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Read moreLimits to the Class Action Device: The Kentucky Wages and Hours Act Does Not Permit a Class Action
Article | 103 KY. L. J. ONLINE 2 | July 17, 2015
Jeffrey A. Savarise and Timothy J. Weatherholt[1]
I. Introduction
Class action claims for unpaid wages have become pervasive in both state and federal courts. Plaintiff employment attorneys and the ever burgeoning class action law firms are filing these cases throughout the country, including in Kentucky. A wage and hour class action can be extremely lucrative from a financial standpoint for plaintiffs’ counsel. Many of these classes include hundreds, if not thousands, of class members. Assuming a one-third contingency fee, a plaintiff counsel who settles a typical wage and hour class action could easily earn a seven-figure fee.The federal wage and hour law, the Fair Labor Standards Act (“FLSA”), provides for a class mechanism for wage claims – collective actions. However, individuals must “opt in” to the “class,” as opposed to the more traditional “opt out” class actions. Under 29 U.S.C. § 216(b) of the FLSA, a member of the class who is not named in the complaint is not a party unless he or she affirmatively “opts in” by filing a written consent-to-join with the court.[2] This has the obvious effect of limiting the recovery pool. Recent statistics show only around fifteen percent of litigants in federal collective actions actually “opt in” to the litigation.[3] The incentive for a plaintiff counsel to proceed in a state law class action – as opposed to a collective action under the federal law that requires litigants to affirmatively “opt in” to the case – is extremely high.Fortunately, for many members of the plaintiffs’ bar who practice wage and hour cases, most states supplement the basic protections of the FLSA with their own wage and hour laws. Some, but not all of these state laws, permit the class action device. For instance, several state wage and hour statutes explicitly permit an action to be brought on behalf of others.[4] The wage and hour statutes in other states provide more general language that does not authorize, nor preclude, the use of the class action device.[5] In this situation, state courts will typically approve of the class action device.[6] In those cases, plaintiffs are basically limited to the remedy provided under the FLSA.While this issue is settled in practically every state, either by clear statutory text or case law, the question of whether a Kentucky plaintiff can pursue a class action under Kentucky’s Wages and Hours Act (the “Kentucky Act”) remains unresolved.[7] The Kentucky Act is unique in that, on its face, for the reasons explained below, it does not appear to permit class actions. Yet, until recently, courts have taken no issue with plaintiffs pursuing class actions under the Kentucky Act.[8] In fact, it appears no employer/defendant had ever raised the issue prior to the authors of this note. This issue has serious potential consequences, not only due to the differences between “opt in” and “opt out” actions, but also because the statute of limitations under the Kentucky Act is five years[9] and the statute of limitations under the FLSA is only two years for non-willful violations.[10]This note argues Kentucky courts should adhere to the plain language and other extrinsic sources that support the position that class actions are not viable under the Kentucky Act. In Part II, this note will discuss the brief history of KRS 337.385 of the Kentucky Act and a few of the relevant cases discussing how wage and hour claims may proceed. The note will then review the Kentucky Act’s plain language and compare Kentucky’s statutory language to language in similar, but distinct statutes – the FLSA and Kentucky’s statutes prohibiting wage discrimination based on sex. The note will then discuss the opposing view for why the Kentucky Act might not bar class actions. In Part III, this note will discuss the recent decision by the Kentucky Court of Appeals in which it stated, albeit in dicta, the Kentucky Act precludes class actions. In Part IV, the note will discuss why the Court of Appeals was correct, but why a more comprehensive opinion is needed. In Part V, the note will highlight another opinion which provides a roadmap for how this dispute can be resolved. The note will conclude by discussing how the Kentucky General Assembly, not the courts, provides the best opportunity to enable the plaintiffs’ bar to bring class actions under the Kentucky Act.
II. The Kentucky Act: Its History and Text, As Well As Its Similarities and Differences as Compared to Like Statutes
A.The Language of KRS 337.385 Has Remained Remarkably Consistent Over Time
KRS 337.385(1) was first adopted in 1974 and has changed remarkably little over time. The 1974 version provided as follows:
(1) Any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of this Act shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court. Provided, that if, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of this Act, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves.[11]
In 1978, KRS 337.385(1) was revised to read:
(1) Any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to [337.275 and] 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court. Provided, that if, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of KRS 337.020 to [337.275 and] 337.385, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves.[12]
In 2010, the language was modified to be gender neutral:
(1) Any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court. Provided, that if, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he or she had reasonable grounds for believing that his or her act or omission was not a violation of KRS 337.020 to 337.285, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.[13]
Finally, in 2013, KRS 337.385 was again revised, primarily to address forced labor, and subsection (1) was split into two sections:
(1) Except as provided in subsection (3) of this section, any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney's fees as may be allowed by the court.
(2) If, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he or she had reasonable grounds for believing that his or her act or omission was not a violation of KRS 337.020 to 337.285, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.[14]
Throughout these revisions, the essential substance of the last sentence – which now reads, “[s]uch action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves” – remained the same.Between 1974 and 1986, there were only a few occasions where putative class actions reached the appellate level in published decisions. In Orms v. City of Louisville,[15] the issue on appeal concerned the application of Kentucky’s overtime compensation statute, KRS 337.285, to a City of Louisville policy that required its police officers to report fifteen minutes before they began their daily tour of duty.[16] The police officers sought to recover, in a class action, compensation for this time.[17] The Jefferson Circuit Court entered summary judgment for the City, and the Court of Appeals agreed, finding that the collective bargaining agreement at issue was controlling.[18]In City of Louisville v. Gnagie,[19] the plaintiffs/employers, individually and as representatives of the Louisville Firefighters’ Association, sought compensation in a class action suit against the City, pursuant to KRS 337.285, for their fifteen-minute “roll call” prior to each shift.[20 ]Both the City and the employees moved for summary judgment in Jefferson Circuit Court on the issue of liability.[21] The trial court entered summary judgment for the City, holding that the “roll call” period was de minimis,[22] and therefore, non-compensable, but the Court of Appeals reversed the Jefferson Circuit Court and remanded the case for an evidentiary hearing to resolve perceived factual disputes regarding the nature of the work performed during “roll call” and to determine whether the firefighters were customarily released from duty prior to the end of their shifts to compensate for the “roll call” period.[23] The Kentucky Supreme Court reversed the Court of Appeals and affirmed the trial court.[24]Given the procedural postures of Orms and Gnagie, each presented obvious issues tailor-made for the City of Louisville’s attempt at a swift resolution. While the City could have raised the argument that class actions are not viable under the Kentucky Act, it clearly had even stronger arguments at its disposal. Unfortunately for the advancement of the law, a pair of Kentucky Court of Appeals cases decided around the same time as Orms and Gnagie obviated the need to address the statutory language. Collectively, Early v. Campbell Fiscal Court[25] and Noel v. Season-Sash, Inc.[26] stand for the general proposition that the Kentucky Labor Cabinet had original and exclusive jurisdiction over claims brought for the recovery of minimum wage and overtime payments, i.e., there was no right to an original action in the circuit court.[27] The Supreme Court did not overrule these cases until 20 years later in Parts Depot, Inc. v. Beiswenger.[28] Only then were litigants permitted to pursue their wage claims either at the Kentucky Labor Cabinet or in a circuit court.[29]Subsequent to the Supreme Court’s decision in Parts Depot, plaintiffs have brought class actions under the Kentucky Act in a number of cases.[30] This note contends that they lack the authority to do so, and defense practitioners, and to a lesser extent the courts, have missed the mark (at least, that is, until November 2013)[31] in failing to properly consider the meaning of the statutory language.
B. An Analysis Of The Plain Language Of KRS 337.385
1. How Kentucky Courts Analyze Statutes
The Kentucky Supreme Court has set forth the following rubric for how statutory language should be reviewed:
The seminal duty of a court in construing a statute is to effectuate the intent of the legislature. A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning. Thus, we are “to ascertain the intention of the legislature for words used in enacting statutes rather than surmising what may have been intended but was not expressed.
Thus, if a statute is clear and unambiguous and expresses the legislature’s intent, the statute must be applied as written. And absent an ambiguity, there is no need to resort to the rules of statutory construction in interpreting it. Statutes, of course, must be read as a whole and in context with other parts of the law.[32]
In Revenue Cabinet v. O’Daniel,[33] the Supreme Court similarly noted, ‘“[t]he plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source.”’[34] Furthermore, in Lichtenstein v. Barbanel,[35] the Supreme Court remarked, “[i]f the statutory language is ambiguous, we will look to other sources to ascertain the legislature’s meaning, including legislative history.”[36]
2. Is KRS 337.385(1) of The Kentucky Act Ambiguous?
KRS 337.385 now provides that an employee or employees may sue “for and in behalf of himself, herself, or themselves.”[37] On its face, this language permits multiple individuals to pursue their claims in one proceeding, but not in a representative capacity – an employee or employees may sue only “for and in behalf of himself, herself, or themselves.”[38] The pronouns “himself,” “herself,” and “themselves” are reflexive pronouns, which always refer to, and are identical with, the subject of the sentence or clause.The subject of the statutory text at issue is the “one (1) or more employees” who are maintaining an action in court.[39] The pronouns “himself,” “herself,” and “themselves” refer to the “one (1) or more employees” who are maintaining such an action. A grammatical reading of the passage is:
(i) any one employee may maintain an action for and in behalf of himself;
(ii) any one employee may maintain an action for and in behalf of herself; and
(iii) any two or more employees may maintain an action for and in behalf of themselves.
Of course, it is fair to wonder why the General Assembly chose this particular language. After all, the General Assembly could have simply said something akin to “class actions are not permitted under this statute.” The General Assembly’s choice of words makes sense, however, in light of the federal statute on which it was modeled.
C. A Comparison To Like Statutes
1. The FLSA’s Remedy Mechanism
Kentucky courts have recognized the similarities between the remedy mechanism of the Kentucky Act and that of the FLSA.[40] The Kentucky Act’s remedy mechanism is similar to that of the FLSA, but with one major distinction, as noted below:
(Kentucky Act):
“Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.”[41]
(FLSA):
“An action . . . may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.”[42]
2. Kentucky’s Wage Discrimination Because Of Sex Statute
In addition to the FLSA inference, there is an infrequently utilized section in KRS Chapter 337 that addresses wage discrimination based on sex.[43] In principal part, the anti-discrimination provision provides, “[n]o employer shall discriminate between employees in the same establishment on the basis of sex, by paying wages to any employee in any occupation in this state at a rate less than the rate at which he or she pays any employee of the opposite sex for comparable work on jobs which have comparable requirements relating to skill, effort and responsibility.”[44] The anti-discrimination provision is enforced by a subsequent provision providing, “[a]ction to recover the liability may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves and other employees similarly situated.”[45]
D. The Opposing View
Perhaps the most potent argument is that the language of the statute does not, in ordinary words, preclude class relief, e.g., “class actions may not be maintained under this section.” In Califano v. Yamasaki,[46] the U.S. Supreme Court considered whether a statute that provided, “[a]ny individual, after any final decision of the Secretary made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action . . . .”[47] The court found the use of the ambiguous phrase “any individual” did not express the clear congressional intent to preclude class actions.[48]Another argument focused on the potential interplay between Kentucky Rule of Civil Procedure Rule (CR) 1 and 23. Rule 1 provides that the civil rules “govern procedure and practice in all actions of a civil nature . . . .”[49] In other words, there is a potential conflict between the judiciary’s adoption of civil rules permitting class actions and the legislature’s enactment of a statute that takes away the right to class actions. A number of other states have similar civil rules yet practically every state legislature, including Kentucky’s, has placed some form of a substantive restriction on the class action device.[50]Finally, the fact that a number of Kentucky courts, primarily Kentucky federal courts, have considered claims under the Act without taking issue with the ability to pursue a class action under the Act lends support, however small, to the position that the Act permits class actions.[51]
III. The Kentucky Court of Appeals Weighs in, Albeit in Dicta
In 2013, the Kentucky Court of Appeals had occasion to consider the argument that the Kentucky Act precludes class actions.[52] It did so in the context of litigation that had spanned fifteen years between Toyota Motor Manufacturing, Inc. (”TMMK”), represented by the authors of this piece,[53] and employees/former employees of its paint and bumper paint departments who claimed they were not compensated for time spent putting on and taking off a paint suit and walking to and from their work processes.[54] The Plaintiffs pursued their case as a class action, and millions of dollars in damages were potentially at issue given that the class could number over 1,000 members of TMMK’s paint and bumper paint departments.[55] This potential exposure only increased in 2007 when the Scott Circuit Court reopened the judicial case that had been final since 2003, in light of Parts Depot.[56]After a lengthy appellate process, the case returned to the Scott Circuit Court.[57] There, TMMK asserted the argument that the Kentucky Act does not provide for class actions, and, after the Scott Circuit Court denied its motion to dismiss on those grounds, re-asserted the argument in opposition to the Plaintiffs’ motion for class certification.[58] Once Plaintiffs’ motion was granted, TMMK was able to avail itself of a recent change in the civil rules that permitted litigants to make an interlocutory appeal of a grant or denial of class certification.[59]The Kentucky Court of Appeals primarily addressed the point that it agreed with TMMK that the Scott Circuit Court should not have reopened the case.[60] In dicta, though, the Court of Appeals stated:
However, were we to reach the merits of this argument, we would agree with TMMK that the text of KRS 337.385(1) provides a clear expression of intent that class actions are not permitted . . . The statute permits more than one person to bring a cause of action under KRS 337.385(1) in the same case, but they may not do so in a representative capacity. Further, the effect of the “for and in behalf of” language is to limit the individuals who may participate in an action under the Act to those who actually bring the action. Thus, even if the trial court had properly reopened the case under CR 60.02(f), KRS 337.385(1) does not permit class actions and the trial court improperly certified a class.[61]
The very next month, the Jefferson Circuit Court likewise found in favor of Humana Inc., also represented by Fisher & Phillips, who argued the same position regarding the statutory language.[62] That opinion, however, is not binding on any other Kentucky court and did not substantively address the arguments outlined above.
IV. The Kentucky Court of Appeals Was Correct, But a More Comprehensive Opinion is Needed
While the opinions of the Court of Appeals and the Jefferson Circuit Court reached the correct result, neither opinion thoroughly reviewed all of the arguments supporting the position that the Kentucky Act does not permit class actions. The most critical argument is, of course, the plain text. None of the readings of KRS 337.385(1) outlined above supports a conclusion that employees may sue for and in behalf of anyone else, that is, for and in behalf of anyone who has not also commenced an “action” to assert his or her own rights under the Act. While more than one person may bring a cause of action under the Kentucky Act, the language of KRS 337.385(1), on its face, bars them from doing so in a representative capacity. Given Kentucky law holding that the plain text controls absent ambiguity, this should resolve the issue.But given the support from extrinsic sources, it makes sense for a court to consider those sources as well. The Kentucky Act’s phrasing negating the class action device makes perfect sense when read in conjunction with the FLSA. Moreover, the Kentucky General Assembly adopted KRS 337.427, a section of the Kentucky Wage Discrimination Because of Sex statute, in 1966, eight years prior to its adoption of KRS 337.385.[63] Thus, it cannot be said the Kentucky General Assembly was unaware of the “for and in behalf of” language when it adopted KRS 337.385(1) in 1974.It is fair to wonder, however, whether the 1974 General Assembly somehow inadvertently omitted the “and other employees similarly situated” language included in the FLSA. Of course, Kentucky has long-recognized the “primary rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned.”[64] In Fox v. Grayson,[65] the Kentucky Supreme Court noted, “[w]e cannot dismiss the notable omission of language . . . as a mere accidental oversight. It is well settled law that a court may not add language to the written law to achieve a desired result.”[66] Similarly, in Rue v. Ky. Ret. Sys.,[67] the Kentucky Court of Appeals stated, “[w]e are not free to add words to statutory enactments in order to enlarge their scope beyond that which can be gleaned from a reading of the words used by the legislature.”[68]The Kentucky Supreme Court has a history of adhering to the slight differences in language in related statutes – a point that could easily be highlighted in any opinion on the Kentucky Act. In Kentucky Department of Corrections v. McCullough,[69] the Kentucky Supreme Court considered two different provisions of the Kentucky Civil Rights Act. At issue was the availability of punitive damages, specified in one provision but not the other:
(Kentucky Civil Rights Act – Employment Discrimination):
In the employment discrimination context, permitting recovery for “actual damages sustained.”[70]
(Kentucky Civil Rights Act – Housing Discrimination):
In the housing discrimination context, permitting recovery for “punitive damages.”[71]
When faced with this obvious disparity in language, the Kentucky Supreme Court rejected the Court of Appeals’ “policy-oriented approach,” which allowed for recovery of punitive damages under the employment discrimination remedy provision of KRS 344.[72] Instead, the Court reversed and found, inter alia, that “in construing statutes it must be presumed that the Legislature intended something by what it attempted to do.”[73]A more recent case provides another compelling example of the power of precise statutory language. In Griffin v. Rice,[74] the issue was who would receive the deceased’s estate, his mother or his wife.[75] The answer turned on the Kentucky Supreme Court’s interpretation of KRS 392.090(2), which provided that a spouse who voluntarily leaves the other and “lives in adultery” forfeits his or her right to an interest in the other’s estate of property.[76] The proof at trial showed that the deceased’s wife engaged in one act of sexual intercourse with another man, which happened to be the night prior to the deceased’s death.[77]In concluding that the phrase “lives in adultery” requires proof of more than one sexual act, the Court noted Kentucky’s former fault-based divorce statute contained different phrasing depending upon the party seeking the divorce.[78] According to the prior statute – which while concededly dated and sexist is nevertheless instructive for this limited purpose – a husband or a wife could obtain a divorce on the grounds that the other was “living in adultery with another man or woman,” but, according to another provision, a husband could also obtain a divorce on the grounds of “adultery by the wife.”[79] In finding for the wife, Griffin focused on the difference in language and stated:
Had the General Assembly considered one instance of adultery sufficient to bar a husband or wife from his or her interest in the other spouse’s estate and property, it would have made this clear by employing different wording in the statute, such as “commits adultery” or “engages in adultery.” Another statute, in effect at the same time as the statute at issue, indicates the General Assembly was aware of the import of its phrasing and knew exactly how to distinguish between one adulterous act and multiple acts of adultery. . . . The language chosen by the General Assembly in the contemporaneous divorce statute makes clear the legislature was aware of the significance of its phrasing and was able, had it meant to do so, to employ language that indicated one act of adultery would be sufficient to bar a husband or wife from his or her interest in the other spouse’s estate and property.[80]
Taken together, McCullough and Griffin stand for the proposition that different word choices in closely related statutes must be given effect. The General Assembly clearly understands the import of even slight word changes, and the Supreme Court has read those words literally, regardless of the outcome. In Griffin, that approach arguably had real and negative consequences – rewarding the unfaithful wife at the expense of the deceased’s mother.By contrast, there are no such negative consequences to the General Assembly’s choice to omit the critical and dispositive phrase “and other employees similarly situated.” Any individual who wants to pursue a claim under the Kentucky Act may do so, regardless of whether class actions are permitted. That has been, and will always be, the case. Employees simply will be unable to do so in any type of representative action.In other words, the only individuals truly harmed by this argument are the plaintiffs’ bar. Ultimately, though, the plaintiffs’ bar could have the opportunity to alter this outcome, despite the plain language of the Kentucky Act.
V. The Court of Appeals Provided a Roadmap for How This Issue Should Be Resolved in an Earlier Case
In 2005, the Court of Appeals in City of Somerset v. Bell[81] correctly read a statute as providing for class actions, and later that same year, the General Assembly, disagreeing with that conclusion, amended the statute. In City of Somerset, the Court of Appeals cited a line of precedent spanning more than 70 years which interpreted the statute at issue in that case, KRS 134.590(6), and its predecessor statute, as not allowing for class relief because it provided “[n]o refund shall be made unless application is made in each case within two (2) years from the date payment was made.”[82]City of Somerset noted that line of precedent was called into question due to a 1996 statutory amendment to KRS 134.590(6) which deleted the words “in each case.”[83] This amendment allowed the plaintiff taxpayers to argue the statute now permitted class actions.[84] The Court agreed with the taxpayers, citing Kentucky law providing, “[w]here a statute is amended or re-enacted in different language, it will not be presumed that the difference between the two statutes was due to oversight or inadvertence on the part of the Legislature. On the contrary, it will be presumed that the language was intentionally changed for the purpose of effecting a change in the law itself.”[85] Given this guidance, the court concluded:
Considering the historical significance of that phrase [in each case], beginning in the Swiss Oil case, we must conclude that the intent of the legislature was to amend that portion of the statute limiting refunds for ad valorem taxes to individual claims. Even if the change was unintentional, its effect was to alter key language of a statute, which, for some seventy years before the amendment, had been interpreted by the courts to limit tax refunds to individual claims.[86]
The General Assembly became aware of this result, and, later that very same year (2005), enacted new language to make clear its intent that class actions are not permissible.[87] The statute now reads, “[n]o refund shall be made unless each taxpayer individually applies . . .”[88]City of Somerset provides a model for how statutes should be reviewed. The absence of the phrase “in each case” was critical and dispositive in that case. It would have been more than a little odd for the Court to deny the availability of the class action mechanism to the taxpayers in 2005, given how the statute read at that time. But the General Assembly did not want taxpayers to be able to proceed as a class, so it took away that ability through an amendment to the statute’s text. If the General Assembly believes class actions are appropriate under the Kentucky Act, it will presumably do likewise here, once a Kentucky court definitively decides this issue. Absent that, it would be inappropriate for the judiciary to read into the Kentucky Act what is not there – either by consideration of the plain language or from the context of similar statutes.
[1] Jeff Savarise and Tim Weatherholt are partners in the Louisville office of Fisher & Phillips LLP, a national labor and employment law firm representing employers. Jeff is a 1982 graduate of John Carroll University and a 1985 graduate of the University of Akron School of Law. Tim is a 2001 graduate of Transylvania University and a 2004 graduate of Vanderbilt Law School.[2] Kinney Shoe Corp. v. Vorhes, 564 F.2d 859, 862 (9th Cir. 1977); 29 U.S.C. § 216(b) (2008).[3] See, e.g., Andrew C. Brunsden, Hybrid Class Actions, Dual Certification, and Wage Law Enforcement in the Federal Courts, 29 Berkeley J. Emp. & Lab. L. 269, 292–94 (2008).[4] See, e.g., Alaska Stat. § 23.10.110(b) (2012) (“An action to recover from the employer the wages and damages for which the employer is liable may be maintained in a competent court by an employee personally and for other employees similarly situated, or an employee may individually designate in writing an agent or representative to maintain an action for the employee.”); Haw. Rev. Stat. § 387-12(c) (2008) (“Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of oneself or themselves and other employees similarly situated, or the employee or employees may designate an agent or representative to maintain action for and in behalf of all employees similarly situated.”); N.H. Rev. Stat. Ann. 275:53(1) (2008) (“Action by an employee to recover unpaid wages and/or liquidated damages may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf or himself, or themselves, or such employee or employees may designate an agent or representative to maintain such action.”).[5] See, e.g., Minn. Stat. § 177.27(8) (2006) (“An employee may bring a civil action seeking redress . . . .”).[6] See, e.g., Braun v. Wal-Mart, Inc., No. 19-CO-01-9790, 2003 WL 22990114, at *3 (D. Minn. 2003) (certifying class in connection with working off the clock and through break and meal periods on breach of contract and other theories).[7] The Kentucky Act provides in pertinent part: “Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.” Ky. Rev. Stat. Ann. § 337.385(2) (West Supp. 2014).[8] See. e.g., Whitlock v. FSL Mgt., LLC, No. 3:10CV-00562-JHM, 2012 WL 3274973, at *14 (W.D. Ky. 2012), Hughes, v. UPS Supply Chain Solutions, Inc., Nos. 2012-CA-001353-ME, 2012-CA-001757-ME, 2013 WL 4779746, at *7 (Ky. Ct. App. 2013); England v. Adv. Stores Co., Inc., 263 F.R.D. 423, 458 (W.D. Ky. 2009); Barker v. Family Dollar, Inc., No. 3:10-CV-00170-H, 2012 WL 5305335, at *1 (W.D. Ky. 2012); McCauley v. Family Dollar, Inc., No. 3:10-CV-363-S, 2010 WL 3221880, at *1 (W.D. Ky. 2010).[9] Ky. Rev. Stat. Ann. § 413.120(2) (2006).[10] 29 U.S.C. § 255 (2011).[11] Ky. Rev. Stat. Ann. § 337.385 (1974) (current version at Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014)).[12] Ky. Rev. Stat. Ann. § 337.385 (1978) (current version at Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014)).[13] Ky. Rev. Stat. Ann. § 337.385 (2010) (current version at Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014)).[14] Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014).[15] Orms v. City of Louisville, 686 S.W.2d 464 (Ky. Ct. App. 1984).[16] Id. at 465.[17] Id.[18 ] Id.[19] City of Louisville v. Gnagie, 716 S.W.2d 236 (Ky. 1986).[20] Id. at 237.[21] Id. at 236–37.[22] De minimis is a Latin expression meaning about minimal things. It is commonly used by courts as a basis to not count certain small increments of time and the beginning and end of a workday that may otherwise be compensable.[23] Gnagie, 716 S.W.2d at 237.[24] Id.[25 ]Early v. Campbell Cnty. Fiscal Court, 690 S.W.2d 398 (Ky. Ct. App. 1985).[26] Noel v. Season-Sash, Inc., 722 S.W.2d 901 (Ky. Ct. App. 1986).[27] See id. at 903 (To reiterate, the Commissioner of Labor has original jurisdiction, as held in the Early case, only in those wage and hour disputes in which the duty to provide the benefits sought by the claimant derives solely from the statute . . . .”).[28] Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 356 (Ky. 2005).[29] See id. at 361–62.[30] See, e.g., Barker v. Family Dollar, Inc., No. 3:10-CV-00170-H, 2012 WL 5305335, at *1 (W.D. Ky. Oct. 25, 2012); Whitlock v. FSL Mgmt., LLC, No. 3:10-CV-00562-JHM, 2012 WL 3274973, at *1 (W.D. Ky. Aug. 10, 2012); McCauley v. Family Dollar, Inc., No. 3:10-CV-363-S, 2010 WL 3221880, at *1 (W.D. Ky. Aug. 12, 2010); England v. Advance Stores Co., 263 F.R.D. 423 (W.D. Ky. 2009); Hughes v. UPS Supply Chain Solutions, Inc., Nos. 2012-CA-001353-ME, 2012-CA-001757-ME, 2013 WL 4779746, at *1 (Ky. Ct. App. Sept. 6, 2013).[31] See infra notes 52–63 and accompanying text.[32 ]Hall v. Hospitality Res., 276 S.W.3d 775, 784 (Ky. 2008) (citations omitted).[33] Revenue Cabinet v. O’Daniel, 153 S.W.3d 815 (Ky. 2005).[34] Id. at 819 (citing Ronald Benton Brown & Sharon Jacobs Brown, Statutory Interpretation: The Search for Legislative Intent § 4.2, at 38 (2002)).[35] Lichtenstein v. Barbanel, 322 S.W.3d 27 (Ky. 2010).[36] Id. at 34–35 (citing MPM Financial Group Inc. v. Morton, 289 S.W.3d 193, 198 (Ky. 2009)).[37] Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014).[38] Id.[39] Id.[40] See Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 358 (Ky. 2005).[41] Ky. Rev. Stat. Ann. § 337.385 (West 2014).[42] 29 U.S.C. § 216 (2012) (emphasis added).[43] Kentucky’s Wage Discrimination Because of Sex provisions are located at Ky. Rev. Stat. Ann §§ 337.420—337.433 (West 2014).[44] Ky. Rev. Stat. Ann §§ 337.423(1) (West 2014).[45] Ky. Rev. Stat. Ann §§ 337.427(2) (West 2014) (emphasis added).[46] Califano v. Yamasaki, 442 U.S. 682 (1979).[47] Id. at 698 n. 12.[48] Id. at 700.[49] Ky. R. Civ. P. 1(2).[50] (Class Action not permitted—31 states) See, e.g., Ala. Code § 8-19-10(f) (2014); Ariz. Rev. Stat. Ann. § 33-712(C) (2014); Ark. Code Ann. § 4-87-103 (West 2014); Conn. Gen. Stat. § 36a-740 (West 2014); Fla. Stat. § 624.155(6) (West 2014); Ga. Code. Ann. § 7-4-21 (West 2014); Haw. Rev. Stat. § 477E-4(b) (West 2014); Idaho Code Ann. § 28-45-201(1) and (3) (West 2014); 740 Ill. Comp. Stat. 10/7(2) (West 2014); Iowa Code § 537.5203(1) (West 2014); Kan. Stat. Ann. § 50-634(b) (West 2014); Ky. Rev. Stat. 134.590(6) (West 2014); La. Rev. Stat. Ann. § 51:1409(A) (2014); Mich. Comp. Laws § 445.1611(1) (2014); Minn. Stat. § 325M.07 (2014); Miss. Code Ann. § 75-24-15(4) (West 2014); Mont. Code Ann. § 30-14-133(1) (West 2013); Neb. Rev. Stat. § 77-2793(1) (2014); N.H. Rev. Stat. Ann. § 359-H:4 (2014); N.J. Stat. Ann. § 46:10B-29(a)(2) (West 2014); N.C. Gen. Stat. § 75C-5 (2014); Okla. Stat. tit. 36 § 6595; Or. Rev. Stat. § 238.362(4)(a) (2014); 73 Pa. Cons. Stat. § 2208(d) (2014); R.I. Gen Laws § 15-7.2-5(b) (2014); S.C. Code Ann. § 40-39-160(1) (2013); S.D. Codified Laws § 10-47B-131.2 (2014); Tenn. Code Ann. § 56-47-108(a)(2) (West 2014); Tex. Bus. & Com. Code Ann. § 605.005 (West 2013); Utah Code Ann. § 13-37-203(3) (West 2014); Wash. Rev. Code § 63.60.070(3) (2014). (Class Action Limited – 15 states) See, e.g., Cal. Civ. Code § 1787.3(b) (West 2014); Col. Rev. Stat. § 6-1-113(2) (2014); Ind. Code 9-32-12-4(c) (2014); Me. Rev. Stat. tit. 32, § 11054(c)(2) (2014); Md. Code Ann. § 12-707(c) (West 2014); Mass. Gen. Laws ch. 140D, § 32(a)(2)(b) (2014); Mo. Rev. Stat. § 71.675(2) (2014); Nev. Rev. Stat. § 38.255(3)(b) (2014); N.M. Stat. Ann. § 58-16-15(B) (West 2014); N.Y. Gen. Oblig. Law § 5-702(a)(2) (McKinney 2014); Ohio Rev. Code Ann. § 1351.08(A)(2)(b)(ii) (West 2014); Va. Code Ann. § 8.01-316(A)(2) (West 2014); W. Va. Code § 6C-2-3(e)(2) (2014); Wis. Stat. § 426.110(3) (2013); Wyo. Stat. Ann. § 40-19-119(a)(iii) (2014).[51] See Ky. Rev. Stat. Ann. § 413.120(2) (West 2014).[52] Toyota Motor Mfg, Kentucky, Inc. v. Kelley, et al., No. 2012-CA-001508-ME, 2013 WL 6046079 (Ky. Ct. App. Nov. 15, 2013).[53] As co-author Jeff Savarise tells the story, he locked himself in his office, determined to develop an argument that would allow TMMK to prevail in this case. When he emerged, he posited the heretofore novel theory that that Kentucky Act does not permit class actions. Just as in Orms and Gnagie, there were other arguments to present on appeal, but this novel argument provided an extra layer of security in the correctness of our position.[54] TMMK, 2013 WL 6046079, at *1.[55] Id.[56] Id. at *2.[57] Id. at *2.[58] Id. at *3–4.[59] Ky. R. Civ. P. 23.06, which became effective on January 1, 2011, provides, “[a]n order granting or denying class action certification is appealable within 10 days after the order is entered. . .”[60] TMMK, 2013 WL 6046079, at *8–9.[61] Id. at *9.[62] See Brown v. Humana Inc. and Humana Ins. Co., No. 13-CI-002422 (Ky. Cir. Ct. Dec. 5, 2013).[63] Ky. Rev. Stat. Ann. § 337.427 (West 1966).[64] Smith v. Wedding, 303 S.W.2d 322, 323 (Ky. 1957) (citation omitted).[65] Fox v. Grayson, 317 S.W.3d 1 (Ky. 2010).[66] Id. at 8.[67] Rue v. Ky. Ret. Sys., 32 S.W.3d 87 (Ky. Ct. App. 2000).[68] Id. at 89.[69] Kentucky Department of Corrections v. McCullough, 123 S.W.3d 130 (Ky. 2003).[70] Ky. Rev. Stat. Ann. § 344.450 (West 1974).[71] Ky. Rev. Stat. Ann. § 344.660 (West 1991); Ky. Rev. Stat. Ann. § 344.665 (West 1992).[72] McCullough, 123 S.W.3d at 139.[73] Id. at 140 (emphasis added).[74] Griffin v. Rice, 381 S.W.3d 198 (Ky. 2012).[75] Id.at 200.[76] Id. at 201.[77] Id. at 199.[78] Id. at 202–03.[79] Id. at 202.[80] Id. at 202–03.[81] City of Somerset v. Bell, 156 S.W.3d 321 (Ky. Ct. App. 2005).[82] Id. at 326 (citing Swiss Oil Corp. v. Shanks, 270 S.W. 478 (Ky. 1925); Bd. of Educ. of Fayette County v. Taulbee, 706 S.W.2d 827 (Ky. 1986); Bischoff v. City of Newport, 733 S.W.2d 762 (Ky. Ct. App. 1987)) (emphasis in original).[83] Id. at 326.[84] Id. [85] Id. at 327 (citing Eversole v. Eversole, 185 S.W. 487, 489 (1916)).[86] Id. at 326–27.[87] Ky. Rev. Stat. Ann. § 134.590(6) (West 1992).[88] Id. (Emphasis added).
United States v. Kentucky Bar Association: In a Case Drawing National Attention, the Kentucky Supreme Court Addresses the Ethics of Waivers of Ineffective Assistance of Counsel in Plea Bargains
Article | 103 KY. L. J. ONLINE 1 | Feb 2, 2015
B. Scott West1
I. Introduction
In an opinion that is creating ripples throughout the country with respect to the ethics of criminal plea bargaining, the Kentucky Supreme Court in United States v. Kentucky Bar Association2 affirmed Kentucky Bar Association (“KBA”) Advisory Ethics Opinion E-4353 to be a correct statement of the Kentucky Rules of Professional Conduct.4 That advisory opinion stated that it was a concurrent conflict of interest for a criminal defense attorney to advise a client whether to accept a plea bargain which contained a prospective waiver of a claim of ineffective assistance of counsel (IAC) against that attorney, and that likewise it was a violation of the rules for a prosecutor to induce or assist an attorney to violate the Rules of Professional Conduct by including such a waiver in an offer on a plea of guilty.5The outcome of the case is significant, given the events of the last couple of decades, where federal substantive law on the validity of waivers of constitutional rights found itself juxtaposed against the ethical requirements placed upon the attorneys involved in the plea bargain, the prosecutor and the criminal defense attorney. Specifically, the substance of KBA E-435 arguably conflicted with the federal circuit courts that had one by one applied traditional waiver analysis to the issue of IAC claims and had affirmed their validity. As more circuit courts affirmed the constitutional validity of the waivers, they began to become more prevalent in plea bargains on both state and federal levels. And as the use of such waivers became more popular with prosecutors, so grew the opportunities for various state bar ethics authorities to address the issue of the ethics of including such waivers in plea bargains. Almost as quickly as the circuit courts were affirming waivers, the vast majority of state ethics authorities found the inclusion of an IAC waiver into a plea offer to place the criminal defense attorney into an irreconcilable conflict of interest. The question necessarily arose, which interpretation takes precedence: the federal circuits that have found such waivers to be valid, or the ethics opinions that proscribe the inclusion of such waivers into plea bargains?It was against this backdrop that KBA E-435 originated. With its publication by the Kentucky Board of Governors, and a state supreme court rule which allows any person “aggrieved” by an ethics opinion to challenge the opinion directly in the Kentucky Supreme Court,6 a forum was presented with which to have the issue decided. For the first time a court would decide on the merits of whether a state ethics rule would take precedence over circuit court waiver analysis. While a Kentucky opinion would not be binding on other states’ courts or United States federal courts outside of Kentucky, the outcome would nevertheless be persuasive.This past August, the Kentucky Supreme Court became the first court to pronounce that prospective IAC waivers included within plea bargains did, in fact, present a conflict of interest for the criminal defense attorney.7 In so doing, the Court drew a sharp line of distinction between federal substantive law, which had discussed in a vacuum the issue of whether the right to file an IAC was waivable, and the behavior of the attorneys involved in advising a client about a waiver or conditioning an offer on entry of a waiver. Shortly after the issuance of the opinion, federal prosecutors indicated that they “no longer will ask criminal defendants who plead guilty to waive their right to appeal over bad legal advice,”8 and as expected, Attorney General Eric Holder officially announced this development on October 14, 2014.9 This change signals an about-face of a practice that has been prevalent within the federal court system for the last decade or so—the reversal of a position to which the United States had steadfastly clung even as late as a year ago, when the United States decided to challenge the validity of KBA E-435. More importantly, the case stands as a beacon of continuing hope to those who plead guilty to a crime due to the ineffective advice of their attorneys, only later to find out that they should not have accepted their plea bargains, or even pled guilty at all.
II. Ineffective Assistance of Counsel Claims and the Proliferation of Waivers
Any discussion about the ethical propriety of advising a client whether to waive a potential IAC claim necessarily must start with a description of the claim being waived. An IAC claim is essentially a claim filed in the trial court10 urging the court to vacate the conviction on the ground that the client’s Sixth Amendment Right to counsel has been abrogated.11 The right to counsel has been construed to mean the right to effective assistance of counsel,12 and in Strickland v. Washington,13 the Supreme Court expounded that effective counsel means that counsel’s performance meets “an objective standard of reasonableness.”14 This effectiveness extends to an attorney’s role in advising a client whether to plead guilty pursuant to a plea bargain.15 However, “[j]udicial scrutiny of counsel’s performance must be highly deferential.”16 In order to establish ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.17
This standard can prove to be a difficult one for a claimant to meet, and in fact, has been criticized as being too deferential of attorneys’ performances, leading to courts not finding deficient performances often enough.18 According to a paper published by The Innocence Project, relying on a study by the National Center for State Courts, IAC claims are the “most commonly raised issues,” being raised in nearly half of all state post-conviction appeals, with only about eight percent of them being successful.19 On the other hand, it is true also that many post-conviction IAC claims are not well grounded in fact, and are often just another step in the appeal process and part of the job of being a criminal defense lawyer. “Attorneys who try criminal cases should not be surprised by challenges to their competency and integrity, for the claim of ineffective assistance of counsel is often a last appeal for the disappointed client.”20No wonder, then, that federal prosecutors – out of honorable desires of promoting finality of decisions, deterring waste of court resources, and avoiding having to respond to spurious IAC claims21 – began to require waivers of IAC claims in cases where the plea bargain being offered was exceptionally good, at least in the eyes of the prosecutors. Whereas before, prosecutors have required waivers of the right to direct appeal of convictions and sentences during plea colloquies, “increasingly . . . prosecutors have enlarged the scope of such waivers to include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims . . . .”22 At some point, however, the insertion of IAC waivers into federal plea bargains became routine.23 One study looked at the “boilerplate” plea agreements used in every federal jurisdiction – 114 in all, including at least one plea agreement from each of the 94 federal districts – and concluded that roughly a quarter of them contain language that waives all forms of collateral attacks, including claims of ineffective assistance of counsel.24Challenges to the validity of the waivers themselves arose in virtually every circuit, and in turn, between 1991 and 2005 virtually every circuit applied traditional waiver analysis and came to the conclusion that prospective waivers of IAC could be valid.25 As the Sixth Circuit Court of Appeals observed in Davila v. United States, “[w]hen a defendant knowingly, intelligently, and voluntarily waives the right to collaterally attack his or her sentence, he or she is precluded from bringing a claim of ineffective assistance of counsel . . . .”26 However, none of the circuits up to this point addressed the issue of the ethics involved when a client waives a potential IAC against the very defense attorney advising the client on the plea agreement in which the waiver was contained. Simply put, the issue before the courts was only about whether the right to file an IAC – a right grounded in the Sixth Amendment right to counsel – was waivable.
III. State Bar Ethics Committees – Including Kentucky – Address the Ethics of IAC Waivers, and a Trend Starts Reversing
Almost co-incident with the publication of the circuit opinions approving the validity of IAC waivers in plea bargains, various state bar ethics committees began to address the issue of whether it was a violation of the rules of professional conduct for a defense attorney to advise his or her client to enter a plea bargain which contained a waiver of future potential IAC claims against the attorney.27 The earliest states to consider the issue were North Carolina,28 Tennessee,29 Vermont,30 Arizona,31 and Ohio,32 which decided the issues between 1993 and 2001. North Carolina, who had adopted a version of the Model Rules of Professional Responsibility, opined that “the waiver of rights arising from the ineffective assistance of counsel . . . appears to be, and shall prospectively be deemed to be, in conflict with the ethical duties expressed or implied in the rules.”33 Tennessee, Vermont, and Ohio all referenced their state’s versions of the Model Code of Professional Responsibility’s Disciplinary Rule 6-102, which generally provide that “[a] lawyer shall not attempt to exonerate himself from or limit his liability to his client for personal malpractice.”34 Only Arizona, which also was decided under the Model Code of Professional Responsibility, failed to find an ethical breach, finding instead that there was a distinction between a malpractice claim and an IAC, and therefore, the Code did not prohibit the activity.35Then, between 2006 and 2013 – perhaps due to what Ellis and Bussert refer to as a “tide of postconviction waivers” appearing routinely in federal plea agreements36 – seven other states, including Kentucky, began to address the issue.In 2006, Texas interpreted Rule 1.7 of the Texas Disciplinary Rules of Professional Conduct, which is worded substantively differently from the version contained in the ABA’s Model Rules of Professional Conduct (RPC), to read that no conflict of interest is created when an attorney recommends a waiver of a potential IAC claim unless the attorney’s representation reasonably appears to be or becomes adversely limited.37 In short, the Texas rule appears to focus not on a risk of limitation of representation, as is true in the versions of Model Rules decided by the other states, but on something closer to actual limitation.Missouri,38 Alabama,39 Nevada,40 Virginia,41 Florida,42 and Kentucky43 decided the issue under their respective, but substantively similar, versions of the RPC and came to substantially identical conclusions. The opinions relied principally upon interpretations of RPC 1.7, 1.8(h), 8.4(a)44 and in the case of Kentucky, 3.8(b).45Kentucky’s KBA E-435’s opinion arose, as do all Kentucky informal ethics opinion, as a response to a request of a practitioner who raises an issue that the Committee believes is pertinent to attorneys in general. After the committee agrees to address a question via an opinion, a member drafts the opinion (in this case, the KBA Ethics Committee Chair Grace M. Giesel),46 who – after robust discussion and vetting by the other members of the Committee – edits the opinion and submits it to the Kentucky Bar Board of Governors for their own discussion and subsequent approval or disapproval. If approved, the advisory opinion is ordered officially published in Kentucky Bench & Bar. KBA E-43547 was approved, and is summarized as follows:
RPC 1.7 prohibits an attorney from advising a client about a plea agreement which contains a waiver of a prospective IAC against that attorney because there is a concurrent conflict of interest with the client.48 RPC 1.7(a) provides in pertinent part that:
Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: . . . (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.49
KBA E-435 opined that “[t]he lawyer has a clear interest in not having his or her representation of the client challenged on the basis of ineffective assistance of counsel. The lawyer certainly has a personal interest in not having his or her representation of the client found to be constitutionally ineffective.”50
By analogy to RPC 1.8(h), which limits prospective waivers of malpractice but which is not directly applicable to IAC’s, a lawyer cannot ethically advise a client about an IAC waiver because it is the attorney’s own professional conduct which stands as the underlying basis for the claim.51 In fact, comment 14 to Rule 1.8 provides:
Agreements prospectively limiting a lawyer’s liability for malpractice are prohibited unless the client is independently represented in making the agreement because they are likely to undermine competent and diligent representation. Also, many clients are unable to evaluate the desirability of making such an agreement before a dispute has arisen, particularly if they are then represented by the lawyer seeking the agreement.52
RPC 3.8(b) provides that a prosecutor must “make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.”53 Comment 1 to RPC 3.8 states that “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice . . . .”54
KBA E-435 opined that it was “inconsistent with the prosecutor’s role as a minister of justice and the spirit of SCR(3.8(b)) for a prosecutor to propose a plea agreement that requires the individual to waive his or her right to pursue a claim of ineffective assistance of counsel.”55
Finally, RPC 8.4(a) provides that “[i]t is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional conduct, knowingly assist or induce another to do so, or do so through the acts of another.”56 KBA E-435 opined that “[i]n making such a proposal, a prosecutor is assisting or inducing another lawyer, defense counsel, to violate the Rules of Professional Conduct, conduct proscribed by Rule 8.4(a).”57
With the adoption of KBA E-435 by the Kentucky Board of Governors, and its publication in Kentucky Bench & Bar magazine, Kentucky in 2013 joined the growing list of jurisdictions that found the practice of inclusion of IAC waivers to be unethical. It was a trend that did not escape the notice of at least one circuit court, which only a decade earlier had approved the validity of IAC waivers.58In Watson, the Eighth Circuit Court of Appeals revisited the issue of IAC waivers when a defendant brought an action pursuant to 28 U.S.C. § 2255 to vacate a sentence he received for pleading guilty to a drug conspiracy charge.59 The district court had denied the motion because his plea agreement contained a waiver of ineffective assistance of counsel claims.60 The Court of Appeals stated that the “[d]ismissal of a section 2255 motion on the basis of a waiver in the plea agreement is appropriate when the defendant’s claims of ineffective assistance relate to the negotiation of, and entry into, the plea agreement and waiver.”61However, the Court then noted that in a previous decision, it had been suggested that DeRoo should be refined to mean that a general waiver of the right to bring post-conviction claims under 28 U.S.C. § 2255 would not be sufficient to waive such a claim of ineffective assistance of counsel, absent an explicit waiver of the Sixth Amendment right to counsel which explained the concept of ineffective assistance of counsel.62 Such a waiver would be considered “knowing and voluntary” under the law of that Circuit provided that such a waiver of the Sixth Amendment right to counsel did not result in a “miscarriage of justice.”63 However, Chesney did not adopt such a refinement of DeRoo, since in that case the defendant’s waiver did not specifically mention the Sixth Amendment.64Then, the Court declined to adopt the Chesney refinement of DeRoo in the Watson case, and it did so for a very interesting reason:
We are not inclined to decide whether to adopt Chesney's refinement of DeRoo in this particular case, however, because the parties failed to address an issue we find difficult to ignore in determining whether Watson knowingly and voluntarily waived his right to bring an ineffective assistance claim with respect to matters directly related to the plea agreement. Ethics opinions from various states have addressed whether a defendant's attorney labors under a conflict of interest when advising a client to waive an ineffective assistance of counsel claim, with conflicting results. Watson does not claim his counsel labored under a conflict of interest when advising him to enter the plea agreement, and the parties did not brief this issue. We therefore believe it prudent to forego the issue of whether DeRoo should be refined by Chesney's suggestions until this related issue on a potential conflict of interest is fully aired by the adversarial process.
Instead, we accept the government's invitation to determine whether the district court should be affirmed in any event because Watson's ineffective assistance claim fails on the merits.65
Thereafter, persuaded by Watson, the Eastern District of Pennsylvania, in United States v. Deluca, decided against enforcement of a waiver of an IAC contained in the plea bargain before it.66 In Deluca, the court took note of state ethics opinions from the various states:
Although the Pennsylvania Bar has not addressed this issue,67 there appears to be an emerging trend among state bar ethics committees to recognize a criminal defense lawyer's personal interest in avoiding ineffective assistance of counsel claims may create a conflict of interest for the lawyer in advising his client regarding a plea agreement that would waive such claims. These ethics opinions do not purport to address the legality or enforceability of waivers of ineffective assistance of counsel claims, in some instances recognizing these issues are for the courts . . . . Although the Government urges this Court to likewise hold any conflict of interest in this case was merely speculative, the weight of ethics opinions to the contrary gives this Court pause in doing so.68
If nothing else, Watson and Deluca signaled that federal courts were no longer going to merely consider the validity of IAC waivers contained in plea agreements in a vacuum; the growing trend of ethics opinions denouncing the behavior of including such waivers in plea agreements were sufficient to give pause in enforcing the waivers. Both the Watson and Deluca courts declined to enforce the waivers, instead deciding the IAC issues on their merits.69 Nevertheless, the courts stopped short of addressing the ethical implications of inclusion of IAC waivers in plea agreements, in the case of Watson, because the parties had not addressed the issue in the briefing,70 and in the case of Deluca, because the Pennsylvania Bar had not opined on the ethics.71Something had to give; either the practice of placing waivers of IAC claims into plea agreements would have to be curtailed for ethical reasons (at least in those cases where the state’s ethic authorities found the practice to be barred under the state’s ethical code or rules), or, alternatively, at least in the federal courts, state ethical decisions would have to be subordinate to federal circuit case decisions which found such waivers to be valid after applying traditional waiver analysis. It was in this environment that the United States, acting through its United States Attorneys for both Eastern and Western Districts of Kentucky, filed suit against the Kentucky Bar Association,72 urging the Kentucky Supreme Court to strike down KBA E-435 either as violating federal law under the supremacy clause,73 or as misinterpreting the Kentucky Rules of Professional Conduct.
IV. United States v. Kentucky Bar Association
Pursuant to Kentucky Supreme Court Rule 3.530(12), any party or entity aggrieved or affected by a formal opinion of the Kentucky Board of Governors may file within thirty days of the opinion’s publication in Kentucky Bench & Bar magazine for a review of the opinion by the Kentucky Supreme Court.74 Thereafter, the Director of the Kentucky Bar Association may file a response within thirty days.75On April 29, 2013, the United States petitioned the Kentucky Supreme Court for review. The United States urged the court to vacate KBA E-435, arguing that the advisory opinion conflicted with controlling federal law,76 and that “[s]imply, the Board lack[ed] ‘the power, in the guise of regulating ethics, to impose strictures that are inconsistent with federal law.’”77 The United States also argued that the KBA “wrongfully conclude[d] that an ineffective assistance of counsel waiver creates an automatic conflict of interest for defense counsel that cannot be waived and that a prosecutor who makes a plea offer containing such a waiver violates the Rules of Professional Conduct.”78 The government explained: “If lawyers are presumed to provide competent representation and, by the time of the plea, a defense attorney is not aware of, or has not otherwise been accused of providing, ineffective representation, there is no ‘significant risk’ that counsel’s plea representation will be materially compromised by the possibility that, sometime in the future, counsel’s representation might be deemed ineffective.”79The impact of a holding in favor of the United States’ arguments would be clear: ineffective assistance of counsel claims could be waived out of existence, at least in the state of Kentucky. While not every plea bargain currently contains an IAC waiver, a Kentucky Supreme Court opinion upholding the practice of including and advising about such waivers could inevitably lead to a proliferation of their use. Moreover, with Kentucky being the first state to address the issues of “waiver v. ethics” on the merits, the case drew national attention.80 The National Association of Criminal Defense Attorneys81 (along with eighteen Legal Ethics Professors82 and sixteen Legal Ethics Practitioners83 located throughout the country) filed an amicus brief 84 in favor of the respondent, Kentucky Bar Association, as did Western Kentucky Community Defender, Inc.85 in Louisville, Kentucky, and the Innocence Network.86While the case was pending, the American Bar Association Criminal Justice Section proposed Resolution 113E. The resolution was introduced by George Washington University Law School’s Stephen A. Saltzburg and unanimously adopted by the ABA House of Delegates at their annual meeting on August 12-13, 2013.87 The resolution stated that the ABA opposed “plea or sentencing agreements that waive a criminal defendant’s post-conviction claims addressing ineffective assistance of counsel, prosecutorial misconduct or destruction of evidence unless based upon past instances of such conduct that that are specifically identified in the plea or sentencing agreement or transcript of the proceeding.”88In August 2014, the Kentucky Supreme Court handed down its opinion, addressing all of the issues raised by the United States, the KBA, and the Amicus parties.89 In a unanimous opinion authored by Chief Justice John D. Minton, Jr., the Court held that there was no conflict between Kentucky’s ethics rules and federal law, and that KBA E-435 accurately stated Kentucky’s ethical rules.90
A. KBA E-435 Held Not to Violate the Supremacy Clause or Conflict with Federal Law
The court first addressed what it called an “issue of weighty concern,” that the ethics opinion violated the Supremacy Clause “because it stands in direct conflict with federal case law, statutes, and regulations.”91 The court recognized that to accept this argument, it would be “compelled to vacate E-435 as applied to the United States.”92 However, the court declined to agree with what it referred to as the United States’ “remarkable" notion.93First, the court noted that 28 U.S.C. § 530B provided that all government attorneys are bound by ‘“[s]tate laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.’”94 Clarifying the previous statute, the Attorney General issued 28 C.F.R § 77.1(b), requiring ‘“[d]epartment attorneys to comply with state and local federal rules of professional responsibility.’”95However, the court stated that “[28 U.S.C. § 530B] should not ‘be construed in any way to alter federal substantive, procedural, or evidentiary law.’”96 The primary issue(s) before the court, then, was the “perplexing question whether Congress has precluded state action or by the choice of selective regulatory measures has left the police power of the States undisturbed except as the state and federal regulations collide,”97 and whether “the Supremacy Clause demands E-435’s lurking constitutional concerns be resolved.”98 In a footnote, the court found that “[i]n this particular case, the perplexity is increased by the fact that the Executive Branch, through the Office of Attorney General, is attempting to dictate to the Judicial Branch the standards for which attorneys, i.e., officers of the courts, should uphold.”99The court acknowledged that the vast majority of federal circuit courts had upheld the validity of IAC waivers in plea agreements, but then firmly drew the line between the waivers themselves and the acts of the attorneys involved:
We concede that federal jurisprudential support for the waivers at issue here is nearly unanimous. Our research indicates that every federal circuit to consider the validity of an IAC waiver—ten out of twelve—has explicitly permitted defendants to plead guilty and waive collateral review, including IAC. Undoubtedly, this case law is substantial and persuasive, if we were deciding, on its merits, whether a defendant could waive an IAC claim. But we are not deciding that issue. The obligations of attorneys are the real focus of this appeal. The KBA Ethics Committee, in any event, is without jurisdiction to issue opinions on such questions of law. So this Court's review of an IAC waiver's validity in the context of a plea agreement waits for another day.100
In our view, E-435 survives scrutiny under § 530B and the Supremacy Clause because it is simply an ethical rule and does not affect federal substantive, procedural, or evidentiary law. There is no subterfuge in E-435. It is not a procedural or substantive rule disguised as an ethics rule. E-435 also survives because, as we mention below, there is no contrary federal law.101
Thereafter, the court discussed why there was no other controlling federal law that would mandate vacation of E-435 under the Supremacy Clause.102
B. KBA E-435 Held to be the Correct Interpretation of Kentucky’s Rules of Professional Conduct
Having decided that KBA E-435 was not precluded by the Supremacy Clause – and therefore, if accurate, binding upon all attorneys practicing within state and federal courts within Kentucky – the court turned its attention to whether the ethics opinion accurately articulated the ethical concerns associated with allowing IAC waivers in plea agreements.103 The court recognized that E-435 did “not express a novel position,”104 and that it was “align[ed] with the vast majority of state ethics decisions.”105 Further, the court stated that, “[t]he soundness of E-435’s reasoning aside, as former Justice Robert Jackson famously remarked, ‘the mere fact that a path is a beaten one is a persuasive reason for following it.’ We choose the beaten path today.”106Point by point, the court affirmed the reasoning of E-435.
RPC 1.7: With regard to whether waivers present a conflict of interest for the defense attorney, the court found that:
The goal of [RPC 1.7] is to lessen the possibility of a ‘lawyer’s own interests . . . hav[ing] an adverse effect on [the] representation of a client. . . .’107 When defense counsel is forced, through the introduction of an IAC waiver in a plea agreement, to advise a client on the attorney's own conduct, a personal interest certainly exists. An IAC claim is time consuming for an attorney, may tarnish the attorney's professional reputation, may subject the attorney to discipline by the bar or courts, and may even have serious financial consequences for the attorney's practice.108
The court rejected the United States’ notion that an attorney’s personal interest will not “ordinarily” create a significant risk that a client’s representation will be materially limited.109 “This leaves open the possibility that ethical violations may occur and clients’ interests may be compromised. Instead of reactive, our ethics rules are intended to be proactive and operate preventively.”110
RPC 1.8(h), to which E-435 had analogized and which the United States had argued was irrelevant and inapplicable to an IAC waiver, was found to be more than an analogy by the court. The court found a link between an IAC claim and a potential claim for malpractice.111 “In Kentucky, to claim malpractice in a criminal case, just the same as a civil case, a defendant must show proximate cause. . . . [S]uffice it to say that without having his conviction overturned, a defendant's attempt at proving proximate cause becomes extraordinarily difficult, virtually impossible.”112
[P]ublic policy supports our conclusion that advising on an IAC waiver in a plea agreement is prohibited under [RPC] 1.8(h). Criminal defendants, of course, seldom bring malpractice actions. Instead, the usual course of action is via an action under [RCr] 11.42 or, federally speaking, a writ of habeas corpus under 28 U.S.C. § 2255. “[C]riminal defendants should not suffer from lesser protections simply because they usually seek habeas corpus relief rather than malpractice damage[s.]"113
RPC 3.8(b) was held to be applicable to prosecutors who would impose a waiver of an IAC claim as a condition of a plea offer:
Despite any notion of horse trading, plea agreements are often essentially contracts of adhesion. Indeed, in the context of appellate waivers, they have been labeled as such. The plea agreement often comes with a take-it-or-leave-it tone. And defense counsel is forced to deal with the provision if offered. Because the prosecutor is aware of our ethical rules, we see little reason why offering a contract of adhesion that requires a fellow attorney to perform unethically in order to comply with other ethical or constitutional obligations would not be "influencing or persuading" a fellow attorney to violate our ethical rules.114
Finally, the Supreme Court agreed with E-435 that plea bargains conditioned upon IAC waivers violate the spirit of RPC 3.8, which describe a prosecutor’s role to be a “minister of justice.”115 A prosecutor is charged with “‘see[ing] that the defendant is accorded procedural justice,’ and we simply do not believe the use of IAC waivers lives up to that lofty expectation.”116
The Kentucky Supreme Court concluded its opinion succinctly and firmly:
We are duty-bound to regulate the legal profession within our borders. Today, we are proactive in that role. Attorneys practicing in this Commonwealth, whether state or federal, must comply with our ethics rules. Accordingly, either defense counsel or prosecutors inserting into plea agreements waivers of collateral attack, including IAC, violates our Rules of Professional Conduct.117
V. What Happens Next?
Immediately following the issuance of United States v. Kentucky Bar Association, the opinion was applauded as being the first to address the merits of whether a state ethics rule prohibiting waivers would take precedence over the established federal practice of allowing IAC waivers in plea bargains. John Wesley Hall, who argued the case on behalf of amicus participant NACDL and the ethics professors and practitioners, stated “[n]ow we have an appellate court, in a lengthy and compelling opinion, joining many ethics opinions on the subject.”118 Daniel Goyette, Executive Director of the Louisville-Jefferson County Public Defender Corporation, stated “[t]he much anticipated decision by the Supreme Court of Kentucky is certain to have a broad national impact on the practice of criminal cases, both in terms of law and ethics.”119As previously stated, Attorney General Eric Holder issued a shift in policy under which United States Attorneys “should no longer seek in plea agreements to have a defendant waive claims of ineffective assistance of counsel.”120 The memorandum to federal prosecutors stated that, while a “majority of United States Attorney’s offices do not seek a waiver,” the Department of Justice has a “strong interest in ensuring that individuals facing criminal charges receive effective assistance of counsel.”121 Further, while a majority of prosecutors “do not seek a waiver,” the Department was interested in bringing “consistency” in the practice of making plea bargains, and in supporting the “underlying Sixth Amendment right.”122It is unknown whether the Attorney General’s decision was based, in part, on the decision in United States v. Kentucky Bar Association; the memorandum stated that the Department was “confident” that a waiver of ineffective assistance of counsel was both legal and ethical.123 Nevertheless, as can be inferred from the Wall Street Journal Online article, the timing of the issuance of the memorandum announcing the policy change suggests that the outcome of the opinion may have had some persuasive value.124 In this sense, the United States Attorneys who brought the challenge to the Kentucky Supreme Court should be commended for courageously bringing to a head an issue that perhaps ought to have been decided by some court, somewhere, a long time ago. By appealing E-435, the long-standing tension between federal court decisions which have upheld waivers of IAC claims, and the ethics decisions of most of the state bars who have decided the issue, are resolved.
1 B. Scott West is the General Counsel of the Kentucky Department of Public Advocacy, and a member of the KBA Ethics Committee. He, along with KBA Executive Director John Downing Meyers and KBA Bar Counsel Thomas H. Glover, represented the KBA in U.S. v. Ky. Bar Ass’n. Thanks to Thomas H. Glover for his editing and insight of this article prior to submission. Thanks also to Edward C. Monahan, Kentucky’s Public Advocate, for allowing his General Counsel to participate and represent the KBA in this case and to write this article.
2 U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136 (Ky. 2014).3 Ky. Bar Ass’n, Advisory Op. KBA E-435 (2012) (As found in Bench and Bar, March 2013, at 34–35).4 Ky. Rev. Stat. Ann. S. Ct. Rule 3.130 (West 2014) [hereinafter SCR].5 Ky. Bar Ass'n, supra note 3.6 SCR 3.520(12) (West 2014). In the event of an inquiry of the Kentucky Bar Association, under the interpretation of KBA E-435 a United States Attorney could possibly be found to be in violation of the Rules of Professional Conduct by including waivers in plea agreements. Thus, the United States would be an “aggrieved” person for purposes of a challenge.7 See U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136 (Ky. 2014); Joe Palazzolo, Government Rethinks Waivers With Guilty Pleas: Defense Lawyers Say Giving Up Right to Appeal Presents Conflicts of Interest, Wall St. J. (Sept. 26, 2014, 12:19 PM), http://online.wsj.com/articles/u-s-government-seeks-to-curb-appeals-over-bad-legal-advice-1411745218.8 Palazzolo, supra note 7.9 Eric Tucker, US Sets New Policy on Ineffective Lawyer Claims, Associated Press (Oct. 14, 2014 4:39 PM), http://hosted.ap.org/dynamic/stories/U/US_JUSTICE_INEFFECTIVE_COUNSEL?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2014-10-14-13-31-40.10 In Kentucky state courts, the procedure for asserting ineffective assistance of counsel is codified in Ky. R. Crim. P. 11.42. In the federal system, the procedure is codified at 28 U.S.C. § 2255 (2008) .11 The Sixth Amendment of the Constitution of the United States provides in pertinent part that “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI.12 McMann v. Richardson, 397 U. S. 759, 771, n.14 (1970) (emphasis added).13 Strickland v. Washington, 466 U.S. 668, 688 (1984).14 Id.15 See, e.g., Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (“Before deciding whether to plead guilty, a defendant is entitled to ‘the effective assistance of competent counsel.’”).16 Strickland, at 689.17 Id. at 687.18 See, e.g., Conference Addresses Inadequate Counsel for Poor, Equal Justice Initiative, (Nov. 15, 2007), www.eji.org/node/96.19 Dr. Emily M. West, Director of Research, Court Findings of Ineffective Assistance of Counsel Claims in Post-Conviction Appeals Among the First 255 DNA Exoneration Cases, The Innocence Project 1 (Sept. 2010), www.innocenceproject.org/docs/Innocence_Project_IAC_Report.pdf (citing Brandon Garrett, Judging Innocence, 108 Colum. L. Rev. 107 (2008); Victor E. Flango, Habeas Corpus in State and Federal Courts, NCJRS 45 (1994) , https://www.ncjrs.gov/pdffiles1/Digitization/149658-149664NCJRS.pdf. Dr. West is no relation to the author.20 Richard H. Underwood & William H. Fortune, Trial Ethics 383 (1988).21 Allan Ellis & Todd Bussert, Stemming the Tide of Postconviction Waivers, 25 CRIMINAL JUSTICE 1 (2010) (“While we recognize there exists a systemic interest in finality and minimizing meritless claims, the appeal and post-conviction waivers that have crept into the federal plea negotiation process require diligent attention.” Mr. Ellis is a past president of the National Association of Criminal Defense Lawyers and a contributing editor to Criminal Justice magazine . Mr. Bussert is a past chair of the ABA Criminal Justice Section’s Corrections & Sentencing Committee.22 Peter A. Joy & Rodney J. Uphoff, Systemic Barriers to Effective Assistance of Counsel in Plea Bargaining, 99 Iowa L. Rev. 2103, 2106 (2014), reprinted in Washington University in St. Louis School of Law Legal Studies Research Paper Series, Paper No. 14-08-03 (Aug. 2014) . Mr. Joy is the Henry Hitchcock Professor of Law and the Director of the Criminal Justice Clinic at Washington University School of Law in St. Louis; Mr. Uphoff is the Elwood Thomas Missouri Endowed Professor of Law at the University of Missouri School of Law.23 Ellis & Bussert, supra note 21.24 Susan R. Klein et al., Waiving the Criminal Justice System: An Empirical and Constitutional Analysis 18 (University of Texas Sch. of Law, Pub. Law & Legal Theory Working Paper No.556, 2014), available at http://ssrn.com/abstract=2422545. The study found that sixty-seven and a half percent (67.5) of the form agreements contain a waiver of collateral attack, and of these, sixty-four percent (64%) accepted IAC claims from waiver . Applying the math, this means that twenty-four and three-tenths percent (24.3%) contained waivers of collateral attacks which included IACs.25 United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005); Williams v. United States, 396 F.3d 1340, 1341–42 (11th Cir. 2005); United States v. White, 307 F.3d 336, 343-44 (5th Cir. 2002); Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001); United States v. Cockerham, 237 F.3d 1179, 1190–91 (10th Cir. 2001); DeRoo v. United States, 223 F.3d 919, 923 (8th Cir. 2000); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999); Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999); United States v. Rosa, 123 F.3d 94, 101 (2nd Cir. 1997); United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993).26 Davila, 258 F.3d at 451.27 Every state bar ethics authority that considered this issue had adopted some version of the ABA’s Model Rules of Professional Conduct, with the exception of Ohio, Tennessee and Vermont, whose ethics at the time of decision were governed by the Ethical Canons and Disciplinary Rules of the Model Code of Professional Responsibility. See infra notes 28–45 and accompanying text.28 N.C. State Bar Ethics Comm’n., Formal Op. RPC 129 (2d revision)(1993).29 Tenn. Bd. Prof’l Resp., Advisory Op. 94-A-549 (1994). 30 Vt. Bar Ass’n. Advisory Ethics Op. 95-04 (1995) .31 Ariz. State Bar Comm. on the Rules of Professional Conduct, Op. 95-08 (1995).32 Ohio Bd. of Comm’rs on Grievances and Discipline, Op. 2001-6 (2001).33 N.C. State Bar Ethics Comm’n, supra note 26.34 Ohio Bd. of Comm’rs on Grievances and Discipline, supra note 32, at 1; Tenn. Bd. Prof’l Responsibility, supra note 29; Vt. Bar Ass’n, supra note 30, at 1.35 Ariz. State Bar Comm., supra note 31.36 Ellis & Bussert, supra note 21.37 Supreme Court of Tex. Prof’l Ethics Comm., Op. 571 (2006).38 Advisory Comm. of the Supreme Court of Mo., Formal Op. 126 (2009).39 Ala. State Bar, Formal Ethics Op. 2011-02 (2011).40 State Bar of Nev. Standing Comm. on Ethics and Prof’l Responsibility, Formal Op. 48 (2011).41 Va. State Bar, Op. 1857 (2011).42 Prof’l Ethics of the Fla. Bar, Op.12-1 (2013).43 Ky. Bar Ass'n, supra note 3.44 See Ala. State Bar, supra note 39; Prof'l Ethics of the Florida Bar, supra note 42; Advisory Comm. of the Supreme Court of Mo., supra note 38; State Bar of Nev. Standing Comm. on Ethics and Prof'l Responsibility, supra note 40; Va. State Bar, supra note 41.45 See Ky. Bar Ass'n, supra note 3.46 Grace M. Giesel is the Bernard Flexner Professor at the University of Louisville Louis D. Brandeis School of Law where she teaches ethics courses to law students. Grace M. Giesel, University of Louisville Brandeis School of Law, http://www.law.louisville.edu/faculty/grace_giesel (last visited Oct. 14, 2014).47 Ky. Bar Ass’n, supra note 3.48 Id. (citing SCR 3.130(1.7) (West 2014)49 SCR 3.130(1.7(a)) (West 2014).50 Ky. Bar Ass'n, supra note 3.51 Id. (citing SCR 3.130(1.8(h)) (West 2014)).52 SCR 3.130(1.8) cmt. 14 (West 2014).53 SCR 3.130(3.8(b)) (West 2014).54 SCR 3.130(3.8) cmt. 1 (West 2014).55 Ky. Bar Ass’n, supra note 3.56 SCR 3.130(8.4(a)) (West 2014).57 Ky. Bar Ass’n, supra note 3.58 See Watson v. United States, 682 F.3d 740 (8th Cir. 2012); DeRoo v. United States, 223 F.3d 919 (8th Cir. 2000).59 See generally Watson, 682 F.3d at 740.60 Id. at 741.61 Watson, 682 F.3d at 743 (citing DeRoo, 223 F.3d at 924).62 Chesney v. United States, 367 F.3d 1055, 1058 (8th Cir. 2004).63 Watson, 682 F.3d at 744.64 Id. (citing Chesney, 367 F.3d at 1059).65 Id. at 744–45 (emphasis added) (citation omitted).66 See United States v. Deluca, No. 08-108, 2012 WL 5902555 (E.D. Pa. 2012).67 While the Pennsylvania Bar had not addressed the issue at the time of the Deluca opinion, it did so in 2014 in Pa. Bar Ass’n. Formal Ethics Op. 2014-100, and it concluded that IAC waivers in plea agreements are unethical. Josh J.T. Byrne, Roundup of Bar Associations’ Ethics Advisory Opinions, The Legal Intelligencer (Aug. 25, 2014), http://www.thelegalintelligencer.com/id=1202667804874/Roundup-of-Bar-Associations-Ethics-Advisory-Opinions.68 Deluca, No. 08-108, 2012 WL 5902555, at *10 (E.D. Pa. 2012) (emphasis added).69 Watson, 682 F.3d at 744–45; Deluca, 2012 WL 5902555, at *10.70 Watson, 682 F.3d at 744.71 Deluca, 2012 WL 5902555, at *10.72 Brief of U.S. in Support of Motion for Review of Ethics Opinion at 1–2, U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136 (Ky. 2014).73 U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”).74 SCR 3.530(12).75 Id.76 Brief of the U.S. in Support of Motion for Review of Ethics Opinion, at 1, U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136 (Ky. 2014).77 Id. at 9 (citing Stern v. U.S. Dist. Ct., 214 F.3d 4, 20 (1st Cir. 2000)).78 Id. at 1.79 Id. at 13.80 See, e.g., Palazzolo, supra note 7.81 “[The] NACDL, organized in 1958, is the preeminent bar association for criminal defense lawyers in the United States, representing 9,500 direct members and 32,000 members through its 85 affiliate organizations.” Brief for Nat’l Ass’n of Crim. Def. Lawyers et al. as Amici Curiae Supporting Respondent, at i, U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136 (Ky. 2014).82 Professor Janet Ainsworth, Seattle University School of Law, Seattle, Washington; Professor Gabriel J. Chin, University of California, Davis School of Law, Davis, California; Professor Liz Ryan Cole, Vermont Law School, S. Royalton, Vermont; Associate Professor Tigran Eldred, New England School of Law, Boston, Massachusetts; Professor Andrew Guthrie Ferguson, David A. Clarke School of Law, University of the District of Columbia, Washington, D.C.; Professor Lawrence Fox, Yale Law School, New Haven, Connecticut; Professor Monroe Freedman, Hofstra University School of Law, Hempstead, New York; Professor Babe Howell, CUNY School of Law, Long Island City, New York; Professor Peter Joy, Washington University School of Law, St. Louis, Missouri; Professor Susan Klein, University of Texas Law School, Austin, Texas; Professor Carol Langford, University of San Francisco Law School, San Francisco, California; Professor Richard A. Leo, University of San Francisco, San Francisco, California; Professor Michael J. Zydney Mannheimer, Salmon P. Chase College of Law, Highland Heights, Kentucky; Professor Milan Markovic, Texas Wesleyan University School of LaFayette, Fort Worth, Texas; Professor Kevin Mohr, Western State College of Law, Fullerton, California; Professor Ellen Podgor, Stetson University College of Law, Gulfport, Florida; Associate Professor Keith Swisher, Phoenix School of Law, Phoenix, Arizona; and, Professor Richard Zitrin, Hastings College of the Law, San Francisco, California. Id. at iv.83 James Ellis Arden, Law Offices of James Ellis Arden, North Hollywood, California; David M. Bigeleisen, San Franscisco, California; James Bolan, Brecher, Wyner, Simons, Fox and Bolan, LLP, Boston, Massachusetts; Darren R. Cantor, Darren R. Cantor, P.C., Denver, Colorado; David J. Chapman, DJ Chapman Law, P.C., Fargo, North Dakota; Edward X. Clinton, Jr., The Clinton Law Firm, Chicago, Illinois; Richard A. Greenberg, Rumberger, Kirk & Caldwell, P.A., Tallahassee, Florida; Harry H. Harkins, Jr., Atlanta, Georgia; Williams Hodes, The William Hodes Law Firm, Indianapolis, Indiana; John J. Mueller, John J. Mueller LLC, Cincinnati, Ohio; Arden Olson, Harrang Long Gary Rudnick P.C., Eugene, Oregon; Seth Rosner, Saratoga Springs, New York; Evan Shirley, Shirley and Associates, Honolulu, Hawaii; Neal R. Sonnett, Neal R. Sonnett, P.A., Miami, Florida; Brian Tannenbaum, Tannenbaum Weiss, P.L., Miami, Florida; and, Donald Wilson, Jr., Broening Oberg Woods & Wilson, Phoenix, Arizona. Id. at vi.84 Counsel on the brief for all amicus parties (NACDL, Legal Ethics Professors, and Legal Ethics Practitioners) were Jerry Cox, Mount Vernon, KY, then-president and now past-president of NACDL, and Chair of the Kentucky Public Advocacy Commission; John Wesley Hall, Little Rock, AR, counsel of record; J. Vincent Aprile II, Lynch, Cox, Gilman & Goodman, P.S.C., Louisville, KY, counsel of record; Ellen Yaroshefsky, Cardozo School of Law, Yeshiva University New York, NY; and David Eldridge, Eldridge & Blakney, PC, Knoxville, TN. Id. All amicus briefs can be searched and found on the Kentucky Court of Justice website at http://apps.courts.ky.gov/supreme/sc_dockets.shtm, case number 2013-SC-000270.85 “Western Kentucky Federal Community Defender, Inc. . . . is the designated Federal Community Defender Organization for the United States District Court for the Western District of Kentucky pursuant to [the Criminal Justice Act,] 18 U.S.C. §3006A(g)(B).” In such capacity, the organization “represents the majority of defendants charged with felony and misdemeanor offenses in the United States District Court for the Western District of Kentucky.” Counsel on the brief were Scott T. Wendelsdorf and Frank W. Heft, Jr., Office of the Federal Defender, Louisville, KY. Brief for W. Ky. Cmty. Defender, Inc. as Amici Curiae Supporting Respondent, at i, U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136 (Ky. 2014).86 “The Innocence Network is an association of organizations dedicated to providing pro bono legal and investigative services to prisoners for whom post-conviction evidence can provide conclusive proof of innocence. The 63 current members of the Innocence Network represent hundreds of prisoners with innocence claims in all 50 states and the District of Columbia, as well as Canada, the United Kingdom, Australia, and New Zealand.” Counsel on the brief were Larry D. Simon, Louisville, KY, Thomas H. Golden, James C. Dugan and Jill K. Grant, Wiillkie Farr & Gallagher LLP, New York, NY, and Barry Scheck, Co-Director, The Innocence Project, Benjamin N. Cardozo School of Law, New York, NY. Brief of The Innocence Network as Amici Curiae Supporting Respondent, at 2. U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136 (Ky. 2014).87 ABA Resolution 113E, Adopted by the House of Delegates (Aug. 12-13, 2013), available at http://www.americanbar.org/groups/criminal_justice/policy/annual_2013.html.88 Id. Resolution 113E also contained an eight page report submitted by Criminal Justice Chair William Shepherd, which described and explained the history and purpose of the ABA’s adoption of this resolution. Resolution 113E and the attached report of the ABA Criminal Justice Section were filed by the KBA in the case as supplemental authority.89 See generally U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136 (Ky. 2014).90 See id.91 Id. at 141.92 Id.93 Id. at 142. (borrowing the term “remarkable” from Arizonans for Official English v. Ariz., 520 U.S. 43, 58 n.11 (1997)).94 Id.95 Id.96 Id. at 143 (citing 28 C.F.R. § 77.1(b)).97 Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230–31 (1947)).98 Id.99 Id. at 143 n.27 (emphasis in original).100 Id. at 144 (emphasis in original).101 Id. at 146.102 See id. at 146–51.103 Id. at 151.104 Id.105 Id.106 Id. (citing Robert H. Jackson, Full Faith and Credit—The Lawyer's Clause of the Constitution, 45 Colum. L. Rev. 1 (1945), available at http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/full-faith-and-credit//.107 Id. at 152 (quoting SCR 3.130-1.7 Cmt. 10).108 Id. (citations omitted).109 Id. at 151.110 Id. at 152 (emphasis in original). In so holding, the Supreme Court remained consistent with its earlier holding in Am. Ins. Ass’n v. Ky. Bar Ass’n, 917 S.W.2d 568, 573 (Ky. 1996), another case where a KBA advisory opinion was challenged. In that case, the court upheld KBA E-368 and stated that “the mere appearance of impropriety is just as egregious as any actual or real conflict.” Id. KBA E-368 advised that a lawyer may not ethically enter into a contract with a liability insurer in which the lawyer agrees to do all of the insurer’s defense work for a set fee. Ky. Bar Ass’n, Advisory Op. KBA E-368 (1994). KBA E-368 and the rules it interpreted acted as a “prophylactic device to eliminate the potential for a conflict of interest or the compromise of an attorney’s ethical and professional duties.” Am. Ins. Ass’n, 917 S.W.2d at 573. Am. Ins. Ass’n v. Ky. Bar Ass’n was decided after adoption of Kentucky’s version of the Model Rules of Professional Conduct (1990); therefore, “appearance of impropriety,” which was a bastion concept within the Model Code of Professional Responsibility, remains a valid ethical concern.111 See U.S., ex rel. U.S. Attorneys for the E. & W. Dists. of Ky. v. Ky. Bar Ass’n,, 439 S.W.3d 136, 155 (Ky. 2014).112 Id. at 156. (citation omitted).113 Id. (quoting J. Peter Voloski, Bargain for Justice or Face the Prison of Privileges? The Ethical Dilemma in Plea Bargain Waivers of Collateral Relief , 86 Temp. L. Rev. 429, 447 (2014).114 Id. at 157 (citation omitted).115 Id.116 Id. (citation omitted).117 Id. at 157–58.118 Lance Rogers, Court Decisions: Federal Prosecutors Bound by Ethics Rule Forbidding IAC Waivers in Plea Agreements, 95 Crim. L. Rep. (BNA) 613, (U.S. Aug. 27, 2014).119 Daniel Goyette, Kentucky Supreme Court Upholds Ethics Opinion that Prohibits Waiver of IAC as a Condition in Plea Agreements, Ky. Ass’n of Crim. Def. Lawyers Newsletter (KACDL), Sept. 2014, reprinted in National Association for Public Defense (NAPD) website, available at http://www.publicdefenders.us/?q=node/512.120 The policy change was announced via a “Memorandum for all Federal Prosecutors” issued on October 14, 2014 from James M. Cole, Deputy Attorney General. James M. Cole, Memorandum for All Federal Prosecutors, Wall St. J. (2014), http://online.wsj.com/public/resources/documents/IACmemo.pdf.121 Id.122 Id.123 Id.124 See Joe Palazzolo, Government Rethinks Waivers With Guilty Pleas: Defense Lawyers Say Giving Up Right to Appeal Presents Conflicts of Interest, Wall St. J. (Sept. 26, 2014, 12:19 PM), http://online.wsj.com/articles/u-s-government-seeks-to-curb-appeals-over-bad-legal-advice-1411745218.
Equal Protection of Grocery Stores in the Sale of Alcoholic Beverages
This Online Original is available for download (PDF) here.
Article | 102 KY. L. J. ONLINE 7 | June 9, 2014
Thomas E. Rutledge[1] and Stacy C. Kula[2]
The United States alcoholic beverage industry is unique as it is the only industry for which two amendments to the Federal Constitution have been passed. The first of those amendments, the ill-fated Eighteenth, enacted nationwide Prohibition.[3] After the complete failure of that “Noble Experiment,”[4] the Twenty-First Amendment was enacted, ending Prohibition and vesting in the various states the power to regulate the manufacture, purchase and sale of alcoholic beverages.[5]Since the passage of the Twenty-First Amendment there have been questions as to its relationship to the balance of the Constitution. Essentially, is the Twenty-First Amendment plenary, removing all aspects of the regulation of the alcoholic beverage industry from oversight by the balance of the provisions of the Constitution or, in the alternative, must state regulation accord with other constitutional requirements? In the early years after the passage of the Twenty-First Amendment, the trend was to view it as controlling over other constitutional provisions.[6] More recently, the trend has been to require regulation under the Twenty-First Amendment to comport with other constitutional limitations.[7] As such, while the states are afforded particular authority with respect to the regulation of the alcoholic beverage industry, that authority must be balanced with other constitutional requirements. To that end, a state may not (i) treat men and women differently with respect to the legal age of drinking[8] or impose differentials between men and women in serving and consuming alcoholic beverages,[9] (ii) impose price affirmation obligations in a state that have the effect of limiting price flexibility in foreign jurisdictions,[10] (iii) enact a tax system that grants preferential treatment to locally manufactured products,[11] (iv) afford a religious institution a veto over the granting of a liquor license,[12] or (v) grant preferential treatment to wine manufactured in a particular jurisdiction while not granting similar treatment to wine manufactured out-of-state.[13]While these various battles, particularly those involving the Commerce Clause, will no doubt continue, there has of late been litigation involving the inter-relationship of state alcoholic beverage regulation and the Equal Protection Clause.[14] This article will focus upon the decision of the Sixth Circuit Court of Appeals rendered in Maxwell’s Pic-Pac, Inc. v. Dehner, wherein the Sixth Circuit reversed a determination by the trial court[15] that a Kentucky statute permitting, inter alia, the sale of wine and liquor by pharmacies while not affording a similar opportunity to grocery and convenience stores violated the equal protection rights of the latter category of stores.[16]Through this article, we explore the history of the limitations imposed in Kentucky with respect to the retail sale of wine and spirits, highlighting the contrast between those retailers who are classified as grocery stores versus those retailers classified as pharmacies, the challenge to that distinction brought by Maxwell’s Pic-Pac, the arguments of the grocers, the drugstores, and the free-standing liquor retailers, Judge Heyburn’s decision holding the statutory distinction to be invalid under equal protection principles, and finally the decision of the Sixth Circuit reversing that determination.
I. The Macro Structure of the Alcoholic Beverage Industry
Since the end of Prohibition, the various states have enacted a bewildering array of rules and regulations intended, inter alia, to militate against the perceived evils of alcohol consumption. To that end, save with respect to those “control states” jurisdictions in which retail sales are made through state agencies with the state acting as its own wholesaler, the industry is divided into three tiers. At the top are the various manufacturers of beer, wine, and spirits. Generally speaking, these manufacturers are not permitted to sell either to consumers or to retailers. Rather, they are restricted to making sales to licensed wholesalers and distributors. The wholesaler/distributor segment, the middle tier, purchases from the various manufacturers and re-sells to individual retail licensees.Individual retail outlets, whether package stores or bars/restaurants selling by the drink, are the bottom tier and are obligated to acquire all of their alcohol from a licensed wholesaler or distributor.[17] In turn, it is usually only from such a retail licensee that an ultimate consumer may purchase alcoholic beverages.[18] A myriad of state-specific limitations have been imposed upon various retailers, some positively comical in nature. For example, until a state constitutional amendment in 2005, South Carolina required that all sales by the drink be done by means of miniature bottles actually presented to the patrons, allowing them to pour the drink and thereby assuring they received the full amount of spirits purchased.[19] And in Utah, restaurants’ mixed drinks have to be prepared out of sight of the patron, typically behind a “Zion curtain.”[20]
II. Kentucky’s Differentiation of Pharmacies and Grocers, Convenience Stores and Gas Stations in the Sale of Alcoholic Beverages
Kentucky’s peculiar law allowing the sale of wine and spirits in drugstores while precluding grocery stores and gas stations from making similar sales[21] can be traced to a seldomly discussed aspect of Prohibition.[22] During the pendency of the Eighteenth Amendment and notwithstanding Prohibition, in addition to the availability of wine for sacramental purposes, alcohol could be prescribed for “medicinal purposes.”[23] By 1932, the last full year of Prohibition, some 11 million prescriptions were issued nationwide. This alcohol, prescribed by physicians, was in turn dispensed from pharmacies. With the repeal of Prohibition, even as other avenues for retail sales were being discussed and implemented, sales by pharmacies were already accepted and operational.[24] Ultimately, grocery and convenience stores were barred from holding the license required to sell either liquor or wine because of the limitations triggered by the sale of either staple food products or gasoline.[25] It is important to keep in mind the nature of the distinction drawn by this statute. It does not provide that, aside from pharmacies, wine and spirits may be sold only in establishments dedicated to that purpose. Rather, the statute provides, in effect, that any retailer may hold a license to sell wine and spirits unless the establishment is otherwise primarily in the business of the sale of either staple groceries or of gasoline and lubricating oil.[26]This regulatory scheme was challenged in 2011 by Maxwell’s Pic-Pac, as well as the Wine With Food Coalition, who argued that that the distinction grossly drawn between pharmacies on the one hand, and convenience and grocery stores and gas stations on the other, lacks a rational basis and, as such, violates equal protection rights.[27]
III. Judge Heyburn’s Analysis
In an August 14, 2012 opinion, Judge John G. Heyburn II of the Western District of Kentucky found for Maxwell’s Pic-Pac on cross-motions for summary judgment. After disposing of standing[28] and statute of limitations[29] challenges, he began the substance of his opinion by noting that the statutes at issue must be upheld if they had a rational basis.[30]The trial court identified six factors that could constitute a legitimate governmental interest that might support the deferential treatment of groceries and gas stations from other retailers, namely:
Stricter regulation of more potent alcoholic beverages; Curbing potential abuse by limiting access to the products; Keeping pricing among merchants competitive, but not so low as to promote excessive consumption; Limiting the potential for underage access; Limiting alcohol sales to premises where personal observation of the purchase occurs; and Balancing the availability of a controversial product between those who want to purchase it and those who seek to ban it.[31]
Seriatim, the Court addressed and rejected each of the proffered justifications for the distinction.Acknowledging that the state may have a legitimate interest in restricting the availability of spirits and wine as contrasted with beer on the basis of the former’s “higher potencies,”[32] Judge Heyburn stated that the argument failed to show how this benefit was achieved by restricting sales by grocers and convenience stores but allowing them in “a grocery-selling drugstore like Walgreens.”[33] Additionally, Heyburn explained that while maintaining appropriate levels of price competition may be a legitimate state objective, there was no showing that restricting spirits and wine sales from grocery and convenience stores would influence pricing.[34] In response to the claim that the statute is an effort to reduce underage access to alcohol, Judge Heyburn found that the distinction drawn against grocery and convenience stores lacked a rational basis.Of course, reducing the number of wine and liquor retailers could also diminish underage access. Kentucky is free to reduce the number of outlets for wine and liquor sales, as it does through its statutory quota system, see Ky. Rev. Stat. Ann. § 241.065, but may not do so in an arbitrary and discriminatory manner. The Statute’s classification regulates the type, not the number, of premises that can receive a license. There must be a rational basis for excluding grocery stores from wine and liquor sales, but including other retailers.The State argues that “[l]imiting the package sale of spirits and wine to liquor stores whose primary business is the sale of spirits and wine ... is an increased control measure [that] is rationally related to controlling access to distilled spirits and beverages.” Def.’s Mot. Summ. J. 4. True, limiting alcohol sales to stores that disallow underage persons on the premises would rationally relate to Kentucky’s interest in reducing underage access to wine and liquor. See Ky. Rev. Stat. Ann. § 244.085(8) (barring persons under the age of twenty-one from premises that sell packaged alcohol, unless “the usual and customary business of the establishment is a convenience store, grocery store, drugstore, or similar establishment”). And it would also limit the sale of package wine and liquor only in places where persons disposed to temperance would have no occasion to frequent. See infra Part IV.D.The fallacy of this argument is that it completely mischaracterizes the Statute. Quite simply, the Statute does not limit package sales of spirits and wine to stores whose primary business is the sale of those products. Instead, it allows package liquor licenses to stores whose primary business is anything other than groceries or gas. The primary business of stores like Walgreens and CVS is not spirits and wine, yet they are free to hold package liquor licenses. Thus, the rational bases for limiting package liquor licenses to traditional package liquor stores are irrelevant here because the Statute does not make this classification. They have no bearing whatsoever on treating gas and grocery retailers differently than all other retailers for the purpose of applying for package liquor licenses.[35]From there, Heyburn addressed the argument that because some grocery stores use self-checkout, there is less protection in those facilities against underage access. This argument failed for two reasons. First, the statutory distinction is not based on the use of self-checkout facilities, and drug stores today are permitted to use self-checkout machines, regardless of whether they actually do. Second, self-scan checkout machine technology did not exist when the statutory scheme at issue was first put in place in 1938. Hence, it could not provide the rational basis for the legislative distinction because the legislature could not have had it in mind at that time.[36]Last, the State asserted that the distinction is meant to balance the interests of those who believe they should have access to alcoholic beverages versus those who would seek its prohibition. To that end, it was suggested that grocery stores are “community gathering centers” in which conflicts between teetotalers and imbibers should be avoided. This argument was ultimately rejected on the basis that:If grocery stores are community gathering centers in some places, they are so presumably because they sell staple groceries and other necessities that attract the wider community. However, this attribute does not distinguish them from stores currently selling wine and liquor, like Walgreens, CVS, and Rite-Aid. Nor does it seem plausible that a rural grocery store is more or less of a community gathering place than a rural drugstore. Drugstores also sell both staple groceries and other necessities that undoubtedly draw bibbers and teetotalers alike. Like grocers, they do not specialize in the sale of alcoholic beverages that would attract only customers for that product.[37]Judge Heyburn declined to decide whether Kentucky’s equal protection guarantee, in this specific case, would afford a higher level of protection compared to its federal equivalent.[38] Instead, he held that as the statute violated the low standard of rational basis review it necessarily violated state equal protection law.[39]In a pyrrhic victory, the plaintiff’s challenge based on excessive legislative delegation to the Alcohol Beverage Control Board to define “substantial part” and “staple groceries” as used in the statute was rejected.[40] The plaintiffs argued that this regulation involved excessive delegation of the legislative function to the executive branch agency so as to justify a separation of powers challenge under the Fourteenth Amendment.[41] The Court determined that the term “substantial” did imply a limiting standard and thus was not too vague and that the discretion exercised by the Alcohol Beverage Control Board was no different from that exercised by other agencies.[42]Judge Heyburn granted the defendants request for a stay pending appeal to the Sixth Circuit. In determining whether the stay was appropriate, the Court balanced the following four factors:
(1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.[43]
As to the first factor, the Court noted that the defendants were unlikely to be successful on appeal and that defendant’s failure to specifically discuss the Twenty-First Amendment was not reversible error.[44] As to the other three factors, the Court found that neither party’s interest would be damaged irreparably or substantially by a stay, even if some retail establishments were precluded from obtaining a quota retail package license, and that, “neither interest trumps the public’s interest in a fair and final result without unnecessary regulatory confusion.”[45] In drawing its conclusion, the Court viewed the question of a stay in a broader context than just the parties’ immediate interests.[46] Notably, the Court expressly stated that it did not decide that the plaintiffs had a right to sell package liquor, only that the current statutory scheme regulating the licensing of package liquor and wine sales violates the Equal Protection Clause, and suggested that the legislature could enact legislation to avoid the default result of the decision.[47]In response to Judge Heyburn’s ruling and the stay, proponents of the current law introduced House Bill 310 to the 2013 General Assembly, which would have made the ruling a moot point. Under this so-called grocery store bill, grocery stores and newly-built drugstores could sell wine and liquor only if they had a separate entrance to an adjoined structure, which is essentially what grocery stores are currently required to build if they want to sell spirits and wine under the current statute. Existing drugstores that already sold wine and liquor would be “grandfathered in” and could continue to sell alcohol without building a separate entrance and adjoining structure. Supporters of the bill argued that Judge Heyburn’s decision would allow any retailer, including the most unlikely of sorts, like pawn shops, to receive a license to sell alcohol and the availability of licenses would quickly diminish. Although an interesting concept, that ideology failed to acknowledge that many of the businesses, with the right qualifications, would be entitled to receive a quota retail package license regardless of whether HB 310 was enacted into law. Ultimately, the bill did not pass.It is questionable, had HB 310 passed, whether it would have been sufficient to resolve the question. While it at best would have precluded the issuance of new wine and spirits licenses to pharmacies without separate entrances, it would have continued to prohibit most groceries and convenience stores from even holding such a license. Essentially “freezing” the existing fact pattern would not address the determination that the equal protection rights of groceries and convenience stores were, vis-à-vis license holding pharmacies, being violated.
IV. The Arguments to the Sixth Circuit
The various briefs presented to the Sixth Circuit were the expected arguments, but with a few interesting points. The plaintiffs (now the appellees) emphasized that not only must the differential treatment of grocery and convenience stores from pharmacies have satisfied equal protection at the time of its enactment in 1938, but it must also do so today.[48] The defendants (now the appellants) argued, in effect, for Twenty-First Amendment primacy[49] and that Judge Heyburn failed to consider the various arguments in favor of the statue on a cumulative, rather than only an individual basis.[50] The Intervening Plaintiff made the specious argument that KRS § 244.230(7) actually discriminates against package stores by precluding them from being able to generate more than 10% of their gross sales from staple groceries and gasoline.[51]At the oral argument, the intervenors sought to portray a world in which not only would convenience stores be selling liquor and wine by the package but potentially also by the drink.[52] In contrast, the Commonwealth focused its argument on challenging Heyburn’s determination that grocery and drugstores are substantially equivalent[53] in that most people are in a grocery store at least weekly (some daily) while pharmacy visits are less frequent.[54] Based upon this pattern of visitation, it was argued that the General Assembly could have drawn a distinction restricting wine and liquor sales, implicitly characterizing them as more problematic than beer sales, to forums less frequented by those who may not approve of alcoholic beverages. The Commonwealth also argued for an equal protection analytic paradigm in which any debatability over the propriety of a legislatively drawn distinction would indicate it to be a valid balancing.[55]
V. The Sixth Circuit’s Analysis
On January 15, 2014, the Sixth Circuit Court of Appeals issued its decision reversing Judge Heyburn’s determination that the limitations imposed upon alcoholic beverage sales by grocery stores and gas stations violate equal protection while affirming his determination that the distinctions drawn do not violate separation of powers principles through excessive delegation of authority to alcoholic beverage control regulators.The Sixth Circuit’s determination that equal protection was satisfied based upon a variety of factual assumptions. Initially, the Court of Appeals found that the distinctions drawn between grocery stores and gas stations, on the one hand, and other retailers on the other, conceivably serve a legitimate function in that they “reduce access to high-alcohol products.”[56]Second, precluding gas stations and grocery stores from selling wine and spirits benefits those persons who have moral objections to alcoholic beverages from being exposed thereto.[57]Third, the Court explained that the current distinction is rationally related to decreasing minors’ access to alcohol. It reasoned that more minors work at grocery stores and gas stations than other establishments and that the larger size of grocery stores could allow minors to more easily steal wine or liquor.[58]Last, the Court noted that since many gas stations are located “near highways” there is a “greater danger” in allowing alcohol sales.[59]The Court reasoned that:
[the] legislature “chose to prohibit the sale in those places where all in the community must come together.” We conclude that reasonably conceivable facts support the contention that grocery stores and gas stations pose a greater risk of exposing citizens to alcohol than do other retailers. A legislature could rationally believe that average citizens spend more time in grocery stores and gas stations than in other establishments; people typically need to buy staple groceries (for sustenance) and gas (for transportation) more often than items from retailers that specialize in other, less-frequently-used products. Consider the district court’s pharmacy example. Kentucky could believe that its citizenry visits grocery stores and gas stations more often than pharmacies -- people can survive without ever visiting a pharmacy given that many grocery stores fill prescriptions. On the other hand, most people who object to confronting wine and liquor conceivably cannot avoid grocery stores and gas stations. Though some modern pharmacies sell staple groceries, grocery stores may remain the go-to place for life’s essentials. And though Kentucky otherwise reduces access to wine and liquor by capping the number of places that supply it, the state can also reduce access by limiting the types of places that supply it -- just as a parent can reduce a child’s access to liquor by keeping smaller amounts in the house and by locking it in the liquor cabinet.
Our conclusion also rings true regarding minors. According to a plausible set of facts, more minors work at grocery stores and gas stations than other retailers; after all, grocery stores and gas stations conceivably provide more low-skilled and low experience jobs, including clerks, baggers, and stockers. Kentucky could also believe that grocery stores typically outweigh other retailers in size and traffic, allowing minors to more easily steal wine or liquor. Regarding gas stations, their convenience and prevalence near highways suggest an even greater danger in allowing alcohol sales.[60]
The Sixth Circuit affirmed Judge Heyburn’s determination that the delegation of authority to determine what does and does not constitute “a substantial part” of sales of groceries and gasoline did not involve an excessive delegation of legislative powers by the General Assembly to the executive branch. Rather, in that the General Assembly must have help in rule-making, and parameters were provided, the delegation was appropriate[61]
VI. A Critique of the Sixth Circuit’s Decision
Especially when contrasted with the decision rendered by Judge Heyburn, the decision of the Sixth Circuit Court of Appeals is unsatisfactory in several respects, including its lack of critical assessment of the required standard for satisfaction of equal protection, its failure to examine the question presented both at the time of the initial statutory enactment and under today’s factual circumstances, and the failure to explicate how the various factual assumptions assumed of themselves either are valid or satisfy equal protection. Rather than being the explication of an analytic process, the ruling of the Sixth Circuit is best characterized as the recitation of a conclusion.An immediately obvious failing of the decision of the Sixth Circuit is its failure to recite the requirements of a rational basis equal protection analysis. This is in contrast to the detailed explanation provided by Judge Heyburn.[62] In consequence, the reader of the decision of the Sixth Circuit is unaware of what is being required by the Sixth Circuit, and it is likewise unclear whether the Sixth Circuit agreed or disagreed with Judge Heyburn’s analytic framework.On a related point, Judge Heyburn had made clear that the equal protection analysis with respect to the distinction drawn, namely between those retailers whose sales were comprised of more than 10% of staple groceries of gasoline/oil products and those whose sales were not so comprised, must have been rational at the time of enactment shortly after the end of Prohibition and must be rational today. The Court of Appeals in no manner either endorsed or rejected that two-prong path.Having initially failed to set forth an analytic framework, the Court of Appeals recited a series of possible explanations, but without placing them in the context of the statute as related to sales of staple groceries and gasoline. The Sixth Circuit found that “the state indisputably maintains a legitimate interest in reducing access to products with high alcohol content,” relying upon a 1933 alcohol study,[63] and that “[p]roducts with high alcohol content exacerbate the problems caused by alcohol, including drunken driving.”[64] As noted above,[65] the law does not currently restrict supposed “low potency” beer to grocery and convenience stores. Rather, these stores are permitted to sell “high potency” beers that approach or exceed the alcoholic content of wine and spirits. To repeat a point hopefully already clear, the statutory distinction is based upon the degree to which the retailer’s sales are comprised of staple groceries or gasoline/lubricating oil. Assuming segregation of alcoholic beverage products based upon potency is a legitimate state interest, the Sixth Circuit entirely failed to explain how the statutory distinction with respect to staple grocers/gasoline-lubricating oil furthers the state interest. Simply stating that the state has an interest is not enough for equal protection; it is necessary that the interest is rationally furthered by the subject statute and the distinctions it draws. Judge Heyburn found there to be no such linkage;[66] the Sixth Circuit failed to explain how that determination was erroneous.The Sixth Circuit also relied upon the notion that certain market segments should be free of alcoholic beverages in order that those having moral objections thereto may engage in necessary commerce without exposure to alcoholic beverages.[67] This argument fails for a variety of reasons.Initially, it is stated as a conclusion that the state has an interest in protecting “abstinent citizens” from “exposure” to “alcohol.”[68] No authority is cited in support of this proposition. This argument begs an interesting question, namely whether in a wet territory the state has a legitimate interest in shielding a minority from the consequences of a majority vote.[69] To the extent that objections to exposure to alcohol are religious in nature, the General Assembly’s drawing of distinctions based thereon may violate Establishment Clause[70] limitations.[71] Further, if that is the objective of the statute, it fails. The statute precludes a retailer whose sales are 10% or more of staple groceries or gasoline/lubricating oil from selling wine or spirits; those retailers may and often do sell beer, and beer contains alcohol. Note here that the Sixth Circuit moved from alleged distinctions based upon potency to one simply against beverage alcohol in general.[72] If the statutory construct is intended to create a zone of necessary retailers that includes grocery stores, especially those with pharmacies and gas stations in which those who object to alcohol exposure may shop, [73] the state has absolutely failed and the statutory distinction lacks a rational basis.Furthermore, the Court failed to acknowledge that a growing number of malt beverages now have alcohol content as high as, or higher than, some wines and distilled spirits. Consequently, the “minors, inexperienced and impressionable,”[74] as well as the abstinent, can and likely will nevertheless be exposed to high alcohol content beverages in the community gathering place if a licensee chooses to carry those malt beverages. And why would it not? Kentucky law does not define malt beverage by its alcohol content; instead, it is defined as “any fermented undistilled alcoholic beverage of any name or description, manufactured from malt wholly or in part, or from any substitute for malt.”[75]Furthermore, the Sixth Circuit’s distinction between grocery stores without wine/spirits but with pharmacies and pharmacies selling wine and spirits fails as it is based upon a fact pattern that may exist today but was apparently not present in 1938 when the distinction was initially drawn.[76] There was no reference to a record demonstrating that in 1938 there existed grocers with pharmacies where those objecting to either alcohol or the wine/spirits varieties thereof could have their prescriptions filled. Rather, the combination grocery/pharmacy dates to the 1980’s – it is not a feature of post-Prohibition Kentucky that any more than self-scan checkout machines could have been contemplated by the 1938 General Assembly.[77]The distinctions drawn by the Sixth Circuit as to the supposed employee characteristics and the possibility of theft are likewise unavailing. To continue flogging a deceased equine, the statute places on one side of the divide stores in which sales are less than 10% comprised of staple groceries or gas/lubricating oil and those in which staple groceries or gas/lubricating oil are more than 10% of sales.[78] A big box home improvement center likely sells lubricating oil, but it will not amount to 10% or more of its total sales and, in consequence, the store may apply for and conceivably receive a license to sell wine and spirits. In the same vein, a liquor store may install gas pumps and sell gas so long as those sales do not constitute more than 10% of its total sales.As to employee ages, and assuming the Sixth Circuit’s supposition that a significant portion of the typical grocer’s employees are minors, it never explained: (i) whether that distinction existed at the time of the statute’s adoption; (ii) how this differentiates grocers from pharmacies selling wine and spirits; (iii) how the distinction relates to other potential retailers of wine and spirits; or (iv) how exposure to beer in groceries and convenience stores is for purposes of equal protection analysis acceptable while exposure to wine and spirits is problematic. Specifically, in the current environment, where is the comparison of grocery employees who are under 21 with employees of wine/spirits selling pharmacies who are under 21? Further, where is the comparison of the minor employees of grocery or convenience stores against all other establishments that might apply for a wine/spirits retail package license? If the statute’s rational basis for a distinction between A and B is based upon a characteristic X of A, there is no rational basis for the distinction until the X of B is likewise known. Once known, where are the similar comparisons from 1938 and the original enactment of the statute? Last is that the distinction between licenses is not based upon high versus low potency alcoholic beverages: a distinction premised upon segregating certain portions of the public, in this instance minor employees of the retailer, from allegedly high proof wine and spirits while allowing them to be in proximity to beer must fail.[79] The supposed “low potency” versus “high potency” distinction is itself simply not valid, and it is not the distinction drawn by the statute. [80]As for greater risk of theft, with due respect to the Sixth Circuit, that is at best a red herring. In an age in which party megastores are a ubiquitous feature of the landscape, the suggestion that increased size[81] increases the risk of theft simply challenges credulity. As to proximity to highways increasing the danger of alcohol sales, the Sixth Circuit did not explain whether its concern was with theft, underage access, or driving while intoxicated. Regardless, stand-alone liquor stores, party megastores, pharmacies selling wine and spirits, and grocery stores with separate wine/spirits sections are already in proximity to highways, as are those with on-premise permits.[82] Further, the danger of drunk-driving is neither increased nor otherwise affected by the degree to which the retailer’s sales are or are not comprised of staple groceries or gasoline/lubricating oil.
VII. Conclusion
The hangover from Prohibition continues to torment licensees and consumers alike. While the nationwide experiment at Prohibition resoundingly failed, many individuals wished it remained, at least in part, in effect. State legislatures attempt to balance on a three-legged stool comprised of those who favor Prohibition, those in support of free access to a legal product and the state’s desire for the tax revenues derived from alcoholic beverage sales.[83] At the same time the industry’s regulatory structure, particularly at the wholesaler and retailer levels, is rife with cartel conduct as evidenced by the fact that it was a package store already licensed to sell wine and spirits that intervened as a defendant in this action, thereby hoping to preclude grocery and convenience stores from selling those same products.With Judge Heyburn’s decision in Maxwell’s Pic-Pac, it appeared a significant step was being taken in rationalizing the retail structure, eliminating a distinction tied to a low threshold of staple groceries or gas/lubricating oil sales, distinctions which he concluded lacked any rational basis in support of a legitimate state interest in controlling alcoholic beverage sales. While no doubt some would challenge the ultimate factual determinations he made, the structure and depth of the analysis undertaken cannot be criticized.Unfortunately, as is detailed above, the decision of the Sixth Circuit Court of Appeals reversing Judge Heyburn cannot be so characterized. Rather than setting forth an analytic paradigm, the decision leaps to a conclusion that equal protection was satisfied by the statutory distinction even though that conclusion is not supported by an explication of equal protection analysis or reference to a factual underpinning existing both at the time of the statute’s enactment and today. That said, absent a decision in the future in which the matter is reconsidered,[84] the ruling of the Sixth Circuit that the distinctions drawn by KRS § 243.230(7) satisfy equal protection will stand.
[1] Thomas E. Rutledge is a member of Stoll Keenon Ogden PLLC resident in the Louisville, Kentucky office. A frequent speaker and writer on business organization law, he has published in journals including The Business Lawyer, the Delaware Journal of Corporate Law, the American Business Law Journal and the Journal of Taxation, and is an elected member of the American Law Institute.[2] Stacy C. Kula is Of Counsel with Stoll Keenon Ogden PLLC resident in the Lexington, Kentucky office where her practice is substantially devoted to the unique issues of the alcoholic beverage industry. She was an active participant in the Governor’s Task Force that recommended changes to Kentucky’s alcohol beverage control laws that resulted in S.B. 13, which was approved by the 2013 Kentucky General Assembly.[3] The Eighteenth Amendment was affected by the National Prohibition (Volstead) Act, 27 U.S.C. §§ 1-94 (repealed 1935). The Eighteenth Amendment provided:
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
U.S. Const. amend. XVIII (repealed 1933). The Eighteenth Amendment is unique in that it alone aimed to deprive persons of a previously existing right. Rhode Island had the good sense to not approve the amendment. Rhode Island Defeats Prohibition, N.Y. Times, Mar. 13, 1918, at 5. Prohibition was to remain in force “thirteen years, ten months, eighteen days and a few hours.” Final Action by Utah, N.Y. Times, Dec. 5, 1933, at 1. As observed by H.L. Mencken:
Prohibition went into effect on January 16, 1920, and blew up at last on December 5, 1933 – an elapsed time of twelve years, ten months and nineteen days. It seemed almost a geologic epoch while it was going on, and the human suffering that it entailed must have been a fair match for that of the Black Death or the Thirty Years’ War.
H. L. Mencken, The Noble Experiment, in A Choice of Days 307, 307 (1980). The different descriptions of Prohibition’s term being 12 or 13 years depends on how one counts the one year phase in period of Section 1 of the Eighteenth Amendment.[4] The moniker the “Noble Experiment” has been long ascribed to President Herbert Hoover. See Loretto Winery Ltd. v. Gazzara, 601 F. Supp. 850, 856 n.7 (S.D.N.Y. 1985) (“President Herbert Hoover, who had some difficulty in deciding whether he was a Wet or Dry, coined this expression for National Prohibition.”).[5] The Twenty-First Amendment of the United States Constitution provides:
Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
U.S. Const. amend. XXI. The Twenty-First Amendment was proposed to the States on February 20, 1933, and was approved on December 5, 1933. Kentucky approved the Amendment on November 27, 1933. See Everett Somerville Brown, Ratification of the Twenty-First Amendment to the Constitution of the United States 166-79 (1938). See also Robert E. Dundon, Kentucky Seeking High Whisky Taxes, N.Y Times, Aug. 27, 1933) at E6. The Amendment was rejected by South Carolina on December 4, 1933 and was never subsequently approved. See Brown, supra, at 375-378.[6] See, e.g., Mahoney v. Joseph Triner Corp., 304 U.S. 401, 403 (1938); State Bd. of Equalization v. Young’s Market Co., 299 U.S. 59, 60-61 (1936). See also McCanless v. Klein, 188 S.W.2d 745, 748 (Tenn. 1945).[7] See, e.g., Granholm v. Heald, 544 U.S. 460, 486 (2005) (explaining the Twenty-First Amendment “does not supersede other provision of the Constitution”); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516 (1996) (finding state law ban on advertising prices, other than at the point of sale, violated the First Amendment).[8] Craig v. Boren, 429 U.S. 190, 210 (1976).[9] See, e.g., Kentucky Alcoholic Beverage Control Bd. v. Burke, 481 S.W.2d 52, 54 (1972) (striking down, on equal protection grounds and applying an intermediate standard of review, state laws prohibiting women from being bartenders and from drinking liquor at a bar).[10] See Healy v. Beer Inst., 491 U.S. 324, 343 (1989); Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 585 (1986); see also Thomas E. Rutledge, The Questionable Viability of the Des Moines Warranty in Light of Brown-Forman Corp. v. New York, 78 Ky. L.J. 209 (1989-90).[11] Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 276 (1984).[12] Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 127 (1982).[13] See, e.g., Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423, 435 (6th Cir. 2008); Granholm, 544 U.S. 460, 493; see also Thomas E. Rutledge & Micah C. Daniels, Who’s Selling the Next Round: Wines, State Lines, the Twenty-First Amendment and the Commerce Clause, 33 N. Ky. L. Rev. 1 (2006).[14] Although not the topic of this article, Southern Wine and Spirits of Am., Inc. v. Division of Alcohol and Tobacco Control was another case in the vein of equal protection challenges to liquor regulation. 731 F.3d 799 (8th Cir. 2013). In that case, a challenge was brought by Southern Wine and Spirits, a Florida corporation with its principal place of business in Florida, after it was denied a license to operate as a liquor wholesaler in Missouri on the basis of a Missouri statute that requires that all wholesalers be incorporated in that jurisdiction and that all directors be resident in Missouri. Notwithstanding precedent from the Fifth Circuit Court of Appeals to the effect that such limitations violate the Commerce Clause, the Eighth Circuit determined that Missouri’s interest in regulating wholesalers was sufficient to trump any equal protection rights; it does not appear a Commerce Clause argument was made. Contrast Cooper v. McBeath, 11 F.3d 547, 555 (5th Cir. 1994). While a discussion for another day, one of the authors (Rutledge) believes that decision of the Eighth Circuit to be normatively incorrect.[15] Maxwell’s Pic-Pac, Inc. v. Dehner, 887 F. Supp. 2d 733 (W.D. Ky. 2012). Neither author was involved as counsel to any party in this litigation.[16] Maxwell's Pic-Pac, Inc. v. Dehner, 739 F.3d 936, 943 (6th Cir. 2014).[17] See, e.g., Ky. Rev. Stat. §§ 243.250, 243.084(2), 243.088(2)(b). There are multiple small volume exceptions to this general statement. For example, in certain jurisdictions a patron is permitted to bring a bottle of wine to a restaurant to be consumed there. See, e.g., N.Y. Alco. Bev. Cont. Law § 64B. The restaurant may, in turn, charge the patron a “corkage” fee to, at least in part, make up for the lost markup on a bottle of wine not otherwise sold. In other instances, including in a number of Kentucky’s “dry” counties, there are “bottle clubs” in which, while the facility does not have a license to distribute alcoholic beverages, individual patrons may store bottles, typically of liquor, for personal consumption. See, e.g., Ky. Rev. Stat. § 242.230; Ky. Op. Atty. Gen. 389; 84-185; Ky. Op. Atty. Gen. 79-389; Ky. Op. Atty. Gen. 74-574; Ky. Op. Atty. Gen. 74-313; Ky. Op. Atty. Gen. 73-820; Ky. Op. Atty. Gen. 70-831.[18] See, e.g., Ky. Rev. Stat. § 243.240 (“A quota retail package . . . licensee shall purchase distilled spirits and wine in retail packages only and only from licensed wholesalers.”). It also falls upon these retailers to police various end user alcoholic limitations such as minimum age requirements and the avoidance of sales to persons who are intoxicated. Although a controversial topic for an entirely separate article, the trend of granting certain rights and privileges traditionally reserved to retailers to manufacturers are perceived by some as eroding the three-tier system. For example, in Kentucky, a distiller located in wet territory, along with the holders of a quota retail drink license, a quota retail package license and an NQ2 license, are allowed to also hold a sampling license, which allows that licensee to offer limited free samples to its visitors under certain circumstances. See Ky. Rev. Stat. § 244.050.Furthermore, with the changes passed by the 2013 Kentucky General Assembly, distillers located in wet territory are now automatically granted the right to sell limited amounts of packaged alcohol from their gift shops, and breweries located in wet territory may provide complimentary samples of malt beverages produced at the brewery in an amount not to exceed 16 ounces per visitor per day. See Ky. Rev. Stat. § 243.0305; Stacy C. Kula & Steve Humphress, Lifting the Spirits of Kentucky: How the 2013 Legislative Changes Impact the Alcohol Industry, Ky. Bench & Bar, Nov. 2013, at 8; Ky. Rev. Stat. § 243.150(3). Microbreweries, to some degree, operate at all three tiers by engaging in the business of a brewer but limited to producing 25,000 barrels in one year, serve on the premises complimentary samples of malt beverages in an amount not to exceed 16 ounces per patron per day if located in wet territory, and sell malt beverages on its premises for both on premises and off premises consumption, so long as certain criteria is met. Ky. Rev. Stat. § 243.157. It bears noting that while the three-tier system may be constitutionally permissible, it is not constitutionally required. See North Dakota v. United States, 495 U.S. 423, 432 (1990). What some might characterize as an undesirable erosion of the three-tier system is equally subject to characterization as desirable rationalization of an archaic, inefficient system that is rife with cartel behavior.[19] S.C. Const. art. VIII-A, §1. Free pours became legal in South Carolina on January 1, 2006. See, e.g., Jeffrey Collins, Free Pour Liquor Rings in New Year in South Carolina, Spartanburg Herald-Journal, Jan 1, 2006, at B1.[20] See, e.g., Michael Cooper, Utah Liquor Laws, as Mixed Up as Some Drinks, N.Y. Times, July 19, 2011, at A1; Annie Knox, Utah Liquor Bill Aims to Take Down ‘Zion Curtains’, Wash. Times, Feb. 27, 2013 (http://www.washingtontimes.com/news/2013/feb/27/utah-liquor-bill-aims-take-down-zion-curtains).[21] This is not to suggest that Kentucky is unique in having such a law. For example, under the Colorado law, drugstores may sell wine and spirits, while grocery stores may not. See Colo. Rev. Stat. §§ 12-47-408, -407(1).[22] It appears similar malt beverage products have been allowed to be sold by Kentucky grocery stores since at least 1938. See Ky. Stat. § 2554b-200, enacted 1938 Ky. Acts, ch. 2, § 99 (creating retail beer license). While grocery stores and gas stations were precluded from holding a retail package or retail drink license (Ky. Stat. § 2554b-154(8), enacted 1938 Ky. Acts, ch. 2, § 54(8)), no similar statute limited them from holding a retail beer license.[23] Ky. Stat. §§ 2554b-17, -18, -27 (1936).[24] See, e.g., Maxwell’s Pic-Pac, Inc. v. Dehner, 887 F. Supp. 2d 733 (W.D. Ky. 2012) (“Perhaps the General Assembly sought to extend the status quo under which drugstores which had sold alcohol ostensibly only for medicinal purposes throughout Prohibition.”); Amicus Curiae Brief of American Beverage Licensees in Support of Defendants-Appellants, et al., for Reversal, Maxwell’s Pic-Pac, Inc. v. Dehner, 887 F. Supp. 2d 733 (W.D. Ky. 2012) (No. 12-6056), 2013 WL 588470, at 5 (“This is because during the preceding era of National Prohibition pharmacies had been permitted to sell medicinal [alcohol] [sic], while neither grocery stores nor gasoline stores had that experience.”):
So when the Kentucky Legislature determined in 1938 to allow pharmacies to sell spirits and wine it was clearly engaging in rational line drawing, given that pharmacies had been allowed to fill prescriptions for medicinal alcohol even during National Prohibition. In 1938 pharmacies were not similarly situated to groceries and gasoline stations since neither had been allowed to sell beverage alcohol during National Prohibition.
Id. at 12. Ignored in this recognition of Prohibition era pharmacy sales is the appreciation that post-Prohibition the intervening acts of the pharmacists were absent. During Prohibition a pharmacist filled a prescription for alcoholic beverages. Post-Prohibition, at least at the current time, wine and spirits are on the shelves and customers self-select what they want; no pharmacist is involved. Further, if the pharmacy is the relevant factor, why are wine and spirits sales permitted when the pharmacy is closed?[25] Ky. Rev. Stat. § 243.230(7) provides:
No quota retail package license or quota retail drink license for the sale of distilled spirits or wine shall be issued for any premises used as or in connection with the operation of any business in which a substantial part of the commercial transaction consists of selling at retail staple groceries or gasoline and lubricating oil.
This statute is the successor to Ky. Stat. § 2554b-129, -154, enacted 1938 Ky. Acts ch. 2, § 31½, 54. Following therefrom, in 1992 the Alcoholic Beverage Control Board promulgated a regulation defining what constitutes the “substantial part of a commercial transaction,” defining it to mean 10% or greater of gross receipts measured on a monthly basis, and “staple groceries,” defined as food intended for human consumption but excluding alcoholic beverages, tobacco, soft drinks, candy, hot food and food intended for immediate consumption. 802 Ky. Admin. Regs. 4:270. It should be recognized that this statute does draw its distinction between those who do or do not derive 10% or more of their monthly gross sales from staple groceries and gasoline from those who do not. A combination bookstore/liquor store can derive 50% of its gross sales from books without violating Ky. Rev. Stat. § 243.230(7); books are neither staple groceries nor gasoline.[26] See also Maxwell’s Pic-Pac, 887 F. Supp. 2d at 749 (“Quite simply, the Statute does not limit sales of spirits and wine to stores whose primary business is the sale of those products. Instead, it allows package liquor licenses to stores whose primary business is anything other than groceries and gas.”). There is a Louisville consignment home furniture and accessories dealer named Highlands Furniture and Decor that is also licensed to sell wine and spirits by the package.[27] U.S. Const. amend. XIV, § 1 (“[N]or deny to any person within its jurisdiction the equal protection of the laws.”).[28] The defendants asserted that plaintiff Food With Wine Coalition lacked standing and that the lawsuit dealt with the question of whether grocery and convenience stores could sell both liquor and wine while the plaintiff’s associational focus was upon wine sales only. After considering associational standing as set forth in Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333 (1977), the district court noted that the license at issue related to sales of both wine and liquor. 432 U.S. 333 (1977). As such, while the Association and its members might not be focused upon liquor sales, they were equally negatively impacted by the distinction drawn against grocery and convenience store sales of wine as they are by the similar prohibition against sales of liquor by those establishments. Maxwell’s Pic-Pac, 887 F. Supp. 2d at 742.[29] The defendants asserted that the plaintiffs were untimely in bringing the claim in that the initial injury they had suffered predated the applicable statute of limitations of one year. Judge Heyburn rejected this assertion, finding that the injury suffered was ongoing, and as such no statute of limitations had yet begun to run. Maxwell’s Pic-Pac, 887 F. Supp. 2d at 742-3.[30] Equal protection analysis is divided into three categories. The first, identified as “strict scrutiny,” is applied with respect to, for example, legal distinctions based upon race. See, e.g., 37712, Inc. v. Ohio Dep’t of Liquor Control, 113 F.3d 614, 618, 621 (6th Cir. 1997). The second, identified as “intermediate scrutiny,” is applied with respect to distinctions based upon gender. Id. at 621. The third, identified as “rational basis,” is imposed upon all distinctions not subject to strict or intermediate scrutiny. Applying a rational basis, a statute will be held constitutional “so long as it bears a rational relation to some legitimate end.” Maxwell’s Pic-Pac, 887 F. Supp. 2d at 744 (quoting Romer v. Evans, 517 U.S. 620, 631 (1996). The court as well cited F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14 (1993).[31] See Maxwell’s Pic-Pac, 887 F. Supp. 2d at 747. The Court noted that protecting current liquor and wine retailers from further economic competition does not constitute a legitimate purpose, citing Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002).[32] Maxwell’s Pic-Pac, 887 F. Supp. 2d at 748. The suggestion that spirits and wine are more “potent” than beer is of significant currency, although it is without scientific support. See, e.g., David J. Hanson, Alcoholic Content of Beer, Wine & Distilled Spirits, Alcohol Problems and Solutions, http://www2.potsdam.edu/hansondj/Controversies/1107281458.html, (last visited Mar. 9, 2014) (“A glass of white or red wine, a bottle of beer, and a shot of whiskey or other distilled spirits all contain equivalent amounts of alcohol and are the same to a Breathalyzer.”); Facts and Fictions of Alcohol, AlcoMeters, http://www.breathalyzeralcoholtester.com/alcohol-facts-and-fiction/, (last visited Nov. 18, 2013) (“A glass of white or red wine, a bottle of beer, and a shot of whiskey or other distilled spirits all contain equivalent amounts of alcohol and are the same to a Breathalyzer. A standard drink is: a 12-ounce bottle or can of regular beer; a 5-ounce glass of wine; a one and 1/2 ounce of 80 proof distilled spirits (either straight or in a mixed drink).”); Alcohol Impaired Driving, Insurance Institute for Highway Safety (Mar. 2014), http://www.iihs.org/iihs/topics/t/alcohol-impaired-driving/qandah (“Impairment is not determined by the type of drink but rather by the amount of alcohol ingested over a specific period of time. There is a similar amount of alcohol in such standard drinks as a 12-ounce glass of beer, a 4-ounce glass of wine, and 1.25 ounces of 80-proof liquor.”). Further, the suggested distinction between “low potency” beer and allegedly “high potency” wine and spirits entirely fails when one considers what must be acknowledged to be high proof, and therefore “high potency,” beers such as Armageddon (164 proof) that are available.[33] Maxwell’s Pic-Pac, 887 F. Supp. 2d at 748.[34] Id. at 748 (“The Court cannot conceive how the degree to which a business sells non-grocery items more than it sells grocery items bears on liquor and wine prices in any manner.”). Kentucky law otherwise forbids sales of alcoholic beverages below wholesale cost. See Ky. Rev. Stat. Ann. § 242.050(1).[35] Maxwell’s Pic-Pac, 887 F. Supp. 2d at 748-49.[36] Id. at 749-50. With respect to this point, Judge Heyburn wrote:
Although the asserted rational basis need not have been the legislator’s actual motivation, it must have least been conceivable or possible. Nordlinger v. Hahn, 505 U.S. 1, 15 (1992) (rational review “does require that a purpose may conceivably or ‘may reasonably have been the policy’ of the relevant governmental decision maker.”) (quoting Allied Stores of Ohio, Inc. v Bowers, 358 U.S. 522, 528-29 (1959)).
Id. at 49; see also Nashville, Chattanooga & St. Louis. Ry. v. Walters, 294 U.S. 405, 415 (1935) (“[A] statute valid when enacted may become invalid by a change in the conditions to which it is applied.”). The Court did not mention, although it is a path worthy of pursuit, that as grocery stores often use self-checkout equipment, and as grocery stores already sell beer and other malt beverages, self-checkout of itself must not be a significant contributor to underage access.[37] Maxwell’s Pic-Pac, 887 F. Supp. 2d at 750.[38] Id. at 752.[39] Id.[40] See supra note 25.[41] Maxwell’s Pic-Pac, 887 F. Supp. 2d at 752-54.[42] Id.[43] Id. at 754 (quoting Hilton v. Braunskill, 481 U.S. 770, 776, (1987)).[44] Id. at 754.[45] Id. at 755.[46] Id. at 754-55.[47] Id. at 755.[48] Principal and Response Brief of Appellees/Cross Appellants Maxwell’s Pic-Pac, Inc. and Food with Wine Coal., Inc. at 28-32, Maxwell’s Pic-Pac, Inc. v. Dehner, No. 3:11-CV-18-H, 739 F.3d 936 (6th Cir. Feb. 6, 2013) (Nos. 12-6056, 12-6057, 12-6182); id. at 29 (“Nevertheless, assuming the differences between drug stores in [sic] grocery stores in 1938 provided a rational basis for KRS 243.230(5)’s classifications when the law was passed, those differences have since evaporated, meaning that the (unarticulated) rational basis for the classification evaporated as well.”)[49] Principal Brief of the Intervening Defendant/Appellant/Cross-Appellee Liquor Outlet, LLC d/b/a the Party Source at 20-26, Maxwell’s Pic-Pac, Inc. v. Dehner, 739 F.3d 936 (6th Cir. 2014) (Nos. 12-6056, 12-6057, 12-6182); Principal Brief on Behalf of Tony Dehner and Danny Reed Defendants – Appellants Cross-Apellees at 7-8, Maxwell’s Pic-Pac, Inc. v. Dehner, No. 3:11-CV-18-H, 739 F.3d 936 (6th Cir. 2014) (Nos. 12-6056, 12-6057, 12-6182).[50] See Principal Brief on Behalf of Dehner and Reed, supra note 49 at 14 (“The District Court analyzed each of these interests in a vacuum and concluded they did not provide a rational basis for the statute…. The District Court also failed to consider the relationship between the combination of some or all of these interests and the challenged classification.”) (emphasis in original). One wonders how this argument could lead to reversal of the trial court’s decision. Judge Heyburn found that none of the six proffered bases had any validity. The accumulation of ineffective theories will not create an effective theory. Zero, multiplied by anything, equals zero, and the addition of zero to any sum does not alter the sum. How these theories could cumulatively have more value than they did individually is not clear.[51] See Principal Brief of the Intervening Defendant/Appellant/Cross-Appellee Liquor Outlet, LLC d/b/a the Party Source at 53-55, Maxwell’s Pic-Pac, Inc. v. Dehner, 739 F.3d 936 (6th Cir. 2014) (Nos. 12-6056, 12-6057, 12-6182).[52] On closer examination the Intervenors’ lamentations are unjustified. Today a package retailer can also hold a sampling license and a quota retail drink license. See Ky. Rev. Stat. Ann. § 244.050(2) (West 2013); Ky. Rev. Stat. Ann.§ 243.110(2) (West 2013). The suggestion that it is inappropriate to combine on-premise and package sales has already been considered and rejected. There is, as well, the analogous statute that permits a restaurant patron to leave with the unconsumed portion of a bottle of wine purchased with a meal. Ky. Rev. Stat. Ann. § 243.115 (West 2013). While not regulated as a package, but rather an on-premise by-the-drink sale, from the perspective of the consumer, there likely is little, if any, distinction.[53] See supra notes 35 and 37and accompanying text.[54] See Transcript of Oral Argument at 2, Maxwell’s Pic-Pac, Inc. v. Dehner, 739 F.3d 936 (6th Cir. 2014) (Nos. 12-6056, 12-6057, 12-6182) (“The premise remains the same that the primary place that people have to go weekly if not daily is the grocery store so that that is where your exposure is the greatest and it supports the, the hypothesis at least that prohibiting the sale there limits some of the ills intended to be avoided by the statute.”). See also id. at 2 (“Well, I think the difference is in terms of the quota licenses, that person makes a choice to go make the purchase at any venue that offers it for sale, but in Kentucky, at least, where you’re trying to sustain a political balance between those who would prohibit it altogether and those who would put it on every corner, that’s the reason why it needs to be limited in groceries because that’s where everyone in the community has to go and that’s the way I would draw that distinction Judge.”).[55] See Transcript of Oral Argument at 12, Maxwell’s Pic-Pac, Inc. v. Dehner, 739 F.3d 936 (6th Cir. 2014) (Nos. 12-6056, 12-6057, 12-6182) (“…the fact that they are attempted to be balanced demonstrates the debatability of the issue and because the question is debatable, we satisfy the rational basis test. That there is a debatable hypothesis at all defeats the grocer’s challenge in this case. That’s all that’s required under the rational basis test.”).[56] Maxwell’s Pic-Pac, Inc. v. Dehner, 739 F.3d 936, 938 (6th Cir. 2014). See also id. at 940 (“The state indisputably maintains a legitimate interest in reducing access to products with high alcohol content.”).[57] See id. at 940-941 (“grocery stores and gas stations pose a greater risk of exposing citizens to alcohol than do other retailers…. On the other hand, most people who object to confronting wine and liquor conceivably cannot avoid grocery stores and gas stations.”).[58] Id. at 941.[59] Id.[60] Id. at 940-941.[61] Id. at 942.[62] Maxwell’s Pic-Pac, Inc. v. Dehner, 887 F. Supp. 2d 733, 749-50 (W.D. Ky. 2012). See also supra note 33 and accompanying text.[63] Maxwell’s Pic-Pac, 739 F.3d at 940.[64] Id. A distinction drawn between easier access to “low potency” beer versus “high potency” wine and spirits as a means of reducing drunk driving fails in that most drunk driving is consequent to consumption of beer. See, e.g., Drunk Drivers More Likely to Drink Beer, Discovery News (Dec. 30, 2011) http://news.discovery.com/human/drunk-drivers-drink-beer-111230.htm (last visited Jan. 30, 2014); Naimi et al, What Do Binge Drinkers Drink? Implications for Alcohol Control Policy, 33 American Journal of Preventive Medicine 188-93 (Sept. 2007) (binge drinkers consume primarily beer); Jeffrey W. Runge, MD, Administrator, National Highway Traffic Safety Administration, Impaired Driving in the U.S.: Progress and Research Notes (drivers arrested for DUI report 80% having been drinking beer while 20% report having been drinking wine or spirits).[65] See supra note 32 and accompanying text.[66] See supra note 35 and accompanying text.[67] Maxwell’s Pic-Pac, 749 F.3d at 140 (“And the state’s interest applies to abstinent citizens who, morally or practically objecting to alcohol exposure, wish to avoid retailers that sell such drinks.”).[68] See id.[69] Cf. Educ. Media Co. at Va. Tech, Inc. v. Insley, 731 F.3d 291, 301 (4th Cir. 2013) (holding that a law forbidding advertisement of alcoholic beverages in college newspapers is unconstitutional).[70] U.S. Const., amend. I (“Congress shall make no law respecting an establishment of religion”).[71] See, e.g., Larkin v. Grendel’s Den, 459 U.S. 116, 127 (1982); Corp. of Presiding Bishops v. Amos, 483 U.S. 327, 349, 107 S. Ct. 2862, 2875 (1987) (O’Connor, J., concurring) (questioning whether exemption of religious corporation’s for-profit activities constitutes a violation of the Establishment Clause); Larson v. Valente, 456 U.S. 228, 244 (1982) (“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”).[72] The authors will concede that some persons may have an objection to wine and spirits but not beer, but as the alcohol in all is indistinguishable that is not a rational distinction. Regardless, the Sixth Circuit did not indicate it was relying upon such a distinction.[73] Maxwell’s Pic-Pac, 739 F.3d at 941.[74] See Maxwell’s Pic-Pac, 739 F.3d at 940.[75] Ky. Rev. Stat. Ann. § 241.010(32).[76] See Maxwell’s Pic-Pac, 739 F.3d at 941 (“Kentucky could believe that its citizenry visits grocery stores and gas stations more often than pharmacies—people can survive without ever visiting a pharmacy given that many grocery stores fill prescriptions. On the other hand, most people who object to confronting wine and liquor conceivably cannot avoid grocery stores and gas stations. Though some modern pharmacies sell staple groceries, grocery stores may remain the go-to place for life’s essentials.”) (emphasis in original).[77] Kroger, ubiquitous throughout Kentucky, did not install a pharmacy in a grocery store until 1983, that store in Richmond, Kentucky. E-mail from Tim McGurk, Public Relations Manager, Kroger, Louisville Div. to author (Jan. 28, 2014) (on file with author). See also supra note 37 and accompanying text; Principal Brief of Intervening Defendant, supra note 51 at 39 (“Historically, and certainly in 1938, there was a clear divide between the business of a drug store and the business of a grocery store.”).[78] See Ky. Rev. Stat. Ann. § 243.230(7).[79] Kentucky law permits minors to be employed in retailers selling “high potency” wine and spirits. See Ky. Rev. Stat. Ann. § 244.090(1)(c)(3)(b).[80] See also supra note 32 and accompanying text.[81] Maxwell’s Pic-Pac, Inc. v. Dehner, 739 F.3d 936, 941 (6th Cir. 2014).[82] Any argument that the statute reduces the likelihood of drunk driving by preventing gas stations/convenience stores from selling wine and spirits does not stand up to even cursory scrutiny. For example, under Romer v. Evans, 517 U.S. 620, 632 (1996), rational basis review obligates the court to “insist on knowing the relation between the classification adopted and the object to be attained.” Gas stations and convenience stores already sell beer. See supra note 82. There is no statute which provides, inter alia, that wine and spirits may not be sold in proximity to sales of gasoline. It is not uncommon to see a convenience store selling gasoline located adjacent to either a package or on-premise retailer. Also, since grocers can open a wine and spirits retail establishment so long as the establishment has a separate entrance from the grocery store, and as more and more grocers also sell gasoline, there is a close physical relationship of the sales, sales which are made under the same retailer name.[83] In fiscal year 2011, Kentucky derived $113.3 million in excise and manufacturer and wholesaler sales taxes from the sale of alcoholic beverages. See Governor’s Office of Economic Analysis, Office of State Budget Director, Tax Expenditure Analysis, Fiscal Year 2012-2014 25 (2011).[84] Maxwell’s Pic-Pac sought rehearing and en banc reconsideration. See Petition for Rehearing and Rehearing En Banc, Maxwell’s Pic-Pac, Inc. v. Dehner, 739 F.3d 936 (6th Cir. 2014) (No. 12-6182) (filed by the plaintiffs/appellees on January 28, 2014). The request was denied on April 10, 2014.
Getting Jurors to Awesome
Article | 102 KY. L. J. ONLINE 6 | May 30, 2014
Cortney E. LollarFN1
A 2011 American Bar Association report on the death penalty in Kentucky revealed that a shocking two-thirds of the 78 peopleFN2 sentenced to death in Kentucky since reinstatement of the death penalty in 1976 have had their sentences overturned on appeal. Kentucky’s reversal rate is more than twice the national average, with a 31% reversal rate in capital cases and almost four times the 17% national reversal rate in all other case types.FN3 With a sentence as irreversible as death, troubling does not begin to describe the depth of concern many experience when viewing such a startling statistic. A closer look at the cases behind this extreme reversal rate reveals some surprising patterns. Two of the more consistent factors leading to the reversal of death sentences in Kentucky are prosecutorial comments, which lead the jury to feel a diminished sense of responsibility in their ultimate sentencing decision, and jury instruction error. This essay focuses on the former, the minimization of the jury’s sense of responsibility, a factor in 12% of reversals.FN4 However, jury instructions are intimately intertwined with how the jury navigates and perceives their role. Accordingly, this essay will also discuss how aggravating and mitigating jury instructions play a role in minimizing the jury’s function, as well. Furthermore, this essay explores whether the concerns related to the minimization of a juror’s role are confirmed by empirical evidence, and concludes by suggesting ways to help jurors acknowledge the full weight of their responsibility in the event the death penalty continues to be a punishment in Kentucky.
The Jury’s Discomfort with Its Role in Capital Sentencing
The jury’s role in sentencing is rooted in Supreme Court jurisprudence that re-establishes the constitutionality of the death penalty in the mid-1970s. Under the scheme permitted by the Supreme Court in Gregg v. Georgia, a case which led many states to reinstate the death penalty, the Court approved of a bifurcated trial where juries are given “guided discretion” in their decision at the penalty phase of a capital trial.FN5 Specifically, the framework authorized by the Court instructed the jury to look at certain statutory and non-statutory aggravating and mitigating factors in determining the appropriate punishment.FN6 The Court viewed the jury’s role as central to the decision, calling the jury a “significant and reliable objective index of contemporary values because it is so directly involved [in the proceedings].”FN7 Yet many jurors, both then and now, remain quite uncomfortable with the role delineated for them in Gregg. As one scholar has suggested, “many death penalty jurors who are confronted with the anguishing moral dilemma of a death sentencing decision seek to avoid the perception that they bear personal moral responsibility for making that decision.”FN8 In large part, this avoidance is likely because “[c]apital trials are unique in American jurisprudence and, indeed, in human experience. Under no other circumstance does a group of ordinary citizens calmly and rationally contemplate taking the life of another, all the while acting under color of law.”FN9 Generally, individuals seek to avoid being in a position to make the decision as to whether another person lives or dies. Yet, in this context, jurors are asked to put their normal aversion aside and decide the ultimate fate of another. In order to eliminate some of the uneasiness they may feel, jurors may try to distance themselves from the decision. It is therefore not surprising that attorneys trying to persuade a juror to sentence someone to death might identify and utilize this discomfort. After Gregg, prosecutors around the country, including those in Kentucky, often attempted to alleviate juror distress by convincing them that their decision was not the final one, thereby allowing them to be more comfortable imposing a death sentence. As indicated by the number of reversals in Kentucky on this ground, courts, including the Supreme Court, did not embrace this approach. In a 1985 case, Caldwell v. Mississippi, the Supreme Court found it “constitutionally impermissible to rest a death sentence on a determination made by a sentencer who [had] been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.”FN10 In Caldwell, Bobby Caldwell was sentenced to death in Mississippi for shooting and killing the owner of a small grocery store during the course of robbing the store.FN11 During the initial sentencing proceeding, Caldwell’s attorney asked the jury to show mercy, saying: [E]very life is precious and as long as there’s life in the soul of a person, there is hope . . . . [D]eath is final. So I implore you to think deeply about this matter . . . . I’m sure [the prosecutor is] going to say to you that Bobby Caldwell is not a merciful person, but I say unto you he is a human being. That he has a life that rests in your hands. You can give him life or you can give him death. It’s going to be your decision . . . . You are the judges and you will have to decide his fate. It is an awesome responsibility, I know – an awesome responsibility.FN12 The prosecutor responded to defense counsel’s notion by minimizing the jury’s role in sentencing, stating: “[T]hey would have you believe that you’re going to kill this man and they know—they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable . . . . [T]he decision you render is automatically reviewable by the Supreme Court. Automatically . . .”FN13 In rejecting the government’s argument, the Supreme Court confirmed its belief that capital juries would “view their task as the serious one of determining whether a specific human being should die at the hands of the State.”FN14 In fact, Caldwell’s counsel was echoing the precise words of Justice Harlan, who, in a previous case, identified the jury’s “awesome responsibility” in capital cases.FN15 In Caldwell, Justice Marshall embraced the idea that a sense of moral responsibility not only would affect, but also should affect a jury’s decision in deciding what sentence to impose.FN16 The Court envisioned this model of jury service as essential to the death penalty’s continued constitutionality under the Eighth Amendment.FN17 According to the Court, the jury should contemplate the individuality of a defendant and whether this particular individual should be given or denied mercy in making its sentencing decision.FN18 In fact, the Court premised its acceptance of capital punishment on jurors not evading the mantle of the responsibility vested in them.FN19 Although the Caldwell Court reiterated its confidence in jurors taking their role as life or death decision-maker quite seriously, it simultaneously acknowledged the real discomfort many capital jurors feel about making that ultimate decision. According to the Court, capital juries are “made up of individuals placed in a very unfamiliar situation and called on to make a very difficult and uncomfortable choice. They are confronted with evidence and argument on the issue of whether another should die, and they are asked to decide that issue on behalf of the community.”FN20 As a result, the Court continued, “[I]n the capital sentencing context there are specific reasons to fear substantial unreliability as well as bias in favor of death sentences,”FN21 especially when jurors are encouraged to view their role in determining someone’s fate as something less momentous than it actually is. Justice Marshall’s opinion recognizes how effortlessly jurors could abandon the weighty sense of moral responsibility, and rejects any attempts to keep the jury from being aware of the true consequences of its decision during the penalty process.
A Closer Look at the Assumptions Underlying Caldwell
The Caldwell Court’s endorsement of jurors as the moral compass for the community and admonition of the government for trying to minimize juror’s acceptance of this role, builds on a central, unexamined premise. The Court assumes a reduced sense of responsibility will affect a jury’s decision. More specifically, it presumes that minimizing a jury’s role will reduce the sense of responsibility the jury feels.FN22 If jurors are torn about imposing a death sentence, the Court reasons, the knowledge of judicial or appellate review might allow them to more readily invoke the death sentence. Jurors assume that a court will be the ultimate arbiter, with the result being a less reliable decision.FN23 Conversely, a sentencer who believes that she alone is responsible for the defendant’s fate will take her moral obligations more seriously, thus resulting in a more reliable decision. At the time Caldwell was decided, there was little evidence, empirical or otherwise, to support or refute the Court’s claim. As a result, notwithstanding the Court’s holding, questions remained as to whether a reduced sense of responsibility actually affected a jury’s decision. Additional questions remained as to whether comments suggesting that courts would review and revise a jury’s finding would reduce how a juror viewed their responsibility in imposing death. In light of the high reversal rate in capital cases in Kentucky on this minimization ground, both before and after Caldwell, these questions seem important to answer. The next section looks at both the empirical evidence and the theoretical underpinnings supporting the Court’s view.
Empirical Evidence on Minimization of the Jury’s Role
Since Caldwell, several empirical studies have examined the question of whether a reduced sense of responsibility affects a jury’s decision, separate from any comments by prosecutors or judges attempting to minimize the jury’s role. The results support Caldwell’s holding and the legitimacy of Kentucky’s reversals on this basis. Many former capital jurors who were interviewed indicated that they see the defendant, the law, or the court as primarily responsible for the outcome of a capital sentencingFN24 rather than acknowledging their own role in the decision.FN25 Numerous studies have shown that capital jurors believe the person most responsible for the punishment is the defendant himself, viewing it as the inevitable result of the defendant’s crime.FN26 These same jurors also tend to believe the law commands a particular sentence, making the decision one that is out of their hands.FN27 In fact, eight out of ten former capital jurors interviewed feel the defendant or the law is most responsible for a defendant’s punishment.FN28 Although these jurors consider “the law” to be what statutes command, studies also suggest that a majority of jurors believe the defendant’s fate is actually up to the judge and appeals court.FN29 Even without prosecutors giving their imprimatur to this view, jurors tend to take judicial review and ultimate decision-making as a given.FN30 Troublingly, only a small minority of capital jurors believes they, either individually or collectively as a jury, bear the responsibility for a defendant’s punishment.FN31 As a result, one study revealed that jurors in 75% of the capital trials reviewed found no need to deliberate in the penalty phase, indicating that the law took responsibility away from them.FN32[32] Although, technically speaking, the jury is solely tasked with recommending a sentence to the judge, the law on this issue is not quite so simple. It is true that under Kentucky law, jurors recommend a sentence to the judge,FN33 and indeed, state law requires Kentucky Supreme Court review of a capital sentence.FN34 In the strictest sense, then, neither prosecutors nor judges are misstating the law by telling jurors that their role is to “recommend” a sentence to a judge, who ultimately makes the final sentencing decision. Subsequent federal appellate decisions have confirmed that such a statement, in and of itself, is not error.FN35 Yet, that is not the whole story. Kentucky allows a judge to impose a death sentence only if the jury votes for death. The jury alone determines which aggravating circumstances authorize a death sentence.FN36 Of the thirty-two states with the death penalty, only three permit judges to override life verdicts issued by jury recommendation, and Kentucky is not one of them.FN37 Although it is difficult to get the numbers,FN38 evidence suggests that judges rarely override a death sentence in favor of a life sentence.FN39 In the instances when they do, “[b]y far the most common reason for judicial overrides of death recommendations is the defendant’s mental illness or mental retardation.”FN40 Additionally, judges seem to override jury death verdicts when there is a likelihood that the decision will get overturned on appeal.FN41 Thus, juries really do play the most critical role in determining whether a defendant receives a sentence of death, as it is almost always their recommendation that makes the ultimate call. Caldwell is still good law, and several Kentucky Supreme Court opinions have continued to give teeth to its holding, despite the statute’s use of the word “recommend.”FN42 In Bussell v. Commonwealth, for example, the Court remarked, “[t]his Court has repeatedly denounced the use of the term ‘recommend,’ despite the fact that it appears in the sentencing statute.”FN43 Similarly, in an unreported 2007 case, the Court admonished a prosecutor for telling the jury, “I’m the one who may have to recommend that he die. I’m the one who is responsible; well, you are not responsible.”FN44 Although the Court reversed the sentence on other grounds, it took pains to reiterate “any actions by the Commonwealth which would tend to lessen in the minds of the jury their awesome responsibility” must be discouraged and should not be repeated on retrial.FN45 The law in Kentucky continues to be what the Kentucky Supreme Court articulated in its 1988 Grooms v. Commonwealth opinion:
[T]he instructions on the penalty phase should require the jury to fix the punishment. As a matter of law, the punishment fixed by the jury shall be considered to be a recommendation by the jury to the trial judge, who will then have the ultimate responsibility of fixing the penalty as prescribed by statute.FN46
The standard jury instruction reflects this understanding, explaining to the jury: “[y]ou [have now received] additional evidence from which you shall determine whether there are mitigating or aggravating facts and circumstances bearing upon the question of punishment, following which you shall fix a sentence for the Defendant.”FN47 Thus, while the jury is solely tasked with recommending a sentence to the judge, because of the critical role jurors play in determining that sentence, jurors are to be told they are fixing the punishment. There are some scenarios where concern about capital jurors trying to avoid their responsibility for a defendant’s ultimate sentence arises more regularly. When jurors believe the defendant killed under the influence of extreme mental or emotional disturbance, they tend to assign a greater role to the judge in determining the penalty.FN48 Jurors also are less willing to accept responsibility when female defendants are sentenced than males.FN49 Jurors who are active in politics also tend to shift responsibility to the judge, where as those for whom religion influenced their sentencing decision tended to accept a greater share of responsibility.FN50 By way of contrast, there are other scenarios in which former capital jurors are more willing to be held accountable for their role in a defendant’s sentence. “Jurors report a greater sense of responsibility when the vicious or brutal nature of the killing played a role in their decision-making.”FN51 Similarly, “jurors accepted increased responsibility if they believed the defendant had planned or intended to kill the victim, even if [the defendant] was not the [person to actually commit the act].”FN52 At least one study has shown that a correlation exists between rejection of responsibility at capital sentencing and a decision to sentence a defendant to death.FN53 Believing the decision would ultimately be the court’s made it easier for jurors to impose the death penalty.FN54 In other words, jurors who assign sentencing responsibility elsewhere are somewhat more likely to impose death, just as the Caldwell Court presumed.
Jurors Seek to Minimize Their Role
Separate from jurors’ beliefs that the defendant, the law, or the court are the ultimate arbiter of a capital defendant’s fate, many jurors also seek other methods of downplaying their own significance. Numerous studies have shown that capital jurors distance themselves from responsibility from their sentencing decisions.FN55 Consistent with the Caldwell Court’s fears, capital jurors often “focus solely on the portion of the judge’s sentencing instructions that tells them they are only making a recommendation in order to absolve themselves of responsibility.”FN56 Again, such a result is not surprising. As one commentator noted, “jurors are predisposed to use almost any available information to downplay their responsibility for the death sentencing decision.”FN57
Common Juror Misinformation and Misunderstandings
Many jurors rely on common lore and misinformation learned outside the courtroom in making their decisions in a capital case. One common misperception is that if a jury does not vote for death, a dangerous defendant will be walking the streets in a short period of time. The possibility of parole in a case where the jury imposes death weighed heavily on jurors, and often was a major consideration in their decision to impose the death penalty.FN58 In a recent survey of former Kentucky capital jurors by Professor Marla Sandys, jurors erroneously believed that if they did not impose the death penalty, convicted defendants would be back on the street in ten years.FN59 A death sentence becomes insurance against the possibility of a return to society.FN60 Thus, these same jurors appear to assume that at least if they impose death, the offender will not be back in the community any time soon, even if the execution is not carried out. Jurors also have significant doubts that most death sentences will be carried out.FN61 As a result, jurors vote for death to “send a message,” in the words of the Caldwell Court,FN62 as to how serious and heinous they view the defendant’s crime. Confusing and unclear jury instructions also play a significant role in jurors’ capital decisions. Part of the expectation for jurors, as articulated in Caldwell, is that they will evaluate mitigating evidence that might justify exercising mercy as part of their moral responsibility in death penalty cases. But, it is not uncommon for courts to improperly instruct jurors on what is required for aggravation and mitigation or to give instructions that jurors find confusing.FN63 Because the instructions are not clear with respect to what is expected of jurors at the penalty phase of a capital trial, there is the very real possibility that jurors are imposing death because they do not understand how aggravation and mitigation actually work. Further, given their tendency to assume courts have the final word, they assume a court will review their decision and “fix it” if they make an error. Juror confusion over mitigation, unfortunately, is not unusual, both generally and in Kentucky. More than 79% of former Kentucky capital jurors did not understand that mitigation evidence does not have to be proven beyond a reasonable doubt or found by a unanimous jury, and an additional 15% did not know what the standard for mitigation was.FN64 At least two death sentences in Kentucky were reversed because of a failure to properly instruct the jury that mitigating factors do not have to be found unanimously by the jury.FN65 These numbers are consistent with national studies showing that, where jurors recognized the existence of mitigating factors, they did not know “what the law allows, or requires, them to do with such evidence.”FN66 Capital jurors in Kentucky also misunderstand aggravation. More than 15% of interviewed Kentucky capital jurors did not understand that aggravating circumstances have to be found beyond a reasonable doubt.FN67 Likewise, at least one jury was not told that all jurors have to agree on which aggravating factor counsels in favor of death.FN68 In interviews conducted in several states, a substantial number of capital jurors reported that the wording of judicial instructions misled them into believing that they must sentence the defendant to death once they found the presence of a statutory aggravating circumstance.FN69 In Kentucky, a recent study found that more than 40% of former capital jurors believed the law required them to impose the death penalty if evidence proved that the defendant’s conduct was heinous, vile, or depraved, or if they believed the defendant would be dangerous in the future.FN70 In other words, those jurors believe that the presence of such characteristics is sufficient in and of itself to require imposition of the death penalty.FN71 Aggravating and mitigating factors were nowhere in their decision-making process. Proof of a particularly gruesome act, in these jurors’ minds, meant the death penalty must be imposed. Part of the problem is poorly worded and confusing jury instructions. Analyzing Kentucky’s jury instructions for readability, Professor Sandys found that most of the jury instructions relevant to death sentencing require more than a college education to understand. Such a finding is striking in a state where approximately 20% of the population has a college degree.FN72 Similarly, Sandys found that ease of reading was revealingly low, usually ranging between 30 and 40, but going as low as 15 on a scale of 1-100, with 60-70 being the ideal.FN73 Yet, the Supreme Court has upheld similar instructions on two occasions. In a 1998 case reminiscent of Kentucky’s cases addressing the issue of mitigation, the state of Virginia had an instruction indicating that aggravating factors must be proven beyond a reasonable doubt before death could be imposed.FN74 But the instruction was silent on the subject of mitigating factors, and no other mitigation instruction was provided. The Supreme Court found that Virginia had no affirmative obligation to instruct on mitigation and that the mere absence of such an instruction was not error, or a denial of the authority to consider mitigating evidence.FN75 Even two years later when another Virginia jury sent a note to the trial judge expressing confusion over this instruction by inquiring whether a finding of guilt on one count made it their “duty as a jury to issue the death penalty,” the Court found the Constitution required “nothing more” than the judge repeat the instruction to the jury.FN76 Prosecutorial comments that draw on instructions telling the jury their sentencing decision is “only a recommendation” likely do play a role in helping jurors minimize their responsibility for their decision to impose death. In a study of Indiana jurors who were instructed by the judge that their verdict was “only a recommendation,” most jurors specifically remembered that portion of the judge’s instruction.FN77 In fact one juror took it so far as to deny having played any role in the defendant’s sentencing once the trial was over.FN78 The reality is that she recommended a death sentence, and the defendant received a death sentence from the trial judge.FN79 Other jurors used the idea that the jury’s sentence was just a recommendation to convince holdout jurors to make a decision.FN80 When jurors are confused about their basic role, it is easy for them to fall back on the presumption that “the law” requires whatever sentence they impose, and if they are wrong, a court will step in because their decision is only a suggestion that courts do not have to endorse. The presence of unclear and/or confusing jury instructions only exacerbates the problem.
The Difficulty in Humanizing Capital Defendants at a Bifurcated Hearing
Jurors struggle with aggravation and mitigation, causing them to further abdicate their role as decision-makers in capital trials. As one recent commentator noted, [D]ehumanization during the fact-finding phase within a capital trial is predominantly established through procedural instrumentalities that unleash negative emotions through expressions of fear and outrage. Often it acts as a bulwark against positive emotions of empathy and compassion that the defense attempts to introduce in the later phase of the trial to humanize the defendant. Thus, process instrumentalities of the death penalty may permanently disable the humanization process.FN81 During the trial proceedings, “the prosecutor must portray in a vivid and compelling way, the circumstances and nature of the killing.”FN82 A prosecutor who does her job well portrays the pain and violence of the event in a way that brings it emotionally home to jurors, and jurors have an obligation to view the graphic representations of such pain and violence or else they are abdicating their role as jurors.FN83 As such, the government starts creating moral outrage around a “story of monstrosity” before the trial so that by the time of sentencing, that individual is completely “devoid of personhood and stripped of humanity.”FN84 Against this backdrop, mitigation evidence can barely begin to enter into a juror’s consciousness.FN85 Empirical evidence backs up the social science. In a study of capital juries from Kentucky, a substantial proportion (about 66%) of jurors decided the sentence during the guilt phase, even before hearing evidence regarding aggravating and mitigating factors.FN86 Of those who had reached a sentencing preference prior to the penalty phase of the trial, 70% were “absolutely convinced” of their penalty preference before hearing any evidence as to the appropriate sentence, and an additional 25% were “pretty sure.”FN87 Substantially more of those jurors who had reached a decision on sentencing prior to the penalty phase were inclined to believe death was the appropriate penalty rather than life.FN88 Those jurors who ultimately changed their vote from death to life primarily did so out of a desire to avoid a retrial,FN89 and those who went from life to death expressed reluctance based on personal beliefs.FN90 Mitigating factors were not generally considered in either instance.FN91 As Professor Sandys, who has conducted numerous studies of Kentucky capital juries remarked upon reviewing this evidence, “If this is true, then the guilt phase of the trial tilts jurors’ penalty preferences toward death.”FN92 Such a result should not be surprising. The manner in which bifurcated capital trials operate makes the jury’s ability to consider mitigating evidence difficult, even if jurors are abundantly clear what the law requires. Due to the post-Gregg manifestation of the death penalty, most courts have adopted a scheme where the jury first considers the issue of guilt, and then, in a separate proceeding, the same jury considers the issue of punishment. Inevitably, for the jury to even be considering death at the penalty phase, the jury already has found an aggravating circumstance, as most aggravating circumstances mirror those the jury considers in determining whether the defendant is guilty of a capital crime.FN93 Even in the best of circumstances, humanizing a defendant to a jury who has just found the defendant guilty of a capital crime after hearing in excruciating detail about that crime is an uphill battle. Linking back to the issue of jury instructions, the structure of capital penalty hearings also means that, as a result of the jury finding statutory aggravating factors at the guilt phase, those being presented in the penalty phase are not being considered in a manner most would hope, and, at the very least, not consistent with Supreme Court precedent.FN94 Mitigating circumstances get very little deliberation. One study revealed that many former capital jurors could not recall the mitigating evidence that was presented in the penalty phase, even when prompted, and those that could believed that such evidence was irrelevant.FN95 Given the current set-up, even if jurors are clear as to what the law requires for mitigating and aggravating evidence, there is a significant question as to whether jurors could truly satisfy the expectations of the Caldwell Court. Evidence seems to support the view that undermining jurors’ sense of responsibility causes them to take their sentencing duty less seriously, and often results in them failing to carefully deliberate the evidence according to the law. The result is that “defendants may be getting sentenced to death without the benefit of a jury determination that they are, in fact, death-eligible.”FN96
How To Help Jurors Accept Moral Responsibility For Their Decisions
Since Caldwell, both Kentucky and federal courts appear to have modified their expectations of capital jurors, moving away from the focus on moral responsibility and particularized justice, and focusing, instead, on consistency.FN97 Increasingly, jurors seem to be simply lending facial legitimacy to the process.FN98 Showing mercy or even acknowledging a defendant’s humanity no longer appears to be our expectation or hope for capital jurors, and capital jurors likely are relieved to give up that role as the community conscience. This Essay highlights one reason to second guess that shift. The accumulated empirical evidence supports the assumptions on which the Caldwell decision was based. Jurors do, in fact, try to minimize their role in capital sentencing decisions, which does reduce their feeling of responsibility for that decision. Prosecutors and judges who highlight and try to downplay the jury’s influence on a capital defendant’s penalty encourage the jury to further abdicate their decision-making function, a problem that is only exacerbated by confusing and unclear instructions on evidence of mitigation and aggravation. The post-Gregg bifurcated trial process further removes jurors from the “awesome responsibility” of being the community’s moral compass. Many scholars have called on the Supreme Court to rethink the procedures meant to ensure that capital punishment is not imposed in an arbitrary and capricious manner. That chorus is joined here by another voice. Even if the Supreme Court does not advance such a move, the state legislature and/or the Kentucky Supreme Court could implement such changes. Swearing in a second jury to consider the penalty decision, separate and distinct from the guilt-phase jury, might be one way to alleviate the inherent bias that comes from a jury who has already decided aggravation and has made up its mind prior to even hearing evidence on aggravating and mitigating factors. Although it might add some clunkiness, as well as additional time and cost, to the proceedings, when a decision as weighty as someone’s life is on the line, the additional administrative burdens are quite minimal. Kentucky should also consider amending its statute so the jury’s decision is presumed to be reliable and a judge can change that decision only in certain extraordinary circumstances. Jurors minimize their role in part because the law is confusing; it tells jurors that they are only recommending a sentence, but also tells them they are to “fix” the sentence. At the same time, the law permits judges to impose a different sentence after the jury has fixed it. Although it is this author’s view that automatic state Supreme Court review of death penalty cases should remain, especially in light of the high error rate, the jury will only truly feel a sense of responsibility if everyone in the courtroom knows and believes that the jury plays that sentencing role. Prosecutors and judges would not be able to downplay juror’s roles, either explicitly or implicitly, if jurors truly are responsible for that decision. There also needs to be a way of communicating that juror fears of someone being out on the street shortly after receiving a life sentence are unrealistic. At the very least, voir dire should be encouraged on this topic and jury instructions amended to make sure the jury’s understandings are accurate. The Supreme Court has been clear that if the prosecution asks for execution based on a defendant’s future dangerousness, the judge must instruct the jurors that the defendant would not be eligible for parole if they authorize a life sentence.FN99 Rather than responding reactively, informing the jury of this fact up front might be one way of addressing the issue.
Conclusion
The Court’s death penalty jurisprudence fails to note one of the most basic reasons why jurors can relatively easily assign responsibility elsewhere: those who authorize the death penalty are inherently removed from the ultimate result. They are never the one to personally carry out, or even observe, the execution they authorize.FN100 Even in the best of scenarios, then, juries are inevitably distant from the repercussions of the most significant ramifications of their decision. The graphic reality of the pain inflicted through the execution process is never laid out before the jurors who are tasked with authorizing the death of another. Given this reality, if jurors are going to be tasked with the “awesome responsibility” of deciding another person’s fate, they need to have an intimate understanding of the full panoply of realities surrounding that decision. The level of discomfort jurors feel in making this decision, even without awareness of the granular details of actually putting someone to death, ultimately provides another reason to reconsider permitting such a punishment.
FN1. Assistant Professor, University of Kentucky College of Law.
FN2. Am. Bar Ass’n, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Kentucky Death Penalty Assessment Report, at xii (2011), available at http://www.americanbar.org/content/dam/aba/administrative/death_penalty_moratorium/final_ky_report.authcheckdam.pdf.
FN3. Robert C. LaFoundation et al., Nat’l Ctr. for State Cts., Examining the Work of State Courts: An Analysis of 2008 State Court Caseloads 1 (2010), available at http://www.courtstatistics.org/other-pages/~/media/microsites/files/csp/ewsc-2008-online.ashx. (last viewed Jan. 8, 2014).
FN4. See Thomas v. Commonwealth, 864 S.W.2d 252, 260–61 (Ky. 1993); Clark v. Commonwealth, 833 S.W.2d 793, 795–96 (Ky. 1991); Dean v. Commonwealth, 777 S.W.2d 900, 906–07 (Ky. 1989); Sanborn v. Commonwealth, 754 S.W.2d 534, 546 (Ky. 1988); Tamme v. Commonwealth, 759 S.W.2d 51, 52-53 (Ky. 1988); Holland v. Commonwealth, 703 S.W.2d 876, 880 (Ky. 1985); James v. Commonwealth, 703 S.W. 2d 876, 880 (Ky. 1985); Ward v. Commonwealth, 695 S.W.2d 404, 407–08 (Ky. 1985); Ice v. Commonwealth, 667 S.W.2d 671, 675 (Ky. 1984). But cf. McClellan v. Commonwealth, 715 S.W.2d 464, 472 (Ky. 1986) (finding no error as the idea of jury recommendation was not sufficiently prevalent to convey the message to the jury that their decision is not final, but is only a recommendation).
FN5. Gregg v. Georgia, 428 U.S. 153, 191–95 (1976).
FN6. Id. at 162–66.
FN7. Id. at 181.
FN8. Joseph L. Hoffmann, Where’s the Buck? – Juror Misperception of Sentencing Responsibility in Death Penalty Cases, 70 Ind. L.J. 1137, 1138 (1995).
FN9. Craig Haney et al., Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death, J. Soc. Issues, Summer 1994, at 149, 149.
FN10. Caldwell v. Mississippi, 472 U.S. 320, 328–29 (1985).
FN11. Id. at 324 .
FN12. Id.
FN13. Id. at 325–26.
FN14. Id. at 329.
FN15. McGautha v. California, 402 U.S. 183, 208 (1971).
FN16. Caldwell, 472 U.S. at 329-30 (“[T[his Court’s Eighth Amendment jurisprudence has taken as a given that capital sentencers would view their task as a serious one of determining whether a specific human being should die at the hands of the State…. Belief in the truth of the assumption that sentencers treat their power to determine the appropriateness of death as an ‘awesome responsibility’ has allowed this Court to view sentence discretion as consistent with – and indeed indispinsible to – the Eighth Amendment[]….”).
FN17. Id.
FN18. Id. at 329. See also Jeffrey Abramson, Death-Is-Different Jurisprudence and the Role of the Capital Jury, 2 Ohio St. J. Crim. L. 117, 128–29 (2004).
FN19. Caldwell, 472 U.S. at 341.
FN20. Id. at 333.
FN21. Id. at 330.
FN22. Michael A. Mello, Taking Caldwell v. Mississippi Seriously: The Unconstitutionality of Capital Statutes that Divide Sentencing Responsibility Between Judge and Jury, 30 B.C. L. Rev. 283, 315 (1989).
FN23. Theodore Eisenberg et al., Jury Responsibility in Capital Sentencing: An Empirical Study, 44 Buff. L. Rev. 339, 342 (1996).
FN24. Id. at 341; Ross Kleinstuber, “Only a Recommendation”: How Delaware Capital Sentencing Law Subverts Meaningful Deliberations and Jurors’ Feelings of Responsibility, 19 Widener L. Rev. 321, 331 (2013).
FN25. William J. Bowers, The Capital Jury Project: Rationale, Design, and Preview of Early Findings, 70 Ind. L.J. 1043, 1093–95 (1995).
FN26. See e.g., Eisenberg et al., supra note 23, at 352, 356; Austin Sarat, Violence, Representation and Responsibility in Capital Trials: The View from the Jury, 70 Ind. L.J. 1103, 1130 (1995).
FN27. Eisenberg et al., supra note 23, at 358–59; Hoffmann, supra note 8, at 1152–56; William S. Geimer & Jonathan Amsterdam, Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases, 15 Am. J. Crim. L. 1, 41 (1988).
FN28. Bowers, supra note 25, at 1094.
FN29. Kleinstuber, supra note 24, at 332.
FN30. See Sarat, supra note 26, at 1130.
FN31. Bowers, supra note 25, at 1095.
FN32. Kleinstuber, supra note 24, at 334.
FN33. Ky. Rev. Stat. Ann. § 532.025(1)(b) (2012).
FN34. Ky. Rev. Stat. Ann. § 532.075 (2012) (“Whenever the death penalty is imposed for a capital offense, and upon the judgment becoming final in the Circuit Court, the sentence shall be reviewed on the record by the Supreme Court.”)
FN35. See, e.g., Romano v. Oklahoma, 512 U.S. 1, 8–9 (1994) (“[A] defendant necessarily must show that remarks to the jury improperly described the role assigned to the jury by local law”) (citation omitted); Slaughter v. Parker, 450 F.3d 224, 240–41 (6th Cir. 2006) (finding that a Kentucky judge who used, but did not make “profligate use” of, the word “recommend” in jury instructions did not err, as technical violations of Caldwell rule do not constitute reversible error).
FN36. Ky. Rev. Stat. Ann. § 532.025(3) (2012). This, of course, presumes the jury is the decision-maker at the penalty phase of trial. Some defendants waive their right to have a jury decide their fate, in which case a judge makes this determination.
FN37. Those states are Alabama, Florida and Delaware. Alabama’s override provision has been in the news recently after the Supreme Court denied certiorari in a case challenging this provision. See, e.g., Adam Liptak, Judges in Alabama Retain the Right to Override Their Juries in Capital Sentencing, N.Y. Times, A15 (Nov. 19, 2013), available at http://www.nytimes.com/2013/11/19/us/alabama-judges-retain-the-right-to-override-juries-in-capital-sentencing.html?_r=0. In Alabama, of the 111 times a judge has overridden a jury’s capital penalty verdict, 91% of the time, the judge has overridden a jury’s life sentence and imposed a death sentence. See Equal Justice Initiative, Updated List of Alabama Overrides, available at http://www.eji.org/ files/12-16-13%20Updated%20Override%20List_0.pdf (last updated Dec. 16, 2013). According to Justice Sotomayor’s opinion dissenting from the majority decision to deny certiorari, in 27 of 32 states with the death penalty, the jury’s decision to impose a life sentence cannot be disturbed by the trial judge. Woodward v. Alabama, 134 S. Ct. 405, 405 (No. 13-5380, Nov. 18, 2013) (Sotomayor, J. dissenting). Justice Sotomayor noted, “[i]n the last decade, Alabama has been the only State in which judges have imposed the death penalty in the face of contrary jury verdicts.” Id.
FN38. Michael L. Radelet, Overriding Jury Sentencing Recommendations in Florida Capital Cases: An Update and Possible Half-Requiem, 2011 Mich. St. L. Rev. 793, 812 (2011) (discussing the difficulty of getting information in these cases).
FN39. Since 1976, Alabama judges have overridden death sentences authorized by juries in favor of life sentences 10/111 times. See Equal Justice Initiative, supra note 37. Florida judges have overridden death to life sentences in ninety-one cases between 1972 and 2011, approximately two per year, and Indiana judges have changed death to life sentences in only nine cases since 1984. Radelet, supra note 38, at 818 tbl. 2, 820–21 tbl. 4 & 6, 822 tbl. 7.
FN40. Radelet, supra note 38, at 813.
FN41. Id. at 814.
FN42. Ky. Rev. Stat. Ann. § 532.025(1)(b) (2012).
FN43. E.g., Bussell v. Commonwealth, 882 S.W.2d 111, 114 (Ky. 1994).
FN44. Stark v. Commonwealth, No. 2005-SC-000332-MR, 2007 WL 2404453, at *8 (Ky. Aug. 23, 2007).
FN45. Id. (quoting Tamme v. Commonwealth, 759 S.W.2d 51, 52 (Ky. 1988)).
FN46. Grooms v. Commonwealth, 756 S.W.2d 131, 141–42 (Ky. 1988).
FN47. 1 W. Cooper & D. Cetrulo, Kentucky Instructions to Juries § 12.04A (5th ed. 2010).
FN48. Eisenberg et al., supra note 23, at 371.
FN49. Id. Kentucky has only had three women sentenced to death since 1976, when the death penalty was reinstated. Two of them had their death sentences overturned on appeal, See Caudill v. Commonwealth, 120 S.W. 3d 635, 648 (Ky. 2003) (affirming death sentence); Foster v. Commonwealth, 827 S.W.2d 670, 672, 683 (Ky. 1991) (reversing death sentence); O’Bryan v. Commonwealth, 634 S.W.2d 153, 154 (Ky. 1982) (same).
FN50. Eisenberg et al., supra note 23, at 371–72.
FN51. Id.; see also Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98 Colum. L. Rev. 1538, 1555 (1998).
FN52. Eisenberg et al., supra note 23, at 371.
FN53. See id. at 353, 377.
FN54. Sarat, supra note 26, at 1130.
FN55. See e.g., Kleinstuber, supra note 24, at 331 (footnote omitted); Bowers, supra note 25, at 1093–95; William J. Bowers & Wanda D. Foglia, Still Singularly Agonizing: Law’s Failure to Purge Arbitrariness from Capital Sentencing, 39 Crim. L. Bull. 51, 74–75 (2003).
FN56. Kleinstuber, supra note 24, at 331.
FN57. Hoffmann, supra note 8, at 1138 (emphasis in original).
FN58. Marla Sandys, Assoc. Prof., Dep’t of Crim. Just., Indiana Univ., Remarks at The Second Annual Forum on Criminal Law Reform in the Commonwealth of Kentucky: What Kentucky Capital Jurors Misunderstand (Nov. 15, 2013). See also Sarat, supra note 26, at 1131–32 (explaining that Georgia jurors in a capital case were “deeply concerned” with the possibility that defendant might someday be back on the streets, thus each voted for death out of fear that otherwise, he would be out threatening innocent people).
FN59. Sandys, supra note 58. Again, these results appear consistent with other state studies. See, e.g., Eisenberg, supra note 23, at 363 (explaining that 70% of former South Carolina capital jurors believe that “less than half” or “very few” death-sentenced defendants will ever be executed).
FN60. See Sarat, supra note 26, at 1132.
FN61. Eisenberg et al., supra note 23, at 341.
FN62. Caldwell, 472 U.S. at 331.
FN63. See, e.g., Abramson, supra note 18, at 135–36; Sandys, supra note 58.
FN64. Sandys, supra note 58. Sixty-eight percent of former capital jurors in Kentucky believed mitigation evidence needed to be proven beyond a reasonable doubt, despite the fact that the actual standard is preponderance of the evidence, and 11% thought the jury had to be unanimous in its decision as mitigating factors. Fifteen percent of jurors did not know the standards one way or the other.
FN65. See Woodall v. Commonwealth, No. 5:06CV-P216-R, 2009 WL 464939, at *14, *44 (W.D. Ky. Feb. 24, 2009); Smith v. Commonwealth, 845 S.W.2d 534, 540 (Ky. 1993). But see Gall v. Commonwealth, 607 S.W.2d 97, 113–14 (Ky. 1980) (not a basis for reversal).
FN66. Abramson, supra note 18, at 135 (quoting Ursula Bentele & William J. Bowers, How Jurors Decide on Death: Guilt is Overwhelming; Aggravation Requires Death; and Mitigation is No Excuse, 66 Brook. L. Rev. 1011, 1043 (2001)).
FN67. Bowers & Foglia, supra note 55, at 68.
FN68. See St. Clair v. Commonwealth, 319 S.W.3d 300, 303–04 (Ky. 2010).
FN69. Abramson, supra note 18, at 135; Bentele & Bowers, supra note 66, at 1031–38; Theodore Eisenberg & Martin T. Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 Cornell L. Rev. 1, 10 (1993).
FN70. Sandys, supra note 58. This finding has been replicated in a multi-state study. See Bowers, supra note 25, at 1091 tbl. 7.
FN71. A survey of former capital jurors in Delaware revealed similar findings. More than 91% indicated that if certain conditions are met, they believe the law requires a death sentence. Kleinstuber, supra note 24, at 332.
FN72. Sandys, supra note 58.
FN73. Id.
FN74. Buchanan v. Angelone, 522 U.S. 269, 272 n.1 (1998).
FN75. Id. at 277–79.
FN76. Weeks v. Angelone, 528 U.S. 225, 229, 234 (2000) (emphasis in original).
FN77. Hoffmann, supra note 8, at 1147.
FN78. Id.
FN79. Id.
FN80. Id. at 1150.
FN81. Dr. Saby Ghoshray, Capital Jury Decision Making: Looking Through the Prism of Social Conformity and Seduction to Symmetry, 67 U. Miami L. Rev. 477, 493–94 (2013).
FN82. Sarat, supra note 26, at 1122.
FN83. Id. at 1126.
FN84. Ghoshray, supra note 81, at 495.
FN85. Id. at 496.
FN86. Marla Sandys, Cross-Overs—Capital Jurors Who Change Their Minds About the Punishment: A Litmus Test for Sentencing Guidelines, 70 Ind. L.J. 1183, 1193 (1995). These findings are consistent with results found outside Kentucky, which showed that “a sizeable number of jurors recall that in deciding guilt, there was explicit discussion of what the defendant’s punishment would or should be.”. Bowers, supra note 25, at 1088.
FN87. Sandys, supra note 86, at 1194. A similar study of Delaware jurors found that 60% had made up their mind on punishment before the penalty phase began. Kleinstuber, supra note 24, at 331–32.
FN88. Sandys, supra note 86, at 1191–92.
FN89. Id. at 1207.
FN90. Id. at 1220.
FN91. Id. at 1207.
FN92. Id. at 1193.
FN93. Abramson, supra note 18, at 150–51. See also Kleinstuber, supra note 24, at 331 (seven of eight cases reviewed involved statutory aggravating factors that were found as a matter of law in the guilty phase).
FN94. Kleinstuber, supra note 24, at 331; Ring v. Arizona, 536 U.S. 584, (2002).
FN95. Kleinstuber, supra note 24, at 332.
FN96. Id. at 323.
FN97. Abramson, supra note 18, at 117, 120–21 (“[A]t one time, the Court’s jurisprudence sought to ensure that juries strive for moral consistency, while still exercising moral mercy when deciding who will be sentenced to death.”); Sarat, supra note 26, at 1115.
FN98. See, e.g., Abramson, supra note 18, at 117.
FN99. See, e.g., Kelly v. South Carolina, 534 U.S. 246, 248 (2002); Shafer v. South Carolina, 532 U.S. 36, 51 (2001).
FN100. Sarat, supra note 26, at 1119–20.
Who's Quashing Who?: The Battle Between Scholars and Subpoenas
Note | 102 KY. L. J. ONLINE 5 | Feb. 7, 2014
Julie RosingFN1
Introduction
Last year the First Circuit’s decision in United States v. Moloney, requiring two scholars from Boston College to forcibly disclose their confidential research, shocked the academic world.FN2 This high-profile subpoena case brought the idea of a “scholar’s privilege” to the forefront of the legal arena once again. The outcome of the case—the forcible disclosure and the denial of the scholar’s motion to quash – was not, by itself, all that surprising.FN3 But the vague, general lack of analysis on which the First Circuit denied the assertion of a “scholar’s privilege” was indeed both shocking and inappropriate. There are two questions that must be answered to clear up ambiguities in this hybrid problem of evidentiary and constitutional law. The first is whether a scholar’s privilege does or should exist. The second is if the scholar’s privilege does exist, how can the courts uniformly apply the privilege? This note advocates that the scholar’s privilege should exist as a qualified privilege. This note further advocates that the circuits should reject their current arbitrary use of the privilege and instead apply a balancing test that accounts for the interests of both the academics attempts to protect their research and the party seeking disclosure. Although the Supreme Court of the United States denied certiorari to United States v. Moloney, the issue of the scholar’s privilege will not fall by the wayside. The time has come for a definitive, specific ruling on the issue. We must find a better way for scholars and subpoenas to co-exist.FN4
I. The Existence and Evolution of the Scholar’s Privilege
The scholar’s privilege stems from the long-standing and hotly debated concept of a “reporter’s privilege.” The Supreme Court struck down this privilege in Branzburg v. Hayes.FN5[5] In 1972, Branzburg held that there is no absolute reporter’s privilege available under the First Amendment for reporters to refuse to answer questions or be subpoenaed in a grand jury proceeding. Circuit courts have split for years over the correct interpretation of Branzburg.FN6 Some circuits, such as the Sixth circuit, apply Branzburg’s holding rigidly, allowing absolutely no reporter’s privilege in any circumstance. In other circuits, like the Third Circuit, Branzburg does not control. The First Circuit has restricted the Supreme Court’s decision to its facts, implying that “[i]t seems a moot point now to argue that there is no reporter’s privilege in the federal courts.”FN7 But, the First Circuit has also developed a vague balancing test to determine applicability of the privilege. Several other circuits have adopted their own variations of balancing tests—but no uniform standard has been propounded beyond Branzburg. The circuit split is not surprising when considering that Branzburg’s holding did not command a majority. Even more notable is Justice Powell’s concurrence and the dissenting opinion, stating “express support for recognizing a qualified newsman’s privilege,” which further bolstered the privilege’s strength.FN8 From the uncertainty of the application of a reporter’s privilege sprang further uncertainty when scholars began challenging subpoenas in the research context. The scholar’s privilege has not been as frequently litigated as the reporter’s privilege until recently.FN9 These cases vary factually, and scholars have only succeeded in quashing subpoenas in a few, narrowly construed factual anomalies. The dilemma of the scholar’s privilege spans two legal subjects: evidentiary law and constitutional law. Critics of recognizing reporters’ and scholars’ privileges take the evidentiary angle. These critics argue that because the privileges are not included in the Federal Rules of Evidence, the Supreme Court has rejected their existence and therefore, their application.FN10 Proponents fight for “the constitutional guarantees of free expression, privacy, and defendant’s rights,” which they believe justifies recognition of a testimonial privilege to protect the researcher-subject relationship.FN11 Further, although many parallels can be drawn between the reporter’s privilege that was denied in Branzburg and the idea of a scholar’s privilege, there is also at least one notable difference—reporters may have an additional route for protection via reporter shield laws.FN12 Markedly, no states have legislated to protect the researcher in a similar manner as reporter shield laws. Therefore the scholar’s privilege is essentially the only protection that scholars may have. The First Circuit has been confronted with the scholar’s privilege on a number of occasions, most notably is the In re Cusumano v. Microsoft Corporation case. Cusumano held that interview information collected by two scholars for a book was privileged from discovery.FN13 Although a scholar’s privilege is admittedly created in this case, the holding remains narrow: “[i]t would be extravagant to read the case as establishing any broad ‘scholar’s privilege.’”FN14 Through this ruling, research is clearly proven to be a special endeavor, deserving protection by at least a qualified privilege.FN15 However, the First Amendment balancing test applied in this case leaves much ambiguity, leading critics to the conclusion that Cusumano may have been a fluke decision. The traditional balancing test that the First Circuit has adopted requires a court to “place those factors that relate to the movant’s needs for the information on one pan of the scales and those that reflect the objector’s interest in confidentiality and the potential injury to free flow of information that disclosure portends on the opposite pan.”FN16 Essentially the need for disclosure of the information is balanced with confidentiality and First Amendment guarantees. The factors to be used on both sides of the balancing test are not explicitly identified, creating room for varying interpretations and inconsistent decisions.
II. The Moloney Decision
Most recently, the First Circuit was again confronted with the issue of the scholar’s privilege and the incomplete balancing test in United States v. Moloney, when two researchers from Boston College were subpoenaed and required to disclose confidential interviews regarding their work on the Belfast Project.FN17 The Project consisted of taping oral interviews from recollections of members of the Provisional Irish Republican Army, the Provisional Sinn Fein, the Ulster Volunteer Force, and other paramilitary and political organizations involved in the "Troubles" in Northern Ireland from 1969 on. British authorities sought the interviews of Brendan Hughes and Dolours Price (former Irish Republican Army members) who were implicated in the 1971 abduction and execution of Jean McConville, a suspected British informant.FN18 The crux of the case lies in the fact that the Belfast Project scholars made explicit promises of confidentiality that the interview contents would be protected until the deaths of the interviewees. Since Hughes was dead at the time disclosure was requested, there were no problems with introducing his interview testimonial in court. The only issue was whether Price’s confidential testimonial could be disclosed because their confidentiality agreement had not ended at the time of the First Circuit decision. However, an interesting and surprising twist occurred while the case was wading in the uncertain cert-pool: Dolours Price was found dead in her home from an apparent drug overdose in January 2013. It is unclear as to whether this living vs. dead distinction affected the Supreme Court’s decision to deny certiorari in April. The application of the balancing test in Moloney is radically different than the application and outcome in Cusumano. First, the precedent from Cusumano deals with claims of non-disclosure privilege in civil cases involving private parties. Moloney is more similar to the Branzburg case, in that the matters in both cases concern disclosure in criminal proceedings.FN19 The US Government was seeking the interviews in Moloney pursuant to the Mutual Legal Assistance Treaty (MLAT) with England. Governmental and public interest seem to automatically have a higher stake in criminal proceedings, and especially where foreign treaty obligations are at issue.FN20 What is striking, regardless of the Supreme Court’s denial, is that the majority opinion of Moloney almost completely disregards the interests of the researchers. The majority does not include an analysis of the researcher’s interests other than to mention that “the fear…that disclosure might threaten their job security or personal safety or that it will simply result in dishonor or embarrassment” is insufficient to create enough of a scholar’s interest to tip the balancing scales in their favor. A balancing test is not a balancing test if one side is ignored. Justice Torruella appeared to be concerned with the majority opinion’s lack of consideration of the researcher’s First Amendment claims: It is one thing to say that the high court has considered competing interests and determined that the information gatherers (here, academic researchers) may not refuse to turn over material they acquired upon a premise of confidentiality when these are requested via government subpoena in criminal proceedings. It is entirely another to eagerly fail to recognize that the First Amendment affords the Appellants “a measure of protection…in order not to undermine their ability to gather and disseminate information.”FN21 Torruella concurred in the judgment of the opinion only, on alternate reasoning.
Justice Torruella’s astute observations in the Moloney concurrence call for a uniform application of the balancing test in order to fully protect the First Amendment rights of scholars, researchers, and academics. His opinion requires that the balancing test must actually perform balancing for a legitimate verdict to be reached.
III. Proposal for an Adequate Balancing Test
The balancing test that I propose is undoubtedly complex because it aims at protecting the interests of a variety of parties including: the subject, the researcher, the sponsor, the facilitator, the prosecutor, the state, and society.FN22 The test advocated here combines elements from the First Circuit balancing test from the Torruella concurrence in Moloney, and from various other circuits and lower courts, to propound a uniform standard that ultimately aims at recognizing and evaluating the interests of the scholars. I believe that this test fills gaps where the First Circuit majority in Moloney failed.
A. The First Amendment Interest: Potential Harm to Free Flow of Information
1. Qualified Individuals
The first factor to consider is whether the individuals that are trying to prevent disclosure fall under the traditional protections of the First Amendment.FN23 Reporters and academic researchers alike fall into these protections because they perform a range of conduct relating to the gathering and dissemination of information.FN24 The fact that scholarly research “provides the public with historical and analytical perspective on issues of public concern in government” demonstrates its traditional information dissemination purpose.FN25 No traditional First Amendment protection equals no potential protection under the scholar’s privilege. Determining that scholars and researchers should receive qualified protection under the balancing test is fairly straightforward analysis from the First Amendment. Determining who qualifies as a “researcher” or a “scholar” is a more difficult inquiry. Beyond researchers and scholars, archivists should also fall into the traditional First Amendment protections. “Archivists have a professional duty to curate many types of materials, some of which contain confidential information.”FN26 However, researchers, scholars, and archivists should all be classified by their functions rather than their titles.FN27
2. Confidentiality
The next factor to consider is whether or not the information, subject to disclosure, is classified as confidential. Information available to the general public or which can be accessed through other means of discovery may not be classified as confidential. Researchers should always be careful to get express, signed confidentiality agreements from their participants with explicit statements of protection. Even if a researcher has not made an express guarantee of confidentiality to their informants, a court may be able to deny a request for discovery of raw data if it finds very strong privacy interests are present.FN28 One disturbing aspect of the balancing test as it stands currently is that even express indications of confidentiality, like confidentiality agreements between researchers and participants, may not be indicative of privilege.FN29 For instance, even though the need for confidentiality was a central and prominent aspect of the Belfast Project in Moloney, including written agreements requiring that access to the interview records be restricted until their death or upon written approval,FN30 the court still rejected the application of privilege because the researchers knew that Boston College could make no guarantees of the ability to refuse disclosure on a court order. The court cited to a failure of Moloney’s donation agreements, but referenced Branzburg to reassert that even promises of confidentiality made in express confidence do not create a privilege.FN31 Therefore, confidential information is necessary for the privilege, but cannot alone establish the privilege under the current test. This decision invalidating express confidentiality agreements is contrary to public policy. Because the court in Moloney already had possession of the tapes from reviewing them in camera, they were “making a sham of the scholar’s absolute assurances to their interview subjects that they would keep the tapes absolutely confidential until the death of each interviewee.”FN32 The notion that researchers can make promises of protection to their participants that can be struck down as unenforceable in court is disconcerting. “[I]f the government may subpoena confidential information subject to virtually no judicial scrutiny, the likely result will not be that the criminal justice system benefits, but that fewer people involved in potentially illegal conduct opt to speak to the press in the first place.”FN33 Under this balancing test, explicit confidentiality agreements must weigh in favor of applying the scholar’s privilege in all but the most extreme factual circumstances. In Moloney the confidential interviews were sought through the MLAT treaty to solve longstanding murder investigations, which might very well reach the extremity requirement. Other factors relating to the confidentiality of the material must be taken into account as well.FN34 For instance, researchers may fear that they will “[run] the well dry” if their information is forcefully disclosed through subpoenas.FN35 Voluntary revelations and bargained-for communications between a researcher and study participants are vital to a researcher’s work. Consequently, “[w]ithout these sources . . ., many researchers, . . . would lose valuable sources of information.”FN36 Study participants revealing personal or embarrassing information will be appropriately shielded here under the balancing test. The study participants in the Proctor & Gamble case were kept confidential because the information was highly personal in nature including medical history and sexual activity. The nature of this personal information could inhibit future studies if revealed due to a fear by participants of inevitable disclosure.FN37 Furthermore, First Amendment interests should not be discounted because a third party holds the confidential materials.FN38 Third parties typically destroy confidential researcher-client communications in testimonial privileges and sever the effect of confidentiality agreements. In Moloney, Boston College was in possession of the confidential interviews. Boston College did not bother to challenge the first subpoena issued, and even when challenging the second subpoena, the lawyers began the challenge by submitting the materials to the judge to be examined in camera.FN39 Ultimately, researchers must take responsibility in forming explicit agreements with their participants and keeping their agreements and communications as their property. But, since difficulties may arise for researchers in keeping their research out of the hands of third parties (especially in the institutional context), the court should weigh the researcher’s efforts to retain sole possession over the information instead of the actual result. Efforts sufficiently signify that the researchers valued the confidentiality interests of their participants enough to make a stand for them, which should weigh in their favor. In sum, confidentiality must be weighed by (1) whether a confidentiality agreement was reached between researchers and participants (2) whether personal privacy interests are present for participants (3) whether future research will be inhibited if there is disclosure and (4) efforts by the researchers to keep their research out of a third party’s hands.
3. The Extent of Protection Appropriate: Dangerous or Scandalous Information
If the information pending disclosure is found to be confidential—the next step is to determine the extent of protection that is appropriate for the confidential information. Determining the extent of protection likely must be satisfied through a case-by-case basis, through context evaluation of the confidentiality aspect. The highest demonstrations of confidentiality should be afforded the most protection and inadequate showings will not earn protection. Torruella’s view in Moloney found the interviews that the Belfast Project researchers conducted were confidential—due to the great lengths that the researchers went to prevent their unsanctioned disclosure.FN40 The Moloney case is a perfect example of information found to be confidential that was still not afforded the protection that the researchers wanted. There are a number of ways for the party seeking disclosure to deal with information that falls somewhere between highly confidential and inadequate including: limiting the subpoenas to only relevant claims, being willing to accept data with redacted confidential information, and helping to underwrite the costs of redaction and photocopying.FN41 Beyond confidentiality, the personal safety and potential dangers that disclosure will cause for the researchers must be weighed as well. Media in response to the disclosures in Moloney reported death threats against the Lead Researcher for the Belfast Project, Anthony McIntyre.FN42 Mr. McIntyre also stated in an affidavit that the home next door to his was smeared with excrement after the interviews were released. As mentioned earlier, the topics of many research projects are sensitive, highly personal, or controversial, and the safety of researchers and participants absolutely must be weighed with care. The issuance of the subpoenas in Moloney also “prompted broad news coverage and a minor international scandal.”FN43 Not only did the ACLU attempt to intervene, but Senator John Kerry and Secretary of State Hillary Clinton urged British authorities to revoke the subpoenas to encourage the peace process in Ireland. John Kerry has further argued alongside Moloney and McIntyre that “peace process stability considerations must take precedence over the tightly-written treaty obligations of the MLAT.”FN44 Subject matter that is more likely to create public condemnation should be afforded the most protection under the balancing test, while benign research on uncontroversial subjects will typically garner less protection. On a similar note, public curiosity or newsworthiness in the content of confidential research should not be valued in the balancing test. The Dolours Price interview garners large public interest, but most of the interest is not based on the confidentiality issues or the police misusing academic researchers for law and order purposes. Instead, the public really wants to know the “gory details of what they imagine are in these interviews,” which is driving and influencing much of the reporting.FN45 Once again, an inflamed public, or heightened social interest should have no bearing on the balancing test in these cases. The focus must be turned from the sensational, provoking subject matter, to the true issue of the case—which is solely the rights of the academic researchers. In sum, there are a myriad of factors that fall into the First Amendment interests including whether the individuals fall into traditional First Amendment protection, whether the information is confidential, and the extent of protection that the confidentiality requires. The key to evaluating each of these factors is thoroughness and reasonableness.
B. The Opposing Interest: The Need for the Information
1. The Nature of the Proceedings
The nature of the proceedings, evinced by case law, primarily rests on whether the action is a criminal matter or civil matter. Branzburg flatly rejected the use of a reporter’s privilege in grand jury proceedings.FN46 Other than that, Branzburg did little to specify whether this type of privilege could be used elsewhere. This is where the circuit-split rears its ugly head. Some circuits have held that Branzburg forecloses First Amendment protection in all criminal cases.FN47 However other circuits have claimed there is no reason to distinguish between civil and criminal cases in application of the privilege.FN48 The majority in Moloney disavows the precedent of the First Circuit that permitted success and application of a scholar’s privilege simply on the basis that these were civil cases where the government and public’s strong interest in investigation of crime was not an issue.FN49 Case law evidences that the government’s presence as a party in criminal litigation makes a radical difference in the balancing test, as opposed to results obtained in private litigation.FN50 It seems that the government can more easily prove their need for the information by emphasizing interests of national security and public safety when criminal overtones are present.FN51 Essentially, when the Government is a party to the litigation, if they follow their own guidelines and use careful practice, there should be fewer problems with getting their subpoenas granted. In the Moloney case, the government was the party seeking disclosure of the information. The Government’s interest was clear through the UK-MLAT treaty in which the federal government of the United States assumed an obligation to assist the United Kingdom in its prosecution of domestic criminal matters.FN52 The current balancing test requires that for the party pursuing disclosure in civil litigation to defeat the scholar’s privilege, the research must be more than remotely related to the lawsuit. The relationship between the information sought and the academic research must be more than tenuous.FN53 For example, in one Second Circuit case, a student was working in a restaurant to gather information for his dissertation when a suspicious fire and explosion occurred in the restaurant.FN54 His journal and notes were subpoenaed. Although his journal entries were clearly “scholarly work product,” the relationship between the fire and the student’s academic research were remote and could not be classified as expertise. However, the question remains as to whether or not this binary distinction between civil and criminal cases is appropriate. The implication should be that civil cases will more likely be granted the privilege, but the type of case should not be a decisive factor. Criminal matters cannot be conceded to the government the way that they have been previously. Branzburg once again offers little guidance since the holding effectively only prevents a privilege in regard to grand jury proceedings. Therefore, the civil/criminal distinction should be considered when balancing the need for information, but should not preclude the government from being defeated if they are unable to prove that their need is legitimate.
2. Exhaustion of Alternative Sources
The second factor that must be addressed is whether the opposing party has exhausted alternative sources for accessing the information. Although this inquiry is not essential to defeating the privilege, it is still relevant in determining whether subpoenas seeking the confidential information are necessary.FN55 In Moloney, the information the government was seeking were interviews from one source who had passed away and one source that was still living. The government had no way of eliciting the information from the dead source, which makes their case even more compelling. However, the government could have contacted the living source, Dolours Price, to obtain the interview information. If Price were to refuse to surrender the information from her own memories and experiences, that would be her prerogative. This conundrum is similar to Cusumano, where the court permitted the scholar’s privilege, in which “Microsoft could have obtained that information directly from the sources revealed by the manuscript.”FN56 The one exception to living sources are cases where the alternative means of acquiring the information will create an undue delay or burden to the opposing party. In this case the factor should weigh in favor of the party seeking disclosure. At the time that the First Circuit opinion was issued, Dolours Price was an emotionally unstable woman. McIntyre speaks of Price as a sensitive woman who suffered mentally from the betrayal by those who shared culpability and by others who abdicated their responsibility.FN57 She would likely not have consented to an interview with the government in the way that she previously had with the Belfast Project researchers. In contrast, Price had built a relationship of trust with McIntyre; she attended his wedding and was the godmother of his son. These conditions on Price’s willingness to be interviewed may serve as an example of an undue burden to the opposing party seeking disclosure. But, once again, an unwillingness to perform other interviews should not constitute an undue burden unless all other alternatives to the information are inaccessible. The civil/criminal distinction may also come to bear on whether the information is accessible by other means. Case outcomes indicate that information sought in criminal cases will be more difficult to access from alternative sources.
Conclusion
There is no doubt that the scholar’s privilege argument will rear its head again soon, likely without the complications of an international treaty and a murder investigation allowing the courts to cruise past confidential researcher interests. At some point, the Supreme Court must clarify for lower courts to what extent parties asserting their First Amendment interests in challenging government subpoenas of confidential information should - consistent with Branzburg - have a Constitutionally guaranteed right to present evidence before the court for review. If not, scholars and researchers will continue to have their motions to dismiss disclosure quashed, which in turn will cause scholars and researchers to have their work, their passion, and their interest in sustaining oral and written history quashed. The time has come to stop quashing and start protecting.
FN1. University of Kentucky College of Law, J.D. candidate for May 2014.
FN2. Nicholas J. Wagner, Split Over Reporter’s Privilege Highlights Tension Between National Security and the First Amendment, Circuit Splits (July, 12, 2012, 5:27 AM) http://www.circuitsplits.com/2012/07/in-2010-before-an-audience-of-college-students-justice-sotomayor-remarked-that-the-supreme-court-is-likely-to-have-to-rule.html.
FN3. See United States v. Moloney, 685 F.3d 1, 16-20 (1st Cir. 2012); Will Havemann, Privilege and the Belfast Project, 65 Stan. L. Rev. Online 79, 79 (2012) http://www.stanfordlawreview.org/sites/default/files/online/articles/Havemann_65_SLRO_79.pdf.
FN4. See Robert M. O’Neil, A Researcher’s Privilege: Does Any Hope Remain? 59 Law & Contemp. Probs. 35, 36-37 (1996).
FN5. See Branzburg v. Hayes 408 U.S. 665, 690, 702-703 (1972).
FN6. See Wagner, supra note 2.
FN7. Kristina Spinneweber, Branzburg, Who? The Existence of a Reporter’s Privilege in Federal Courts, 44 Duq. L. Rev. 317, 334 (2006).
FN8. David A. Kaplan & Brian M. Cogan, The Case Against Recognition of a General Academic Privilege, 60 U. Det. J. Urb. L. 205, 221 (1982-1983).
FN9. See Howard Gray Curtis, Academic Researchers and the First Amendment: Constitutional Protection for their Confidential Sources, 14 San Diego L. Rev. 876, 877 (1976-1977) (explaining that the traditional disagreements have centered on journalists rather than academic researchers).
FN10. See Kaplan & Cogan supra note 8, at 215.
FN11. Paul Nejelski & Lindsey Miller Lerman, A Researcher-Subject Testimonial Privilege: What to do Before the Subpoena Arrives, 1971 Wis. L. Rev. 1085, 1134.
FN12. See Branzburg, 408 U.S. 665 at 689.
FN13. Cusumano v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998).
FN14. Judith G. Shelling, A Scholar’s Privilege: In Re Cusumano, 40 Jurimetrics J. 517, 524 (2000).
FN15. See Rebecca Emily Rapp, In Re Cusumano and the Undue Burden of Using the Journalist Privilege as a Model for Protecting Researchers from Discovery, 29 J.L. Educ. 265, 268 (2000).
FN16. See Shelling, supra note 14, at 517.
FN17. United States v. Moloney, 685 F.3d 1, 16-20 (1st Cir. 2012).
FN18. Havemann, supra note 3 at 82.
FN19. Branzburg v. Hayes, 408 U.S. 665, 667-671 (1972); Moloney, 685 F.3d at 6.
FN20. Moloney, 685 F.3d at 18.
FN21. United States v. Moloney, 685 F.3d 1, 20 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (quoting Cusumano v. Microsoft Corp., 162 F.3d at 714 (1st Cir. 1998)).
FN22. Nejkelski & Lerman, supra note 11, at 1093.
FN23. U.S. Const. amend. I.
FN24. United States v. Moloney, 685 F.3d 1, 20 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (citing Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)).
FN25. See Curtis, supra note 9, at 897.
FN26. Hannah Miller, Should a Legal Right to “Archival Privilege” be Established?, Due Process: Georgetown Law Library Blog, (February 26, 2013), http://www.law.georgetown.edu/library/blog/post.cfm/should-a-legal-right-to-archival-privilege-be-established.
FN27. Nejkelski & Lerman, supra note 11, at 1141.
FN28. See Eric M. Kraus & Arthur Palmieri, Investigating the Investigators: Balancing the Needs of Independent Researchers with Litigation Imperatives, Privacy & Data Security L. J. 659, 668 (2006).
FN29. United States v. Moloney, 685 F.3d 1, 4-6, 18-19 (1st Cir. 2012).
FN30. Petition for Writ of Certiorari, Moloney v. Holder, 2012 WL 5838450 at *7 (U.S.).
FN31. See Branzburg v. Hayes, 408 U.S. 665, 682 n. 21 (1972).
FN32. Harvey Silvergate, BC and the Belfast Project: A Scholar’s Privilege to Disobey, Forbes, (July 23, 2012, 11:48 AM), http://www.forbes.com/sites/harveysilverglate/2012/07/23/bc-and-the-belfast-project-a-scholars-privilege-to-disobey/.
FN33. Havemann, supra note 3.
FN34. O’Neil, supra note 4 at 36 (referring to the four concerns for protecting scholarly research).
FN35. Kraus & Palmieri, supra note 28 at 760.
FN36. Id. at 671.
FN37. See Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1546 (11th Cir. 1985)(preventing disclosure of questions regarding medical histories, sexual practices, contraceptive methods, pregnancy histories, menstrual activity, tampon usage, etc).
FN38. Brief for the Reporter’s Committee for Freedom of the Press as Amicus Curiae Supporting Petitioners at 3-5, Moloney v. Holder, No. 12-627, 2012 WL 6703006 (U.S.), at *4-*9.
FN39. See Silvergate, supra note 32.
FN40. United States v. Moloney, 685 F.3d 1, 20-21 (1st Cir. 2012) (Torruella, J., concurring in the judgment only).
FN41. See Kraus & Palmieri, supra note 28 at 674.
FN42. Katie Zezima, College Fights Subpoena of Interviews Tied to I.R.A., N.Y. Times, June 10, 2011, at A12.
FN43. Havemann, supra note 3 at 83.
FN44. Jim Dee, Death of Dolours could be a major game-changer, BelfastTelegraph.co.uk, Jan. 29, 2013, http://www.belfasttelegraph.co.uk/opinion/news-analysis/death-of-dolours-could-be-a-major-gamechanger-29041219.html.
FN45. Radio Free Eireann Interview with Anthony McInture and Ed Moloney: The Death of Dolours Price, Boston College Subpoena News (January 26, 2013), http://bostoncollegesubpoena.wordpress.com/2013/01/27/radio-free-eireann-interview-with-anthony-mcintyre-and-ed-moloney-the-death-of-dolours-price/.
FN46. Branzburg v. Hayes, 408 U.S. 665 at 707-08 (1972).
FN47. Petition for Writ of Certiorari, Moloney v. Holder, 2012 WL 5838450 (U.S.).
FN48. See Spinneweber, supra note 7 at 10-15.
FN49. United States v. Moloney, 685 F.3d 1, 18 (1st Cir. 2012) (distinguishing Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998)); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 595-99 (1st Cir. 1980).
FN50. United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983).
FN51. Reporter’s Privilege Legislation: An Additional Investigation of Issues and Implications: Hearing Before the Committee on the Judiciary United States Senate; 109th Cong. 6 (2005) (statement of Hon. Chuck Rosenberg, U.S. Attorney for the S. D. of Tex.) (stating that the Governmental interest includes enforcing federal criminal law, protecting national security, protecting vital secrets, and protecting public safety).
FN52. United States v. Moloney, 685 F.3d 1, 21 (1st Cir. 2012) (Torruella, J., concurring in the judgment only) (citing UK-MLAT Technical Analysis, S. Exec. Rep. No. 104-23, at 11).
FN53. Bert Black, Research and Its Revelation: When Should Courts Compel Disclosure?, 59 Law & Contemp. Probs 169 at 179 (1996).
FN54. Id. (referencing In re Grand Jury Subpoena Dated January 4, 1984, 750 F.2d 223 (2d Cir. 1984)).
FN55. Curtis, supra note 9, at 888-889.
FN56. Cusumano v. Microsoft Corp., 162 F. 3d 708 at 712 (1st Cir. 1998).
FN57. See Radio Free Eireann Interview with Anthony McInture and Ed Moloney: The Death of Dolours Price, Boston College Subpoena News (January 26, 2013), http://bostoncollegesubpoena.wordpress.com/2013/01/27/radio-free-eireann-interview-with-anthony-mcintyre-and-ed-moloney-the-death-of-dolours-price/
"Friending" the NLRB: Applying Traditional Labor Rules to Social Media Cases
This Online Original is available for download (PDF) here.
Article | 102 KY. L. J. ONLINE 4 | Jan. 17, 2014
Lauren WeinerFN1
Dawnmarie Souza, an employee of American Medical Response of Connecticut, was terminated for referring to someone as a “17” in a Facebook status. While this may seem outlandish, the “someone” Souza was referring to was her boss and the “17” was company jargon for a mental patient. The status, wherein Souza also called her boss a “scumbag,” prompted numerous responses from other employees of the company who also shared their comments regarding the supervisor. Souza was suspended and subsequently terminated for her Facebook posts because they violated the Employer’s blogging and Internet policy.FN2 The Acting General Counsel (“AGC”) for the National Labor Relations Board (“NLRB”), in turn, filed an unfair labor practice charge against the Employer, finding that the discharge of the employee for the Facebook post was unlawful because it violated the employee’s right to engage in “concerted activity” under Section 7 of the National Labor Relations Act (“NLRA”).FN3 While the case was settled before it could be heard by the Board, it is only the tip of the iceberg in a slew of social media cases the Board will confront as a result of the popularity of networking sites like Facebook and Twitter. The NLRB has long protected the rights of employees to make negative remarks about working conditions and supervisors, recognizing that such activities are a facet of concerted activity. However, this precedent was developed prior to the onset of the social media frenzy, which has raised the question of what an employer may reprimand its employees for. May an employee disparage their employer on Facebook, possibly exposing the employer to liability, and argue that this is “concerted activity”? Lafe Solomon, the AGC of the NLRB, has said these social media posts are no different from those conversations taking place around the water cooler.FN4 However, this stance does not account for the pervasiveness of social media commentary. What was once an opinion shared at the lunch table amongst employees now has the potential to spread to hundreds of people, the majority of whom are presumably not employees, with a single mouse click. Originally enacted during the New Deal era to protect the rights of employees to unionize,FN5 the NLRA is thus far being applied arbitrarily to social media cases in a way that is too restrictive on employers. As union presence diminishes, some corporate officials assert that the NLRB is intervening in the social media context in an attempt to expand its power in the workplace.FN6 The popularity and universal accessibility to social media has changed the context of labor relations and this change should be considered when applying provisions of the NLRA to the 21st century workplace. This note will first address the framework of the NLRB. It will then address the traditional rules for protected concerted activity determinations, and subsequently examine the NLRB’s application of these traditional rules to the social media context. Next it will discuss inconsistencies and problems resulting from this application. This note will conclude with a proposal for applying heightened scrutiny to find protected, concerted activity and a balancing test looking to the totality of the circumstances.
Framework of the National Labor Relations Board
The NLRB is an independent federal agency with exclusive jurisdiction over unfair labor practice charges under the NLRA. The NLRB “protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions.”FN7 Among other undertakings, the NLRB “acts to prevent and remedy unfair labor practices committed by private sector employers and unions.”FN8 The Board of the NLRB (“the Board”) predominantly “acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings.”FN9 The General Counsel is “independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases.”FN10 Once an unfair labor practice charge is filed with a regional office, a field examiner investigates the charge and submits evidence to the Regional Director, who evaluates the findings and issues a formal complaint if he or she finds the evidence sufficient to support the charge. Once a formal complaint is issued, the NLRB prosecutes the complaint in front of an Administrative Law Judge (“ALJ”).FN11 If neither party files an exception to the ALJ’s decision within twenty days, the findings automatically become the decision and order of the Board; if exceptions are filed, the Board reviews the case.FN12
Protected Activity Under the National Labor Relations Act
An employer may fire an employee “for good cause, bad cause, or no cause at all, without violating the Act as long as his motivation is not anti-union discrimination and the discharge does not punish activities protected by the Act.”FN13 However, both union and non-union employers are at risk of facing unfair labor practice charges under Section 8 of the NLRA if they terminate or discipline an employee based on social media activity that the Board deems “protected concerted activity.” In pertinent part, Section 7 of the NLRA provides that “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”FN14 Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [section 7].”FN15 The discipline or discharge of an employee violates Section 8(a)(1) if the following four elements are established:(1) the activity engaged in by the employee was “concerted” within the meaning of Section 7 of the Act; (2) the employer knew of the concerted nature of the employee’s activity; (3) the concerted activity was protected by the Act; and (4) the discipline or discharge was motivated by the employee’s protected, concerted activity.FN16 “In order for employee conduct to fall within the ambit of Section 7, it must both be concerted and engaged in for the purpose of ‘mutual aid or protection.’”FN17 Under the Board’s test for concerted activity found in the Meyers cases, the activity must be “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”FN18 Included in this definition are “those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.”FN19 The Board and Third Circuit have held that: A conversation may constitute concerted activity although it involves only a speaker and a listener, but to qualify as such, it must appear at the very least that it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of employees.FN20 The Board has found that “efforts to invoke the protection of statutes benefiting employees are efforts engaged in for the purpose of ‘mutual aid or protection.’”FN21 Nevertheless, subject matter alone “is not enough to find concert.”FN22 However, protection of the Act is not absolute. An employee who is engaged in concerted protected activity and would otherwise “fall within the ambit of Section 7”FN23 can lose this protection. This loss occurs in two situations: when an employee has made public outbursts against a supervisor and when an employee has purportedly made negative remarks about an employer or its product to third parties.FN24 When an employee has made public outbursts against a supervisor, the Atlantic Steel standard is generally applied. In Atlantic Steel, the Board found that “even an employee who is engaged in concerted protected activity can, by opprobrious conduct, lose the protection of the Act.”FN25 When an employee “has made allegedly disparaging comments about an employer or its product in the context of appeals to outside or third parties,” the Jefferson Standard is generally applied.FN26
The Board’s Application of “Concerted Activity” Rules
Labeling social media as “the new water cooler” and acknowledging the historical protection federal law has afforded the rights of employees to discuss work-related matters, Board Chairman Mark Pearce stated the Board is merely “applying traditional rules to a new technology.”FN27 Thus far, the Board has only decided two unlawful discharge cases involving social media. In Knauz BMW, the Board ruled on its first unlawful discharge allegation involving Facebook posts. The Facebook posts in Knauz involved two separate incidents, the first of which contained pictures accompanied by sarcastic and critical remarks of the inexpensive food that was served at a marketing event for a new BMW model.FN28 The second incident took place at an adjacent dealership, also owned by the employer, where a customer’s child was sitting in the driver’s seat of a vehicle when the vehicle accelerated over the customer’s foot and into a pond. The employee posted pictures with mocking captions of the accident on his Facebook page. The Board agreed with the ALJ’s finding that the employee was discharged solely for his posts about the accident, adopted the holding that these posts did not amount to protected concerted activity, and thus held that the discharge was lawful.FN29 The Board declined to address whether the Facebook posts about the sales event were protected. In Hispanics United, Marianna Cole-Rivera and Lydia Cruz-Moore were employees at Hispanics United of Buffalo, Inc., a nonprofit where the co-workers assisted victims of domestic violence. After Cruz-Moore sent Cole-Riviera a text message indicating an intention to discuss her criticisms of employee performance with the Executive Director of the company, Cole-Rivera posted a Facebook status from her home computer that read, “Lydia Cruz, a coworker feels that we don’t help our clients enough at [Respondent]. I about had it! My fellow coworkers how do u feel?”FN30 Four off-duty employees commented on the status voicing their objection to Cruz-Moore’s criticism that their work performance was subpar. Cruz-Moore complained to the Executive Director that she had been defamed and slandered. Cole-Rivera and her four coworkers were subsequently discharged because their comments, deemed “bullying and harassment” of a coworker, were in violation of the company’s “zero tolerance” policy proscribing such conduct. The Board found that “although the employees’ mode of communicating their workplace concerns might be novel...the appropriate analytical framework for resolving their discharge allegations has long been settled under Meyers Industries and its progeny.”FN31 Applying Meyers, the Board held that the discharge of the five employees was an 8(a)(1) violation; by responding with comments of disapproval to Cole-Rivera’s solicitation, the coworkers “made common cause with her, and together their actions were concerted within the definition of Meyers I, because they were undertaken ‘with...other employees.’”FN32 The employees’ actions were also found concerted under Meyers II because they “were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management.”FN33 Although the status did not notify employees that Cruz-Moore was going to speak with the Executive Director, the Board reiterated that the “object or goal of initiating, inducing, or preparing for group action does not have to be stated explicitly when employees communicate” and that “even absent an express announcement about the object of an employee’s activity, ‘a concerted objective may be inferred from a variety of circumstances in which employees might discuss or seek to address concerns about working conditions.'”FN34
Cases Before the General Counsel
Because Hispanics United and Knauz BMW mark the Board’s only application of the NLRA to unlawful discharge cases involving social media, precedent is extremely limited. Although this limitation suggests uncertainty as to how the Board will decide future social media discharge cases, policy guidance reports issued by the AGC provide some insight. While the AGC’s decisions are not binding authority like those issued by the Board, recently decided cases indicate it is probable that the Board will subscribe to the AGC’s stance on social media cases. In his August 2011 report, AGC Lafe Solomon addressed in part “emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings.”FN35 This note will first address cases where the AGC found concerted activity and then cases where concerted activity was not found.
Concerted Activity Found
The AGC found that the Facebook discussion between employees in Hispanics United was a “textbook example of concerted activity” under the Meyers cases “even though it transpired on a social network platform.”FN36 Furthermore, the AGC made the broad assertion that “[t]his finding of protected activity does not change if employee statements were communicated via the internet” but did not offer a justification for this conclusion.FN37 The AGC also found protected concerted activity in American Medical Response of Connecticut (“AMR”), mentioned in the introduction of this note. In finding that Souza’s discussion of supervisory actions with coworkers in her Facebook post was protected activity, the AGC noted that “[i]t is well established that the protest of supervisory actions is protected conduct under Section 7.”FN38 Applying the Atlantic Steel standard, the AGC also determined that Souza did not lose the Act’s protection as a result of her comments. In his analysis of Knauz BMW, the AGC found that the photographs and commentary criticizing the sales event “were part of a course of protected, concerted conduct related to the employees’ concerns over commissions and were not disparaging of the Employer’s product or so ‘egregious’ as to lose the Act’s protection.”FN39 The Report stated that the employee took the photos to “capture his coworker’s frustration”, that when he posted them on Facebook he was expressing “the sentiment of the group,” and this activity was therefore “a direct outgrowth of the earlier discussion among the salespeople” after the meeting with management.FN40 In Triple Play Sports Bar (“Triple Play”), the ALJ found that an Employer’s discharge of employees who participated in a Facebook conversation regarding the Employer’s tax withholding practices was unlawful. After discovering that several employees owed state income taxes related to earnings at Triple Play Sports Bar, an employee requested to discuss the issue at an upcoming employee meeting. Subsequently, an employee “liked” the status of a former employee stating the employer could not do paperwork properly. Two other employees made similar comments; one stated she requested to discuss the issue at the next meeting, and another referred to one of the owners as “an ass hole.” The AGC found that the conversation related to a terms and condition of employment, namely the administration of tax withholdings, and that the conversation embodied “truly group complaints.”FN41
Concerted Activity Not Found
Arizona Daily Star involved a reporter who was discharged for posting unprofessional tweets from a work-related Twitter account that included offensive statements about homicides relating to his public safety beat, such as “What?!? No overnight homicide? WTF? You’re slacking Tucson.”FN42 The AGC found that this activity was not concerted or protected, as it did not involve terms and conditions of employment or attempt to involve other employees in employment issues. JT’s Porch Saloon & Eatery (“JT’s Saloon”) involved a bartender who was fired after posting a Facebook status about his Employer’s tipping policy; the employee also referred to the customers as “rednecks” and stated that he hoped they would choke on glass as they drove home drunk.FN43 Months prior to the posting, the terminated employee discussed the policy with a coworker, but neither complained to management. Though acknowledging that the status addressed the bartender’s terms and conditions of employment, the AGC held the activity was not concerted because no employees responded to the post, nor did the bartender discuss it with his coworkers. The AGC was unconvinced that the “conversation” grew out of the employee’s conversation with his coworker months prior.FN44 In Martin House, Inc., a recovery specialist at a residential facility for the homeless was fired after making callous remarks in a Facebook status about the residents, many of whom were mentally ill or had substance abuse problems. Finding this conduct was not protected concerted activity, the AGC emphasized that none of the employee’s coworkers responded to the status and that she was not seeking to induce group action.FN45 The AGC held in Rural Metro that an employee was not engaged in concerted activity where she posted messages on a Senator’s Facebook page that allegedly violated the Business Conduct policy of her employer. The employee worked as a dispatcher for a company that provided medical transportation and fire protection services. The employee’s post stated that Rural Metro was the “cheapest service in town” and paid its employees $2 less than the national average.FN46 Because the employee did not discuss the post with other employees, was not attempting to take employee complaints to management, and there had been no employee meeting or undertakings to start group action, the AGC found that this was not concerted activity.FN47 After being reprimanded by an Assistant Manager, the employee in Wal-Mart posted on his Facebook page, “Wuck Falmart! I swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit!”FN48 One coworker responded with approval of this post and another made a supportive remark. The AGC did not find concerted activity because the posts did not suggest the employee “sought to initiate or induce coworkers to engage in group action; rather they express[ed] only his frustration regarding his individual dispute with the Assistant Manger” and were merely “an expression of an individual gripe.”FN49 The AGC found that the responses of coworkers did not indicate they had interpreted the posts as an attempt at inducing group action.
Differentiating Social Media From Traditional Labor Contexts
The traditional rules do not account for the characteristics of social media that differ greatly from other labor contexts; this disparity will likely increase an employer’s exposure to liability and result in arbitrary rulings, making it increasingly difficult for employers to know when they may lawfully terminate an employee for disparaging remarks made on social media websites. Inconsistent decisions will also create uncertainty amongst practitioners responsible for representing employees or employers. Contexts in which concerted activity has generally been found to occur, such as conversations among employees or at planned gatherings, vary drastically from communication via social media. Due to its accessibility, posts on social media sites are likely to permeate throughout the Internet, reaching a far wider audience than traditional forms of discussion. A Facebook status has the potential to be viewed by hundreds of online “friends” and even individuals an employee does not know, most of whom are unlikely to be coworkers. This reach is far different from a meeting or conversation among employees, in which the discussion is limited to those present. Even compared with hand billing or picketing situations, this expression does not have nearly the same potential to spread as extensively as discussion occurring online. Those who witness communication from picketing or hand billing do so in a more limited—and presumably more organized—context, in which it is likely easier to understand the dispute and the dispute receives more accurate information. Those who read a “status” or “tweet” are less likely to be apprised of all facts or circumstances of a situation and are susceptible to reading various responses to such posts, many from people who may not have knowledge of a given situation. Permanency is also a characteristic of online activity that distinguishes it from activity in a traditional labor context. Traditional gatherings are generally finite, while an online discussion does not dissipate; once a remark is posted online, it remains on the Internet unless it is deleted.
Repercussions Faced by Employers
As a result of the foregoing characteristics, employers are exposed to greater liability and risk of loss from employee social media activity. Such posts “may create liability for employers for security law violations, consumer law violations, infringement, discrimination, conspiracy, privacy violations, defamation, negligence, breach of contract, or other matters.”FN50 Due in part to the potential of online activity to reach far more people, a company also faces losing business to a greater extent from online “concerted activity” than it does from traditional forms of such activity. If the employees in Hispanics United worked for an insurance company rather than a nonprofit organization, their online activity could foreseeably result in lost business, as potential customers viewing the post would be unlikely to purchase insurance from a company whose employees are criticizing one another for offering substandard services. Concerted activity on Facebook is far more likely to attract the attention of potential or existing customers than a conversation at the water cooler, an occurrence unlikely to receive public attention.
Group Action or Griping?
Traditional rules do not consider the informal nature of social media, where it is commonplace for individuals to use the web as an outlet of expression. This difference has resulted in the Board finding that activity has been engaged in for “mutual aid or protection”, when it is likely mere griping. While traditional forms of concerted activity such as picketing often require some element of organization or planning, posting on a social media site can be done quickly with little thought or intent. To find that an employee is attempting to call his coworkers to group action, when in actuality he is complaining, is to impute a formality to social media sites that they do not possess. An employee who tweets that her boss is a jerk is not necessarily seeking to engage in concerted activity for “mutual aid and protection.” Nevertheless, when the employee is discharged because of her tweets, “concerted activity” presents a convenient defense or avenue for reinstatement. Application of the traditional rules in this context is likely to afford the protections of Section 7 to those who only sought to vent online. The Board and AGC have been too lax in finding “mutual aid and protection” in social media cases. That the subject matter of an online discussion is a condition of employment is not enough to find concert.FN51 Yet, under the current trend, the Board could foreseeably find any online conversation between employees to be protected so long as it relates to the interest of employees. In Hispanics United, the Board found that the employees were taking initial steps toward group action to defend themselves against possible accusations even though the employees were unaware of Cruz-Moore’s threats to bring her complaints to management. Similarly, there was nothing indicating that the employee in AMR posted the status with intent to engage in group action. Other comments by employees merely criticized the supervisor and no group action or defense was mentioned. AMR is also inconsistent with the holding in Wal-Mart, as the AGC found the post there to be merely an individual gripe with a supervisor.
Emphasis on Coworker Response
The Board and AGC place undue emphasis on whether coworkers respond to an employee’s post; this emphasis does not consider the ease with which a person can click the “like” button. A coworker that expresses agreement with the status of an employee simply by typing a few words in the “comment” box has unknowingly engaged in concerted group activity, whether he intended to or not. Current application ignores the informality of social networks and does not account for the actual intent of the employees. Did the employees in Triple Play intend to engage in concerted activity when they discussed their tax issues any more than the tip-deprived bartender in JT’s Saloon? It does not appear that they did. Additionally, the AGC’s heavy reliance on coworker response is too attenuated and leaves too much to chance. An employee who happens to post a Facebook status when five of her coworkers are online may fall within the ambit of Section 7 if her coworkers comment on the post, but if that same employee posted the status hours later and none of her coworkers were online, she may be out of luck. In Triple Play, discussion of taxes was concerted activity because two other employees participated in the Facebook conversation and an employee who happened to have recently mentioned the issue to her boss referenced it in the discussion. However, the bartender’s Facebook post about his Employer’s tipping policy in JT’s Saloon was not concerted activity, in part because no one responded to his status and his prior conversation with his coworker was not sufficiently recent. Would it have made a difference if his coworkers commented and indicated their agreement? Were his remarks that he wished his customers would “choke on glass” simply more offensive to the AGC than calling his boss “an ass hole” like the employee in Triple Play?
Modifying the Meyers Application
While the NLRB should continue to determine whether an employee has engaged in protected concerted activity under the Meyers line of cases, certain modifications should be made in applying the test in the social media context. The NLRB should adopt an approach that places less emphasis on whether co-workers of a “posting” employee respond to the post; it should also place greater weight on the circumstances outside of the online discussion. The NLRB should inquire further into whether the communication was truly intended to promote group action or whether it was simply “group griping.” Moreover, a heightened standard of scrutiny should be applied when determining whether or not online activity was for mutual aid and protection. Whether a coworker “likes” or responds to an employee’s post should not be dispositive of whether activity is concerted. The mere fact that many coworkers have responded to a post should not weigh heavily toward a finding that this was concerted activity. Alternatively, when an employee has posted something clearly designed to induce group action but his coworkers have not responded, it should not follow that this action is not protected. While many coworkers responding to a post expressing agreement or stating their own qualms may be concerted in that it is group activity, more should be required to be shown to prove that this was undertaken for “mutual aid and protection.” In conducting its investigation after a charge is filed, the field examiner should take extra caution to gather evidence and take affidavits regarding communication occurring outside of the online discussion. The NLRB should carefully scrutinize the occurrences and communication pertaining to the online discussion leading up to the posting. This attention to facts outside of the discussion will help protect the interests of those employees truly engaging in concerted activity while also protecting the interests of employers where an employee’s conduct is mere griping. Focus should be placed on whether communication occurring offline—in conjunction with that online—is seen as preparing for group action. Because of the great risk of liability an employer is exposed to from an employee’s posts online, the NLRB should apply heightened scrutiny to an employee’s claim that their online activity was for mutual aid and protection. Coworkers’ online expression should not be found to be protected simply because they have discussed the same complaints in the break room; evidence must be offered that conversations taking place around the online communication had the objective of preparing for group action. “There is a meaningful distinction between sharing a common viewpoint and joining in a common cause. Only the latter involves group action for mutual aid and protection.”FN52 Where there is no evidence that employees have at least discussed engaging in group activity or bringing their concerns to management prior to an online post, the activity should not be protected. The employee should be required to establish a strong nexus between the online discussion and group action. In determining whether or not protected concerted activity exists, the NLRB should look to the totality of the circumstances surrounding the online post, including the nature of the post; the extent of liability the employer could be potentially exposed to as a result of it; alternative means the employee could have used to promote group activity; and whether the posting employee has made efforts to clearly show that the online post was to promote group action. These findings should be viewed in the light most favorable to the employer due to the great liability the employer could potentially face. While the employee also faces great repercussions in the possibility of losing their job and livelihood, the fact that it was the employee’s decision—and not the employer’s—to use an online public forum to express complaints instead of privately doing so, suggests placing a heavier burden on the employee. The NLRB should weigh the interests of the employer with that of the employee before deciding whether or not activity is protected.
Conclusion
It is imperative that the NLRB adapts its traditional rules regarding concerted activity to the realities of social media when wrongful discharge claims are brought after an employee is discharged for their online activities. A stricter application of the Meyers standard of concerted activity is likely the best avenue for such modification. This modification should weigh the interests of both employees and employers; particular attention should be paid to the significant increase in exposure to liability an employer faces as the result of employee conduct online. The Board should look more to the intention of the poster and facts leading up to the online activity, focusing less on how many likes or comments such activity elicits from coworkers. Society has changed significantly from the development of social media; the rules that govern this society in its labor relations should evolve with it.
FN1. Lauren Weiner is a J.D. candidate for May 2014 and Notes Editor for the Kentucky Law Journal.
FN2. See Am. Med. Response of Conn., NLRB Adv. Mem., Case No. 34-CA-12576 (Oct. 5, 2010) [hereinafter AMR Adv. Mem.].
FN3. See also Steven Greenhouse, Labor Board Says Rights Apply on Net, N.Y. Times, Nov. 9, 2010, at B1; Memorandum from Anne Purcell, Assoc. Gen. Counsel of the NLRB to All Reg’l Dirs., Officers-in-Charge, and Resident Officers, Report of the Acting Gen. Counsel Concerning Social Media Cases , 5-6 (Aug. 18, 2011) [hereinafter Report of AGC]. Souza was asked by her supervisor to prepare a report regarding a customer complaint about her work. She requested and was subsequently denied union representation. She posted the status from her home computer on her personal Facebook page, where she also referred to the supervisor as a “dick”. AMR Adv. Mem., at 3.
<FN4. Greenhouse, supra note 3, at B1.
FN5. See National Labor Relations Act, 29 U.S.C. § 151 (2006) (“It is hereby declared the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”) The National Labor Relations Act was adopted in 1935. See National Labor Relations Act, Nat’l Labor Relations Bd., https://www.nlrb.gov/national-labor-relations-act (last visited July 6, 2013).
FN6. See Steven Greenhouse, Even if It Enrages Your Boss, Social Net Speech is Protected, N.Y. Times, Jan. 22, 2013, at A1.
<FN7. Who We Are, Nat’l Labor Relations Bd., https://www.nlrb.gov/who-we-are (last visited July 6, 2013); see Rights We Protect, Nat’l Labor Relations Bd., https://www.nlrb.gov/rights-we-protect (last visited July 6, 2013).
FN8. What We Do, Nat’l Labor Relations Bd., https://www.nlrb.gov/what-we-do (last visited July 6, 2013).
FN9. Who We Are: The Board, Nat’l Labor Relations Bd., https://www.nlrb.gov/who-we-are/board (last visited July 6, 2013). The Board generally consists of five Members who are appointed by the President, with consent of the Senate, to five-year terms. Currently, the Board is only comprised of three members: Chairman Mark Gaston Pearce, Sharon Block, and Richard F. Griffin, Jr. Id.
FN10. Who We Are: The General Counsel, Nat’l Labor Relations Bd., https://www.nlrb.gov/who-we-are/general-counsel (last visited July 6, 2013).
FN11. James O. Castagnera, et al., Unfair Labor Practice Procedures, in 1 Termination of Employment §1:140 (2013). The NLRB has forty Administrative Law Judges (“ALJs”) that hear, settle, and decide unfair labor practice cases. Who We Are: Division of Judges, Nat’l Labor Relations Bd., https://www.nlrb.gov/who-we-are/division-judges (last visited July 6, 2013). After presiding over the trial, the ALJ files a decision suggesting either dismissal of the complaint or an order to cease and desist from the unfair labor practice and affirmative relief. Unfair Labor Practices Process Chart, Nat’l Labor Relations Bd., https://www.nlrb.gov/node/3947 (last visited July 6, 2013).
FN12. Castagnera, supra note 11; Unfair Labor Practices Process Chart, supra note 11. If exceptions are filed, the Board reviews the case and will either dismiss the complaint if it finds that an unfair labor practice was not committed; issue a remedial order if it finds an unfair labor practice was committed; or remand the case to the ALJ for further action. A party may seek judicial review of the Board’s order from the court of appeals; the court of appeals can then enforce, set aside, or remand all or part of the case. Unfair Labor Practices Process Chart, supra note 11; Castagnera, supra note 11.
FN13. L’Eggs Prods., Inc. v. NLRB, 619 F.2d 1337, 1341 (9th Cir. 1980).
FN14. National Labor Relations Act, 29 U.S.C. § 157 (2006).
FN15. National Labor Relations Act, 29 U.S.C. § 158(a)(1) (2006).
FN16. Meyers Indus., Inc. (Meyers I), 268 N.L.R.B. 493, 497 (1984).
FN17. Hollings Press, Inc., 343 N.L.R.B. 301, 302 (2004).
FN18. Meyers I, 343 N.L.R.B at 497.
FN19. Meyers Indus., Inc. (Meyers II), 281 N.L.R.B. 882, 887 (1986).
FN20. Adelphi Inst., Inc., 287 N.L.R.B. 1073, 1073 (1988) (quoting Mushroom Transp. Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964)).
FN21. Meyers II, 281 N.L.R.B. at 887.
FN22. Adelphi Inst., 287 N.L.R.B. at 1074.
FN23. Hollings Press, 343 N.L.R.B. at 302.
FN24. See generally NLRB v. Local Union No. 1229 (Jefferson Standard), 346 U.S. 464 (1953); Atlantic Steel Co., 245 N.L.R.B. 814 (1979); Report of AGC, supra note 3, at 9.
FN25. Atlantic Steel, 245 N.L.R.B. at 816 (citing Hawaiian Hauling Service, Ltd., 219 N.L.R.B. 765, 766 (1975)). In determining whether an employee has engaged in such conduct as to lose the Act’s protection, the Board or must carefully balance several factors: “(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.”
FN26. Where otherwise protected activity involves communications with a third party, such activity is protected if it meets a two-part test: “(1) the communication indicates to the third party that it is related to an ongoing dispute between an employer and employees; and (2) the communication itself is not ‘so disloyal, reckless, or maliciously untrue as to lose the Act’s protection.’” Five Star Transp., Inc. v. NLRB, 522 F.3d 46, 52 (1st Cir. 2008) (quoting Am. Golf Corp. (Mountain Shadows), 330 N.L.R.B. 1238, 1240 (2000)). See also Jefferson Standard, 346 U.S. at 477-78; Report of AGC, supra note 3, at 9.
FN27. See Greenhouse, supra note 6, at A1.
FN28. Karl Knauz Motors, Inc. (Knauz BMW), 358 N.L.R.B. No. 164, slip. op. at 7 (2012). Hot dogs, chips, and bottled water were served at the event. The employee wrote, “I was happy to see that Knauz went “All Out” for the most important launch of a new BMW in years...the new 5 series. A car that will generate tens in millions of dollars in revenues for Knauz over the next few years. The small 8 oz bag of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were a nice touch...but to top it all off...the Hot Dog Cart. Where our clients could attain a over cooked wiener and a stale bun.” Id.
FN29. Id. at 1. The ALJ found that the post was solely the action of the employee, without any discussion with his co-workers, and had no connection to any of the employees’ terms and conditions of employment. Id. at 10-11.
FN30. Hispanics United of Buffalo, Inc., 359 N.L.R.B. No. 37, slip. op. at 1-2 (2012).
FN31. Id. at 1.
FN32. Id. at 2 (citing Meyers I, 268 NLRB at 497). See also Meyers I, 268 N.L.R.B. 493; Meyers II, 281 N.L.R.B. 882.
FN33. Id. (quoting the decision of Administrative Law Judge Arthur J. Amchan) (internal quotation marks omitted).
FN34. Id. at 3 (quoting Relco Locomotives, Inc., 358 N.L.R.B. 37, slip op. at 17 (2012)) (internal quotation marks omitted). In his dissent, Member Hayes contended that a group action defense was not intended because the employees were not told that Cruz-Moore was going to bring her criticisms to the Executive Director and thus the Facebook discussions were not undertaken for the purpose of mutual aid and protection. Id. at 4 (Member Hayes, dissenting).
FN35. Report of AGC, supra note 3, at 2. These cases were “decided upon a request for advice from a Regional Director.” Id.
FN36. Id. at 4. Congruent with the Board’s findings, the AGC determined that the postings “directly implicated terms and conditions of employment and were initiated in preparation for a meeting with the Employer to discuss matters related to these issues” and were thus concerted activity for “mutual aid and protection” under Section 7. Id. The AGC found that this activity was protected, relying on a prior Board decision where employee statements about staffing levels were found to be protected where it was clear from the context of the statements that they involved working conditions. Id. (citing Valley Hosp. Med. Ctr., 351 N.L.R.B. 1250, 1252-54 (2007)).
FN37. Id.
FN38. Id. at 5 (citing Datwyler Rubber and Plastics, Inc., 350 N.L.R.B. 669 (2007)); AMR Adv. Mem., supra note 2, at 9. This Advice Memo came out prior to settlement between the parties.
FN39. Report of AGC, supra note 3, at 6-7.
FN40. Id. at 8. Because the employees worked entirely on commission, the AGC found that their concern over the potential impact of refreshments on sales was clearly related to terms and conditions of employment. Id.
FN41. Three D, LLC (Triple Play), Admin. Law Judge Decision, Case No. 34-CA-12915 (Jan. 3, 2012); see Report of AGC, supra note 3, at 9-10. It is noteworthy that two customers of the Employer also commented on the status. Id. at 10. The ALJ also underscored the employee’s comment that she had requested to discuss the issue at a meeting, showing that the conversation “contemplated future group activity.” Id.
FN42. Lee Enter. Inc. (Ariz. Daily Star), NLRB Adv. Mem., Case No. 28-CA-23267 (Apr. 21, 2011); see Report of AGC, supra note 3, at 13. The tweets also included criticisms of the paper’s copy editors and negative remarks about an area television station. Supervisors requested the employee stop tweeting about certain subjects from the account numerous points during the course of these events. Id.
FN43. JT’s Porch Saloon & Eatery, NLRB Adv. Mem., Case No. 13-CA-46689 (July 7, 2011) [hereinafter JT’s Saloon, Adv. Mem.]; Report of AGC, supra note 3, at 14.
FN44. JT’s Saloon, Adv. Mem., supra note 43; Report of AGC, supra note 3, at 15.
FN45. Report of AGC, supra note 3, at 17; Martin House, Inc., NLRB Adv. Mem., Case No. 34-CA-12950 (July 19, 2011) [hereinafter Martin House, Adv. Mem.]. After a former client saw the status, she reported the employee. Martin House, Adv. Mem.
FN46. Rural Metro, NLRB Adv. Mem., Case No. 25-CA-31802 (July 18, 2011). The post also contained criticisms that the company only had two trucks for an entire county and detailed an incident where one of Rural Metro’s crews showed up to the scene of a cardiac arrest and did not know how to perform CPR. Id. at 2.
FN47. Id. at 3.
FN48. Wal-Mart, NLRB Adv. Mem., Case No. 17-CA-25030 (July 19, 2011). The employee also referred to the Assistant Manager as a “super mega puta!” and complained that he was being “chewed out” for misplaced merchandise. Id. at 2.
FN49. Id. at 3.
FN50. William E. Hartsfield, Blogs and Social Media, in 1 Investigating Employee Conduct § 6:42 (2013).
FN51. See Adelphi Inst., 287 N.L.R.B. at 1074. See also Hispanics United, 395 NLRB at 4 (Member Hayes, dissenting) (“Not all shop talk among employees—whether in person, telephonic, or on the internet—is concerted within the meaning of Section 7, even if it focuses on a condition of employment.”).
FN52. Hispanics United, 395 NLRB at 4 (Member Hayes, dissenting).
Life and Death in Kentucky: Past, Present, and Future
This Online Original is available for download (PDF) here.
Article | 102 KY. L. J. ONLINE 3 | Nov. 10, 2013
Roberta M. HardingFN1
"All over the United States there is a growing sentiment to do away with capital punishment . . . . If their mood is reflected in the letters they write me daily, a large segment of the Kentucky people want capital punishment abolished, too."FN2 -Former Kentucky Governor Edward Breathitt, May 5, 1965
The first officially recorded execution in Kentucky was carried out in 1780, the year after Kentucky County became the District of Kentucky of the State of Virginia,FN3 when a man was hung for murder in Breckinridge County.FN4 The next four executions also were carried out during Kentucky’s tenure as the District of Kentucky.FN5 These condemned and their predecessor had an attribute in common that is extremely germane to how the death penalty has been administered in Kentucky: their gender, which is male.FN6 A prodigious gender bias, which disfavors male capital offenders, is evident in Kentucky’s historic and contemporary death penalty practice. Since the first execution in 1780FN7 and the last in 2008,FN8 the Commonwealth has executed 427 people.FN9 415 males and 12 females.FN10 The latter account for a paltry 3% of those executed by the Commonwealth, while men account for a whopping 97%! Amazingly the last time Kentucky executed a female capital offender was in the 19th century;FN11 while male capital offenders were executed for the remainder of the 19th century and in the 20th and 21st centuries.FN12 Contemporary capital sentencing statistics aptly convey how deeply entrenched this bias is in the operation of the death penalty. Since 1972, when the United States Supreme Court handed down its seminal decision in Furman v. Georgia,FN13 the Commonwealth has sentenced eighty-two people to death.FN14 96% were male and 4% were female.FN15 Incredibly, these percentages are almost identical to those based on more than two centuries of execution data.FN16 The existence of this bias, however, is not unique to Kentucky; nor has it gone unacknowledged.FN17 The first five people executed also represent another inveterate basis for discrimination found in Kentucky’s historic and modern use of capital punishment: race. Baysinger, the first person to be executed, was white and the quartet following him were African-American.FN18 Thus, 80% of those executed when Kentucky was still a District were of color. This specific bias, as well as its tenacity and pervasiveness, are easily understood when the quartet’s status is considered: All were slaves.FN19 The institution of chattel slavery in Kentucky greatly affected the “racialization” of the administration of capital punishment in the Commonwealth. “Slavery existed in Kentucky from its first days of settlement”FN20 and was an important issue at the Convention to draft Kentucky’s First Constitution.FN21 Kentucky’s strong pro-slavery sentiment was embodied in Article IX of the First Constitution, which prohibited “the passage of legislation which tended to abolish slavery in the state.”FN22 The Constitutions produced at the Second and Third Constitutional Conventions, held respectively in 1799 and 1849, reinforced this institution of inequality by codifying assurances to protect slavery from being abolished.FN23 “The prominent place given the institution [of slavery] in the first three constitutions”FN24 led noted Kentucky historian Thomas Clark to describe Kentucky’s “hold on slavery”FN25 as “tenacious,”FN26 but strangely, “[w]hen the Civil War began, Kentucky was one of four slave states that remained in the Union.”FN27 As the War progressed, however, more and more Kentuckians became outraged by what they perceived to be a federal government that was increasingly taking on the abolitionists’ cause: “[t]hey were fighting for the preservation of the Union, not the destruction of slavery.”FN28 The mere suggestion of emancipation sent some to the verge of apoplexy. This fervor is illustrated by one newspaper editor’s impassioned comments:[I]f the slaves were freed 200,000 soldiers would be required 'to retain Kentucky in the Union, and then the soldiers would be compelled to aid in exterminating the black race.' If the slaves were freed, he asserted, 'there is but one thing to be done with them; they must be wiped out-totally obliterated. It must be a merciless, savage extermination . . . . The two races . . . cannot exist in the same country, unless the black race is in slavery.FN29 Sentiments of this tenor were officially validated when the legislature passed a law permitting the enslavement of any African American entering Kentucky who stated they owed their freedom to the Emancipation Proclamation.FN30 Kentuckians’ anger escalated when President Lincoln decided to recruit African Americans to fight in the war because “it challenged the basic assumption that blacks were inherently inferior to whites.”FN31 While Kentucky did not end up seceding,FN32 the legislature did refuse to ratify the Thirteenth Amendment.FN33 Even after the Secretary of State announced the Amendment had been ratified, the Kentucky legislature “refused to change its stance”FN34 and again voted down ratifying the Amendment.FN35 By all indications, racial inequality had become indelibly ingrained in Kentucky’s social fabric, which adversely affected the workings of the state’s criminal justice system; especially when deciding who should live and who should die. As noted earlier, the Commonwealth has executed 427 people.FN36 Racially, the overwhelming majority of people executed were either African-American, accounting for 54%, or Caucasian, accounting for 42%.FN37 Even though female capital offenders benefit greatly from the death penalty’s gender bias,FN38 the group is responsible for generating one of the most remarkable race and the death penalty statistics: Kentucky has only executed one Caucasian female, while 83% of the females executed were African-American.FN39 Another astounding statistic from this category is that “no white man in Kentucky died on the gallows or in the electric chair for the rape of a black woman.”FN40 In Kentucky, more African-American men, 222,FN41 than Caucasian men, 177,FN42 lost their lives on the scaffold, in the electric chair, or on the gurney.FN43 Eight men belonging to the former group, however, lost their lives because of how a facially race neutral law was applied. Action taken by the legislature in the early twentieth century fostered some hope that the execution of Roger Warren, an African-American male, on May 25, 1911 would be the last execution carried out by hanging.FN44 The year before the legislature authorized switching the state’s sole method of execution from hanging to electrocution.FN45 In addition, executions were to “take place within the walls of the State penitentiary”FN46 away from the purview of the public.FN47 This hope was reinforced when eighteen year old James Buckner, African-American like his predecessor Roger Warren, christened Kentucky’s electric chair “Ole’ Sparky” on July 8, 1911.FN48 Nine years later the outcome in a capital case in Lexington involving an African American man accused of murdering and raping a ten year old white female would land a cruel blow to hopes about transforming the relationship between the rope and violence. In February 1920, twenty three year old Will Lockett confessed to murdering young Geneva Hardman.FN49 Given the circumstances, the sexual assault, the victim/defendant racial and gender paradigm: white female victim and black male defendant, and the girl’s tender age, the authorities “[f]ear[ed] a mob might storm the jail [so they] . . . rushed [Lockett] to the state penitentiary in Frankfort.”FN50 The next day Lockett was indicted for murder and the judge vowed “there would be no delay . . . and that the trial would start . . . Monday, [February 9, 1920] only five days after the murder.”FN51 The Governor promised “Lexington officials that troops would be sent to protect Lockett on his return to the city.”FN52 The press did its best to quell the public’s call for mob violence by assuring people that “Lockett’s trial would be quick and the outcome certain”FN53 and they were: in less than thirty minutes Lockett was convicted, though by pleading guilty he helped honor the pledge that justice would be swift,FN54 and “sentenced . . . to die in the electric chair.”FN55 “Although elated . . . a number of Lexington whites expressed the belief that . . . Lockett should have been made to suffer by dying at the end of a rope [in public for sexually assaulting Geneva].”FN56 The legislature’s response to this suggestion was extraordinarily fast and a week after Lockett died by electrocutionFN57the legislature approved an Act to amend section one of the execution by electrocution statute by adding the following: “Except in cases where the accused has been adjudged to suffer a death sentence for the crime of rape or attempted rape, in which event sentence shall be executed by hanging the condemned in the county in which the crime was committed.”FN58 The hanging was supposed to be done “within an enclosure”FN59 and before no more than “one hundred persons.”FN60 Although this law was race neutral, its application decidedly was not. Nine men were executed in accordance with this law and all were men of color.FN61 This law’s success, as well as securing death sentences against African American capital offenders in general, was greatly dependent upon having accommodating juries. This was best achieved by seating all white juries, which was easy to accomplish when African Americans were statutorily expressly barred from being jurors. In the late 19th century, however, the United States Supreme Court created two obstacles in an effort to end this long-standing discriminatory practice: it held that statutes expressly prohibiting African Americans from serving on juries, and racially neutral statutes applied in a manner that accomplishes the same result, violate the accused’s and the excluded potential jurors’ right to equal protection under the Fourteenth Amendment.FN62 As a result, a greater cost was attached to seating an all white jury: violating the defendant’s and potential jurors’ constitutional rights. Smith v. CommonwealthFN63 and Hale v. CommonwealthFN64 are representative of the problem. Smith, “a negro,”FN65 was indicted for murder by an all white grand jury and another all white jury found him guilty as charged and sentenced him to death. On appeal he contended his conviction was invalid because it was no accident that he, “a negro,” was indicted, tried, and convicted by all white juries. Smith apprised the Kentucky Court of Appeals that about twenty percent of the voters in Hardin County were African American and fifteen percent of them were eligible for jury service; yet, the jury commissioners, white men, never selected them.FN66 The court gave short shrift to Smith’s argument, “finding no error” and affirmed the judgment.FN67 Three decades later another ”negro,”FN68 Joe Hale, also convicted of murder and sentenced to death, revisited the issue with the Kentucky Court of Appeals. Hale had evidence to prove that “going back as far as 1906, no member of the African race had been summoned or served on a grand or a petit jury in McCracken county.”FN69 He argued:[T]he foregoing facts, when proved, show a long continued, unvarying and wholesale exclusion of negroes from jury service in this county on account of their race and color; that it has been systematic and arbitrary on the part of the officers and commissioners who select the names for jury service, for a period of fifty years or longer.FN70 The court detected problems with Hale’s proof, starting with his failure to include evidence in the record proving he “was a member of the African race,”FN71 but the court was forgiving of this evidentiary omission and conceded that “the court no doubt by observation knew that fact to be true.”FN72 The court’s greatest concern was about what it deemed Hale’s “failure to charge therein as grounds therefore, that such exclusion of members of the African race from service on juries was superinduced and occurred ‘solely because they were members’ of that race.”FN73 The United States Supreme Court, however, saw the evidence offered by Hale in an entirely different light: “We are of the opinion that the affidavits . . . sufficed to show a systematic and arbitrary exclusion of negroes from the jury lists solely because of their race or color, constituting a denial of the equal protection of the laws guaranteed to petitioner by the Fourteenth Amendment.”FN74 The Court reversed the judgment and remanded the case for “further proceedings not inconsistent with this opinion.”FN75 Unfortunately, Kentucky did not heed the Court’s admonishment that “proceedings not be inconsistent with that opinion” because in 1986, almost half a century later, the state found itself back in front of the Court for the same practice: excluding African Americans from being jurors.FN76 In this round, the state’s exclusionary strategy involved exercising peremptory challenges as a way to get rid of African AmericansFN77 [in order to seat an all white or as close to all white jury as possible]. Once again, the Court chided the Commonwealth for violating constitutional rights that are guaranteed to everyone, regardless of color, creed, gender or religion. Discriminatory practices continue to plague the administration of capital punishment in Kentucky,FN78 despite the fact the Commonwealth was at the vanguard with respect to following a recommendation made by the Supreme Court in 1987 that racial problems associated with the use of the death penalty be resolved through legislation.FN79 And in 1998, Kentucky became the first jurisdiction in the United States to enact a Racial Justice Act.FN80 Yet, there are lingering concerns about the Act’s effectiveness.FN81 The pervasiveness of gender discrimination is disheartening; especially when one remembers that the proportion of women and men sentenced to death in Kentucky during capital punishment’s modern era is almost the same as the proportion of the women and men executed over a period of time exceeding two centuries.FN82 Is history repeating itself? Or, is it simply that little has changed at the core in the use of the death penalty? If so, then perhaps now is the time to implement real tangible change. Certain considerations indicate change might be warranted. In 1962 Kelly Moss was executed.FN83 The following year the people of Kentucky elected Edward Breathitt to serve as the Commonwealth’s Chief Executive and he “brought an already strong aversion to capital punishment with him to the governorship.”FN84 “In the 1964 General Assembly he endorsed a bill abolishing the death penalty.”FN85 He also “announced a general stay of execution for all condemned state prisoners until he could place the measure before the legislature once again in 1966.”FN86 So, for several years, Kentucky could be considered a de facto abolitionist jurisdiction. Three decades passed before Kentucky carried out another execution.FN87 These thirty plus years include periods of time when Kentucky actually did not have capital punishmentFN88 and when Kentuckians decided to partially abolish the death penalty by forbidding it to be imposed on a segment of the population.FN89 Only two people have been executed since McQueen was in 1997 and both were volunteers.FN90 Therefore, it has been sixteen years since Kentucky has used its execution machinery on a non-volunteer. During what collectively amounts to a significant period of time, there was not nor has there been a public outcry when the death penalty has been absent, de jure or de facto, from the Commonwealth. Perhaps that means the time is ripe for changes to be made; specifically, those of the magnitude sufficient to stop Kentucky from going round and round and round on the death penalty wheel, continually repeating the longstanding problems associated with the state’s death penalty practice.
FN1. William T. Lafferty Professor of Law. Harvard Law School, JD(1986); University of San Francisco, BSBA (1981). I would like to thank third year law students Daniela Erazo and Rachel Warf, my Research Assistants, for the valuable contributions, research and data compilation, they made to this article. I also greatly appreciate the exceptional assistance provided by Beau Steenken, Instructional Services Librarian & Instructor of Legal Research, and Tina Brooks, Electronic Services Librarian. And a special thanks to Beau Steenken for sharing his immense knowledge of legal history. His mastery of English and colonial legal history made it much easier for me to think and write about certain topics in this article.
FN2. Edward T. Breathitt, Address at University of Louisville Law Day (May 5, 1965), in The Public Papers of The Governors of Kentucky, Papers of Edward T. Breathitt 468, 469 (Robert F. Sexton ed., 1984). Edward “Ned” Thompson Breathitt, a Democrat, served as the Commonwealth of Kentucky’s 51st Governor from December 10, 1963 – December 12, 1967. Kentucky Governor Edward Thompson Breathitt, National Governors Association, http://www.nga.org/cms/home/governors/past-governors-bios/page_kentucky/col2-content/main-content-list/title_breathitt_edward.html (last visited Nov. 5, 2013); List of Governors of Kentucky, http://en.wikipedia.org/w/index.php?title=List_of_Governors_of_Kentucky&oldid=566226955 (last visited Nov. 5, 2013). The two Governors of the Confederate State of Kentucky are excluded from the roster of Kentucky Governors. See Ron D. Bryant, The Confederate Governors of Kentucky, Kentucky Gazette, http://www.jkhg.org/kyconfgovs.htm (last visited Nov. 5, 2013). See infra at note 32 for information about the Confederate State of Kentucky.
FN3. On May 23, 1609, approximately two years after the founding of the British Colony of Virginia, King James of England and Scotland signed The Second Charter of Virginia. The Charter granted the Virginia Company “the land, throughout from sea to sea, west and northwest . . . .” The Second Charter of Virginia § VI (1609), reprinted in 1 Statutes at Large: A Collection of All the Laws of Virginia 80, 88 (William Waller Hening ed., 1823). “[A]s soon as it was apparent that the western country was to be settled,” Virginia created Fincastle County in 1772 from these lands to the west. Thomas D. Clark, A History of Kentucky 65 (The Jesse Stuart Foundation 1988) (1937). Four years later, on the last day of the year America declared her independence from England, Kentucky County was formed out of Fincastle County. Id. at 46, 66. According to noted Kentucky historian Thomas D. Clark, the first permanent settlement of what would be Kentucky County had been established almost two years earlier on March 15, 1775. Id. at 42. In 1779, the Virginia legislature passed an Act making the County of Kentucky the District of Kentucky of the State of Virginia. 1779 Va. Acts 92, ch. XII, § VIII.
FN4. See Kentucky Executions: 1780 – 1962, http://web.archive.org/web/20080617225325/users.bestweb.net/~rg/execution/KENTUCKY.htm (last visited Nov. 5, 2013) [hereinafter Kentucky Executions] (identifying the man’s surname as Baysinger); Executions in the U.S. 1608 – 2002: The ESPY File, Executions by State 120, http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited Nov. 5, 2013) [hereinafter ESPY File].
FN5. See ESPY File, supra note 4, at 120 (stating that the second execution was in 1785, the third and fourth ones in 1787, and the fifth in 1791).
FN6. See Kentucky Executions, supra note 4. Five years after Kentucky’s first execution, Peter Vigo was hanged for theft-stealing in Jefferson County. Two years later, in 1787, Daniel Coleman was hanged in Monroe County for arson and Cato Watts’ life ended on the scaffold in Jefferson County for the crime of murder. The last execution carried out prior to Kentucky obtaining its statehood was in 1791 when twelve-year-old Bill James was hanged for murder in Woodford County. Id.
FN7. See id.
FN8. Marco Chapman, who died by lethal injection on November 21, 2008, was the last person, the 427,th executed by the Commonwealth. Marco Chapman, Death Penalty Information Center, http://www.deathpenaltyinfo.org/marco-chapman (last visited Nov. 5, 2013).
FN9. See ESPY File, supra note 4, at 120-131.
<FN10. Id.
FN11. See Kentucky Executions, supra note 4. When 13-year-old Susan mounted the scaffold in Henry County on February 7, 1868 she became the last female and the 135th person executed by the state. She also is the third, as well as the second youngest and only female, of the ten juvenile capital offenders the Commonwealth executed. Id. Two juvenile capital offenders have been sentenced to death during the modern era of Kentucky’s death penalty practice. See infra note 13 (discussing the commencement of the modern era of capital punishment in the United States). The first was Todd Ice, who was fifteen years old when he committed the offense for which he received a death sentence in 1980. American Bar Ass’n, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Kentucky Death Penalty Assessment Report app. at C (2011), available at http://www.americanbar.org/content/dam/aba/administrative/death_penalty_moratorium/final_ky_report.authcheckdam.pdf. Two years later Kevin Stanford was sentenced to death for a capital offense committed when he was seventeen years old. Id. at E. In 1984 the Kentucky Supreme Court reversed Ice’s conviction when the case was there for mandatory review. See Ice v. Commonwealth, 667 S.W.2d 671, 680 (Ky. 1984). Ice was retried and convicted of a lesser offense and eventually served out his sentence. If, however, Ice had not received relief prior to June 29, 1988, his death sentence would have been invalidated that day by the United States Supreme Court’s opinion in Thompson v. Oklahoma, where Five Justices agreed society opposed imposing death sentences on capital offenders who were younger than sixteen years old at the time the crime was committed; consequently, the Eighth and Fourteenth Amendments rendered this practice unconstitutional. See Thompson v. Oklahoma, 487 U.S. 815, 838 (1988). Kevin Stanford was not as fortunate as Ice because the Kentucky Supreme Court affirmed his conviction and his death sentence. Stanford v. Commonwealth, 734 S.W.2d 781, 793 (Ky. 1987). And, despite its ruling the year before in Thompson, the United States Supreme Court was not persuaded by Stanford’s contention that the failure to exempt sixteen and seventeen year old capital offenders from the death penalty violated the Eighth and Fourteen Amendments. Stanford v. Kentucky, 492 U.S. 361, 380 (1989) (plurality opinion). Close to a decade and a half later, Stanford found relief in the government’s executive branch when former Kentucky Governor Paul Patton commuted his death sentence to life without the possibility of parole or pardon in 2003. See Commutations in Capital Cases on Humanitarian Grounds, Death Penalty Information Center, http://www.deathpenaltyinfo.org/clemency (last visited Nov. 5, 2013). Ice and Stanford are the only two juvenile capital offenders to have death sentences imposed in Kentucky during capital punishment’s modern era: 1971 to the present. See infra note 13.
FN12. See ESPY File, supra note 4, at 124-131.
FN13. Furman v. Georgia, 408 U.S. 238 (1972) (per curiam). The year before the United States Supreme Court had decided McGautha v. California. 402 U.S. 183(1971). The Court’s opinion in McGautha was featured in three of the four dissenting opinions in Furman, Furman, 408 U.S. at 375 (Burger, J., dissenting); id. at 405 (Blackmun, J., dissenting); id. at 413 (Powell, J., dissenting), and since Furman invalidated death penalty legislation in 39 states, including Kentucky, id. at 417 (Powell, J., dissenting), McGautha played a significant role in the effort by states to fashion a capital sentencing remedy that would comply with Furman. See, e.g., Ky. Rev. Stat. § 532.030(1) (1974); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976). Even though McGautha and Crampton based their challenge to the total discretionary capital sentencing scheme on the Fourteenth Amendment’s Due Process Clause, and the same challenge by Furman, Jackson, and Branch was based on the Eighth and Fourteenth Amendments, for the reasons stated above, I consider McGautha the case that ushered in the modern era of the practice of capital punishment in the United States. Although Furman v. Georgia, which imposed a four-year legal moratorium on executions, was on its heels, and then five years later by Gregg v. Georgia, 428 U.S. 153 (1976), where the Court upheld the constitutionality of Georgia’s capital sentencing scheme.
FN14. Prior to the Court’s holding in Furman, Kentucky permitted the death penalty for multiple crimes, including murder, Ky. Rev. Stat. § 435.010 (1970), the rape of a child under the age of twelve, Ky. Rev. Stat. § 435.080(1) (1970), the rape of a female twelve or older, Ky. Rev. Stat. § 435.090 (1970), and lynching or mob violence, Ky. Rev. Stat. § 435.070(2) (1970). The penalty decision was left entirely to the discretion of the sentencing authority, typically a jury. In Furman, however, five of the nine Justices concluded that “the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishments in violation of the Eighth and Fourteenth Amendments.” Furman v. Georgia, 408 U.S. at 240. For three of the Justices concurring in the judgment “the imposition . . . of the death penalty in these cases,” meant totally discretionary capital sentencing schemes. Id. at 240 (Douglas, J., concurring); id. at 306-07 (Stewart, J., concurring); id. at 310-14 (White, J., concurring). The other two concurring Justices, Brennan and Marshall, concluded the death penalty was per se unconstitutional. Id. at 257, 285, 305-06 (Brennan, J. concurring); id. at 314, 370-71 (Marshall, J. concurring). As a result, on June 29, 1972, the “capital punishment laws of no less than 39 States,” id. at 417 (Powell, J. dissenting), including Kentucky’s, were “nullified,” id., which also had the consequence of transforming all but one of the 50 states into abolitionist states. Id. at 417, note 2 (Rhode Island was the only remaining retentionist state because its sole capital statute called for a mandatory death sentence, which was beyond the purview of the Court’s holding). Two years after Furman Kentucky’s legislature enacted a new capital sentencing scheme, see Ky. Rev. Stat. § 532.030(1) (1974), that went into effect January 1, 1975. This statute was used to impose death sentences on Wallace Boyd, Boyd v. Commonwealth, 550 S.W.2d 507 (Ky. 1977), Jimmy Self, Self v. Commonwealth, 550 S.W.2d 509 (Ky. 1977), and Ronnie Meadows, Meadows v. Commonwealth, 550 S.W.2d 511 (Ky. 1977): the first three people condemned in Kentucky during the post-Furman era. On July 2, 1976, however, the Kentucky legislature learned the Court decided that a mandatory capital sentencing scheme, the type Kentucky adopted, see Ky. Rev. Stat. § 532.030(1) (1974), was incompatible with the rights guaranteed by the Eighth and Fourteenth Amendments. See Woodson v. North Carolina, 428 U.S. 280 (1976). Consequently, Kentucky, once again, found itself as a state without capital punishment. That same year Kentucky’s legislature convened and enacted yet another post-Furman capital sentencing scheme. When the Court struck down mandatory death sentences, it upheld several guided discretion capital sentencing schemes, see Gregg v. Georgia, 428 U.S. 153) (1976) (joint opinion), Proffitt v. Florida, 428 U.S. 242 (1976), and Jurek v. Texas, 428 U.S. 262 (1976), and Kentucky’s egislature decided to enact a guided discretion capital sentencing scheme modeled after Georgia’s, see Ky. Rev. Stat. §§ 532.030(1), (4) (1976), Ky. Rev. Stat. § 532.025 (1976), and Ky. Rev. Stat. § 532.075 (1976), that went into effect December 22, 1976. Several months later the Kentucky Supreme Court reversed the death sentences imposed on Boyd, Self and Meadows and substituted terms of life imprisonment. See Boyd v. Commonwealth, 550 S.W.2d 507, 508-09 (Ky. 1977); Self v. Commonwealth, 550 S.W.2d 509, 510(Ky. 1977); Meadows v. Commonwealth, 550 S.W.2d 511, 513(Ky. 1977). Seventy-nine others in Kentucky were sentenced to death post-Furman. See American Bar Ass’n, supra note 10, at B-F. Their death sentences, however, were imposed in accordance with the guided discretion capital sentencing statutes, Ky. Rev. Stat. §§ 532.030(1),(4) (1976), Ky. Rev. Stat. § 532.025 (1976), and Ky. Rev. Stat. § 532.075(1976). Thus, between 1974 and 2011 the Commonwealth has condemned eighty-two people.
FN15. See supra note 13.
<FN16. See supra notes 8-10 and accompanying text.
FN17. In 1972, a year after the commencement of the modern era of capital punishment, see supra note 13, Justice Marshall identified gender as one of several forms of discrimination long associated with the administration of capital punishment in the United States. Justice Marshall succinctly described the situation as one with “overwhelming evidence that the death penalty is employed against men and not women. Only 32 women have been executed [nationally] since 1930, while 3,827 men have met a similar fate.” Furman v. Georgia, 408 U.S. at 365 (Marshall, J., concurring). The Justice goes on to note that since “[m]en kill between four and five times more frequently than women,” id. at note 154, some of the incongruity might be attributed to differences in socialization, “[h]ence, it would not be irregular to see four or five times as many men executed as women. The statistics show a startlingly greater disparity, however.” Id. Fifteen years later, the gender issue surfaced in an important case in the Court’s body of capital jurisprudence. See McCleskey v. Kemp, 481 U.S. 279 (1987). Here the Court not only acknowledged that gender plays a role in the sentencing authority’s decision to impose a death sentence, see id. at 315-17 & n.40, but also very likely the existence of this bias contributed toward the Court holding, despite statistical evidence of the racially discriminatory impact of the death penalty, findings the Court assumed were statistically valid, see id. at 291 n.7, Warren McCleskey, an African-American man, was not sentenced to death in a manner that violated either the Eighth or Fourteenth Amendments. Id. at 319.
FN18. ESPY File, supra note 4, at 120.
FN19. Kentucky Executions, supra note 4.
FN20. Lowell H. Harrison, Slavery in Kentucky: A Civil War Casualty, 5 Ky. Review 32, 32 (1983). Historian Thomas Clark notes “it was only natural that the early pioneers should transfer the institution [of chattel slavery] from Virginia to their farms west of the mountains.” Clark, supra note 3, at 192.
FN21. See Harrison, supra note 20, at 32. In 1789 Virginia passed an Act supporting the District of Kentucky’s quest to attain independent statehood status. 1789 Va. Acts 10, ch. XIV. Two years later the First United States Congress consented to the formation of a “new State . . . within the jurisdiction of the Commonwealth of Virginia,” Act of Feb. 4, 1791, ch. 4, 1 Stat. 189 ( 1791), and to the admission of this new state “into this Union, by the name of the State of Kentucky.” Id. Since the District of Kentucky was scheduled to be admitted into the Union by June 1, 1792, a constitution had to be drafted and approved before then. Clark, supra note 3, at 92. This deadline was met when Kentucky’s First Constitution was approved April 19, 1792. Ky. Const. of 1792. Subsequently, on June 1, 1792 the District of Kentucky became the State of Kentucky and the fifteenth member of the Union. Clark, supra note 3, at 92.
FN22. Clark, supra note 3, at 95. See also, Ky. Const. of 1792, art. IX.
FN23. Clark, supra note 3, at 113, 210-11, 305, 308, 310, 340; see also See Harrison, supra note 20, at 32 (“[T]he right of property is before and higher than any constitutional sanction, and the right of an owner of a slave to his property is the same and as inviolate as the right of an owner of any property whatsoever”) (quoting Ky. Const. of 1850, art. XII, § 3).
FN24. Clark, supra note 3, at 212.
FN25. Id.
FN26. Id.
FN27. Harrison, supra note 20, at 32.
FN28. Id. at 33.
FN29. Id. at 34; see also id. at 35-36.
FN30. Id. at 36.
FN31. Id. In fact, the “state protests were so violent that the order was suspended until February 1864.” Id.
FN32. Although, slightly more than six months after the Civil War began, a group of Confederate sympathizers held a secession convention in Russellville, Kentucky. On November 20, 1861 the unelected group proclaimed Kentucky’s secession from the Union and inaugurated George W. Johnson, who hailed from Scott County, as the first Governor of the Confederate State of Kentucky. Even though Jefferson Davis, President of the Confederate States of America, harbored doubts about the legality of Kentucky’s secession on December 10, 1861, the Commonwealth of Kentucky became the thirteenth state of the Confederate States of America. After Governor Johnson died in battle on April 8, 1862, Richard Hawes, a resident of Bourbon County, became the second Governor of the Confederate State of Kentucky. He retained the position until the fall of the Confederacy. The tenure of the Confederate State of Kentucky was short-lived and had no effect on the Commonwealth of Kentucky’s status as a member of the United States of America. See Bryant, supra note 2.
FN33. Harrison, supra note 20, at 39.
FN34. Id. at 40.
FN35. Id. See also George C. Wright, Racial Violence in Kentucky, 1865 – 1940, at 20 (1990).
FN36. See supra note 9 and accompanying text.
FN37. African-Americans and Caucasians account for 96% of the total. One Native American male was executed, see Kentucky Executions, supra note 4 (see execution 104), and the races of 16 people, 3.7 % of those executed, are unknown. ESPY File, supra note 4, at 120-31.
FN38. See supra notes 6-17 and accompanying text (identifying and discussing the gender bias inherent in the administration of the death penalty).
FN39. ESPY File, supra note 4, at 120-23. Kentucky has executed twelve females. One Caucasian female, one female whose race is unknown, and ten African-Americans. Id.
FN40. Wright, supra note 35, at 299.
FN41. ESPY File, supra note 4, at 120 – 131. This figure excludes extra-judicial lynchings. See generally Wright, supra note 35, at 1-11, 13-14, 61-107, 166, 307-323.
FN42. ESPY File, supra note 4, at 120 – 131. See also, Marco Chapman, supra note 8. Although separated by more than two centuries, the first person and the last the Commonwealth executed were Caucasian men. Id.; see also ESPY File, supra note 4, at 120.
FN43. In 1965 Kentuckians were officially put on notice about their racially skewed death penalty when then Governor Breathitt informed them that “[s]ince the electric chair was placed in operation at Eddyville State Penitentiary in 1911, some 162 men have been electrocuted. Of this number, approximately one-half have been Negroes.” Breathitt, supra note 2, at 469.
FN44. For 130 years, hanging was the state’s official method of execution. See ESPY File, supra note 4, at 127. Since rope was an item commonly used to lynch people, a sense of incongruity associated with the state’s “official” method of execution developed because it too called for a rope. In fact, in the context of lynching, someone aptly described the rope as a “white man’s death.” Wright, supra note 35, at 92. For example, one Christmas Day, the day before a black man’s murder trial was scheduled to start, even though “[t]he county judge and prosecuting attorney [were] . . . confident that the law would have punished [the man],” id. at 74 (emphasis added), a mob extracted him from the jail and “hanged him from a tree in the courthouse yard.” Id. (emphasis added). That same week, but in a different part of Kentucky, another black man was removed from the local jail and “carried to the courthouse yard and hanged.” Id. at 75 (emphasis added). Given this longstanding “connection” between hanging and lynching, the hope was that adopting a different method to use for state sanctioned killing would eventually check the strength of the rope’s ability to legitimize lethal violence.
FN45. See Act of March 15, 1910, ch. 38, §1, 1910 Ky. Acts 111.
FN46. Id.
<FN47. See Wright, supra note 35, at 255-56.
FN48. See Electric Chair Used in Kentucky, N.Y. Times, July 9, 1911. Wright, supra note 35, at 275 & n.27.
FN49. Wright, supra note 35, at 194.
FN50. Wright mentions Lockett might also have sexually assaulted little Geneva, but to expedite the process, Lexington officials decided to only indict Lockett on murder. Id. at 256. Documents containing information about the 427 people executed in Kentucky, however, list murder and rape as the capital crimes Lockett was found guilty of committing. ESPY File, supra note 4, at 127; Kentucky Executions, supra note 4.
FN51. Wright, supra note 35, at 195.
FN52. Id. (emphasis added).
FN53. Id. (emphasis added).
FN54. Id. at 195.
FN55. Id.
FN56. Id. at 256 (emphasis added).
FN57. Will Lockett was executed in the electric chair on March 11, 1920. See ESPY File, supra note 4, at 127.
FN58. See Act of March 17, 1920, ch. 163, §1, 1920 Ky. Acts 693; Kentucky Statutes § 1137-1 (1920).
FN59. See Act of March 17, 1920, ch. 163, §1, 1920 Ky. Acts 693.
FN60. Id. at 693. George Wright recounts occasions when this provision was blatantly disregarded. See Wright, supra note 35, at 256-57. Rainey Bethea’s public hanging in Owensboro, Kentucky on August 14, 1936 attracted thousands of people. Id. at 257-58. It should also be noted that Kentucky was “the last state in which public hangings were conducted.” Id. at 258.
FN61. ESPY File, supra note 4, at 128-29. After the Rainey Bethea fiasco, it was decided John Montjoy and Harold Venison, the last two men who had their death sentences imposed under the 1920 amendment, should still die on the gallows but not in public venues. Wright, supra note 35, at 258. Even though legislation repealing this amendment to Kentucky Statute § 1137-1 was passed and approved in March 1938, see Act of March 12, 1938, ch.131, 1938 Ky. Acts 640, only a few months before Venison’s execution was scheduled, he still had to be executed by hanging, which was done on June 3, 1938. ESPY File, supra note 4 at 129. Electrocution was restored as Kentucky’s sole method of execution. See Kentucky Statutes § 1137-1 (1938). In 1998 Kentucky made lethal injection the state’s second method of execution. Ky. Rev. Stat. § 431.220. However, both methods are only available to people sentenced to death on or before March 31, 1998. Id.
FN62. Strauder v. West Virginia, 100 U.S. 303 (1879); Neal v. Delaware, 103 U.S. 307 (1880).
FN63. Smith v. Commonwealth, 91 S.W. 742 (Ky. 1906).
FN64. Hale v. Commonwealth, 108 S.W.2d 716 (Ky. 1937), rev’d, 303 U.S. 613 (1938) (per curiam).
FN65. Smith v. Commonwealth, 91 S.W. at 742.
FN66. Id.
FN67. Id.
FN68. Hale v. Commonwealth, 108 S.W.2d at 716.
FN69. Id. at 717.
FN70. Id. at 718 (emphasis added).
FN71. Id. at 717.
FN72. Id.
FN73. Id. at 718.
FN74. Hale v. Kentucky, 303 U.S. 613, 616 (1938) (per curiam).
FN75. Id.
FN76. Batson v. Kentucky, 476 U.S. 79 (1986).
FN77. Id. at 79-80.
FN78. See American Bar Ass’n, supra note 10, at 345-378.
FN79. McCleskey v. Kemp, 481 U.S. 279, 319 (1987).
FN81. The Racial Justice Act went into effect on July 15, 1998. Ky. Rev. Stat. § 532.300. More than a decade passed before another retentionist state followed Kentucky’s lead. In August 2009, North Carolina became the second state to enact a Racial Justice Act for capital cases. See Race and the Death Penalty, Death Penalty Information Center, http://www.deathpenaltyinfo.org/race-and-death-penalty (last visited Nov. 5, 2013). For more information about Kentucky’s Racial Justice Act see Gennaro Vito, The Racial Justice Act in Kentucky, 37 N. Ky. L. Rev. 273, 276-78 (2010).
FN81. See, e.g., Vito, supra note 80, at 279-80; See American Bar Ass’n, supra note 11, at 345-378.
FN82. This is the period of time between the first execution in 1780 and the last one in 2008. See ESPY File, supra note 4, at 121; Marco Chapman, supra note 8.
FN83. Breathitt, supra note 2, at 471, n. 3; EPSY File, supra note 4, at 131. Moss was the last person the state executed prior to capital punishment’s modern era. See supra note 13.
FN84. Breathitt, supra note 2, at 471, n.3.
FN85. Id. The measure, however, was unsuccessful.
FN86. Id.
FN87. Harold McQueen was executed by electrocution on July 1, 1997. He was the first person the Commonwealth executed in more than thirty decades . ESPY File, supra note 4, at 131.
FN88. Kentucky was a non-retentionist state from June 29, 1972 until December 31, 1974 and from July 2, 1976 until December 21, 1976. See supra note 14.
FN89. In 1990 the people of the Commonwealth decided to abolish the death penalty for intellectually disabled individuals. See Ky. Rev. Stat. §§ 532.130, 532.135, 532.140. This is another instance where Kentucky was one of the first jurisdictions to dismantle part of its death penalty practice. See Penry v. Lynaugh, 492 U.S. 302, 334 (1989) (noting that in 1988 Georgia had partially abolished the death penalty in the same way and Maryland had but the law did not go into effect until July 1, 1989).
FN90. Edward Harper Jr. and Marco Chapman, respectively executed in 1999 and 2008, ESPY File, supra note 4, at 131, Marco Chapman, supra note 8, were volunteers, see Information on Defendants Who Were Executed Since 1976 and Designated as “Volunteers”, Death Penalty Information Center, http://www.deathpenaltyinfo.org/information-defendants-who-were-executed-1976-and-designated-volunteers (last visited Nov. 5, 2013), which in some cases is considered tantamount to “suicide by state.” See Michael Blume, Killing the Willing: “Volunteers,” Suicide and Competency, Death Penalty Information Center, http://www.deathpenaltyinfo.org/documents/BlumeVolunteerArticle.pdf. Currently, Kentucky has 33 condemned inmates. All but one are male. See Kentucky Department of Corrections, Death Row Inmates, http://corrections.ky.gov/communityinfo/pages/deathrowinmates.aspx (last visited Nov. 5, 2013).
The Commonwealth's Response to Kentucky's Pill Mill Problem
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Article | 102 KY. L. J. ONLINE 2 | Oct. 27, 2013
Peter P. CohronFN1
Introduction
Prescription pain pill abuse and misuse is a substantial problem in Kentucky.FN2 In the Commonwealth, over one thousand deaths per year are attributable to drug overdoses.FN3 This figure is the sixth highest in the country and represents more deaths than those caused by automobile accidents. Additionally, Kentucky ranks as the fourth most medicated state in the United States, though it ranks twenty-sixth for population.FN4 Governor Steve Beshear has acknowledged the problem, “We have an epidemic in Kentucky that we cannot ignore….We are losing lives. We are losing families, and we’ve got to aggressively attack that problem.”FN5 Much of the state’s drug problem was the result of pain pill mills, alleged pain management clinics where patients were prescribed controlled substance (narcotic) prescription medication following either a cursory examination or no examination by the physician on site. The phrase “pill mill” is nomenclature used by local and state police investigators most often to describe a physician or clinic, and occasionally a pharmacy, that is prescribing or dispensing controlled substance narcotics inappropriately or for non-medical reasons.FN6 However, the Governor’s call to arms was not solely aimed at these so-called clinics. Governor Beshear sought comprehensive legislation that would address all of the concerns regarding the prescribing and use of controlled substances including properly organizing and running pain management facilities, properly training physicians prescribing these dangerous drugs, balancing the interests to provide a watchful but not overly intrusive eye on the patient consumer of these drugs, and providing authority for the proper administrative boards and the necessary police powers to act in cases of prescribing regulations. In a demonstration of the importance of this issue, Governor Beshear called a special session of the Kentucky Legislature to provide for a solution.
House Bill 1 (KRS 218A.172)
The Legislature responded with House Bill 1 (HB1).FN7 House Bill 1 recognized the necessity of having properly managed and maintained pain management clinics. Therefore rather than banning such facilities outright, HB1 sought to achieve quality care by instituting standards for opening and running such a clinic. The Legislature attempted to balance the need for regulation due to the prevalence of the misuse of these medications leading to dependence and violence with the privacy concerns of the prescription pill user. HB1 attempted to strike this balance by limiting scope of the bill to Schedule IIFN8 controlled substances and other controlled substances containing hydrocodone.FN9 However, in promulgating administrative regulations pursuant to this bill, under KRS 218A.172, which is also limited to these drugs, the Kentucky Board of Medical Licensure relied on KRS 218A.205, a statue regarding reports of improper, inappropriate, or illegal prescribing or dispensing of controlled substances. As a result, the regulation promulgatedFN10 was not limited to Schedule II controlled substances and controlled substances containing hydrocodone, but included all controlled substances except Schedule V.FN11 A primary issue addressed by the regulation is the physician’s decision to prescribe a controlled substance to a patient for pain. Under this regulation, in order to prescribe controlled substances, a physician must meet certain professional standards. Prior to prescribing, the physician must obtain an “appropriate medical history relevant to the medical complaint,”FN12 obtain a KASPER report on the patent,FN13 make a “deliberate decision” to prescribe a controlled substance after weighing the benefits of the drug against the risks,FN14 and counsel the patient regarding how to take the drug and when to stop the treatment.FN15 As many of the patients at pain management facilities, legitimate and otherwise, are chronic controlled substance users, the regulation sets forth additional standards for prescribing for this patient population. These standards apply to all patients over the age of sixteen who are being treated with controlled substances for longer than 3 months.FN16 Before prescribing and regularly afterwards, the prescribing physician must obtain a history of the illness or condition, a past medical history, including any relevant family history and any history of past substance abuse, and a psychosocial history.FN17 To ensure a first time face-to-face meeting between patient and physician, there must be an appropriate physical examination that supports the patient’s claim of chronic pain,FN18 and a baseline assessment that establishes starting measurements by which to gauge future progress or decline in the condition.FN19 If this screening indicates any propensity or indication of substance abuse, the physician is required to refer the patient to an appropriate treatment center or provider.FN20 If the patient shows an indication or risk of diverting the prescribed drugs, the physician shall employ the use of a prescribing agreement, or pain management contract.FN21 Where there is any indication of either behavior, prior to the prescribing of controlled substances, the physician must perform a baseline drug screen.FN22 Once a patient begins long term continuing treatment for pain, the physician must meet additional requirements. The patient must be re-evaluated on a monthly basis by the physician and then at appropriate intervals.FN23 If improvement is expected and does not occur, the physician must refer the patient to an appropriate physician for consultation.FN24 The patient is also required to have an annual physical examination.FN25 The physician also must obtain follow-up KASPER reports at least every 3 months.FN26 Frequently when pharmacies deny filling pain mill prescriptions these patients present in hospitals’ emergency departments complaining of pain. In order to deter this behavior, the regulation placed limits on emergency doctors’ ability to prescribe these medications. Under the new law, emergency doctors were prohibited from administering IV controlled substances,FN27 replacing a lost or stolen prescription for a controlled substance,FN28 replacing a methadone Subutex or Suboxone dose for a patient in a drug treatment program,FN29 prescribing controlled release products such as Oxycontin,FN30 or prescribing more than a 7 day supply of a controlled substance.FN31 For the treatment of other conditions (excluding pain), the same standards apply. In the case where the patient has a psychiatric complaint, an appropriate psychiatric examination must be performed prior to prescribing controlled substances.FN32 If the on-site physician is, or feels, unqualified to perform a psychiatric examination, the patient must be referred to an appropriate physician or facility.FN33 In seeking to establish its authority and determine its scope, HB1 defined a pain management facility as a facility where the majority of patients are treated for pain with controlled substances, and 1) the primary practice component is pain treatment, or 2) the clinic advertises any type of pain management services.FN34 HB1 regulated the ownership of such pain management facilities by requiring that only a fully licensed physician may own or have an investment interest in a pain clinic, though clinics in existence before July 20, 2012 were grandfathered in.FN35 Additionally, one physician owner must be on-site at least 50% of the time the facility is open and he must be engaged in the practice of medicine at the site.FN36 This physician must hold a current American Board of Medical Specialties (ABMS) subspecialty certification, American Osteopathic Association Bureau of Osteopathic Specialties (AOABOS) certification in pain management, or a current ABMS or AOABOS certification in hospice or palliative care, or hold board certification by the American Board of Pain Medicine or American Board of Interventional Pain Physicians, or have done a residency or fellowship in pain management.FN37 In another move to legitimize treatment for those truly in pain, HB1 addressed the issue of payment. Prior to enactment of HB1, unscrupulous physicians were preying on those in chronic pain by accepting cash as the only form of payment, thus obfuscating the facility’s records. HB1 required that pain management facilities accept private health insurance and payment only from the patient, responsible caregiver, and/or insurance.FN38 After HB1 was implemented with relevant administrative regulations physicians, while agreeing that prescription drug abuse was “an out of control issue in Kentucky” and a very serious problem, criticized HB1.FN39 The critics were not limited to physicians, as hospitals and patients also claimed that “HB 1 in its present form restricts too many drugs in too many clinical settings, needlessly complicating medical care.”FN40 Because of HB1, many patients incurred costs for drug testing that their insurance would not cover.FN41 For these reasons, the bill seemed to, in effect, punish the patient in more ways than it was aiding in the fight against pill mills.
House Bill 217
In response to these criticisms, Governor Beshear signed into law House Bill 217 (HB217) on March 5, 2013. This bill was designed to address and eliminate the problems created by HB1.FN42 The purpose of this new bill was to remove onerous requirements from both physician and patient, while continuing to address the widespread drug abuse problem in Kentucky and seeking to provide adequate medical care and treatment for those patients truly in pain, acute or chronic. The all-encompassing sweep of HB1 had previously required that every entity in the Commonwealth be covered by HB1. To remedy this scope issue, HB217 exempted hospitals, long term care facilities, hospices, and end-of-life care centers that prescribe controlled substances and research facilities from the reporting and prescribing requirements.FN43 These facilities and prescribers were determined to only contribute slightly to pain pill abuse and therefore their inclusion under HB1 was deemed unduly burdensome. HB217 also addressed HB1’s requirement that each facility whose primary function or business was pain management have some kind of certification in pain control or management. Critics argued that this requirement, though reasonable, was problematic as it forced the closure of businesses until their physicians could comply with the certification. HB217 amended this requirement to allow facilities without such certification to stay open if they were “making reasonable progress toward completing or holding, a certification.”FN44 Next, the bill revised the KASPER requirement of HB1. Under the previous bill, KASPER checks were not limited to a specific time period prior to treatment. Therefore, KASPER reports had to be sought as far back as obtainable. Critics argued that this was an unnecessary administrative burden and that it created an impediment to establishing effective treatment plans.FN45 Additionally, there was concern that patients who had successfully completed a drug addiction treatment program would be characterized incorrectly by reference to their past records. HB217 addresses these concerns by limiting the scope of the KASPER check to twelve months previous to the day of the examination or prescription for controlled substances.FN46 However, HB217 requires that if treatment extends beyond ninety days, then the KASPER query be repeated every three months.FN47 The major criticism from physicians of HB1 was that requiring a physical examination and a medical history review prior to prescribing a controlled substance was an undue burden, repetitive, and time-consuming. To attempt to balance all of the interests involved, HB217 removed the word “complete” from the legislation so that physicians, in the exercise of professional judgment, could limit the scope of the examination to those facets important to the medical complaint. Second, the requirement for an examination was changed and required now only when “appropriate to the patient’s medical complaint.”FN48 This requirement relieves the physician from completing a physical examination, especially in circumstances where the physician is already well acquainted with the patient’s condition, and additionally relieves the patient of the costs of unnecessary testing. Even with the changes implemented by HB217, critics continue to have concerns. Critics worry that physicians, faced with significant oversight, may treat pain too cautiously or not at all. The fear continues to be that legitimate patients in extreme pain will still have substantial obstacles to obtaining the medication that they need.FN49
Conclusion
The impact of the legislation was largely seen prior to the enactment of HB217. When HB1 had been in force for less than three months, ten pain management pill mills in the Commonwealth of Kentucky had closed. Prescriptions for the pill mill “cocktail”FN50 have dropped dramatically. The number of KASPER subscribers had tripled, and KASPER is handling, on average, more than 18,000 requests a day (of which over 90% are responded to in less than fifteen minutes).FN51 With the passage of HB1 and HB217, the Kentucky Legislature has taken a strong and serious step towards ending the epidemic of drug abuse widespread in the Commonwealth. The willingness of the Legislature to flexibly and quickly address issues with the initial bill emphasizes its concern for this issue. However, HB1 and HB217 merely address only one of the root causes of the drug problem in Kentucky. Therefore neither the citizenry nor the Legislature should celebrate the accomplishments made by these bills, but instead, they should swiftly seek out other effective ways to help significantly address and substantially eliminate the drug problem in Kentucky.
FN1. Peter P. Cohron is a graduate of the University of Kentucky colleges of Pharmacy and Law. He practices in both professions, as a pharmacist for a major retail chain and as an attorney in private practice mainly dealing with pharmacy related issues.
FN2. The definition of drug or substance abuse is the use of a drug for a result unintended by the prescriber, e.g., getting high. Misuse is defined as the use of a drug for an intended result but taken in a manner or dose not prescribed. Abuse, The Free Dictionary.com, http://medical-dictionary.thefreedictionary.com/abuse (last visited September 15, 2013).
FN3. Stop Rx Abuse Before It Starts, Office of the Attorney General, http://ag.ky.gov/rxabuse/Pages/default.aspx (last visited Sept. 15, 2013).
FN4. Id.
FN5. Mike Wynn, Kentucky Senate Passes Pill Mill Legislation, Courier-Journal (Louisville), March 28, 2012, http://www.courier-journal.com/article/20120328/NEWS01/303280092/Kentucky-Senate-passes-pill-mill-legislation.
FN6. Id.
FN7. H.R. 1A, 2012 Gen. Assemb., 1st Spec. Sess. § 1(1)(A) (Ky. 2012) (hereinafter HB1).
FN8. Schedule II controlled substances are defined in Ky. Rev. Stat. §§ 218A.060–070 (LexisNexis 2013).
FN9. Hydrocodone is a Schedule III controlled substance, defined in Ky. Rev. Stat. §§ 218A.080–090 (LexisNexis 2013) and referenced as “dihydrocodeinone,” a synonym for hydrocodone that is marketed under such brand names as Lortab, Vicodin, and Norco.
FN10. Professional Standards for Prescribing and Dispensing Controlled Substances, 201 Ky. Admin. Reg. 9:260 (September 2013).
FN11. Id. at § 1(2)(g).
FN12. Id. at § 3(1).
FN13. Id. at § 3(2). KASPER, Kentucky All Security Prescription Electronic Record, is a monitoring system for all controlled substance prescriptions dispensed in the Commonwealth of Kentucky.
FN14. Id. at § 3(3).
FN15. Id. at §§ 3–5.
FN16. Id. at § 4(1).
FN17. Id. at § 4(2)(a).
FN18. Id. at § 4(2)(b).
FN19. Id. at § 4(2)(c).
FN20. Id. at § 4(2)(h)(2).
FN21. Id. at (4)(2)(h)(3). These agreements or contracts may limit who may prescribe controlled substances to the patient, state the pharmacy where the patient must fill his prescriptions, and/or require random pill counts and drug tests.
FN22. Id. at § (4)(2)(h)(4).
FN23. Id. at § (5)(2)(a)(1).
FN24. Id. at § (5)(2)(e).
FN25. Id. at § (5)(2)(h).
FN26. Id. at § (5)(2)(i).
FN27. Id. at § (6)(1).
FN28. Id. at § (6)(2).
FN29. Id. at § (6)(3).
FN30. Id. at § (6)(4).
FN31. Id. at § 7(1)(a).
FN32. Id. at § (6)(6).
FN33. Id. at § (7)(1)(a)(1)-(2).
FN34. H.R. 1A, 2012 Gen. Assemb., 1st Spec. Sess. § 1(1)(A) (Ky. 2012) (hereinafter HB1).
FN35. Id. at § 1(2).
FN36. Id. at § 1(3).
FN37. Id.
FN38. Id. at § 1(4).
FN39. Gregory A. Hood, Kentucky House Bill 1: Controlled Substance Regulations, Perhaps Nationally Next?, Weekend Call (July 21, 2012, 08:18 PM), http://boards.medscape.com/forums/?128@@.2a339438!comment=1.
FN40. John Cheves, Kentucky Lawmakers Expected to Alter Pill Mill Bill in Session That Starts Tuesday, Lexington Herald-Leader, January 5, 2013, http://www.kentucky.com/2013/01/05/2465788/ky-lawmakers-expected-to-alter.html.
FN41. Id.
FN42. Kentucky “Pill Mill Bill” Amended by House Bill 217, Frost Brown Todd (Mar. 6, 2013), http://www.frostbrowntodd.com/resources-1579.html.
FN43. H.R. 217, 2013 Gen. Assemb., Reg. Sess. § 1(4) (Ky. 2013) (hereinafter HB 217).
FN44. Id. at § 2(3)(f).
FN45. Kentucky “Pill Mill Bill” Amended by House Bill 217, supra note 41.
FN46. HB217 at § 1(1)(b).
FN47. Id. at § 1(2)(b)(1).
FN48. Id. at § 1(1)(a).
FN49. Gregory A. Hood, Kentucky House Bill 1: Controlled Substance Regulations, Perhaps Nationally Next?, Weekend Call (July 21, 2012, 08:18 PM), http://boards.medscape.com/forums/?128@@.2a339438!comment=1.
FN50. Usually a pain pill mill cocktail includes prescriptions for carisoprodol, alprazolam, and either hydrocodone or oxycodone-containing painkillers.
FN51. Press Release, Kentucky Office of the Attorney General, New Prescription Abuse Laws Driving Pill Mills Out of Business, Investigations of Overprescribers Launched (Oct. 17, 2012), available at http://migration.kentucky.gov/newsroom/ag/fewerpillmills.htm.
Sticks and Stones: A Needed Legislative Reform to Kentucky's Approach to Cyberbulling
This Online Original is available for download (PDF) here.
Article | 102 KY. L. J. ONLINE 1 | Sept. 22, 2013
Amanda East
Introduction
It can hardly be argued that…students…shed their constitutional rights to freedom of speech…at the schoolhouse gate.FN1
Reading, writing, and arithmetic are the “three r’s” used to describe the foundation of the typical American education. Another unspoken fixture of the American classroom is bullying. This longstanding practice has entered the new millennium, and technology has given bullies new ways to torment victims. Kameron Jacobsen was a high school freshman in New York who enjoyed spending time with his family and was constantly using Facebook, a social networking site, to interact with his classmates.FN2 This social forum became a nightmare when his peers used it to taunt and ridicule Kameron until he committed suicide.FN3 His family had no available recourse because, like most states, New York’s legislative and judicial branches are ill-prepared to address the emerging issue of cyberbullying.FN4 Perhaps worst of all, Kameron is not the first student to be “a victim of cyberbullying,” nor is he the last. In the Bluegrass State, Rachael Neblett, a seventeen-year old high school student took her life in 2006 under similar circumstances.FN5 The Internet has benefited teenagers in a number of ways, but, in conjunction with these benefits, courts have seen increased litigation regarding cyberbullying.FN6 The absence of Supreme Court precedent on this issue has resulted in an array of state and federal court decisions. State legislatures have amended or adopted new statutes to address this problem. I contend that in order to sufficiently address cyberbullying, Kentucky needs to recognize schools have an important interest in preventing cyberbullying and need broader authority to effectively address this problem. Kentucky needs to enact legislation, similar to Vermont or Massachusetts, permitting schools to regulate off-campus Internet student speech. This broadening of what it means to be “within” the “schoolhouse gates” is justified because of the nature of the interest and the legislature’s ability to tailor schools’ authority in order not to infringe on protected speech. In order to prove this thesis, Part I will begin by defining cyberbullying. Part II will then examine lower court decisions on the cyberbullying issue, beginning with relevant Supreme Court precedent, and the developing body of case law, identifying three standard cyberbullying approaches taken by lower courts. Part III will address state legislatures’ responses to cyberbullying. Part IV will analyze efforts by the House of the Kentucky General Assembly to amend existing statutes and their shortcomings, and finally Part V will conclude with an appeal for additional cyberbullying legislation in Kentucky.
I. Cyberbullying and its Effects
Cyberbullying is distinguishable from traditional bullying in four ways. First, the aggressor can choose to remain anonymous by creating a false, online identity, establishing a sense of power and control.FN7 Second, the speed of dissemination ensures the victim will more readily experience the bullying.FN8 Third, the Internet has unlimited reach ensuring “cruel and sadistic behavior [will be] amplified and publicized, not just on the campus [of a school], but throughout the world.”FN9 Last, the victim’s torment is constant and inescapable because he or she experiences it every time they access the Internet.FN10
II. Student Speech and The First Amendment: An Overview
A. Supreme Court Student Speech Jurisprudence
In the wake of increased litigation, lower courts have used four seminal Supreme Court cases to balance a student’s interest in freedom of speech and the school’s interest in regulation. The first of these cases, Tinker v. Des Moines Independent Community School District, established protection of in-school student speech, while the three subsequent cases carved out content-based exceptions. In effect, the Supreme Court has instituted four standards that lower courts may apply in determining the constitutionality of student speech.
1. Tinker v. Des Moines Independent Community School District
In Tinker, the Court stated that students do not “shed their constitutional rights…at the schoolhouse gate,’” and struck down students’ suspensions for wearing black armbands in school because the school failed to show a “substantial disruption.”FN11Under this standard, a school may regulate student speech to provide a safe and productive learning environment only when the school can show the speech did, or could reasonably be foreseen to, materially and substantially disrupt the work and discipline of the school.FN12
2. Bethlehem School District v. Fraser
Bethlehem School District v. Fraser established a separate standard restriction on student speech.FN13 The Fraser standard permits schools to prohibit vulgar, lewd, or obscene student speech regardless of whether or not it results in disruption because the Court recognized that schools have an interest in protecting minors from speech that is “inconsistent with the ‘fundamental values’ of public school education.”FN14
3. Hazelwood School District v. Kuhlmeier
In Hazelwood, the Supreme Court upheld censoring student speech because it was part of a school-sponsored activity “bear[ing] the imprimatur of the school,” meaning the school was effectively being asked to promote student speech inconsistent with its basic educational mission.FN15 Hazelwood’s restriction permits public schools to regulate the content of a school-sponsored activity so long as it is reasonably related to legitimate pedagogical concerns.FN16
4. Morse v. Frederick
This most recent case establishes a restriction acknowledging that public schools may limit student speech which could “reasonably [be] viewed as promoting illegal drug use” because schools have an important, and perhaps compelling, interest in discouraging such activity.FN17 Morse suggests that a school may limit student speech because of the school’s important interest in prohibiting the content itself.FN18
B. Applying these Standards: How Courts Approach Internet Student Speech Off-Campus
The absence of direct Supreme Court precedent has resulted in “a ‘state of tumult about the precise scope of First Amendment rights possessed by students.’” and lower courts have adopted three common approaches to address the matter.FN19
1. The Geography Approach
This approach distinguishes between “on-campus” and “off-campus” speech. Courts will initially determine if the speech occurred on school grounds or during a school-sponsored activity to ensure there is a sufficient nexus for the court to rely on existing school-speech jurisprudence to render a decision.FN20 This approach has produced mixed results. In Mahaffey v. Aldrich, a district court found that a student website entitled “Satan’s webpage” encouraging violence and containing a death list was outside the school’s reach because the speech did not create an actual disruption under the Tinker standard.FN21 Conversely, in J.S. v. Bethlehem Area School District, the Pennsylvania Supreme Court found, under the Tinker standard, a school could punish off-campus speech because “where speech that is aimed at a specific school and/or its personnel is brought onto the school campus or accessed at school by its originator, the speech will be considered on-campus speech.”FN22
2. The Foreseeability Test
Under the foreseeability test, courts justify extending Tinker to “off-campus” speech because of an excerpt in Tinker which states, [C]onduct by the student, in class or out of it, which for any reason- whether it stems from time, place, or type of behavior- materially disrupts the classwork or involves substantial disorder or invasion of the rights of other is, of course, not immunized by the constitutional guarantee of freedom of speech.FN23 Both the Second and Third Circuits have held that a school may regulate Internet student speech if it “poses a reasonably foreseeable risk of disruption.”FN24 The Second Circuit held in Wisniewski v. Board of Education Weedsport Central School District that a student-created image of a pistol firing at a teacher’s head was unprotected speech and the school could regulate it.FN25 In J.S. v. Blue Mountain School District, an eighth grader created a false profile of a school principal suggesting he was a pedophile and sex addict.FN26 The Third Circuit combined the Tinker and Fraser standards to hold that, under a different set of facts and circumstances, the school would be permitted to punish a student without constitutional violation. FN27
3. The “Standard First” Approach
Under the “standard first” approach, courts apply existing Supreme Court standards to a particular fact pattern and determine if any of these standards permit the school to prohibit the speech.FN28 Using this approach, a district court in Killion v. Franklin Reg. School District held that a student e-mail with offensive remarks about the school’s athletic director was protected speech under Tinker because it did not run afoul of the “substantial disruption” test.FN29
III. State Legislatures’ Response
The confusion in the judicial branch has generated a need for state legislatures to enact statutes more clearly delineating schools’ scope of authority. Currently, forty-nine states have bullying statutes.FN30 Sixteen of these specifically address the issue of cyberbullying, with seven including “off-campus” cyberbullying as a problem within schools’ purview.FN31 Cyberbullying statues provide courts with a definitive means of addressing Internet student speech. A uniform approach offers a sense of predictability and stability such that all affected parties are on notice of potential liability for violations. A statute permits state and district school boards to craft policies explicitly articulating schools’ authority over the Internet. Furthermore, cyberbullying statutes reduce the possibility of unreasonable infringement of non-student speech because they define the parameters for the balancing of the two interests occurs.
IV. Kentucky’s Proposed Response: Amendments to KRS 158.148 and KRS 525.070
To date, Kentucky has not adopted a separate cyberbullying statute or included cyberbullying within its statutory definition of “bullying” or “harassment.” The General Assembly has considered the issue since 2007, proposing numerous amendments to existing statutes which have subsequently stalled in committee.FN32 This indicates that the House sees the need to formulate a response to cyberbullying.
A. 2008 Ky. House Bill No. 91
In 2008, Kentucky’s legislature attempted to pass four versions of Ky. House Bill No. 91; the first contained no reference to cyberbullying.FN33 KRS 158.148 stated school codes must prohibit harassment, intimidation, and bullying; these terms were defined narrowly by KRS 158.441 such that communications referred only to “written” communications occurring on-campus, during a school sponsored activity, or on school transportation.FN34 In the context of a cyberbullying case, a court could view this limitation as possibly including or excluding electronic media because the statute is unclear whether “written” communication means only physical communication. The geographic constraint presents the same shortcoming seen in other states because it would prohibit a court from granting schools the authority to regulate off-campus Internet student speech, like cyberbullying. The third and fourth versions contained a notable change. The amended version of KRS 525.080 specifically stated a student would be guilty of harassing communications if he or she sent an electronic communication “which a reasonable person . . . should know would cause the other student to suffer fear of physical harm, intimidation, humiliation, or embarrassment, and which serves not purpose of legitimate communication.”FN35 While it does not explicitly use the term cyberbullying, this marked the first time the Kentucky legislature acknowledged and addressed the issue.
B. 2011 Ky. House Bill No. 370
House Bill 370 proposed shifting some of the language discussed above. The amended version of 158.148 would specifically reference cyberbullying and require schools to include it in their discipline codes.FN36 The House defined cyberbullying as any electronic communication intended to: (1) physically harm a student or their property, (2) substantially interfere with educational opportunities, (3) create an intimidating or threatening education environment, or (4) cause a substantial disruption to the school.FN37 This expansive view of cyberbullying suggests the House was growing increasingly aware of the many ways cyberbullying manifests. Nevertheless, the continued geographical limitation on the school’s authority to address cyberbullying creates the risk that schools will be unable to address a significant amount of Internet student speech and will continue to see the types of disruptions the legislature seeks to avoid.
C. 2012 Ky. House Bill No. 490
House Bill 490 is the most recent set of amendments. “Cyberbullying” is now encapsulated in KRS 158.441’s definition of “bullying”; “electronic acts” is a type of bullying and is defined as “an act committed through the use of a cellular telephone, computer, pager, personal communication device, or other electronic communication device” to inflict mental or physical harm on another student.FN38
V. Recommendation
The steps taken by the House of Kentucky’s General Assembly are commendable, but these proposals do not provide schools with the necessary tools to reach a significant amount of Internet student speech. The geographic constraint on schools’ authority means administrators will be unable to address an issue until it makes its way onto campus.
A. Shortcoming of Proposed Kentucky Amendments and the Need to Recognize Cyberbullying as an Important, Perhaps Compelling State Interest
The proposed legislation discussed above, if enacted, means that Kentucky schools will be unable to address a potential disruption until it becomes an actual disruption. This would require administrators to act reactively rather than proactively. Such an approach undermines the notion that schools may act conducive to their primary objectives of safety and education.This limitation may generate more issues than it solves. For example, if schools are permitted to regulate only “on campus” Internet student speech, can schools only monitor speech on school computers or other electronic media? Is it relevant that a student posted a harmful remark during school hours using their cell phone? Would it matter if the school district’s discipline code prohibited the use of privately owned cell phones during regular school hours? The Supreme Court acknowledged schools have an important, if not compelling, interest in deterring drug use amongst students because it is essentially antithetical to schools’ education mission.FN39Similarly, cyberbullying is antithetical to schools’ education mission. Its constant and pervasive nature has a direct impact on schools manifesting in increased academic problems, anxiety, depression, severe isolation, a tendency to carry weapons, and suicide.FN40 Based on the problems caused by cyberbullying, it is imperative that the Kentucky General Assembly succeed in not only passing amended statutes recognizing cyberbullying as an issue in public schools, but also replacing the confining geographic language with a more flexible standard allowing schools to respond preemptively without being overly inclusive.
B. Vermont and Massachusetts: Models for New Kentucky Legislation
Unlike Kentucky, Vermont and Massachusetts have enacted legislation addressing cyberbullying that extends schools’ authority beyond campus premises.FN41 Vermont’s statute states that bullying includes cyberbullying that “does not occur during the school day on school property, on a school bus, or at a school-sponsored activity and can be shown to pose a clear and substantial interference with another student’s right to access educational programs.” Massachusetts’s legislation is similar.FN42 The Massachusetts legislation permits schools to regulate activity occurring off-campus “if the bullying creates a hostile environment at school for the victim, infringes on the rights of the victim at school or materially and substantially disrupts the education process or the orderly operation of a school.”FN43 The language of these statutes is similar to the foreseeability approach recognized by some courts because both permit school regulation when there is still the possibility of preventing a substantial disruption, thus preserving the school environment.FN44 Vermont and Massachusetts explicitly define the student actions which are considered cyberbullying, much like the definitions seen in Ky. House Bill No. 370.FN45 This specificity provides schools and courts with a clearer understanding of what speech the statute governs. Additionally, both states require local school districts to develop procedures to address cyberbullying including the response and investigation of possible cyberbullying, to define disciplinary actions for offenders, and to develop programs to raise awareness about cyberbullying.FN46 These requirements safeguard against overreach by public schools and demonstrate that it is possible for a state to enact cyberbullying legislation extending beyond the school’s physical parameters while still not trampling on freedom of speech.
C. Proposed Kentucky Legislation for Online Student Speech
The Kentucky legislature’s primary focus should be recognizing cyberbullying as a distinct, unique issue in public schools. A good start would be combining the approaches taken by Massachusetts and Vermont to establish a separate definition for cyberbullying under KRS 158.441 because that combination would signal the General Assembly’s awareness of cyberbullying and would be consistent with the unique characteristics of cyberbullying. The current definition of cyberbullying in KRS 158.441 is susceptible to overreach by public schools because the only qualification on what constitutes actionable bullying is that it cause mental or physical harm.FN47 A school, for example, could determine a student was in violation if the victimized student claims to have been embarrassed or reduced to tears. A standard such easily manipulated would be improper because schools would have virtually unchecked policing powers. A better definition of cyberbullying in KRS 158.441 would read as follows: “Cyberbullying” is bullying through the use of technology or any electronic communication including, but not limited to, the transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted by, an electronic medium including those which the creator assumes another person’s identity or knowingly impersonates another as the author of posted content or messages. Additionally, it includes the distribution by electronic means of a communication to more than one person or the posting of material on an electronic medium that may be accessed by one or more persons. A student will be determined to have committed an act of cyberbullying against another student if the following conditions are met. The act: (1) is repeated over time; (2) is intended to ridicule, humiliate, or intimidate the victim; and (3) occurs during the school day on school property, on a school bus, or at a school-sponsored activity, or before or after the school day on a school bus or at a school-sponsored activity. (4) does not occur during one of the on-campus activities discussed above, but can be shown to pose a clear and substantial interference with another student’s right to access educational programs.FN48 This definition has several benefits. First, it narrows the scope of Internet speech subject to regulation, reducing potential infringement of constitutionally protected speech. Second, it recognizes the unique nature of student Internet speech. Third, it outlines a clear analytical framework for Kentucky courts to use in future cyberbullying lawsuits, resulting in increased predictability. Fourth, it puts all potential parties on notice of the types of Internet speech consider within the school’s purview. Last, this construction of cyberbullying is consistent with the standard articulated in Tinker. While Kentucky courts would be recognizing a school’s authority “beyond the schoolhouse gate,” this authority would stem from the likelihood the speech will negatively impact students within the school environment. Thus, widening the scope of school-regulated speech would permit the Kentucky legislature and courts to continue to respect the sanctity of the schoolhouse gate.
Conclusion
The Internet has radically changed the framework for student speech analysis causing lower courts to respond in varied, and sometimes surprising, ways. Previously, off-campus student speech was distinctly beyond the schoolhouse gate and free from constraint. This spatial distinction has declined with the prevalence and pervasiveness of the Internet, which has blurred the borders between many areas of regulation. While certainly not all off-campus speech is subject to schools’ authority, those that would create a substantial disruption should be subject to school regulation.FN49 In order to navigate the challenges presented in addressing off-campus Internet student speech, Kentucky’s General Assembly needs to enact an amended version of statutes 158.148 and 158.441. The geographical limitation contained within 158.148 needs to be replaced with more expansive language, similar to Massachusetts’ and Vermont’s statutes.FN50 Additionally, 158.441 needs to provide a definition of cyberbullying. Such changes would recognize that a geographical distinction is inadequate for schools to provide a safe and productive learning environment. Without these changes, courts will be left with little to base their decisions on except a “very tricky calculus,”FN51which will not produce the outcomes necessary to prevent future victims of cyberbullying.
FN1. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
FN2. New York 14-Year-Old Kameron Jacobsen Bullied to Death, CBS New York, http://newyork.cbsloc al.com/2011/09/15/exclusive-new-york-14-year-old-bullied-to-death/ (last visited June 3, 2013).
FN3. Id.; Parents Speak Out on Bullying After Son’s Death, CBS New York, http://www.cbsnews.com/2100-500172_162-20106690.html (last visited June 3, 2013).
FN4. New York 14-Year Old Kameron Jacobsen Bullied to Death, supra note 2.
FN5. Rachael was a Bullitt County student when she committed suicide after receiving threatening anonymous e-mails from classmates. Janelle McDonald, Family of Teen who Took Her Own Life Pushing Lawmakers for Anti-Bullying Ordinance, Wave3 News, http://www.wave3.com/story/6029598/family-of-teen-who-took-her-own-life-pushing-lawmakers-for-anti-bullying-ordinance (last visited June 3, 2013) (stating Rachael received an e-mail saying, “ ‘[I am not] going to put [you] in the hospital, [I’m] going to put [you] in the morgue.’”).
FN6. Katherine Ng, Digital Dilemmas: Responding to Cyberbullying in Nova Scotia, 22 EDUC. & L.J. 63, 65-66 (2012); see also Gwenn Schrugin O’Keeffe, Kathleen Clarke-Pearson, and the Council on Communications and Media, Clinical Report: The Impact of Social Media on Children, Adolescents, and Families, 127 Pediatrics 800, 800-01 (2011). (stating the internet has assisted in self-identification by adolescents).
FN7. Ng, supra note 6 at 68; see also Sameer Hinduja and Justin W. Patchin, Cyberbullying Research Summary: Cyberbullying and Strain, 1, 1 http://www.cyberbullying.us/cyberbullying_ and_strain_research_fact_sheet.pdf (last visited June 3, 2013).
FN8. Ng, supra note 6 at 69; see also Hinduja and Patchin, supra note 7 at 1.
FN9. Ng, supra note 6 at 70; Allison Belnap, Comment, Tinker at a Breaking Point: Why the Specter of Cyberbullying Cannot Excuse Impermissible Public School Regulation of Off-Campus Student Speech, BYU L. Rev. 501, 501 (2011) (quoting Jeff Lieberman, Rutgers Student’s Suicide Prompts privacy, Cyber-Bullying Debates (PBS NewsHour broadcast Oct. 1, 2010), transcript available at http://www.pbs.org/newshour/bb/social_issues/july-dec10/rutgers1_10-01.html); see also Hinduja and Patchin, supra note 7 at 1.
FN10. Ng, supra note 6 at 68.
FN11. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 514 (1969).
FN12. Id. at 514. (“As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred.”).
FN13. See Bethlehem Sch. Dist. v. Fraser, 478 U.S. 675, 685-86 (1986). The Court later stated in a footnote the Fraser standard is separate and distinct from Tinker. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271, n. 4. (“The decision in Fraser rested on the ‘vulgar,’ ‘lewd,’ and ‘plainly offensive’ character if a speech delivered at an official school assembly rather than on any propensity of the speech to ‘materially disrup[t] class work or involv[e] substantial disorder or invasion of the rights of others.”) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969)).
FN14. Fraser, 478 U.S. at 683, 685-86.
FN15. Hazelwood, 484 U.S. at 281.
FN16. Id. at 273.
FN17. Morse v. Frederick, 484 U.S. 393, 403 (2007).
FN18. See Caitlin May, Comment, “Internet-Savvy Students” and Bewildered Educators: Student Internet Speech is Creating New Legal Issues for the Educational Community, 58 Cath. U. L. Rev. 1105, 1111 (2009) (analyzing the Court’s rationale in Hazelwood); Harriet A. Hoder, Note, Supervising Cyberspace: A Simple Threshold for Public School Jurisdiction over Student’s Online Activity, 50 B.C. L. Rev. 1563, 1574-75 (2009).
FN19. Stephanie Klupinski, Note, Getting Past the Schoolhouse Gate: Rethinking Student Speech in the Digital Age, 71 Ohio St. L.J. 611, 625 (2010) (quoting Robert D. Richards & Clay Calvert, Columbine Fallout: The Long-Term Effects on Free Expression Take Hold in Public Schools, 83 B.U. L. Rev. 1089, 1139 (2003)); May, supra note 18 at 1128-31.
FN20. May, supra note 18 at 1128; Hoder, supra note 18 at 1583-85; see also Sandy S. Li, The Need for a New, Uniform Standard: The Continued Threat of Internet-Related Student Speech, 26 Loy. L.A. Ent. L. Rev. 65, 78; Belnap, supra note 9, at 510, Klupinski, supra note 19, at 627.
FN21. Mahaffey ex rel. Mahaffey v. Aldrich, 236 F. Supp. 2d 779, 782-84 (E.D. Mich. 2002) (“In the case at bar, there is no evidence that the website interfered with the work of the school or that any other student's rights were impinged.”).
FN22. J.S. v. Bethlehem Area Sch. Dist., 807 A. 2d 847, 865 (Pa. 2002).
FN23. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969) (emphasis added).
FN24. Wisniewski v. Bd. of Educ. Weedsport Cent. Sch. Dist., 494 F.3d. 34, 38 (2d Cir. 2007); J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011).
FN25. Wisniewski, 494 F.3d at 36-40.
FN26. Blue Mountain, 650 F.3d at 920.
FN27. Id. at 928, 932-33 (holding J.S.’s suspension was a violation of the First Amendment because it did not cause a substantial disruption in the school under the Tinker standard).
FN28. Klupinski, supra note 19 at 638-39.
FN29. Killion v. Franklin Reg. Sch. Dist., 136 F. Supp. 2d 446, 455 (W.D. Penn. 2001) (“Although the intended audience was undoubtedly connected to Franklin Regional High School, the absence of threats or actual disruption lead us to conclude that Paul's suspension was improper.”).
FN30. See Ala. Code §16-28-3.1(b)(6) (2013); Alaska Stat. Ann. §14.33.200 (2013); Ariz. Rev. Stat. Ann. §15-341(37) (2013); Ark. Code Ann. §6-18-514(b)(2) (2013); Cal. Educ. Code §32261(d) (2013); Colo. Rev. Stat. §22-32-109.1(1)(b) (2013); Conn. Gen. Stat. §10-222d(a)(1) (2013); Del. Code Ann. tit. 14 §4112D(a) (2013); Fla. Stat. §1006.147(a) (2013); Ga. Code §20-2-751.4 (2013); Haw. Code R. § 8-19-2 (2013); Idaho Code Ann. §18-917A(2) (2013); 105 Ill. Comp. Stat. 5/27-23.7(b) (2013); Ind. Code §20-33-8-0.2 (2013); Iowa Code §280.28(2)(b) (2013); Kan. Stat. Ann. §72-8256(a)(1) (2013); Ky. Rev. Stat. Ann. §158.183(1)-(2) (2013); La. Rev. Stat. Ann. §17:416(d) (2013); Me. Rev. Stat. tit. 20-A(2)(B) §6554 (2013); Md. Code Ann. Education §7-424.3(a) (2013); Mass. Gen. Laws ch. 71, § 37O(a) (2013); Mich. Comp. Laws §380.1310b(8)b (2013); Minn. Stat. §121A.0695 (2013); Miss. Code Ann. §37-11-67(1) (2013); Mo. Rev. Stat. § 160.775(2) (2013); Neb. Rev. Stat. § 79-2, 137(2) (2013); Nev. Rev. Stat. §388.135 (2013); N.H. Rev. Stat. Ann. §193-F:3(I) (2013); N.J. Stat. Ann. §18A:37-14 (2013); N.M. Stat. Ann. §6.12.7 (2013); N.Y. Educ. Law §11(7) (McKinney 2013); N.C. Gen. Stat. §115C-407.15(a) (2013); N.D. Cent. Code §15.1-19-17(1) (2013); Ohio Rev. Code Ann. §3313.666(A)(2) (2013); 2013 Okla. Sess. Laws 311; Or. Rev. Stat. §339.351(2) (2013); 24 Pa. Cons. Stat. §13-1301.1-A(e) (2013); R.I. Gen. Laws §16-21-33(a) (2013); S.C. Code Ann. § 59-73-120(1) (2013); S.D. Codified Laws §13-32-15 (2013); Tenn. Code Ann. §49-6-1015(3) (2013); Tex. Educ. Code Ann. §37.0832(a) (2013); Utah Code Ann. §53A-11a-201 (2013); Vt. Stat. Ann. tit. 16, § 11(26), (32) (2013); Va. Code Ann. §22.1-279.6 (2013); Wash. Rev. Code Ann. §28A.300.285(2) (2013); W. Va. Code Ann. §18-2C-2(a) (2013); Wis. Stat. §118.46(1) (2013); Wyo. Stat. Ann. §21-4-312(a) (2013).
FN31. Statutes specifically referencing cyberbullying include: Arkansas, California, Connecticut, Hawaii, Kansas, Louisiana, Massachusetts, Missouri, Nevada, New Hampshire, New York, North Carolina, Oregon, Tennessee, Utah, and Washington. The following states have permitted schools to regulate and punish off campus behavior: Arkansas, Connecticut, Massachusetts, New Hampshire, New York, Tennessee, and Vermont. See Ark. Code Ann. §5-71-217(c) (West (2013); Cal. Educ. Code §32261 (West 2013); Conn. Gen. Stat. Ann. §10-222d(a)(6), (b)(15) (West 2013); Haw. Code R. § 8-19-2 (2013); Kan. Stat. Ann. §72-8256(a)(2)-(3), (c) (West 2013); La. Rev. Stat. Ann. §40.7 (2013); Mass. Gen. Laws Ann. ch. 71, § 37O(b) (West 2013); Mo. Ann Rev. Stat. § 160.775 (West 2013); Nev. Rev. Stat. Ann. §388.135(7) (West 2013); N.H. Rev. Stat. Ann. §193-F:3(V) (2013); N.Y. Educ. Law §11(7) (McKinney 2013); N.C. Gen. Stat. Ann. §115C-407.15(a) (West 2013); Or. Rev. Stat. Ann. §339.351 (West 2013); Tenn. Code Ann. §49-6-1015 (West 2013); Utah Code Ann. §53A-11a-201(1)-(2) (West 2013); Wash. Rev. Code Ann. §28A.300.285 (West 2013).
FN32. H.B. 91, 2007 H.R., Reg. Sess. (Ky. Nov. 26, 2007); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Jan. 8, 2008); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Mar. 19, 2008); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Apr. 15, 2008); H.B. 370, 2011 H.R., Reg. Sess. (Ky. 2011); H.B. 336, 2012 H.R., Reg. Sess. (Ky. 2012); H.B. 490, 2012 H.R., Reg. Sess. (Ky. 2012).
FN33. H.B. 91, 2007 H.R., Reg. Sess. (Ky. Nov. 26, 2007); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Jan. 8, 2008); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Mar. 19,2008); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Apr. 15, 2008).
FN34. H.B. 91, 2007 H.R., Reg. Sess. (Ky. Nov. 26,2007) (“‘Harassment, intimidation, or bullying’ means a repeated verbal, nonverbal, or written communication transmitted; repeated physical acts committed; or any other repeat behavior committed by a student against another student on school premises, on school-sponsored transportation, or at a school-sponsored event…”).
FN35. H.B. 91, 2008 H.R., Reg. Sess. (Ky. Mar. 19, 2008); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Apr. 15, 2008).
FN36. H.B. 370, 2011 H.R., Reg. Sess. (Ky. 2011) (“Amend KRS 158.148 to require the discipline code to prohibit harassment, intimidation, bullying, or cyberbullying against students…”) (emphasis added).
FN. 37.Id.
FN. 38. H.B. 490, 2012 H.R., Reg. Sess. (Ky. 2012).
FN 39. Morse v. Frederick, 551 U.S. 393, 407 (2007) (stating that prior Supreme Court cases have recognized the dangers of illegal drug use and schools’ interest in protecting students from the dangers of drug abuse).
FN. 40. See Ng, supra note 6 at 70; see also Natasha Rose Manuel, Cyber-bullying: Its Recent Emergence and Needed Legislation to Protect Adolescent Victims, 13 Loy. J. Pub. Int. L. 219, 225-28 (2011), Hoder, supra note 18 at 1566.
FN. 41. Mass. Gen. Laws. ch. 71, § 37O(b) (2013); Vt. Stat. Ann. tit. 16, § 11(a)(32) (2013).
FN. 42. Tit. 16, § 11(a)(32)(C)(ii) (emphasis added); ch. 71, § 37O(b).
FN. 43. Ch. 71, § 37O(b).
FN. 44. Compare ch. 71, § 37O(b) and tit. 16, § 11(a)(32)(C))(ii) with Wisniewski v. Bd. of Educ. Weedsport Cent. Sch. Dist., 494 F.3d. 34, 38-39 (2d Cir. 2007) and J.S. v. Blue Mountain Sch. Dist., 650 F.3d 915, 932-33 (3d Cir. 2009).
FN. 45. Compare H.B. 336, H.R., Reg. Sess. (Ky. 2012) and H.B. 370, H.R., Reg. Sess. (Ky. 2012) with ch. 71, § 370 and tit. 16, § 11.
FN. 46. Ch. 71, § 37O(c)-(h); tit. 16, § 11.
FN. 47. KRS 158. 441 states “‘Harassment, intimidation, or bullying means: Any intentional written, verbal, electronic, physical act that a student has exhibited toward another student more than once that causes mental or physical harm to the other student.” H.B. 490, H.R., Reg. Sess. (Ky. 2012) (emphasis added).
FN. 48. This proposed statutory construction is based on the legislation in Kentucky, Massachusetts, and Vermont. See H.B. 370, H.R., Reg. Sess. (Ky. 2011); ch. 71 § 37O(a)-(b); tit. 16, § 11(a)(32).
FN. 49. May, supra note 18 at 1141, Li, supra note 20 at 87-91, Klupinski, supra note 20 at 643-50.
FN. 50. Compare H.B. 336, H.R., Reg. Sess. (Ky. 2012) and H.B. 490, H.R., Reg. Sess. (Ky. 2012) with ch. 71, § 37O(b) and tit. 16, § 11(a)(32)(C)(ii).
FN. 51 May, supra note 18 at 1141. (quoting Victoria Kim, Suit Blends Internet, Free Speech, School, L.A. Times, Aug. 3, 2008, at B1).
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Curiosity Kills the Cat: Prosecution of Juveniles within the Protected Class of Statutory Rape Provisions
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This Online Original is available for download (PDF) here.
Article | 101 KY. L. J. ONLINE 4 | Jan. 16, 2013
Brian Christopher Jones
In order to demonstrate how Congressional short titles have evolved throughout the years, a targeted quantitative study was performed on Acts from the 93rd – 111th Congress (1973 – 2011). The results demonstrate that such titles did not merely evolve, but in fact there was a short title revolution in Congress. The major findings from the article indicate that: short title use has become much more popular; Acts on name changing in the US Congress have increased dramatically; average short title word length has increased; the number and prevalence of “personalized” bill titles has increased; the number of short titles employing acronyms has increased; the number of evocative words used throughout the period studied has increased; and the number of descriptive, technical words has noticeably decreased throughout the time period studied. Further, evocative words such as “modernize”, “freedom” and “America” have become more fashionable, while traditionally technical, legal words such as “amend” and “appropriation” have become less so. The data was analyzed using statistical techniques showing that many of the changes in short titles are highly significant. Accordingly, this article demonstrates that approaches applied to the naming of legislation have radically changed over the past four decades, and that the face of America’s Public Laws has undergone a major shift.Download the PDFThe Congressional Short Title (R)Evolution: Changing the Face of America’s Public LawsCitationBrian Christopher Jones, 101 Ky. L.J. Online 42 (2013), The Congressional Short Title (R)Evolution: Changing the Face of America’s Public Laws, http://www.kentuckylawjournal.org/jones-short-title-revolution/.Permanent Linkhttp://www.kentuckylawjournal.org/jones-short-title-revolution/
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Article | 101 KY. L. J. ONLINE 3 | Jan. 15, 2013
R. Brooks Herrick
The difference in state laws governing LLCs and the potential national, if not global, reach of LLC business can lead to choice-of-law nightmares. In the case of a judgment creditor holding a charging order on a membership interest in a foreign-registered LLC, Herrick argues that the laws of the forum should determine the proper remedy.
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R. Brooks Herrick, , 101 Ky. L.J. Online 33 (2013), How Do I Collect?: The Choice-of-Law Analysis for a Judgment Creditor Holding a Charging Order Against an LLC Membership Interest, http://www.kentuckylawjournal.org/herrick-how-do-i-collect/.
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Law Enforcement’s Unfettered Use of Video Technology Is Strangling the Fourth Amendment’s Right to Privacy
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Note | 101 KY. L. J. ONLINE 2 | Dec. 21, 2012
Jerad Blair
Have new technologies eviscerated individuals' privacy protections under the Fourth Amendment? Jerad Blair examines the implementation of body-worn video devices by law enforcement and its effect on individuals' privacy rights. View the PDF Click Here Citation Jerad Blair, Law Enforcement’s Unfettered Use of Video Technology Is Strangling the Fourth Amendment’s Right to Privacy, 101 Ky. L.J. Online 16 (2012), http://www.kentuckylawjournal.org/blair-bvd-note. Permanent Link http://www.kentuckylawjournal.org/blair-bvd-note
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Article | 100 KY. L. J. ONLINE 5 | Sept. 19, 2012
Jerrad Howard
The 2010 Supreme Court case American Needle, Inc. v. National Football League represents a drastic change in antitrust jurisprudence. Though the Supreme Court has ordinarily been very suspicious of cooperation among industry competitors, over the past several decades, joint ventures have operated in a special, protected arena. However, American Needle makes it apparent that the Court may begin viewing these arrangements with more skepticism going forward. This Article analyzes prior Supreme Court precedent related to joint ventures as well as the Supreme Court's opinion in American Needle. The Article concludes by discussing the scholarly response to this Supreme Court opinion and venturing a hypothesis of what this decision means for the future of antitrust jurisprudence.
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Jerrad Howard, American Needle: Has the Supreme Court Deflated Synergistic Gains in Joint Ventures Among Competitors?, 100 Ky. L.J. Online 67 (2012), http://www.kentuckylawjournal.org/online-originals-2/american-needle.
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