University of Louisville Law Faculty Blog

The Filing Game

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A key date on the Kentucky political calendar is a mere week away; January 29, 2008 (at 4.00 p.m. EST) marks the last opportunity for candidates to file for the state primary. The Kentucky General Assembly usually doesn't "get real" until after this date when the lawmakers know whether or not they will face a serious challenge. Also, as Kentucky politicians are usually apt wait to file until the last minute, even at this late date much is up in the air. For example, the two declared opponents to Sen. Mitch McConnell--Andrew Horne and Greg Fischer--have not yet filed, nor have Rep. John Yarmuth's declared and rumored opponents, Chris Thieneman and Anne Northrup. There is some strategy here; declaring but not filing allows potential candidates the opportunity to perhaps work out a deal that leaves them unopposed.

On the judicial front, Jefferson County's Supreme Court Justice Lisabeth Hughes Abramson already has one challenger, James M. "Jim" Shake, while Lexington's Justice Mary C. Noble is as yet unopposed. Jefereson County has one district court seat up for election, the 30th Judicial District, 16th Division, and three candidates have filed, David P. Bowles, Katie King, and Matthew H. Welch.

The Kentucky Secretary of State's elections website makes it easy to follow the filing game. A direct link to the filing page can be found at http://www.kentuckyregistrar.net/. Be sure to log in next Tuesday afternoon and watch the first act in the 2008 election year unfold.

UPDATE: The Kentucky Law Review blog has the final judicial races for Jefferson County here. 

Legal Writing Tip - Umbrella Sections

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Consider using an umbrella section when you are writing a brief that addresses multiple points.  An umbrella section is a short section at the start of the Argument.  It can provide a roadmap for the reader about the components of the rule that the writer will address or the points the writer will make.  An umbrella section helps the reader understand the points to be addressed and the structure of the brief because readers more easily follow short sections separated by white space.  Following the umbrella section with sections or sub-sections for each rule component or point can further enhance the reader's understanding.  For instance, Mark Herrman's sixth point for new associates is "use many headings and subheadings to break up your memorandum or brief.  Little pieces are easier to read."  Revisiting the Basics:  How to Write:  A Memorandum from a Curmudgeon, 44-SEP Advocate (Idaho) 28 (2001) (Westlaw subscription required to link). 

 

If you are interested in reading more about umbrella sections, a good source is Linda Edwards, Legal Writing: Process, Analysis and Organization, 287-90 (4th ed. 2006).  She has samples on page 289 & 387.  Other uses for umbrella sections include summarizing the argument, setting out the standard of review, or discussing components of the rule that the brief will not address.

Two Guides to the Kentucky General Assembly: With Apologies to Niccolò Machiavelli and ABC's Children's Programming Division

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In its 2008 Kentucky General Assembly Preview, the Courier-Journal has created a one-page visual guide to “How bills become law in Kentucky” <http://www.courier-journal.com/graphics/2008/legislature/bill.pdf > that evokes the 1970s School-House Rock classic, “I’m Just a Bill.” However laudable its effort to simplify, it omits some of the unique features and quirks of the Kentucky rules and thus conveys too much similarity to the rules of the national Congress. These rules give Kentucky politics color and allow old legislative hands to concoct byzantine legislative strategies that evoke reactions ranging curses of anger to sighs of admiration.


Here are a few areas where the arcane passes through profane on the way to profound:

 

CALENDAR. The 1891 Kentucky constitutional framers and succeeding amenders have worked hard to limit the damage done by roving bands of lawmakers by strictly limiting the time that the good townsfolk of Frankfort are subject to their reign of terror (typically embodied in cheap suits, bad cologne and even worse tipping). Even-year sessions (like this year’s) convene on the first Monday of January and meet for 60 legislative days and must complete their work by April 15. (Odd-year sessions have 30 legislative days and must be completed by March 30). A “legislative day” is a day that the legislative leadership has designated as a day of official business. Weekend days and holidays are typically not employed for this dirty work. The legislature creates a calendar that spreads the allotted legislative days out, usually reserving a few days at the end to deal with gubernatorial vetoes. The 2008 session calendar can be found on the General Assembly’s website.

 

MAJORITY RULES. A majority is not always a “majority” under the capitol dome. An ordinary bill passes by a simple majority of those voting (so long as that number exceeds 2/5ths of elected members). Ky. Const. § 46. The 2/5ths rule doesn’t come up much, but it is not irrelevant because the constitution sets a quorum as a majority of the numbers elected (a so-called absolute majority) Ky. Const. § 37. For example, the Senate elects 38 members, making the quorum 20. Suppose a bill appears to pass with a bare majority of 11-9 with the minimum constitution quorum of 20. The bill fails because it doesn’t reach the 2/5ths rule's margin, which is 16. (The constitutional minimum for the House is 41). Reaching a quorum isn’t usually a big deal but in the 19th century leaders were known to send men out to troll the bars for drunken lawmakers to make the quorum (and to bar the doors and windows to keep it).

 

MONEY BILLS. Since this is a budget year, it is important to note that the constitution provides different rules for money bills. A bill for “the appropriation of money or the creation of debt” (1) must originate in the House and (2) needs an absolute majority of all elected members Ky. Const. § 46. (Courts have ruled that provision does not apply to bills authorizing local entities to raise funds through fees or taxes because such funds generated do not enter the state treasury). Ordinarily, a budget is agreed to in the even-year session and runs two years, although in two recent sessions the legislature adjourned without passing a budget so following sessions had to clean up the mess. By a term of art it is “biennial budget” and typically each budget year is known as a “biennium.” Thus a typical statement might be “well, it the budget will pinch a bit in the first biennium, but as revenues increase in the second biennium ... [insert unrealistic expectation here].”

 

VETO/EFFECTIVE DATE OF LAWS. The governor has ten days (excepting Sundays) to consider each bill. He can sign it, veto it, or let it become law without his signature by doing nothing. The legislature can override a governor’s veto by absolute majority vote in both houses. However, since the number of days of a session is set by the constitution, the legislature must reserve at least one “veto day” in its calendar beyond this ten-day period or forfeit this right. (It usually sets two to be safe). Unlike the federal executive, the governor has a broad line-item veto power on the budget and can delete words, phrases and lines to trim fat or, occasionally, make mischief. Ky. Const. § 88. Laws are effective 90 days after the adjournment of the Kentucky General Assembly, unless the law is designated as emergency legislation (an act that needs an absolute majority of both houses). In that case, the law is effective upon the governor’s signature. Ky. Const. § 55.

 

GERMANENESS. One striking difference between federal and state legislation is that the Kentucky constitution specifically requires that all provisions of a bill “shall relate to [no] more than one subject, and that shall be expressed in the title.” Ky. Const. § 51. This means that the “omnibus legislation” common in the U.S. Congress is unknown. Kentucky appellate courts have been asked to determine the ontological question of whether the provisions of a law truly constitute one subject dozens of times but have only rarely struck down laws on these grounds. Thus the courts have upheld the blanket adoption of model laws on the same subject, Davidson v. American Freightways, Inc., 25 S.W.3d 94 (Ky. 2000) but they have decided that including a minumum wage provision for bartenders to an alcohol beverage contraol act goes too far, Lewis v. Captain's Quarters Inc, 655 S.W.2d 26 (Ky. Ct. App. 1983).

 

CONSTITUTIONAL AMENDMENTS. With the possibility of a constitutional amendment allowing casino gambling on the agenda, it’s worth noting that such a measure would require an affirmative vote of 2/3rds of all members in both houses to get on the ballot. Only four constitutional amendments can be offered to the voters at one time. The ratification by the voters must take place “at the next general election for members of the [Kentucky] House of Representatives." (This means even-year elections, so the gaming measure must be on the ballot this year or 2010 if Beshear wants to passed before the end of his first term). Amendments must relate to a single subject but can “modify as many articles and as many sections” as needed to “accomplish the objectives of the amendment.” Ky. Const. § 256. There is a strong legislative custom to limit such measures to only two per session, with each house originating one amendment. (Keep in mind that the limit is four on the ballot, not per session; two measures from both the even and odd years could add up to four constitutional amendments that voters have to read, digest and vote on—all usually in the morning (before coffee) or in the evening after a long day of work). A simple majority of Kentuckians passes the amendment; unlike some state charters, there is no rule that any number of counties must ratify the act.

 

FOLLOWING THE FUN. The two remaining major Kentucky newspapers (R.I.P. fair Kentucky Post) do a pretty good job of covering the “leg” (pronounced “ledge”). The Courier-Journal’s Legislature section on the web collects the excellent work of its Frankfort reporters (Stephenie Steitzer, Tom Loftus, and Joe Gerth) and its Politics in Kentucky blog adds additional content. Lexington Herald-Leader’s State Government page and its PolWatchers blog featuring Lex Herald scribes, Ryan Alessi, Jack Brammer and John Stamper regularly match, if not surpass, CJ coverage. (See also columnist Larry Dale Keeling's Kentucky Kurmudgeon) WHAS 11 Political Blog features the voice of Mark Hebert, one of the best political reporters in the state (latest scoop: Ann Northrup considering run against Cong. JohnYarmuth; best scoop: Governor Paul Patton's affair with state-regulated nursing home operator). Of course, no government-geek in Kentucky misses KET's Comment on Kentucky Friday night or Sunday at noon--unless they are TIVOing or plan to catch the Podcast on KET's website.

 

By the way, YouTube has a version of "I'm Just a Bill" here. Fair warning, it doesn't look like the copyright holder is the person posting it so it may be gone tomorrow.

Kentucky Legislative Update

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Last night I attended the Louisville Sierra Club's annual legislative update, presented by Tom Fitzgerald, an adjunct professor at our law school.

He provided a list of legislation that's too numerous to list here, but addressed topics pertaining to billboards, campaign refinance, animal cruelty, renewable resources, mandatory helmets for motorcyclists and more.

Of particular interest to environmentalists are:
HB 214 - AN ACT relating to tax incentives for alternative fuel sources;
HB 233 - AN ACT relating to plastic containers;
HB 299 - AN ACT relating to renewable-energy and energy-efficiency standards; and
SB 69 - AN ACT relating to the hazardous waste management fund and making an appropriation therefor.

For a copy of any bill, to check its status, or to track which committee it has been assigned to, visit the Kentucky Legislature's website and click on 2008 Regular Session. From their homepage, you can also connect to Bill Watch , a new alert service that will deliver updates on the pieces of legislation you select to your email address.

*Unfortunately, none of the environmental bills made it out of committee. (updated 4/17/08) 

Internal Dispute Resolution and "The Failure of Title VII"

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In their forthcoming article, Deborah L. Brake and Joanna L. Grossman detail how the assumptions that underlie the procedures for making a claim under Title VII do not coincide with how, according to social science research, people actually respond to discrimination.  The Failure of Title VII as a Rights-Claiming System, 86 N.C. L. Rev. (forthcoming 2008).

Their thesis is three-fold.  First, "The law's timely filing and reporting doctrines take as its worthy claimant a person who quickly and accurately perceives discrimination and responds by promptly challenging it."  Yet, most employees do not initially recognize discrimination or are deterred from filing complaints quickly by the social costs of complaining.  Second, "Employees who overcome these obstacles and manage to assert their rights are left without adequate protection from retaliation from doing so."

Third, "The increasing privatization of employment disputes - a recent trend noted by many scholars - adds to the severity and nature of the problems we identify."  In relation to this point, Brake and Grossman discuss how Title VII's timely filing requirement is not tolled pending internal dispute resolution.  Thus, employees who use internal dispute resolution systems may forfeit the right to pursue legal claims.  Additionally, the protection against retaliation for internal complaints is much less than that for formal complaints. 

Because the focus of the article is on the procedural rules by which an employee may claim discrimination, Brake and Grossman do not engage in any extended discussion of the pros and cons of internal dispute resolution systems.  But they do raise some important points for anyone, like me, considering the efficacy of using an administrative agency, in contrast to other forms of dispute resolution, such as internal dispute resolution.  For example, what period of time must a timely filing requirement permit in order to enable the average victim of discrimination to make a claim?  Should continuing violations be recognized?  Should any filing requirement be tolled while the employee pursues related internal dispute resolution?  Should complainants be required to complain only to designated officials?  Should anti-retaliation protections apply to complaints registered through internal dispute resolution proceedings?  If individuals are unlikely to recognize when they are discriminated against, how can a statute or agency foster the ability to complain on behalf of another?  What type of enforcement scheme might be available other than one that relies on individual enforcement?

Disclosure of Adverse Authority--A Comment on Professor Levinson's Post

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Professor Ariana Levinson has recently posted an excellent discussion on her blog about the benefits of disclosing adverse authority. Professor Levinson discusses the increased value of persuasion the argument has when it distinguishes adverse authority. I write to add that in the majority of jurisdictions, there is an ethical duty to disclose directly adverse authority from the controlling jurisdiction. Model Rule 3.3(a)(2), adopted by many jurisdictions, states: "(a) A lawyer shall not knowingly: ... (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." The thought is that the failure to disclose creates damage not just to the client, but to the judicial system. Either judicial resources are expended in doing research or, the court does not discover the adverse authority and renders a reversable opinion which confuses the law of the jurisdiction.

Kentucky, at the moment, does not require disclosure of adverse authority. The Board of Governors has recommended to the Kentucky Supreme Court that Kentucky go the way of the majority of jurisdictions and require disclosure. 

Legal Writing Tip - Adverse Authority

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I hope to post a legal writing tip, based on my basic legal skills class's discussion, each week this semester.  We are discussing persuasive writing, and in particular writing appellate briefs.

We began our discussion of writing briefs by talking about the ethical obligations involved.  One student, Mr. Scott Justice, asked how there can be an ethical obligation to disclose adverse authority.  He inquired why disclosing adverse authority doesn't amount to doing opposing counsel's job and a disservice to your client.  Indeed, sometimes it is tempting not to disclose an adverse authority and hope that the opposing attorney won't find it. 

But usually the better practice is to disclose an adverse authority.  By presenting the adverse case and framing it in the manner most favorable to the client, you shape the judge's view of the authority.  By distinguishing the case, you do your client a service by undermining an opposing argument.

Chances are, if the authority is truly adverse (one that opposing counsel almost certainly should raise), opposing counsel, a law clerk, or the judge will find the authority anyhow.  Even if they don't, you will live with a clear conscience.

"Aging of the National Labor Relations Board" and the Role of Administrative Agencies

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While thinking about administrative agencies and their potential detractions as dispute resolution systems, I read Wilma B. Liebman's essay, Decline and Disenchantment:  Reflections on the Aging of the National Labor Relations Board, 28 Berkeley J. Emp. & Lab. L. 569 (2007).  Liebman, the senior member of the National Labor Relations Board ("the Board"), discusses how, in addition to other factors, the unwillingness of the Board to think "dynamically" about promoting the policies underlying the National Labor Relations Act ("the Act") in light of the transformed modern economy has rendered the Board inadequate to protect employees' rights.  She states, "Whether labor is right or wrong about the Board makes little difference.  In this case, the perception of the law's failure is what matters. . . . Something has indeed gone wrong.  Somewhere along the way, New Deal optimism has yielded to raw deal cynicism about the law's ability to deliver on its promise.  The National Labor Relations Act, by virtually all measures, is in decline if not dead.  Nor, at least until recently, has there been any real prospect for labor law reform." 

Liebman suggests that, if the Board would change its approach, it could have a "modest but meaningful role" to play even in the changed economy.  She is encouraged by the recent public dialogue about the Employee Free Choice Act, and other labor issues, because she believes a public dialogue about labor law policy is imperative.  She details many restraints upon the Board's discretion to act "dynamically" and many ways in which the Board has not exercised the discretion it does have in a "dynamic" manner. 

While her essay is particular to the Board, it implicitly raises many questions about how to establish an effective administrative agency.  What remedies should an agency be enabled to provide to claimants?  Should a labor or employment agency be permitted to employ economic or other analysts?  How can agencies be mandated to equally balance the multiple purposes of any given act, rather than promoting one purpose over others?  How should an agency treat its precedent?  How can agency delay be circumscribed or avoided?  Does establishing a specialized agency contribute to judges, who must review the agency's decisions, failing to obtain education about the goals of the governing act?

Liebman concludes that, "When dictionary definitions matter more than economic or workplace realities, the Board abdicates its intended role as an expert administrative agency charged with making labor law and policy tailored to the complexities of a changing economy."  Indeed, administrative agencies are not lower courts.  To a greater extent than such courts, they should consider real-world consequences and whether those consequences will further the policies of the governing act.  (Similarly, arbitrators often consider the parties' relationship and the equities of the situation beyond the literal terms of the contract.)   Ultimately, the question is how to ensure that agencies do so.

"The Law of Termination" and Forums for Dispute Resolution

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To prepare to write an article discussing the debate about litigation, self-regulation, or arbitration as the appropriate forum for resolving employment disputes, I've recently read a series of new articles. 

Jeffrey M. Hirsch, The Law of Termination:  Doing More With Less is an interesting, counter-intuitive, and somewhat provocative article. 

Hirsch advocates replacing all state and federal laws governing termination with one federal law requiring that employees may not be terminated without just cause.  He proposes this as a pragmatic solution to the problem employers have of keeping abreast of and complying with the multitude of laws governing termination.

The details of the proposal include the following.  An employer would need to "provide reasonable notice to the employee [prior to termination] and allow time for the employee to rebut the reasoning or possibly remedy performance problems [that] may lead to termination."  The burden would then be on the employee to show that termination was not "actually motivated by a reasonable business justification."  A claim would be enforced in any court of competent jurisdiction, state or federal.  Hirsch is open to suggestions about the details because his aim is simply to foster a more pragmatic system that "better enforce[s] the goals of the current system of termination rules . . . ."

I have the following thoughts about the article and Hirsch's proposal. 

Hirsch extensively discusses and defends well his choice of enforcement by judges rather than arbitrators.  He, however, discusses labor and employment courts and administrative agencies more briefly.  It seems worthwhile to explore labor and employment courts more extensively even if they are not politically feasible because, as Hirsch recognizes, the proposed termination law is unlikely to be politically feasible anyhow.  Additionally, an administrative agency might provide some of the benefits of arbitration without its detractions.  I hope to write about administrative agencies as a forum for resolving employment disputes.  While extended discussion of these forums may be beyond the scope of Hirsh's article, I will rely on his limited discussion of them as one valuable starting point for my thoughts on the topic.

I also wonder whether terminations based on discrimination on the basis of invidious categories should be lumped in with a just cause standard.  The proposal to treat gender and race discrimination simply as one illegitimate business reason reaches the heart of the dispute over whether laws promoting race or gender neutrality can effectively eliminate discrimination against women and racial minorities.  Because of the systemic nature of these violations, don't we want to discourage and punish this type of unlawful termination even more than other types of terminations that are not for just cause?

Additionally, I hope that Hirsch will reconsider the burden of proof he proposes.  Perhaps placing the burden on the employer to prove the termination was actually motivated by a reasonable business justification makes more sense, even with the proposed notice requirement.  The employer typically has better access than the employee to the information that proves that the given reason was the actual reason for termination. 

I would also like to see more statistics or anectodal evidence supporting the argument that providing employees notice that they are not meeting expectations results in a situation where employees correct the inadequacies and remain employed.  I have lingering doubts that mandating notice instead simply provides employers an opportunity to discover and document some valid reason for terminating an unwanted employee.

Finally, more extensive discussion of the number of employers that employ people in multiple states, for which this proposal would simplify matters, might be helpful to add in support of the proposal.

Legal Injection Case Argued Today

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The latest Kentucky case in the Supreme Court spotlight, Baze v. Rees, will be argued today and the Court has decided to provide same-day (but not live) audio of the of the oral argument. This extraordinary treatment only happens on rarely and reflects high public interest in the case. Recently the Meredith v. Jefferson County Board of Education and Guantanamo Bay cases received this attention.

Supreme Court will release the audio recording of oral argument in the case, scheduled at 10 a.m. today, January 7, 2008, shortly after the conclusion of the argument. The audio recording “will be provided to the network pool, which will in turn provide an offsite, simultaneous feed to member news organizations.” My guess is that it will be available on the websites of 24/7 news channels CNN and MSNBC by this afternoon.

UPDATE: From SCOTUSBlog: The transcript of today’s argument in Baze v. Rees (07-5439) is now available here. I still haven't found an audio feed.