rehabilitation. As felons attempt to rejoin society, the lifelong voting restriction lingers on as an “invisible punishment.” Furthermore, research indicates that felons who have their voting rights restored have lower recidivism rates. Perhaps by denying voting rights permanently, the State perpetuates a feeling among felons that they are unwelcome as they attempt to reform. Arguably, reinstating the right to vote would encourage at least some ex-felons to refrain from re-offending.Critics of Kentucky’s current policy are quick to point out that the vast majority of states have adopted a different stance on this issue. While that should be taken into account, it does not necessarily mean that Kentucky must follow suit. There is no need for change simply because Kentucky is part of a minority. But the trend is undeniable. While felony disenfranchisement has its roots in ancient Greece and Rome, was carried from Great Britain to the Colonies and expanded following the Civil War, over the last decade almost every state has abandoned disenfranchisement following the completion of a felony sentence. The fact that so many other states have opted to scale back their felony disenfranchisement policies should spur Kentucky to seriously assess this issue, no matter the outcome. Do those who commit felonies forfeit the right to vote, period? Have they given up that right because of their actions? Or, should some felons’ voting rights be restored after they have paid their debt to society? Is there a better alternative that isn’t currently on the table? Is a post-sentence waiting period a valid compromise?This is not a debate centered on job reports, the GDP, healthcare or other topics clouded by easily manipulated statistics. Paul has admirably crossed party lines to support a proposal that typically fails in the Republican controlled state Senate, demonstrating that this issue need not be decided along partisan lines. This is a question about fundamental civil rights. It is a relatively straightforward issue on which nearly every person in the Commonwealth is able to form his or her own opinion. I simply urge Kentuckians to evaluate their own feelings on the matter, one way or another, as they may be called upon to weigh in sooner rather than later.

Public Schools for Rent?

Kevin Havelda

I’m sure Bill de Blasio, the newly elected Democratic mayor of New York City, has lots of friends. You don’t win the election of the most populous city in America without being a little poplar. I doubt very much, however, if any of these friends are comprised of any of the city’s charter school network. After his campaign, one in which he waged war on the city’s charter schools, he will probably not be receiving many Christmas cards from the thousands of charter school students, parents, and staff that he is trying to put out of a job.One very interesting issue raised in this recent campaign, and one that Kentucky ought to consider,FN1 is whether or not these charter schools should be located in free public buildings as other traditional public schools (“TPS”) are. In his campaign, de Blasio said that he would stop offering the city’s 183 charter schools free rent, a policy that has helped turn New York into one of the most vibrant hubs for charter schools in the country.FN2 This announcement caused several thousands in the charter school community to walk across the Brooklyn Bridge to City Hall to protest against this promise this past October.Charter schools, often managed by nonprofit groups, receive public funding but operate independently of the school system and have more freedom in deciding scheduling, staffing and curriculum. In the 1999-2000 school year, there were roughly 340,000 students enrolled in public charter schools.FN3 By the end of the 2010-11 school year, there were 1.8 million.FN4 Charter schools now comprise 5% of all public schools in the United States.FN5 Again, while this is not Kentucky’s problem yet, it probably will be some day soon. A look to our history helps shed some light on how this little rental plan would likely play out.In perhaps the most famous case that defined education as a fundamental right, the Kentucky Supreme Court in Rose v. Council for Better Education, Inc.FN6 held that the Kentucky system of common public schooling (created by the General Assembly) was constitutionally deficient. It is unlikely that the state supreme court would distinguish between charter schools and TPS in their definition of “common schools.”  Our state constitution provides explicitly that the General Assembly of the State “shall, by appropriate legislation, provide for an efficient system of common schools throughout the State.”FN7 As Rose pointed out, one of the fundamental requirements of this system of public schools is that is must be free to its students. Students cannot be charged tuition or any other kind of fee to attend them. Charging a school rent would be the equivalent of charging its students tuition, since the money allocated for the school expenditure would have to increase dramatically in order to still provide all the services to its students that it provides. That is de Blasio’s plan: to treat some public schools are free, and others as those owing rent checks. Treating public schools differently is contrary to the holding in Rose.Yet, this is precisely what de Blasio intends. Appearing to make good on his campaign promise, some $210 million that had previously been earmarked to develop charter schools has now been diverted into a pre-kindergarten program at the behest of the mayor. While the charter school community was outraged (and may go so far as to spend another day walking down another bridge to get his attention, the Manhattan, perhaps?), no one in the de Blasio camp could be reached for comment. Many parents are angry over what feels like the mayor playing political bingo with their children’s futures. It begs the question, what would happen in Kentucky?Charter schools have already (surprisingly) become a very polarizing political issue in the Commonwealth. In a stunning display of absolutely no nuance, teachers’ unions are siding against charter schools, while the biggest proponents seem to be conservative, Tea Party groups favoring school choice.FN8 Yet, to avoid the tsunamis that accompany the whims of those in charge, perhaps the best view of charter schools the Commonwealth could adopt is the nuanced view. That charter schools, while categorically public, are fundamentally different, and should be treated as such. How they are financed will impact their success in this state. What lessons the General Assembly can glean from this recent political chess game in New York remains to be seen. I’d be careful, Assemblymen and women: the bridges in Frankfort aren’t as big as those in NYC, and it is doubtful they can support its 670,000 public school students. Planning ahead now would be the wisest course of action.FN1. Kentucky is only one of the last eleven states in the nation that do not currently allow charter schools, though recent political debates over the issue indicate that charter chool legislation is in our near future. National Center for Education Statistics, Charter School Enrollment, (Jan. 28, 2014, 12:52 PM), http://nces.ed.gov/programs/coe/indicator_cgb.asp.FN2. Javier C. Hernandéz, City’s Charter Schools Fear having de Blasio as a Landlord, NY Times Online, http://www.nytimes.com/2013/10/09/nyregion/charter-schools-fear-having-d... landlord.html?_r=0&adxnnl=1&pagewanted=2&adxnnlx=1391443593-IpgB9e9V/wfT1Q/B1L7qZwFN3. National Center for Education Statistics, Charter School Enrollment, (Jan. 24, 2014, 8:22 AM), http://nces.ed.gov/programs/coe/indicator_cgb.asp.FN4. Id.FN5. Id.FN6. Rose v. Council for Better Educ., Inc. 790 S.W.2d 186 (Ky. 1989).FN7. KY Const § 183.FN8. It’s worth noting that when I attended a debate over charter schools led by KEA spokespersons and a certain Republican Assemblyman advocating for charter schools, neither one had ever heard of the name KIPP, Uncommon Schools, Achievement First, or even Wendy Kopp (former CEO and founder of Teach For America).

Equal Protection Post Pic-Pac

Katie Beyer

Equal Protection seems like a simple legal concept, stemming from post-Civil War sentiments that all men are created equal, deserve equal rights, and should be treated with equal respect under the law. Found in the Fourteenth Amendment, the Equal Protection Clause governs to all states, as it applies the Bill of Rights to state law.FN1 Although this Clause protects to all citizens and provides a Constitutionally secured right, its enforcement has proved to be one of the most divisive and contentious Constitutional law topics since its inception. The facets and subtleties of the meaning of the clause continue to change as our society confronts new social problems and issues that challenge the traditional notions of Equal Protection. Currently, there is incongruent jurisprudence on the topic, and Kentucky will confront and clarify these inconsistencies in the future as the meaning of Equal Protection increasingly expands.On January 15, 2014 the Sixth Circuit decided Maxwell's Pic-Pac, Inc. v. Dehner, ruling the Kentucky liquor laws, which ban the sale of high-content alcohol in grocery stores and gas stations, constitutional under equal protection.FN2 These laws provide for the discrimination between “grocery stores” and “gas stations,” which cannot sell liquor and wine, and other alcohol retailers that do not sell staple groceries and gas, which can sell beer, liquor, and wine.FN3 This take on equal protection, however, is complicated by the recent Supreme Court decision, U.S. v. Windsor, in which the Court struck down the Defense of Marriage Act (DOMA) and the ban on same-sex marriages.FN4 The Court found DOMA to be unconstitutional under the Equal Protection Clause,FN5 which could mean big changes for Kentucky, as the Kentucky Constitution currently states “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”FN6The current inconsistency with Kentucky Equal Protection jurisprudence is that discrimination between types of alcohol retailers is permitted in the Sixth Circuit, but discriminatory treatment of same-sex couples who wish to marry is not permitted under Windsor. Based on the reasoning in Windsor, the Pic-Pac case may have been wrongly decided.The Windsor Court refrained from using the traditional “rational-basis” test,FN7 which determines if the legislation in question is “rationally related to a legitimate state interest.”FN8 Instead, the Court decided that there was no legitimate interest in the law that could overcome its effect of disparaging and degrading those in same-sex relationships by refusing them marriage, thereby treating them with less respect than others in relationships who can marry. The Court found that there truly is “no legitimate purpose” for DOMA, despite the Dissent pointing out “many perfectly valid—indeed, downright boring—justifying rationales for this legislation.”FN9 In Pic-Pac, the Sixth Circuit decided that the ban on liquor sales in grocery stores and gas stations based on Prohibition-era rationales, such as reducing access to products with high-alcohol content and protecting abstinent citizens who wish to avoid retailers that sell these drinks. These “legitimate state interests” were enough for the Sixth Circuit to find that the legislation is rationally related to the valid interests of the states and therefore Constitutional under Equal Protection.FN10But, both Courts seem to be taking an opposite stance on related and similar issues. In Windsor the Court decided that a ban on marriage for same-sex couples was degrading because had the effect of shaming those who took part in these “invalid” unions. In Pic-Pac, it seems that legislation that prevents alcohol sales in well-traveled places like grocery stores and gas stations has the same effect. It siphons-off the non-abstaining part of the population and forces them to go into separate stores. It has the same effect of shaming that DOMA had. The liquor law forces non-abstainers into different establishments, thus publically confirming their indulgence, which may not be acceptable in certain parts of the state; while, on the other hand, protecting those that do abstain from the alcohol they do not want to see or interact with. It seems as though the liquor law harms more than just the retailers, but the general public as well because the law protects the abstainers, while harming or restricting access to the non-abstainers.Even though there may be some “rational” state interests in upholding the liquor laws to reduce access, just as though there may have been some “rational” state interests in preserving traditional marriage unions, the Windsor Court thought that the degrading nature of the law outweighed the potential benefits. A new look at Kentucky’s liquor law might yield the same result. Perhaps forcing non-abstainers into separate establishments for alcohol while protecting abstainers’ enticement-free shopping is similar not only to the degradation found in DOMA but also to segregation laws from the early 20th Century. The Commonwealth and Sixth Circuit should recognize, particularly in the wake of Windsor, that the liquor laws are indeed unconstitutional under Equal Protection, as they sacrifice the protection of one group for preserving the morality of another.

FN1. U.S. Const. amend. XIV, § 1.FN2. Maxwell's Pic-Pac, Inc. v. Dehner, 12-6056, 2014 WL 128129, at *7 (6th Cir. Jan. 15, 2014).FN3. Id. at *4.FN4. U.S. v. Windsor, 133 S. Ct. 2675 (2013).FN5. Id. at 2680.FN6. Ky. Const. § 233A.FN7. Windsor, 133 S. Ct. at 2696.FN8. Pic-Pac, 2014 WL 128129, at *5.FN9. Windsor, 133 S. Ct. at 2696, 2707.FN10. Pic-Pac, 2014 WL 128129, at *7.