"Friending" the NLRB: Applying Traditional Labor Rules to Social Media Cases

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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 Originally enacted during the New Deal era to protect the rights of employees to unionize,FN5 the NLRA is thus far being applied arbitrarily to social media cases in a way that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

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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).

Genetic Testing: Kentucky Should Recognize Parents' Right to Make Informed Decisions Regarding Pregnancy

Article | 101 KY. L. J. ONLINE 6 | Unknown 2013

Article Missing, Date unknown

Curiosity Kills the Cat: Prosecution of Juveniles within the Protected Class of Statutory Rape Provisions

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Article | 101 KY. L. J. ONLINE 5 | Mar. 5, 2013

Karema Eldahan^[1]

The Congressional Short Title (R)Evolution: Changing the Face of America’s Public Laws

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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/

How Do I Collect?: The Choice-of-Law Analysis for a Judgment Creditor Holding a Charging Order Against an LLC Membership Interest

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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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How Do I Collect?: The Choice-of-Law Analysis for a Judgment Creditor Holding a Charging Order Against an LLC Membership Interest

Citation

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

American Needle: Has the Supreme Court Deflated Synergistic Gains in Joint Ventures Among Competitors?

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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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Citation

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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http://www.kentuckylawjournal.org/online-originals-2/american-needle

The 2012 Amendments to Kentucky's Business Entity Statutes

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Article | 101 KY. L. J. ONLINE 1 | July 30, 2012

Thomas E. Rutledge

While the most significant alterations to Kentucky’s business entity laws enacted by the 2012 General Assembly were the adoption of the Kentucky Uniform Statutory Trust Act and the Kentucky Uniform Limited Cooperative Association Act, other changes were made to pre– existing statutes. Largely technical in nature, the amendments continue the effort in recent years to eliminate ambiguities and to provide consistent procedures. This article provides a thorough but concise overview of these latest changes to Kentucky's business entity laws. Topics  covered include:

• Changes to the limited liability provisions of KyRUPA and KyULPA

• Partial codification of the law of piercing the veil

• Newly permitted conversion of an LLC to an LLP

• Organic transactions with statutory trusts

• The definition of "transacting business" for a foreign LLP

• Consent to the jurisdiction of Kentucky Courts by directors, officers and managers

• The effective date of judicial dissolution

• Amendment filing requirements for limited partnerships

• Preservation of limited liability after dissolution

• Qualification to transact business for foreign entities seeking state contracts

• Dissociation of LLC members

• Elimination of the fairness defense for violations of the duty of loyalty in partnerships

• The mythological limited liability corporation

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The 2012 Amendments to Kentucky's Business Entity Statutes

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Thomas E. Rutledge, The 2012 Amendments to Kentucky's Business Entity Statutes, 101 Ky. L.J. Online 1 (2012), http://www.kentuckylawjournal.org/the-2012-amendments-to-kentuckys-business-entity-statutes.

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Constitutional v. Statutory Takings Protections: Is One Really Better Than the Other?

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Article | 100 KY. L. J. ONLINE 4 | June 16, 2012

Duane L. Ostler

A number of constitutional and statutory provisions constrain a “taking” at the state level in the United States. All states but one have specific takings protection language in their state bills or declarations of rights, modeled after the Fifth Amendment to the U.S. Constitution. Additionally, through the “incorporation doctrine” of the Fourteenth Amendment, federal takings protections of the Fifth Amendment are applied directly to state acts. Each state also has portions of its statute books devoted to eminent domain. Finally, the common law itself has been understood to provide basic takings protections, from the days of the Founding Fathers. The importance of these multiple levels of takings protections is rarely questioned. Federal and state constitutional and statutory takings protections are clearly assumed as the best way to deal with government appropriations of private property, with the emphasis on constitutional protections as construed by the courts.  These are considered the highest level of protections and trump any statutory or common law protections. And as regulatory takings have assumed prominence in modern times, constitutionally based takings law has become the tool to identify the existence and scope of such takings. But what if it were not so? What if there were no constitutional protections that applied to state takings at all? What if state legislation and the common law were all that protected private property owners faced with an expropriation? Would private property be any less secure? Would property owners fear for their rights? Would current approaches to regulatory takings be the same? In short, are the constitutional protections really necessary? Would the realm of regulatory takings be less difficult if the constitution were not the tool to identify them? This article addresses these questions. Rather than speculate about the consequences of having no constitutional takings protections, however, the article contrasts the constitutional takings protections in the United States with those in Australia, a similar country in which there are indeed no constitutional takings protections at the state level at all. Part One briefly traces the formation of constitutions in the United States and Australia, and examines why specific constitutional takings language was adopted in 49 of the 50 American states, but not in any of the Australian states. Part Two contrasts eminent domain legislation in both countries to see the extent of protections that private citizens enjoy, with particular emphasis on regulatory takings. As this part demonstrates, in a country without constitutional takings protections, physical and regulatory takings tend to be seen as legislative functions and more statutes tend to be enacted to cover such cases. Accordingly, protections still exist for such takings. Indeed, legislatures often prove surprisingly adept at addressing regulatory taking questions. This suggests that constitutional takings protections may be less essential than is often thought. However, constitutional takings protections still present an obvious benefit where statutes fail to provide an adequate remedy in a regulatory case. The question becomes one of balance between court-applied regulatory takings law and legislatively enacted regulatory takings laws. The increasing number of American state regulatory takings statutes suggests a shift in oversight of regulatory takings from the judiciary to the legislature. If this trend continues, constitutional takings protections may soon be seen primarily as a “backup,” to be used only where the legislature fails to adequately address a regulatory taking situation.

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Constitutional v. Statutory Takings Protections: Is One Really Better Than the Other?

Citation

Duane L. Ostler, Constitutional v. Statutory Takings Protections: Is One Really Better Than the Other?, 100 Ky. L.J. Online 45 (2012), http://kentuckylawjournal.org/online-originals-2/constitutional-v-statutory-takings.

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Open for Business in a Bad Economy: Improving Federal Assistance to Small Business

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Article | 100 KY. L. J. ONLINE 4 | Mar. 1, 2012

By Jim R. Moye

Recent news shows that small businesses may be rebounding after an increase in consumer demand:

A poll last month conducted by the University of Michigan revealed that 58 percent of small business CEOs expect the economy to improve this year, while just 5 percent expect further declines. That was the most favorable outlook for economic growth since 2004, based on prior results of the quarterly survey of more than 1,700 small business chief executives. The poll, sponsored by Visage International Inc., also showed for the first time in three years that a majority of small businesses — 54 percent — planned to add employees to handle increased sales.

Ted is an experienced, high-performing satellite salesman. Over the last ten years, he has sold satellite dishes to commercial and personal customers. After talking to a number of customers, distributors and others, he concluded he could distribute satellite dishes cheaper than the company he works for and expand into other areas of satellite development. Ted does not have a business plan, financial support, employees or even the least bit of knowledge on how to develop those requirements. All Ted knows is that he has an idea, backed by his ten years of experience in the business and a fundamental understanding of the satellite industry.Ted is like so many Americans attempting to live out the American dream by becoming a business owner. Since the economic collapse in 2008, however, the dream has become even harder to achieve. Most experts agree any economic recovery must start with small businesses, as they are the most likely to spur job growth. While the federal government expends billions of dollars each year on small business development and still billions more on federal contracting, small business growth is essentially stagnant. Need proof of this disconnect? Consider three different situations, which spurred massive government spending, and the impact they had on small businesses.First, to stave off a complete collapse of the American economy, the U.S. government passed various legislation, including the American Recovery and Reinvestment Act of 2009 (ARRA). ARRA allowed the Federal Government to spend over $787 billion to stabilize the American economy. Of that total sum, $274 billion of which was set aside for federal contracts, grants and loans. As of June 2011, $42,410,094,497 has been made specifically available for contracts. As part of this effort, the United States Small Business Administration was allocated $730 million to stabilize and attempt to stimulate small businesses. There is no evidence this $730 million allocation had a significant impact on small business growth and development during the crisis.Second, the United States has been involved in wars in Afghanistan and Iraq. Federal government total spending has exceeded $1 trillion dollars. From 2004 through 2006, the Federal Government spent $11 billion, $17 billion and $25 billion, respectively, on contracting in Afghanistan and Iraq. While large defense contractors grew exponentially behind these efforts, there is no evidence small business growth or development was impacted. In fact, the only discernible impact for small business was the training made available to war veterans who wanted to start their own businesses.Third, on August 29, 2005, Hurricane Katrina, considered one of the worst natural disasters in American history, made landfall in the Eastern Gulf of Mexico region. Hurricane Katrina, a Category 4 Storm, displaced thousands of people in Louisiana, Mississippi and Alabama and caused over $2 billion in damages. To assist in the reconstruction of the region, the Federal Emergency Management Agency (FEMA), part of the Department of Homeland Security, distributed over $33 billion by late 2007. FEMA awarded $8.8 billion in contracts related to hurricane damage, mostly for Katrina victims. Subsequent to Hurricane Katrina, to meet the emergent need, FEMA awarded four no-bid contracts, which eventually totaled $3 billion. In all the contracts awarded, again, small businesses were left out. In fact, a probe conducted by the Department of Homeland Security’s Inspector General noted that contracts were awarded to companies that were allegedly small and local, but there was no evidence these companies actually even met the criteria.While there have been billions of dollars spent by the federal government in the situations described above, small business growth and development has continued to lag. Many experts agree the only way the economy can rebound from the constant barrage of events over the last five years is to bolster the small business community, which in turn will create more jobs. With that in mind, and with so many federal government contracting opportunities available, the United States Small Business Administration’s (“SBA”) outreach and assistance to the small business community takes on new importance. There is a range of programs offered through the SBA to support small businesses, including certification, funding, mentoring and educational opportunities. The SBA opines there are 27.5 million small businesses in the United States. However, with the current state of the economy, and with so many contracting opportunities available, how much progress is being made with small businesses? How can the government stabilize this important sector of the business world, even as it looks to tighter budgets over the next few years?This Article explores what options are available to the Federal Government in its quest to improve the economy and create new jobs through the small businesses community. Part I examines the Small Business Act of 1953 , which laid the framework for the current, federal support meachanisms for small business. Part II analyzes the federal government’s most current major initiative to create jobs, which is the Small Business Jobs Act of 2010. Part III reviews the Federal Acquisition Regulation and the applicable regulations governing small business. Part IV makes legislative and policy recommendations to improve, and actually enhance, small business participation in federal contracting. This analysis concludes that the time is right, for the economy and the Federal Government, to provide greater support for small businesses. Further, this discussion concludes that with adjustments to law and policy, the SBA’s programs can actually reach those businesses that need help the most.

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Open for Business in a Bad Economy: Improving Federal Assistance to Small Business

Citation

Jim R. Moye, Open for Business in a Bad Economy: Improving Federal Assistance to Small Business, 100 Ky. L.J. Online 29 (2011), http://kentuckylawjournal.org/online-originals-2/open-for-business.

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http://kentuckylawjournal.org/online-originals-2/open-for-business

Chapman v. Regional Radiology Associates, PLLC: A Case Study in the Consequences of Resignation

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Article | 100 KY. L. J. ONLINE 2 | Jan. 17, 2012

Thomas E. Rutledge

The decision of the Kentucky Court of Appeals in Chapman v. Regional Radiology Associates, PLLC is a helpful, but still not complete, review of the implications of resigning from an LLC absent a binding agreement as to the consequences that will follow therefrom. Cyrus Chapman, a physician, was an employee of Regional Radiology Associates, PLLC, a Kentucky limited liability company (hereinafter “RRA”). At that time, Rosemary Shiben was the sole member and manager of RRA. After a year’s employment, there were discussions as to Chapman becoming a member of the LLC, but those discussions were never memorialized in a written operating agreement. While Chapman tendered $10,000 as his initial capital contribution, those funds were returned because the terms of the buy-in were still under discussion. Still, beginning on January 1, 2003, Chapman was treated as a member. His prior salary was reduced and recharacterized as a guaranteed payment and the tax reports stated him to be a 40% member. For the full years that Chapman was a member, he received his guaranteed payment as well as a distribution of 40% of company earnings. In January 2006, Chapman gave notice that he was leaving the practice, working only intermittently from that date through April 14, 2006, and thereafter entirely leaving RRA. Through April 14, Chapman continued to receive his guaranteed payment. He requested, coincident with his departure, an additional distribution from RRA based upon his status as a former member. No agreement was reached on that point. Eventually RRA filed a declaratory judgment action, in which Chapman counterclaimed seeking a determination as to the amount of net income and accounts receivable due to Chapman.

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Chapman v. Regional Radiology Associates, PLLC: A Case Study in the Consequences of Resignation

Citation

Thomas E. Rutledge, Chapman v. Regional Radiology Associates, PLLC: A Case Study in the Consequences of Resignation, 100 Ky. L.J. Online 15 (2011), http://kentuckylawjournal.org/online-originals-2/chapman-v-regional/.

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http://kentuckylawjournal.org/online-originals-2/chapman-v-regional/

The Legality of Assessing Court Costs Against Kentucky's Indigent Criminals

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Article | 100 KY. L. J. ONLINE 1 | Jan. 10, 2012

Hon. Craig Z. Clymer and Kristen Worak

The Department of Public Advocacy is responsible for providing legal representation to indigent persons charged with crimes in Kentucky. For years, statutes designed to provide adequate funding for the DPA through recoupment of attorney’s fees from indigent defendants have been in place. The Kentucky Supreme Court has, however, misinterpreted statutes designed to recoup DPA costs from its defendant clients. As explained in this article, the current statutes are designed for courts to require indigent defendants to repay all or a portion of their attorney fees, services, and court costs, but the Kentucky Supreme Court has negated the legislative intent by holding that these statutes instead prohibit courts from collecting funds. The legal result is that Kentucky courts are enforcing statutes in a manner directly opposite to legislative intent. The practical result is that indigent defendants are not receiving the legal representation to which they are entitled.

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The Legality of Assessing Court Costs Against Kentucky's Indigent Criminals

Citation

Hon. Craig Z. Clymer and Kristen Worak, The Legality of Assessing Court Costs Against Kentucky's Indigent Criminals, 100 Ky. L.J. Online 1 (2011), http://kentuckylawjournal.org/online-originals-2/indigent-court-costs/.

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http://kentuckylawjournal.org/online-originals-2/indigent-court-costs/

An Examination of the Charging Order Under Kentucky’s LLC and Partnership Acts

This Online Original is available for download (PDF) here (part 1) and here (part 2).

Article | 99 KY. L. J. ONLINE 5 | Nov. 3, 2011

Thomas E. Rutledge & Sarah Sloan Wilson

The rise of the LLC and the recent modernizations of partnership law have contributed to the greater use of charging orders. In addition, the recent economic downturn and the need to collect on judgments have prompted a flurry of interest in charging orders. Consequently, attorneys advising creditors or debtors, as well as the courts issuing and implementing charging orders, need to understand this chimerical remedy. Part I of this Article focuses on state-law issues incident to the charging order, while Part II is devoted to the charging order in other areas of law such as taxation, bankruptcy, and conflicts. In the first section of Part I, the authors state the law of charging orders generally. The second section discusses the reach of the charging order, including the rule of exclusivity and the existence of exemption laws. Finally, section three reviews the implications of the charging order procedure for the parties involved, as well as the company itself.

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An Examination of the Charging Order Under Kentucky’s LLC and Partnership Acts (pt. I) An Examination of the Charging Order Under Kentucky's LLC and Partnership Acts (pt. II)

Citation

Thomas E. Rutledge & Sarah Sloan Wilson, An Examination of the Charging Order Under Kentucky’s LLC and Partnership Acts (pt. I), 99 Ky.L.J. Online 85, http://kentuckylawjournal.org/online-originals-2/charging-orders/. Thomas E. Rutledge & Sarah Sloan Wilson, An Examination of the Charging Order Under Kentucky's LLC and Partnership Acts (pt. II), 99 Ky.L.J. Online 107, http://kentuckylawjournal.org/online-originals-2/charging-orders/.

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http://kentuckylawjournal.org/online-originals-2/charging-orders/

The Impending End of Jural Rights in Kentucky

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Article | 99 KY. L. J. ONLINE 4 | Nov. 3, 2011

Greg N. Stivers & Scott D. Laufenberg

The jural rights doctrine is a part of the lexicon of Kentucky jurisprudence that many lawyers have heard of but do not fully understand. More significantly, many may not appreciate the genesis of the doctrine, its impact on Kentucky law, and the effect its abolition would have on Kentucky law. Based upon the Supreme Court of Kentucky’s recent decision in Caneyville Volunteer Fire Department v. Green’s Motorcycle Salvage, Inc., in which a plurality of the court supported abandonment of the jural rights doctrine, the doctrine’s days appear to be numbered.

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The Impending End of Jural Rights in Kentucky

Citation

Greg N. Stivers & Scott D. Laufenberg, The Impending End of the Jural Rights Doctrine in Kentucky Jurisprudence, 99 Ky. L.J. Online 50 (2011), http://kentuckylawjournal.org/online-originals-2/end-of-jural-rights/.

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http://kentuckylawjournal.org/online-originals-2/end-of-jural-rights/

Adverse Domination: Tolling the Statute of Limitations in Kentucky Business Organizations

This Online Original is available for download (PDF) here (part 1) and here (part 2).

Article | 99 KY. L. J. ONLINE 3 | Oct. 27, 2011

Mary C. Garris

The doctrine of adverse domination provides that the statute of limitations within which a corporation may bring an action against wrongdoing directors is tolled while those wrongdoers are in control of the corporation. In Wilson v. Paine, a case of first impression, the Supreme Court of Kentucky held that the doctrine of adverse domination would apply to toll the two-year statute of limitations applicable to claims by a corporate plaintiff against directors to recover an impermissible dividend. After an examination of Wilson and a brief review of the rules governing corporate dividends, including the liability imposed upon directors for dividends improperly declared, this Article turns to other issues of corporate and business entity law to which the doctrine may be applied. Specifically, this Article analyzes the possibility of applying adverse domination to the statute of limitations applicable to distribution statutes for other entity forms, as well as applying the doctrine to toll general statutes of limitations. Finally, this Article addresses the use of the doctrine to hold third parties liable where their actions aided the concealment of the directors’ wrongdoing.

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Adverse Domination--Tolling the Statute of Limitations in Kentucky Business Organizations (pt. I)

Citation

Mary C. Garris, Adverse Domination—Tolling the Statute of Limitations in Kentucky Business Organizations (pt. I), 99 Ky.L.J. Online 36 (2011), http://kentuckylawjournal.org/online-originals-2/adverse-domination-pt1/

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Carbon Capture and Storage: Seven Unanswered Questions

This Online Original is available for download (PDF) here.

Article | 99 KY. L. J. ONLINE 2 | Oct. 14, 2011

by David S. Samford

The current level of uncertainty relating to the generation of electricity calls to mind the early struggles between Westinghouse’s alternating current and Thomas Edison’s direct current for industry dominance and the tumultuous conflict between Samuel Insull and the Roosevelt Administration over the 1935 passage of the Public Utility Holding Company Act. Not since the Three Mile Island incident has such a pall hung over as large a segment of the utility industry. Without question, the dominant energy policy question in Washington today is whether a price will be attached to the emission of carbon dioxide (“CO2”). While the policy considerations inherent in that question apply with equal force to both automobile tailpipes and industrial smokestacks, the power industry has been singled out for the greatest regulatory scrutiny. If a price is affixed to carbon emissions, the electric utility industry will be forced to adapt. A leading assumption is that electric utilities operating in a carbon constrained environment will either abandon the use of coal as a primary fuel in electricity generation or engage in a process known as carbon capture and storage (“CCS”), in which carbon emissions are captured as part of the electricity generation process, transported through a pipeline, and subsequently injected and stored within the voids (“pore space”) of large underground geologic formations. The prospect of CCS as a means to continue the widespread combustion of coal in an electric generation process raises a host of technical, financial, and legal issues. These issues have been the subject of frequent discussion both in Washington and in Frankfort for several years. As of yet, however, no prevailing consensus has emerged in either capital as to how CCS should be implemented in the event that CO2 emissions are regulated.

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Carbon Capture and Storage: Seven Unanswered Questions

Citation

David S. Samford, Carbon Capture and Storage—Seven Unanswered Questions, 99 Ky. L.J. Online 23 (2011), http://kentuckylawjournal.org/online-originals-2/carbon-capture/.

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http://kentuckylawjournal.org/online-originals-2/carbon-capture/

The Kentucky Condominium Act

This Online Original is available for download (PDF) here (part 1) and here (part 2).

Article | 99 KY. L. J. ONLINE 1 | Oct. 11, 2011

Scott W. Brinkman

This two-part article summarizes the Kentucky Condominium Act and highlights important aspects of the Act. The Kentucky Condominium Act, which was signed into law by Governor Beshear on April 8, 2010 and has an effective date of January 1, 2011, broadly re-writes Kentucky law governing the condominium form of ownership to create more certainty and clarity with respect to the rights, duties, and obligations of developers of condominiums, unit owners within condominiums, associations that own the common elements of a condominium, and the members and officers of the executive board of the association charged with the responsibility to enforce the rights and discharge the duties of the association. The Act strikes a balance between creating more clarity, transparency, and accountability among the various stakeholders in a condominium project without creating an overly burdensome legislative structure that results in the discouragement of this type of real property ownership.

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The Kentucky Condominium Act, Pt. 1

Citation

Scott W. Brinkman, The Kentucky Condominum Act (Pt. 1), 99 Ky.L.J. Online 1 (2011), http://kentuckylawjournal.org/online-originals-2/kentucky-condo-act-pt1/

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