Kentucky Supreme Court Roundup, May 2015: Fraternity Houses Receive the Same Protection as Private Residences

The Kentucky Supreme Court ruled that a fraternity house receives the same Fourth Amendment protection as any other private residence...

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"So, I Have This Friend..."

John Osborn IV, KLJ Staff Editor[1]

*The following is for informational purposes only and is not to be construed as legal advice.*

I used to work with a certain individual who had a “friend” who always seemed to be getting into some kind of legal trouble.  Knowing that I was in law school, this individual would often try to squeeze any legal advice out of me if he could, although he was generally unsuccessful.  However, on the rare occasion I did acquiesce (only after throwing out all of the appropriate caveats of “I’m not a lawyer,” and the like) I would try to tell this individual (so he could inform his “friend”) what the state of the law was as I understood it.Although many of the matters were criminal in nature, he did present one civil issue that I thought was interesting.  Apparently, my co-worker’s “friend” had recently purchased two luxury watches from a professional jeweler for around $10,000—we will call them “Folexes.”  The jeweler, whom had appraised the watches himself, had provided the friend with documentation stating that the two watches were genuine Folexes and were a “steal” at that price.” Little did the friend know the truth behind these words, as, unfortunately, due to a combination of the friend’s big mouth and a tendency to hang around unsavory characters, his two new Folex watches were stolen within a week.However, a few weeks after the theft, the friend received a phone call from the police that the watches had resurfaced at a local pawnshop.  Normally the friend would have been ecstatic, however, when he went to retrieve the watches, the pawnshop informed him that the Folexes were not genuine Folexes, and that any “professional” jeweler would clearly have known these were fake.  The watches, based on their melt value, were worth at best $1,000 for both.The question my co-worker had (on behalf of his “friend”) then was “can my friend sue the jeweler who sold him the watches?”  Of course, the immediate answer is “yes” because you can sue just about any one over anything.  However, the deeper issue would be (assuming the jeweler is not willing to accept a return for the watches) what do you sue for and what can you recover in a situation like this?My co-worker’s “friend” has several avenues to choose from as far as recovery goes.  He might consider suing under a basic theory of fraud or breach of warranty.  With fraud, the friend would argue that the jeweler made a fraudulent misrepresentation, [2] while with breach of warranty, the friend would argue that the jeweler made an affirmation of fact upon which he relied in making the purchase. [3]  Under a theory of fraud, the friend could recover “compensatory damages (likely expectations damages), plus all reasonable investigation and litigation expenses including attorneys’ fees where appropriate.”[4] However, under a warranty theory, the friend will likely be limited to expectation damages, or the difference between the watches as promised or represented ($10,000), and the actual value ($1,000), equaling an award of $9000.[5]Although the friend should not have any problems establishing common law fraud or breach of warranty, another vehicle of recovery available to him is the Kentucky Consumer Protection Act (KCPA).[6]   When suing for a violation of the KCPA, a plaintiff need only prove that the seller engaged in “unfair, false, misleading or deceptive acts or practices in the conduct of any trade or commerce.”[7] Moreover, under the KCPA, in addition to actual damages, the plaintiff may be able to recover punitive damages[8] and even attorney’s fees.[9]In short, my co-worker’s “friend” could probably sue the jeweler under several different theories, but the KCPA offers the easiest road to recovery and the best chance for him to be fairly compensated for the ordeal.  Hopefully, this experience will teach my co-worker’s “friend” to be more careful when making expensive purchases; however, I harbor doubts that he will do so . . .

[1]  J.D. expected 2016.
[2] See Waldridge v. Homeservices of Ky., Inc. 384 S.W.3d 165, 171 (Ky. Ct. App. 2011).
[3] U.C.C. § 2-313 (West, current through 2014 annual meetings of the National Conference of Commissioner on Uniform State Laws and American Law Institute).
[4] Gibson v. Ky. Farm Bureau Mut. Ins. Co., 328 S.W.3d 195, 205 (Ky. Ct. App. 2010).
[5] See Ky. Rev. Stat. Ann. § 355.2-714(2) (West, current through the end of the 2015 regular session).
[6] See Ky. Rev. Stat. Ann. § 367.220(1) (West, current through the end of the 2015 regular session).
[7] Ky. Rev. Stat. Ann. § 367.170 (West, current through the end of the 2015 regular session).
[8] See Ky. Rev. Stat. Ann. § 367.220(1) (West, current through the end of the 2015 regular session).
[9] See Alexander v. S & M Motors, Inc., 28 S.W.3d 303, 305 (Ky. 2000); see also Ky. Rev. Stat. Ann. § 367.220(3) (West, current through the end of the 2015 regular session).

A Brief History of Religious Freedom Restoration Acts

Kevin Nathaniel Troy Fowler, KLJ Staff Editor

In the last few weeks the state of Indiana has taken a pointed drubbing over state Senate Bill 101.1 The Bill was comparable to other federal and state law(s) aimed at exempting actors, ranging from humans to business entities, from compliance with laws that hamper the free exercise of religion. Such laws, colloquially known as Religious Freedom Restoration Acts (RFRA(s)), generally place a burden on the government to show that the religion-burdening law serves a compelling interest, and that the law is narrowly tailored towards achieving that interest. Opponents of the law include several prominent industry leaders such as Apple Inc. CEO Tim Cook2 and construction machinery enthusiast Miley Cyrus.3 Such challengers have come down hard against Indiana’s RFRA, contending that it provides bigots with a legal means of discriminating on the basis of sexual orientation under the guise of religious freedom. On the other hand its supporters, including Indiana Governor Mike Pence, have defensively retorted that the Indiana law has been grossly misconstrued and is based on a much less invidious purpose.  Neither side, however, has adequately addressed or explained the precedent and case law that gave rise to the Federal RFRA, nor in turn the plethora of State RFRAs that followed.Ground Zero of RFRAs is a case called Sherbert v. Verner.4 In 1963, the Highest Court in the Land considered Adell Sherbert’s claim that her exercise of religion had been violated. Sherbert was a textile-mill operator, and also a member of the Seventh-day Adventist Church. After several years on the job, her employer implemented a new policy which required Sherbert to come in on Saturdays. As this violated her religion, Sherbert refused to come to work on one particular Saturday, and was subsequently fired. After a meaningful job search which led to the realization that the task of obtaining another means to live by would be no scoop of ice cream, Sherbert filed for unemployment benefits which were denied because she had failed to accept “suitable work when offered”.5 In finding that the denial of unemployment benefits had violated Sherbert’s exercise of religion, the Court enunciated what is now the heart of all RFRA legislation: a law burdening the free exercise of religion must serve a compelling government interest, and the law must be narrowly tailored to achieving that interest.6For nearly two decades this was the standard for religiously burdensome laws, with the Supreme Court reaffirming Sherbert in a 1972 case called Wisconsin v. Yoder.7 That came to an abrupt end in 1990, when the Supreme Court decided Employment Division v. Smith.8 In Smith, two Native Americans had been fired for participating in a religious ritual that involved the use of peyote, an illegal drug. Similar to Sherbert, the two people sought unemployment benefits, and similarly, they were denied (essentially because they had lost their jobs for committing a crime). In changing course from the precedent established in Sherbert and reaffirmed by Yoder, the Supreme Court found that the denial of unemployment benefits in this case did not warrant strict scrutiny, and that "neutral law(s) of general applicability"9 not directly targeting the exercise of religion cannot be circumvented by claiming a religious exception.As a result, in 1993, Congress passed the Religious Freedom and Restoration Act, explicitly reestablishing the Sherbert and Yoder standard.10 In City of Boerne v. Flores,11 the Court held the Federal RFRA was inapplicable to the states, which has prompted at least 31 states to enact or adopt their own RFRA requirement.12 Knowing this contextual background of RFRA legislation is important to understanding its future developments, such as Indiana’s RFRA, as well as the discourse that may engulf it.

1 Editorial, Gov. Pence, Fix 'Religious Freedom' Law Now, Indianapolis Star, Mar. 31, 2015, at A1.
2 Tim Cook: Apple Will Oppose Bills like Indiana’s ‘Religious Freedom’ Law, NBC News, (Mar. 29, 2015), http://www.nbcnews.com/news/us-news/tim-cook-apple-will-oppose-states-bills-indianas-religious-freedom-n332316.
3 See Daniel Kreps, Miley Cyrus Promises ‘New Rights Movement’ After Controversial Indiana Law, Rolling Stone (April 1, 2015), http://www.rollingstone.com/culture/news/miley-cyrus-promises-new-rights-movement-after-controversial-indiana-law-20150401; See also  Miley Cyrus, Wrecking Ball (RCA Records 2013).
4 374 U.S. 398 (1963).
5 Id.
6 See id.
7 406 U.S. 205 (1973).
8 494 U.S. 872 (1990).
9 Id.
10 42 U.S.C. § 2000bb.
11 521 U.S. 507 (1997).
12 Juliet Eilperin, 31 States Have Heightened Religious Freedom Protections, The Washington Post (Mar. 1, 2014), http://www.washingtonpost.com/blogs/the-fix/wp/2014/03/01/where-in-the-u-s-are-there-heightened-protections-for-religious-freedom/.

State of Texas v. United States: Immigrant Status Hangs in the Balance for Millions

Tatiana Lipsey, KLJ Online Content Manager

DACA, DAPA, and Executive Action have been in the news a lot lately. While Deferred Action for Childhood Arrivals (DACA) is nothing new1, on November 20, 2014, President Obama announced that the executive branch, in coordination with the Department for Homeland Security (DHS) would be taking many steps to “fix the broken immigration system.”2 Part of this effort included expanding existing DACA, beginning February 18, to include more immigrants and increase the period of deferred action and work authorization from two to three years.3 The effort also included the creation of a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) set to begin in May.4 The President’s announcement has received a lot of attention, and not surprisingly, legal challenges.State of Texas, et al v. United States 5 was filed in federal district court in Brownsville, Texas, last December by twenty-six states. The suit challenged the above two aspects of the immigration initiatives that President Obama announced on November 20.6 The states argue that the programs are not lawful and will cause economic injury to states that must finance the education, protection, and issuance of driver’s licenses to future recipients of DACA or DAPA.7On February 16, 2015, the district court issued a preliminary injunction temporarily blocking the expansion of DACA and the implementation of DAPA.8 The ruling did not address the constitutionality of the programs. Rather, the narrow holding for the injunction focused on the whether the federal government violated procedural requirements under the Administrative Procedure Act by not following the formal rulemaking procedures in creating these initiatives.9 The court decided that the government had failed to follow appropriate procedure.10 DHS has stated that it will challenge the decision and believes that there is legal authority for the action.11It could take months, or even years, for a final decision to be reached in the federal district court. In the meantime, the Department of Justice (DOJ) has requested that the Fifth Circuit Court of Appeals lift the injunction and allow expanded DACA and DAPA to go forward while the underlying lawsuit proceeds.12 Oral arguments on the emergency stay of the injunction were scheduled for April 17.13If the injunction is lifted, DHS could immediately begin implementing both programs while the lower court case continues. However, if either side appeals to the Supreme Court, which is likely, it could take until sometime next year for a decision on the future of expanded DACA and DAPA to become clearer. This is a case that many immigration scholars, lawyers, and undocumented immigrants will be following closely. The case will undoubtedly have a significant impact whether the executive actions are ultimately found lawful or not.

1 DACA was created June 15, 2012, as a matter of prosecutorial discretion. See Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012), available at http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf. The program provides relief from removal and work authorization for a period of two years, which can then be renewed as long as the program remains in existence. Current guidelines state that DHS has the discretion to terminate DACA at any time, with or without a Notice of Intent to Terminate. Ilissa Mira, What to Expect When Expanded DACA Opens Again, CLINIC, https://cliniclegal.org/resources/articles-clinic/what-expect-when-expanded-daca-opens-again.
2 Video: Remarks by the President in Address to the Nation on Immigration (Nov. 20, 2014), available at https://www.whitehouse.gov/issues/immigration/immigration-action#.
3 Fixing Our Broken Immigration System Through Executive Action - Key Facts; Department of Homeland Security, http://www.dhs.gov/immigration-action.
4 Id.
5 State of Texas, et al v. United States of America, et al., No. 1-14-CV-254 (D. Texas Feb. 16, 2015)(order granting preliminary injunction). Available at http://www.txs.uscourts.gov/notablecases/1-14-cv-254_145X20977588_0.pdf.
6 Mira, supra note 1.
7 Id.
8 Existing DACA, as it has existed since 2012, and renewals thereof, have not been affected by the injunction.
9 Mira, supra note 1.
10 State of Texas v. United States, No. 1-14-CV-254 at 123.
11 Statement by Secretary Jeh C. Johnson Concerning the District Court's Ruling Concerning DAPA and DACA (Feb. 17, 2015), available at http://www.dhs.gov/news/2015/02/17/statement-secretary-jeh-c-johnson-concerning-district-courts-ruling-concerning-dapa.
12 Mira, supra note 1.
13 Id.

Maintaining the Juvenile’s Right Against Self-Incrimination

Misty Stone, KLJ Staff Editor

Many people may be familiar with the Miranda[1] warnings, but how many of us truly understand them? Arguably, many adults do not understand the significance of their Miranda rights,[2] but what about juveniles whose brains are not yet fully functioning?  Research indicates only 21 percent of juveniles understand their Miranda rights.[3]Miranda is comprised of four main warnings that must be read to a person before custodial interrogation in order to protect their Fifth Amendment right against self-incrimination.[4] Those rights are that (1) he, the witness, has right to remain silent; (2) any statement made may be used as evidence him; (3) he has the right to an attorney; and (4) if he cannot afford an attorney, one will be appointed to him.[5]  Miranda adds, “The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.”[6]While a person must unambiguously invoke their right to remain silent or right to counsel,[7] the Court does not maintain the unambiguous requirement when it comes to waiving those rights. In North Carolina v. Butler, the Court held that waiver may be implied, as opposed to unambiguous, through “the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver.”[8] Thus, by merely answering a police officer’s question, the Court held the defendant “voluntarily, knowingly and intelligently”[9] waived his rights.[10] Thus, it is fairly easy to waive your Miranda rights. In fact, the Court held in Fare v. Michael C. that the validity of a juvenile’s waiver would be judged under the same test that applies to adults with the juvenile’s age as merely an ordinary factor in conducting the test. [11]However, juveniles are arguably more susceptible to self-incrimination because of “their eagerness to comply with adult authority figures, impulsivity, immature judgment, and inability to recognize and weigh risks in decision-making and appear to be at greater risk of falsely confessing when subjected to psychological interrogation techniques.”[12] In response to such risks, Illinois passed legislation mandating juveniles under thirteen have access to an attorney before they are interrogated in murder and sex crimes cases.[13] While a juvenile is not afforded this protection in all scenarios, the juvenile is awarded this protection in cases that are certainly the most damaging to the juvenile’s future.While many courts find that the presence of a parent will render a juvenile’s confession voluntary,[14] and there are certainly pros to that approach, it is arguably better to mandate that a juvenile have access to an attorney. This is because only 42.3% of adults understand the significance of their Miranda rights.[15] If the parent does not understand the Miranda rights, how can the child? Moreover, given that courts may easily find an implied waiver,[16] a lawyer should be available to explain to the juvenile exactly what his rights are and what they mean. With this safeguard, a juvenile is treated fairly by obtaining the information in order to “knowingly and intelligently” waive his Miranda rights.In sum, states should enact legislation similar to Illinois that mandates juveniles have access to an attorney before they are interrogated. Given that juveniles are more susceptible to submitting to adult authority figures and general impulsiveness,[17] as well as many other factors that make them more susceptible to self-incrimination, an attorney should be provided to all juveniles before they undergo custodial interrogation, at least in cases involving murder and sex crimes that are of an especially serious nature.

[1] Miranda v. Arizona, 384 U.S. 436 (1966).
[2] Am. Psychological Ass’n, Right to Remain Silent Not Understood by Many Suspects (Aug. 5, 2011), http://www.apa.org/news/press/releases/2011/08/remain-silent.aspx (“Based on [Dr. Rogers’] analysis of nationwide statistics of 9.2 million arrests in 2009, he estimates that 976,000 arrests, or 10 percent of the cases, were compromised by problems with Miranda warnings. That estimate includes 360,000 arrests of adults with mental health disorders; 305,000 arrests of adults without mental health disorders; and 311,000 juvenile arrests.”).
[3] Thomas Grisso, Juvenile’s Capacities to Waive Miranda Rights: An Empirical Analysis, 68 Cal. L. Rev. 1134, 1153 (1980).
[4] Miranda, 384 U.S. at 441.
[5] Miranda, 384 U.S. at 444 (emphasis added).
[6] Id. (emphasis added).
[7] Davis v. United States, 512 U.S. 452, 459 (1994) (defendant failed to invoke his right to counsel because he did not do so “unambiguously”); Berghuis v. Thompkins, 560 U.S. 370, 389 (2010) (extending “unambiguously” standard to invoking the right to remain silent).
[8] North Carolina v. Butler, 441 U.S. 369, 373 (1979).
[9] Miranda, 384 U.S. at 441.
[10] Butler, 441 U.S. at 372.
[11] Fare v. Michael C., 442 U.S. 707, 725 (1979). But see J.D.B. v. North Carolina, 180 L. Ed. 2d 310 (2011).
[12] Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C.L.Rev. 891, 1005 (2004).
[13] Id.
[14] See In re Andrew M., 88 P.3d 552, 555 (Ariz. 2004); In re B.M.B., 955 P.2d 1302, 1311-12 (Kan. 1998); Commonwealth v. A Juvenile, 449 N.E.2d 654, 656 (Mass. 1983); State v. Presha, 748 A.2d 1108, 1113 (N.J. 2000).
[15] Grisso, supra note 3, at 1153.
[16] See Butler, 441 U.S. at 372.
[17] Drizin, supra note 12.

Balancing Public Demand with Due Process: What the University of Oklahoma’s Actions Say about Our Society

Bardia Sanjabi, KLJ Staff Editor

What happens when interest in protecting a fundamental right clashes with general public opinion? Do the Constitution and our legal system kneel to what is and is not socially acceptable? The answer to these questions has become increasingly blurry in light of recent events.In March, a leaked video displayed members of the Oklahoma chapter of the Sigma Alpha Epsilon fraternity singing a racist chant on a bus.[1] The University’s response to the video was swift and unforgiving, as it severed ties with the fraternity and expelled two of its members implicated in the video just two days after it was leaked.[2] This action drew attention from constitutional law experts, who raised the issue of whether the expulsion of the members was a violation of their First Amendment rights because it was an act by a government funded state institution.[3]The University, which as a public institution cannot discriminate on the basis of race, will likely justify its actions under its Student Rights and Responsibilities Code, where it lists “abusive conduct” under “prohibited conduct.”[4] Abusive conduct is defined as “unwelcome conduct that is sufficiently severe and pervasive that it alters the conditions of education or employment and creates an environment that a reasonable person would find intimidating, harassing or humiliating.”[5]Unfortunately for the University of Oklahoma, freedom of speech is a fundamental right under the Bill of Rights, and any policy by the state that may hinder this right will come under the purview of strict scrutiny within the courts.[6] There is a strong argument to be made that the chant on the bus, as bigoted as it may have been, remains protected speech by private individuals. Many scholars, including the UC Irvine law school dean Erwin Chemerinsky, seem to be of the opinion that should the expelled members file suit against the University, they will have an “excellent chance” of succeeding.[7]What is most concerning about this situation, however, is the immediateness and severity of the University’s response. It seems that our society places higher value on intolerance towards bigotry than the due process of our laws. This issue is also apparent in the recent developments of the Mike Brown shooting incident in Ferguson, MO. On March 4th, the Department of Justice released a report that specified they will not be prosecuting Officer Wilson for the shooting due to lack of corroborated eyewitness testimony.[8] No reliable source can confirm that Brown indeed raised his hands in a gesture of surrender, which was a key aspect of the nationwide movement covered by the media demanding justice for Brown’s death.[9]It is important to acknowledge that prejudice and hate crimes are still noteworthy issues in today’s society. Solving these issues, however, may best be dealt with in a calculated and forethoughtful manner. Emotional overreactions, while satisfying the public’s demand for swift justice, are not stable solutions. Just as the investigation of Brown’s shooting yielded no evidence to prosecute Officer Wilson, the expulsion of the two Oklahoma fraternity members may be reversed should they pursue to challenge the University’s decision on Constitutional grounds.

[1] Terrence McCoy, Why Expelled Oklahoma Frat Boys Would Have an ‘Excellent Chance’ in Court, Wash. Post (Mar. 11, 2015), http://www.washingtonpost.com/news/morning-mix/wp/2015/03/11/expelled-oklahoma-students-have-an-excellent-chance-of-succeeding-if-they-sue.
[2] Id.
[3] Id.
[4] University of Oklahoma Board of Regents, Student Rights and Responsibilities Code 3 (Sept. 19, 2011), available at http://www.ou.edu/content/dam/studentlife/documents/AllCampusStudentCode.pdf.
[5] Id.
[6] Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (citing Carey v. Brown, 447 U.S. 455, 461 (1980)).
[7] McCoy, supra note 1.
[8] Trymaine Lee, Justice Department Clears Darren Wilson in Michael Brown Killing, Msnbc (Mar. 4, 2015, 6:55 PM), http://www.msnbc.com/msnbc/justice-department-clears-darren-wilson-michael-brown-killing.
[9] Matthew Balan, Surprise: CNN Reports 'Hands Up, Don't Shoot' is Based on Falsehood, Cnn (Mar. 6, 2015, 11:31 PM), http://newsbusters.org/blogs/matthew-balan/2015/03/06/surprise-cnn-reports-hands-dont-shoot-based-falsehood.

Do Ice Bucket Challenge Donations Lack the “Donative Intent” Necessary to be Tax-Deductible?

Mary Ellen Wimberly, KLJ Staff Editor[1]

In the summer of 2014, the ALS Ice Bucket Challenge took social media by storm. The premise was simple: those nominated to complete the challenge had to either pour a bucket of ice cold water on themselves or give $100 to the ALS Association.[2] Many chose to make donations in addition to participating in an icy shower. The challenge raised awareness for amyotrophic lateral sclerosis (ALS), often called Lou Gehrig’s Disease, and also resulted in donations of $115 million to the ALS Association.[3]Many taxpayers will deduct these charitable contributions on their federal income tax returns without thinking about whether these contributions qualify for a deduction. While Section 170 of the Internal Revenue Code generally allows deductions for charitable contributions[4], courts have interpreted the provision to also require “donative intent.” This requirement may limit the deductibility of those ALS Ice Bucket Challenge donations that were contributed because the participant wanted to avoid a cold shower.The test for donative intent in charitable contribution cases comes from the landmark case Commissioner v. Duberstein, which established the intent required by a transferor in making a “gift” for income tax purposes.[5] The U.S. Tax Court has consistently applied the Duberstein test in determining the donative intent requirement for charitable contribution cases,[6] and has noted that in determining whether a charitable contribution qualifies under § 170, “the term ‘charitable contribution’ is synonymous with the word ‘gift.’ ”[7] Therefore, to satisfy donative intent, the taxpayer’s charitable contribution must be made with detached and disinterested generosity and without the expectation of receiving something in return.[8] The Tax Court further delineated the test in DeJong v. Commissioner and stated that “[i]f a payment proceeds primarily from the incentive of anticipated benefit to the payor beyond the satisfaction which flows from the performance of a generous act, it is not a [charitable contribution].”[9]However, courts have generally interpreted the “donative intent” test liberally and in recent years have added a “quid pro quo” requirement, which provides that donative intent is lacking only when the donor anticipates receiving an actual financial benefit from the charitable contribution.[10] Consequently, because those who chose to forego the cold shower and opted to make a donation instead gained no financial benefit, those taxpayers should be able to correctly claim a deduction for a charitable contribution under Section 170.

[1] J.D. expected May 2016.
[2] Meg Tirrell, Ice Bucket Challenge: 6 Months Later, CNBC (Feb. 9, 2015, 8:26 AM), http://www.cnbc.com/id/102405889.
[3] The ALS Ice Bucket Challenge, ALS Association, http://www.alsa.org/fight-als/ice-bucket-challenge.html (last visited Mar. 29, 2015).
[4] 26 U.S.C. § 170 (2012).
[5] Commissioner v. Duberstein, 363 U.S. 278, 285 (1960).
[6] See Rodney P. Mock, Burning Down the House and the Charitable Deduction, 11 Hous. Bus. & Tax L.J. 353, 360 n.41 (2011).
[7] DeJong v. Commissioner, 36 T.C. 896, 899 (T.C. 1961).
[8] Duberstein, 363 at 285.
[9] DeJong, 36 T.C. at 899.
[10] See generally Tony Nitti, Could the IRS Disallow Ice Bucket Challenge Charitable Contributions?, Forbes (Aug. 20, 2014, 9:24AM),  http://www.forbes.com/sites/anthonynitti/2014/08/20/could-the-irs-disallow-ice-bucket-challenge-charitable-contributions/.

Bison Populations Might Render the Grand Canyon Less Grand

Julie A. Barr, KLJ Staff Editor

Vacationers may soon be able to add beefalo hunting to their Grand Canyon National Park bucket list. These animals, a crossbreed of cattle and bison, have taken up residence in what has for years been a safe and protected home.  But recently, the large numbers of these animals have proven extremely detrimental to the land and other wildlife in the Park.[i] The deleterious impacts include overgrazing of the grass and overwhelming scarce and precious water sources.[ii] Some Native American groups have also reported that the animals have destroyed ancient ruins in the area.[iii] A lack of predators has allowed these animals to multiply in an area that is simply unable to accommodate them.[iv]One of the answers to combatting this growing population of animals might be to allow people to hunt the animals inside this federally-protected area.[v] As the formal owner of the bison population in the state, Arizona issues the permits required in order to hunt the animals outside the Park.[vi] Inside the boundaries of the Park, however, the National Park Service (NPS) maintains control.[vii] NPS’s primary directive is to protect the particular ecosystem of each national park.[viii] Because of the beefalo population’s negative impact on the ecosystem, hunting these animals could be one of the best options in order to preserve the grandeur of the Grand Canyon.[ix]There are plenty of people who oppose hunting these animals, however, including many Native American groups.[x] Hunting the beefalo is not the only available option, either.[xi] Less violent options include attempts to corral or enclose the population, or to somehow give the beefalo a form of contraception.[xii]If the hunting option should prevail, shooting one of these coveted, 2000 pound animals will come at a high price. Arizona residents might pay over $1000, and non-residents could pay over $5000, just to shoot one bison.[xiii] And, lest vacationers think otherwise, hunting bison is far from an easy task – these animals can clock in at forty miles per hour.[xiv] An ultimate decision as to the best solution is still looming. [xv] So for now, hunters might not want to book a flight to the Grand Canyon until they know for certain whether they will get a

[i] Anne-Marie Bullock, How do you solve a problem like the ‘Beefalo’?, BBC News (March 1, 2015), http://www.bbc.com/news/science-environment-31661920
[ii] Laurel Morales, Grand Canyon Officials Want to Evict Bison From Park, NPR (May 27, 2014), http://www.npr.org/2014/05/27/316269168/grand-canyon-officials-want-to-evict-bison-from-park
[iii] Laura Clark, A Beefalo Invasion is Causing Trouble in the Grand Canyon, Smithsonian.com, (March 4, 2014), http://www.smithsonianmag.com/smart-news/beefalo-invasion-causing-trouble-grand-canyon-180954458/
[iv] Edmund DeMarche, Hunters seek entry to Grand Canyon National Park, where roaming buffalo cause havoc, Fox News, (March 8, 2015), http://www.foxnews.com/us/2015/03/08/hunters-may-get-chance-at-bison-in-grand-canyon-national-park/
[v] Id.
[vi] Id.
[vii] Id.
[viii] Louis Russell, What Are the Parks For? Making Policy Explicit in the Park Service’s NEPA Decisions, 41 Ecology L.Q. 521, 525 (2014).
[ix] Supra note 2.
[x] Supra note 3.
[xi] Supra note 1.
[xii] Supra note 1.
[xiii] Supra note 4.
[xiv] Supra note 2.
[xv] Supra note 1.

On the Horizon: Domestic Drone Use and the Implications of FAA and State Regulation

Meredith Berge,[i] KLJ Staff Editor

Over the last few decades, the use of unmanned aerial vehicles, commonly referred to as “drones,” has exploded.[ii] The increase in private and commercial drone use presents significant legal implications. This post explores issues surrounding civilian drone use, Federal Aviation Administration (FAA) regulations, and state legislation in lieu of agency action, all of which are (literally) on the horizon.For those who are less familiar with domestic drone use, here are some key facts. These unmanned, remotely operated devices can be as small as an insect[iii] and can often be controlled by a smart phone.[iv] They can also contain advanced technological systems including high-powered cameras, thermal imaging technology, and facial recognition software.[v] With such a wide range of technological options, the potential application of these devices is extremely broad.[vi] The possibilities here include mapping, agricultural practices and research, home delivery of packages, photography, journalism, real estate marketing, and hobby interests.[vii] However, the use of drones brings unique problems including collision with other objects, flying in dangerous proximity to other aircraft, and invasion into other people’s private spaces.[viii] These possibilities and complications bring legal concerns including individual privacy rights,[ix] property rights,[x] and FAA authority to govern all drone flight.[xi] With these issues in mind, lawmakers are poised to enact laws and regulations to better control these scenarios.As a reaction to the increase in drone use, Congress passed the Federal Aviation Administration Modernization and Reform Act in 2012, ordering the FAA to promulgate rules for the domestic operation of drones.[xii] After much anticipation, the FAA released its proposed rule on February 15, 2015.[xiii] The proposed rule governs the “non-recreational” use of small drones and requires operator certification, operation only in daylight, and prohibits operations that are out of the operator’s sight.[xiv] Notably, this prohibition on out-of-sight operations halts Amazon’s highly publicized plan for drone home delivery of packages.[xv] Additionally, concern exists that the FAA, charged with safety and efficiency in the national airspace, does not have the proper expertise to deal with Fourth Amendment protections like individual privacy.[xvi]Rather than waiting for the FAA’s rule proposal, some states have opted to pass legislation. At this point, at least nine states have passed and the vast majority of states have considered passing laws regulating the use of drones.[xvii] These laws vary widely among the states and tend to cover law enforcement use of drones, commercial uses, property rights, public safety, or some combination of these issues.[xviii] For example, Kentucky legislators have proposed a law that prohibits law enforcement drone surveillance without a warrant but allows drone use for search and rescue and for research and business purposes.[xix] While these state laws are proposed and enacted to protect citizens, there are concerns that adoption of the FAA’s proposed rule would cause preemption problems for the states that have drone laws on the books.[xx] FAA officials have “discouraged” states from continuing to pass laws on the subject so as to not upset the agency’s “unified regulatory structure.”[xxi] While the FAA stresses “virtually all drone activities affect the national airspace” and would be subject to FAA authority,[xxii] the statement begs the question: what activities are not covered and how should those flights be handled?The comment period for this proposed rule closes April 23 and the FAA expects comments in record numbers.[xxiii] Until a time when a final rule from the FAA is promulgated or more clarity on state authority is given, practitioners and lawmakers should be cautious when approaching these issues that may be truly right outside your window

[i] University of Kentucky College of Law, J.D. Candidate 2016.
[ii] Troy A. Rule, Airspace in an Age of Drones, 95 B.U. L. Rev. 155, 157 (2015).
[iii] Hillary B. Farber, Eyes in the Sky: Constitutional and Regulatory Approaches to Domestic Drone Deployment, 64 Syracuse L. Rev. 1, 13 (2014)
[iv] Rule, supra note 2.
[v] Taly Matiteyahu, Drone Regulations and Fourth Amendment Rights: The Interaction of State Drone Statutes and the Reasonable Expectation of Privacy, 48 Colum. J.L. & Soc. Probs. 265, 266-67 (2014).
[vi] Id. at 267.
[vii] Id.; Rule, supra note 2.
[viii] See Rule, supra note 2.
[ix] Matiteyahu, supra note 5, at 267.
[x] Rule, supra note 2, at 163-64.
[xi] Id. at 164-65 (questioning FAA authority to govern potentially dangerous but low-altitude drone flight).
[xii] Farber, supra note 3, at 1-2.
[xiii] Scott Shane, F.A.A. Rules Would Limit Commercial Drone Use, The New York Times (February 15, 2015), http://www.nytimes.com/2015/02/16/us/faa-rules-would-limit-commercial-drone-use.html?_r=0.
[xiv] Id.
[xv] Id.; Jimmy Hoover, FAA Official Knocks State Drone Initiatives, Law360 (Feb. 24, 2015, 2:09 PM), http://www.law360.com.ezproxy.law.uky.edu/articles/624628/faa-official-knocks-state-drone-initiatives.
[xvi] Matiteyahu, supra note 5, at 268.
[xvii] Hoover, supra note 15.
[xviii] William O’Connor, May State and Local Gov’ts Control Low-Flying Drones?, Law360 (Dec. 04, 2015, 11:33 AM), http://www.law360.com.ezproxy.law.uky.edu/articles/601469/may-state-and-local-gov-ts-control-low-flying-drones-?article_related_content=1.
[xix] Scott Wartman, Ky. Lawmakers look to limit drone surveillance, USA Today (June 18, 2014, 8:33 PM), http://www.usatoday.com/story/news/nation/2014/06/18/ky-lawmakers-look-to-limit-drone-surveillance/10817479/.
[xx] O’Connor, supra note 17.
[xxi] Hoover, supra note 15.
[xxii] Id.

Haven’t you “Herd”? The “Herd Mentality” And How Much Control Parents Have In Vaccinating Their Children

Sarah Hines, KLJ Staff Editor[1]

As of February 23, 2015, 154 cases of measles were reported in the United States.[2] This number is significantly greater than the historic national yearly average in recent years.[3] Many of these cases can be tied to a recent outbreak at Disneyland.[4] This recent measles outbreak has sparked much debate among Americans about mandatory vaccination. Some argue that vaccinating as many people as possible will prevent future outbreaks of preventable diseases, such as measles. Others argue that it is every parent’s right to control health care decisions for their children, including whether or not to vaccinate their children.Not only is measles highly contagious, but it can also cause severe complications such as pneumonia and encephalitis, which can ultimately lead to death.[5] The good news is that a vaccine exists which protects against measles.[6] In Jacobson v. Massachusetts, the Supreme Court upheld a state mandate which required vaccination against smallpox.[7] Many states, including Kentucky, created state laws to mirror this holding and such laws mandate vaccination against certain preventable diseases, including measles.[8] Proof of vaccination is often required for enrolling children into public school systems.[9]Exceptions do exist in every state for those individuals who cannot be vaccinated for medical reasons.[10] Many states also let parents opt out of vaccinating their children for religious reasons.[11]  Nineteen states allow parents to opt out of vaccinating their children for secular reasons of philosophy or philosophical beliefs.[12] It is this particular opt out policy for “personal beliefs” that is the source of debate.A small, but noticeable, group of parents opt out of vaccinating their children for personal reasons. These opponents of mandatory vaccination often pin their skepticism of vaccines on the purported safety of the vaccination.  For instance, many believe there is a link between vaccines and autism.[13] Others fear that vaccines can cause digestive health problems or brain damage.[14] Whatever the reason may be for avoiding certain vaccines, some argue that it is a parent’s right to decide whether to vaccinate their own child. As of 2014, thousands of kindergarten-aged children had not been vaccinated.[15]In opposition to these concerns is a concept called “herd mentality,” the driving force behind laws that require vaccination.[16] The idea is that if most of the people in any given population are vaccinated, then these vaccinated people will act as a barrier against those who cannot be immunized against a certain disease. Those who cannot be immunized will arguably not come into contact with the disease at all, thus slowing or even stopping the spread of certain diseases.Ultimately, the issue of mandatory vaccination comes down to an issue of public policy. The states are allowed to mandate vaccinations against certain preventable diseases.[17] Similarly, states can carve out any number of personal exceptions to allow parents to opt out of vaccinating their children. The more opt-outs that occur, the less effective the “herd mentality” argument becomes. It is important for states to weigh the risk of disease against the interests of parents who do not want to vaccinate their children. Many states, such as California, are considering legislation to end the “personal belief” exemption to vaccination.[18] Only time will tell how state laws will react to the current measles outbreak and its impact on the issue of parental control of health care decisions for their children.

[1] University Of Kentucky College of Law, J.D. expected May 2016.
[2] Centers for Disease Control and Prevention, Measles Cases and Outbreaks (last updated Feb. 23, 2015), http://www.cdc.gov/measles/cases-outbreaks.html.
[3] Id.
[4] Jonathan Corum, Josh Keller, Haeyoun Park & Archie Tse, Facts About the Measles Outbreak (last updated Feb. 6, 2015), http://www.nytimes.com/interactive/2015/02/02/us/measles-facts.html?_r=0.
[5] Centers for Disease Control and Prevention, Complications of Measles (last updated Feb. 23, 2015), http://www.cdc.gov/measles/about/complications.html.
[6] Id.
[7] Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 858 (1905).
[8] E.g., KRS § 214.034.
[9] Id.
[10] Tom Frieden, Stop the Vaccination Debate, Newark Advocate (Feb. 23, 2015), http://www.newarkadvocate.com/story/opinion/columnists/2015/02/23/stop-vaccination-debate/23876185/.
[11] Jacob Gershman, Should Vaccination Be a Choice? In Many States, It Already Is, The Wall Street Journal L. Blog (Feb. 3, 2015), http://blogs.wsj.com/law/2015/02/03/should-vaccination-be-a-choice-in-many-states-it-already-is/.
[12] National Conference of State Legislatures, States With Religious and Philosophical Exemptions From School Immunization Requirements (last updated Feb. 23, 2015), http://www.ncsl.org/research/health/school-immunization-exemption-state-laws.aspx.
[13] The Associated Press, Anti-vaccination parents explain their perspectives: 'We are not anti-science' (Feb. 23, 2015), http://www.oregonlive.com/health/index.ssf/2015/02/anti-vaccination_parents_expla.html#.
[14] Id.
[15] Ranee Seither, Svetlana Masalovich, Cynthia L. Knighton, Jenelle Mellerson, James A. Singleton & Stacie M. Greby, Vaccination Coverage Among Children in Kindergarten — United States, 2013–14 School Year (Oct. 17, 2014), http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6341a1.htm.
[16] Sarah Arnquist, Herd Immunity — Vaccinations Protect Us All, The Health Care Blog (July 29, 2008), http://thehealthcareblog.com/blog/2008/07/29/herd-immunity-vaccinations-protect-us-all/.
[17] Jacobson, 197 U.S. at 858.
[18] See, e.g., Jenny Gold, Measles Outbreak Sparks Bid To Strengthen California Vaccine Law (Feb. 5, 2015), http://www.npr.org/blogs/health/2015/02/05/383988632/vaccination-exemption-blamed-for-measles-spread-in-california.

Tragedy of the Commons in Public Health: Eliminating Religious and Personal Belief Exemptions to Compulsory Vaccinations

Sarah Tipton, KLJ Staff Editor[i]

In January 2015, the United States had more cases of measles than the number typically diagnosed in an entire year.[ii] The outbreak, which began with forty diagnosed people at Disneyland in December, has now spread to at least six other states.[iii] However, this current outbreak is not the largest in United States history.[iv] Only months earlier, 383 people fell ill with measles in Ohio’s Amish Country.[v] For a disease that was declared eliminated in 2000, how and why has measles returned in such an unprecedented fashion?[vi]Through both traditional and social media, debate over the necessity and safety of vaccinations has recently intensified. News pundits, members of Congress, and stay-at-home moms alike have weighed in on the issue. New Jersey’s Governor, Chris Christie, and Kentucky’s own Senator Rand Paul, fueled the debate with their comments advocating for parents’ rights to choose whether to vaccinate their children.[vii] Though Christie and Paul claim to be pro-vaccination, Paul recited the common contention of the anti-vaccine movement, that vaccines may cause autism.[viii]In 1998, the British medical journal, The Lancet, published a study alleging a link between the measles-mumps-rubella vaccine and autism.[ix] This study has been widely discredited by the scientific community, and ten of the twelve researchers later retracted their conclusions.[x] Largely because of this misleading study, fear of vaccination still remains in America despite the critical role vaccines have played in preventing disease outbreak.[xi]Another important benefit of vaccination is herd immunity, which denotes a community's collective resistance to an infectious disease through the immunity of a majority of its members.[xii] Herd immunity protects susceptible persons, including those who have not received a vaccine due to a prohibiting medical condition.[xiii] For example, children undergoing chemotherapy cancer treatment cannot be vaccinated due to their weakened immune systems; therefore, herd immunity is essential to protect these individuals.Today, all fifty states have implemented mandatory vaccination laws for schoolchildren from kindergarten through twelfth grade in both public and private schools.[xiv] Nonetheless, large loopholes in mandatory vaccination still remain. All fifty states allow medical exemptions to vaccinations, forty-eight states allow religious exemptions, and seventeen states allow an exemption based on personal beliefs.[xv] Medical exemptions are necessary, as shown by the example of children who may have weakened immune systems. However, personal belief and religious exemptions to vaccines are neither medically nor constitutionally necessary.Mississippi and West Virginia, two leading states in immunization, have eliminated both religious and philosophical exemptions.[xvi] Supreme Court precedent permits this legislation.[xvii] In Jacobson v. Massachusetts and Zucht v. King, the Court upheld the authority of the states to enforce compulsory vaccination laws as part of the states’ police power to protect public health and safety.[xviii] Though the Supreme Court has not specifically addressed the constitutionality of eliminating personal belief or religious exemptions, lower courts have generally rejected free exercise objections to immunization requirements.[xix]While philosophical and religious exemptions reflect an attempt to reconcile competing personal and public interests, these exemptions also allow parents to easily circumvent compulsory vaccinations.[xx] Parents may simply check an opt-out box, and in doing so they threaten the health and wellbeing of the nation.[xxi] Because vaccinations are imperative to preventing highly contagious, symptomatic illness, state legislatures should follow the lead of West Virginia and Mississippi and move to eliminate philosophical and religious exemptions.

[i] University of Kentucky College of Law, J.D. Candidate 2016. The opinions expressed in this article are the author's own and do not reflect the opinions of any other person or entity.
[ii] Jonathon Corum, et al., Facts about the Measles, New York Times (Feb. 6, 2015), http://www.nytimes.com/interactive/2015/02/02/us/measles-facts.html
[iii] Id.
[iv] Alicia Chang, Disneyland Measles Outbreak Isn’t Largest In United States History, ABC News (Feb. 4, 2015), http://abcnews.go.com/Health/wireStory/disneyland-measles-outbreak-largest-recent-memory-28725434
[v] Id.
[vi] Huong McLean, Measels – United States, 2011, Morbidity and Mortality Weekly Report (Apr. 20, 2012), http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6115a1.htm
[vii] Tara Haelle, Why the Not-So-Great Vaccine Debate of February 2015 Doesn’t Matter, Politico Magazine (Feb. 8, 2015), http://www.politico.com/magazine/story/2015/02/vaccines-politics-115008.html#.VNuCW76pKSI
[viii] Id.
[ix] Linda E. LeFever, Religious Exemptions from School Immunization: A Sincere Belief or A Legal Loophole?, 110 Penn St. L. Rev. 1047, 1055 (2006).
[x] Id.
[xi] Id. at 1048.
[xii] Matt Lasher, Improving Indiana's Mandatory Immunization Programs, 7 Ind. Health L. Rev. 117, 124 (2010).
[xiii] Id.
[xiv] Id. at 1052.
[xv] Vaccine Laws, National Vaccine Information Center (2014), http://www.nvic.org/vaccine-laws.aspx
[xvi] Alan Blinder, Mississippi, A Vaccination Leader, Stands by its Strict Rules, New York Times (Feb. 4 2014), http://www.nytimes.com/2015/02/05/us/mississippi-a-leader-on-vaccination-rates-stands-by-strict-rules.html
[xvii] Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 39 (1905).
[xix] See, e.g., Kajoshaj v. New York City Dept. of Educ., 543 Fed. Appx. 11, 15 (2d Cir. 2013); Caviezel v. Great Neck Public Schools, 739 F. Supp. 2d 273, 285, 264 (E.D. N.Y. 2010); Cude v. State, 377 S.W.2d 816 (1964).
[xx] Steve P. Calandrillo, Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children?, 37 U. Mich. J.L. Reform 353, 353-54 (2004).
[xxi] Id.

“FAIR”ness and Forfeiture: New Bill and Justice Department Order Seek to Reign in Controversial Police Practice

Matt Dearmond, KLJ Staff Editor

To the pleasure of Fifth Amendment advocates, a thirty-year federal policy may be coming to an end. On Tuesday, January 27, Senator Rand Paul (R-KY) reintroduced a bill known as the Fifth Amendment Integrity Restoration (FAIR) Act. The bill would greatly limit law enforcement’s ability to seize the assets of individuals without a warrant or charging them with a crime, and would redirect proceeds from these “civil asset forfeitures” to the Treasury Department’s General Fund. This bill comes less than two weeks after departing Attorney General Eric Holder announced that local and state police would be barred from using federal law to seize cash, cars and other property without warrants or criminal charges, using a Justice Department program known as “equitable sharing.”[1]  Civil asset forfeiture is controversial for several reasons. For one, the very idea seems repugnant to many basic notions about property rights, as the owner of the property need not be arrested or convicted of a crime to have his or her property taken. Even those supportive of the general concept, however, harbor concerns about the policy’s application, pointing to the disparate impact borne by racial minorities and the poor. For instance, the ability of property owners to legally and effectively reclaim their property is often dependent upon their means and access to resources, such as a lawyer.[2] Representation by legal counsel is often necessary because in all but six states, the burden is on the owner, not the government, to prove that they are “innocent,” and that their property is not otherwise subject to forfeiture.[3]Under the equitable sharing program established in 1984, local and state law enforcement are able to circumvent state law that might have restricted their ability to seize certain assets by working with the Department to “federalize” or “adopt” the investigation, whereby they get to keep the forfeited property and split the proceeds with the Department.[4] In general, there are two forms of forfeitures under the equitable sharing program: “joint investigative” forfeitures, and “adoptive” forfeitures.[5] The first form concerns forfeitures that are the result of cooperative investigative activities between federal and state or local law enforcement agencies, where the percentage of funds shared with state/local agencies is determined by the amount of their involvement.[6] “Adoptive” forfeitures, the more controversial of the two, occur when, as a result of their investigation into a state crime, state/local agencies transfer seized property to federal law enforcement who can then “adopt” the seized property for purposes of federal forfeiture proceedings.[7] Police departments are able to keep up to 80 percent of the proceeds of such seizures, with the rest going to federal agencies.Holder’s announcement, impactful though it may be, is merely a change in Justice Department policy. As such, it lacks the force of law and is perfectly capable of being rolled back altogether by subsequent administrations. The FAIR Act, on the other hand, would codify this denunciation of prior federal forfeiture policy into law, for presidential administrations and executive agencies to come. What’s more, the FAIR Act goes farther than the new policy guidelines issued by the Attorney General in several ways. First, the new guidelines issued by Holder prohibit only “adoptive” forfeitures, while the Act would impose stronger limits on federal authorities’ ability to share forfeited assets with state/local law enforcement, regardless of whether they participated in the seizure.[8] The order explicitly provides that its prohibition does not apply to “seizures by state and local authorities working together with federal authorities in a joint task force,” or “seizures by state and local authorities that are the result of joint federal-state investigations or that are coordinated with federal authorities as part of ongoing federal investigations.”[9] Because of this, commentators have questioned the extent to which Holder’s order actually changes the status quo, citing the fact that between 2008 and 2013 approximately 86 percent of the money state/local agencies got from federal forfeitures were not of the kind covered by this new restriction.[10]Second, though Holder’s order will virtually eliminate all cash and vehicle seizures made by state/local law enforcement for purposes of the federal program, the order contained an exception for seizures of property “directly related to public safety concerns.”[11] This includes seizures involving illegal firearms, ammunition, explosives and property associated with child pornography.[12] The FAIR Act provides no such exception, but requires law enforcement to prove by “clear and convincing evidence” that there was a substantial connection between the property and the offense, and that the owner intentionally or knowingly consented to the use of the property in connection with the offense.[13] This “clear and convincing” standard marks an increase from current law, which merely requires that the government establish by a preponderance of the evidence that an asset is subject to forfeiture.[14]Additionally, the Act seeks to remove the profit incentive from the equation by requiring that money or proceeds from seizures go to the General Fund of the United States Treasury, rather than to a special fund known as the “Department of Justice Assets Forfeiture Fund” for use only by the Justice Department.[15] This is an understandable concern, given how proceeds from civil asset forfeitures are undeniably a large source of funding for law enforcement agencies (sometimes up to 20% or more of a department’s entire annual budget).[16] It was apparently a concern as well for Holder (or at least an incidental benefit), according to an anonymous Justice Department official who said that Holder “believes that the new policy will eliminate any possibility that the adoption process might unintentionally incentivize unnecessary stops and seizures.”[17]Opponents of civil asset forfeiture policy were encouraged by Attorney General Holder’s order, and further encouraged by the introduction of the FAIR Act. However, because Sen. Paul’s bill and the Attorney General’s order apply only to federal law enforcement and the use of federal law, putting a stop to the practice is unlikely to happen without significant reform at the state level.[18] And though many states require seized proceeds to go into the general fund, according to at least one law professor who has studied the subject, at least 26 states allow police to keep 100 percent of the assets they seize.[19] As for Kentucky, 85% of the proceeds from seized property is paid directly to the law enforcement agency which seized the property, to be used directly for law enforcement purposes, while the remaining 15% is paid to the Office of the Attorney General.[20]While it may be tempting to view this populist proposal by Sen. Paul as simply political posturing on the eve of a presidential run, such a characterization probably does not do justice to the deeper issue of changing perceptions about the relationship between communities and law enforcement. Certainly the renewed interest in the issue and the apparent bipartisan support would lend support to that observation.[21] In fact, the goals of the bill that I’ve mentioned are in themselves manifestations of some of the more salient issues regarding law enforcement in America. The redirecting of proceeds to the General Fund rather than the pockets of police departments reflects the recent concern over the militarization and out-of-control spending on the part of law enforcement.[22] There is also an underlying racial component to be considered. As the sponsor of the bill himself has observed, the disparate treatment of minorities under asset seizure policy and by the criminal justice system as a whole is at least partially to blame for increasing racial tension in the U.S.[23]Regardless of one’s opinion on the underlying motivation behind the bill, for those that have long tried to raise these issues from the depths of social media punditry and into actual positive law, the FAIR Act would certainly signal a welcomed legislative victory.

[1] Robert O’Harrow Jr., Holder limits seized-asset sharing process that split billions with local, state police, The Washington Post, Jan 16, 2015, http://www.washingtonpost.com/investigations/holder-ends-seized-asset-sharing-process-that-split-billions-with-local-state-police/2015/01/16/0e7ca058-99d4-11e4-bcfb-059ec7a93ddc_story.html?hpid=z1.
[2] Marian R. Williams et al, Policing for Profit: The Abuse of Civil Asset Forfeiture, Institute for Justice, March, 2010, http://www.ij.org/images/pdf_folder/other_pubs/assetforfeituretoemail.pdf.
[3] Id. at 23.
[4] David McCabe, Rand Paul: Stop feds from seizing property, The Hill, Jan. 27, 2015, http://thehill.com/blogs/blog-briefing-room/news/230871-rand-paul-pushes-bill-to-block-the-feds-from-seizing-property.
[5] Williams et al, supra note 2, at 25.
[6] Id.
[7] Id.
[8] S. 255, 114th Cong. § 3(b) (2015) [hereinafter FAIR Act].
[9] Office of the Attorney General, Prohibition on Certain Federal Adoptions of Seizures by State and Local Law Enforcement Agencies, (2015), available at http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/01/16/attorney_general_order_prohibiting_adoptions.pdf.
[10] Jacob Sullum, Cops Are Still Robbers: Eric Holder's new forfeiture policy affects only a small share of seizures, Jan. 26, 2015, http://reason.com/archives/2015/01/26/cops-are-still-robbers.
[11] Office of the Attorney General, supra note 9.
[12] Id.
[13] FAIR Act, supra note 8, at § 2(3).
[14] 18 U.S.C. 983(c)(1).
[15] Compare 21 U.S.C. 881(e)(2)(B)), and FAIR Act, supra note 8, at § 3(b)(1)(A).
[16] Michael Sallah et al., Stop and Seize, The Washington Post, (2014), http://www.washingtonpost.com/sf/investigative/collection/stop-and-seize-2/.
[17] O’Harrow Jr., supra note 1.
[18] Leon Neyfakh, Helicopters Don’t Pay For Themselves: Why Eric Holder’s civil forfeiture decision won’t stop civil forfeiture abuse, Slate, Jan 16, 2015, http://www.slate.com/articles/news_and_politics/crime/2015/01/will_eric_holder_s_civil_forfeiture_announcement_change_anything.html.
[19] Id.
[20] KRS § 218A.420(4) (2007).
[21] McCabe, supra note 4.
[22] See Sallah, supra note 16.
[23] Ashley Killough, Rand Paul: Civil Forfeiture part of racial problems in U.S., CNN, Jan. 27, 2015, http://www.cnn.com/2015/01/27/politics/rand-paul-bill/.

Lawmakers Are Not Above the Law

Hillary Chambers, KLJ Staff Editor

Many of our fellow Kentucky citizens were disturbed when a member of the state legislature, charged with DUI, defended himself by claiming he was immune from prosecution.[1] On January 6, 2015, the first day of the legislative session, Senator Brandon Smith was charged with DUI.[2] To many people’s surprise, he filed a motion to dismiss citing Section 43 of the Kentucky Constitution, which says that legislators are “privileged from arrest during their attendance of their respective Houses, and in going to and returning from the same.”[3] Although Smith subsequently asked his attorney to withdraw the motion, the episode sparked interest in the immunity clause he initially sought to use in order to have his case dismissed.[4] What was the clause intended to do? Do we still need the clause in our Constitution? Do we still want the clause in our Constitution?In Swope v. Commonwealth, the Kentucky Supreme Court made it clear that “[Section] 43 of the Constitution was never intended as a sanctuary for members who had committed a public offense.”[5] In that case, a member of the 1964 General Assembly of Kentucky was charged with breach of the peace after getting into a dispute with someone upon his return from Frankfort.[6] Similar to Smith’s withdrawn motion, William Swope claimed the court did not have jurisdiction to try the offense of breach of the peace against a member of the General Assembly under the provisions of Section 43.[7] The court considered parliamentary privilege in England to decide whether Swope should be immune from prosecution.[8] The crimes of treason, felony, and breach of the peace are expressly excluded from the immunity provided by Section 43; in England, those words were intended to exclude all crimes from the operation of parliamentary privilege, meaning only prosecutions of a civil nature were protected.[9]When the Constitution was adopted, there were state laws authorizing imprisonment for debt in aid of civil process, and the exemptions in state and federal Constitutions were meant to provide immunity in those cases.[10] Today, there is no such law in Kentucky.[11] Therefore, the reason for incorporating Section 43 in the Constitution has virtually disappeared.[12] In Swope, the state legislator was not immune from prosecution, and the judgment convicting him of breach of the peace was affirmed.[13] The lack of case law on this issue shows that not many legislators try to utilize or abuse the immunity clause, but what if Senator Smith would have gone forward with his initial plan and been successful? It would have left many outraged. Most would tend to agree with Kentucky Senate President Robert Stivers when he said, “[n]o member of the general assembly is above the law.”[14] After taking a look at why the clause was incorporated in the Constitution and seeing that the purposes have disappeared, it becomes apparent that Section 43 serves no real purpose. If there were more widespread abuse of the clause, it is likely there would be a stronger push to repeal Section 43 altogether. A law that was necessary in 1891 is no longer necessary in 2015.

[i] See Kentucky Lawmaker Wants DUI Charge Dismissed Based on Rule From 1891, Huffington Post, Jan. 26, 2015, http://www.huffingtonpost.com/2015/01/26/brandon-smith-dui_n_6550090.html.
[ii] Id.
[iii] Id.
[iv] State Senator to Withdraw Motion in DUI Case, The Courier-Journal, Jan. 28, 2015,http://www.courier-journal.com/story/news/politics/2015/01/28/brandon-smith-dui/22454591/.
[v] Swope v. Com., 385 S.W.2d 57, 59 (Ky. 1964).
[vi] Id. at 57.
[vii] Id.
[viii] Id. at 58.
[ix] Id.
[x] Id.
[xi] Id.
[xii] Id.
[xiii] Id. at 59.
[xiv] Kentucky Lawmaker Wants DUI Charge Dismissed Based on Rule From 1891, Huffington Post, Jan. 26, 2015, http://www.huffingtonpost.com/2015/01/26/brandon-smith-dui_n_6550090.html.

Restroom Choice Could be Mandated for Transgender Students in Kentucky

Mary Katherine Kington,[1] KLJ Staff Editor 

In January, state senator C.B. Embry, Jr. (R-Morgantown) introduced a bill in the Kentucky legislature that could dictate which restroom transgender students must use while at school. Senate Bill 76, also known as the Kentucky Student Privacy Act, would require “students born male to use only those facilities designated to be used by males and students born female to use only those facilities designated to be used by females.”[2] The school facilities listed include restrooms, locker rooms, and shower rooms that are accessible to multiple students.[3]The language of Embry’s bill requires transgender students to follow certain steps before they receive restroom “accommodations.” First, the student must assert to school officials that his or her gender is different from his or her biological sex, and then the student must provide written consent from a parent or guardian before the “best available” restroom accommodation is available.[4] According to the bill, this “best available accommodation” will never include allowing the transgender student to use restrooms used by students of the opposite biological sex.[5] Instead, transgender students must use single-stall, unisex, or faculty restrooms.[6]Interestingly, the bill goes a step further by creating a cause of action against the school for students who encounter a person of the opposite biological sex in their restroom.[7] If the student of the opposite sex was either given permission by school personnel, or school personnel failed to take reasonable steps to prevent the encounter, the offending school must pay the student $2,500 for each instance, plus attorney’s fees and possible damages for emotional, physical, and psychological harm.[8]The Kentucky bill was crafted in response to a policy change that occurred last summer at Louisville’s Atherton High School that added gender identity as a protected classification in the school’s anti-discrimination policy.[9] Atherton’s policy arose on the heels of new guidelines issued last spring by the Department of Education’s Office for Civil Rights that extended federal Title IX protection to transgender students.[10] While these guidelines do not carry the weight of the law, numerous opponents of Senate Bill 76 point to the bills as an example of impermissible discrimination under the DOE’s new guidelines, and thus out of sync with modern trend on the issue.Opponents argue that Embry’s bill inappropriately focuses on preventing uncomfortable situations for non-transgender students while fails to acknowledge the stigma and harassment transgender students could suffer from the bill’s private restroom mandate.[11] Some students, parents, and community members may be uncomfortable with a policy that allows transgender students to use the same restrooms as non-transgender students. However, if a transgender student were to receive an accommodation under the bill, the student would be isolated to specific restrooms in the building away from other students. They argue that this result will likely further the discrimination and bullying that transgender students face in schools across the state every day.Most state legislatures across the country have not addressed the issue, leaving transgender-friendly restroom policy decisions to local school districts or individual schools.[12] Kentucky’s bill does, however, directly contradict legislation adopted in California in 2013. California adopted a state law that allows transgender students to choose which restroom to use and which sports team to join based on gender identity, rather than biological gender.[13] Massachusetts[14] and Connecticut[15] have similar state-wide policies. It’s clear that the conversation about transgender rights – in schools and more broadly – is just beginning in our state and across the country. Kentucky’s bill was introduced to the senate in January and has been hotly debated in the media during the weeks following.[16] Lack of support from lawmakers makes it unlikely that the Kentucky Student Privacy Act will gain enough traction to pass through the senate, but lawmakers and school leaders should continue the dialogue and work to reach a solution for Kentucky’s students. Whether restroom policy decisions are made on a state-wide or school-by-school basis, transgender students should be afforded the same basic civil rights as their peers, especially in an environment as critical to development as our school system.

[1] University of Kentucky College of Law, J.D. Candidate 2016
[2] S.B. 76, 2015 Gen. Assemb., Reg. Sess., (Ky. 2015).
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] S.B. 76, 2015 Gen. Assemb., Reg. Sess., (Ky. 2015).
[9] Michael McKay, Atherton One Step Closer To Protecting Transgender Students, The Courier-Journal, June 4, 2014, http://www.courier-journal.com/story/news/education/2014/06/03/atherton-discuss-transgender-bathroom-policy/9913685/; Steven Nelson, Bill: Catch Trans Student in Wrong Bathroom, Win $2,500, Jan. 16, 2015, US News, http://www.usnews.com/news/articles/2015/01/16/kentucky-bill-catch-transgender-student-in-wrong-bathroom-win-2-500.
[10] Emma Margolin, Transgender Students Protected Under Title IX, DOE Says, MSNBC, Apr. 13, 2014, http://www.msnbc.com/msnbc/transgender-students-protected-under-title-ix.
[11] See generally Amanda Fallin & Keisa Bennett, Op-Ed, Ky. Bill to Monitoring Restrooms Puts Transgender Students at Risk, Kentucky.com, Jan. 29, 2015,  http://www.kentucky.com/welcome_page/?shf=/2015/01/29/3666567_ky-bill-to-monitoring-restrooms.html.
[12] Chris Kenning, Ky Bill Targets Transgender School-Bathroom Use, USA Today, Jan. 20, 2015, http://www.courier-journal.com/story/news/local/2015/01/19/ky-bill-targets-transgender-school-bathrooms/22005313/.
[13] Cal. Educ. Code § 221.5 (2013); Calif. Law Lets Schoolkids Choose Restroom, Sports Teams Based on Their Gender IDs, The Associated Press, July 3, 2013, http://www.nydailynews.com/news/national/new-calif-law-win-transgender-students-article-1.1389901. A bill similar to Embry’s failed to pass the Maine Legislature in 2011. See H.P. 781, An Act to Amend the Application of the Main Human Rights Act Regarding Public Accommodations, 121st Main Leg., Reg. Sess., (Ma. 2011).
[14] H.R. 3810, 187th Gen. Ct. (Mass. 2011).
[15] H.B. 6599, 2011 Gen. Assemb., Pub. Act No. 11-55 (Conn. 2011).
[16] S.B. 76, 2015 Gen. Assemb., Reg. Sess., (Ky. 2015); E.g. Chris Kenning, Ky Bill Targets Transgender School-Bathroom Use, USAToday, Jan. 20, 2015, http://www.courier-journal.com/story/news/local/2015/01/19/ky-bill-targets-transgender-school-bathrooms/22005313/.