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About two weeks ago, portions of four downtown streets, Main, Upper, Vine and Limestone were closed off in part because work on the CentrePoint development was set to begin. Here's how far they've gotten so far as of today, December 26, 2013:
This update is provided as a public service to those wondering just why the streets are closed off and what is or has been going on over in that pasture in the middle of our town.
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Franklin Circuit Court Judge Phillip Shepherd imposed Monday, December 23 a fine of $756,000 against the Cabinet for Health and Family Services for its continuing violations of the state Open Records Act and court orders. John Cheves reports in the Lexington Herald-Leader: Judge fines Kentucky cabinet $756,000 for making 'mockery' of state Open Records Act.
Robert L. Abell
www.RobertAbellLaw.com
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I can't say whether Angela Powell-Puckett had any genuine claim of discrimination, retaliation or harassment against her former employer, AK Steel Corporation. I do know that Powell-Puckett's deposition is a textbook example of how a plaintiff can throw away whatever case she had to begin with. Here's a brief excerpt from the Sixth Circuit's opinion drawn from Powell-Puckett's depositition in which she simply refuses to testify about her own case:
Q: Why do you believe Bill Belding discriminated against you? Tell the court why.
A: Becuase I was a replacement worker.
* * * * *
Q: Any other reason why you think he discriminated against you besides you were a replacement worker?
A: I don't recall at this time.
Q: Okay. Any other reasons why you think that Bill Belding discriminated against you?
A: Don't recall at this time.
Q: Okay. Any other reasons why you think that Bill Belding harassed you beause of your race?
A: Retaliation
* * * * *
Q: All right. Well, ... tell me how he harassed you because of your race.
A: I don't recall at this time.
Q: Okay. Tell me how he retaliated against you because of your race.
A: I don't recall at this time.
Q: Okay. Tell me why you think aybody in supervision at AK Steel discriminated against you because of your race.
A: I don't recall at this time.
Q: Tell me why you think anybody in management discriminated agains you becuase of your gender.
A: I don't recall.
Q: Okay. Tell me why you think anybody in AK Steel management rtaliated against you because of any protected activity you engaged in.
A: Don't recall.
* * * * *
Q: What proof do you have ... that the company fired you because of your filings with the EEOC?
A: That's just what I feel.
Q: Do you have any other reasons why you feel that way?
A: I have plenty of reasons.
Q: Well, now is the time to tell them.
A: Don't recall at this time.
These are all appropriate questions, except the one that asks what "proof" Powell-Puckett has to present, which is simply formed improperly. Plaintiffs must be advocates for themselves at their deposition; if they can't or won't their case will get thrown out of court just like this one.
The case is Powell-Puckett v. AK Steel Corporation, No 12-4424 (December 2, 2013).
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Does an American citizen have any constitutional protection protecting him or her against arbitrary arrest and jailing? Are these rights clearly established? You may think so but you are wrong according to the Sixth Circuit's very disturbing decision in Ortega v. United States Customs Enforcement, No. 12-6608 (December 10, 2013).
An American citizen had local law enforcement agents come to his home, arrest him, taken to jail and lock him up. The local police lock him up they said because a federal agent told them to. The federal agent explained that he did so even though all the information available to him that he reviewed indicated that there was no basis to arrest the American citizen. On the notion that the United States Constitution prohibits government agents from arresting and jailing our citizens on no grounds whatsoever, the citizen filed suit. The federal district court in Louisville threw the case out of court on the motion to dismiss, and the Sixth Circuit most "happily" affirmed.
The American citizen, Richard Ortega, pleaded guilty to DUI and received a not unusual sentence for this offense in Kentucky of 11 days home confinement, one which permitted him to go to work, the doctor and to church. A federal immigration agent, John Cloyd, determined that he had no information whatsoever to question Ortega's immigration status, noting specifically that both Ortega's name and birthdate were different than any illegal alien for which he had information. Nevertheless and even though all the information Cloyd had indicated that there was no basis whatsoever to do so, Cloyd had issued a detainer for Mr. Ortega. As a direct result of Cloyd's actions, two local officers, Lori Eppler and William Skaggs, went to Ortega's home, arrested him and put him in jail where he stayed for three days.
When he got out of jail, Ortega filed suit claiming that his arrest and jailing violated his constitutional rights to due process of law and that under the Fourth Amendment prohibiting the arbitrary arrest and jailing of American citizens. On a motion to dismiss, the federal district court in Louisville, Hon. John Heyburn, threw Ortega's case out of court, ruling that Cloyd, Eppler and Skaggs were entitled to qualified immunity.
The Sixth Circuit "happily" ruled against Mr. Ortega and affirmed the dismissal of his case. Even though Cloyd admitted that every piece of information he had available to him indicated that there was no basis whatsoever to arrest or detain Mr. Ortega, the Sixth Circuit, nevertheless and inexplicably, ruled that Cloyd had simply made a mistake. Further, the Sixth Circuit concluded that it was not clearly established under the United States Constitution that an American citizen was protected against arbitrary, unfounded arrest and jailing where there was no claim at all of there being any probable cause or grounds for the arrest or detention. And the court added that it "happily" reached this conclusion.
The Sixth Circuit's decision was not unanimous. Circuit Judge Jeffrey Sutton wrote the majority opinion and was joined by District Judge Timothy S. Black of Southern District of Ohio. Circuit Judge Damon Keith dissented, continuing his decades-long fidelity to constitutional protections for our citizens and observing as follows:
The majority's holding allows an officer to blatantly violate the Fourth, Fifth, and Fourteenth Amendment rights of an American citizen[.]
The Sixth Circuit's majority opinion is disappointing and disturbing for at least three reasons. First is its tone, which is gleeful. An American citizen was taken from his home by government agents and jailed and not even a pretense of a lawful reason for doing so was offered. Not only was no attempt at an explanation offered, the federal agent admitted readily that all the information he had and reviewed indicated that there was no basis whatsoever to or arrest or detain Mr. Ortega. And yet with unabashed glee the Sixth Circuit "happily" throws the case out of court.
The second is the court's conclusion that Mr. Ortega had been "mistakenly" arrested and jailed. If the federal agent had some information indicating that there were grounds to arrest Mr. Ortega even if that information was weak or inconclusive, it would be one thing. A mistake could be made legitimately if there had been at least some information to go on. But the federal agent, according to the court's opinion, admitted that all the information he had and reviewed indicated that there was no basis whatsoever to arrest or detain Mr. Ortega: the federal agent admitted that Mr. Ortega's birth date and name were different from any illegal alien for which he had information. There is no mistake made were all the information indicates one thing but is intentionally and deliberately disregarded. Mistake? As Judge Gilman of the Sixth Circuit once observed,"there is no way."
The third is that the Sixth Circuit in its glee to dispose of Ortega's case does not bother to rule that the United States Constitution does in fact provide protection against the very type of arbitrary arrest and jailing that Ortega suffered. The defense of qualified immunity can be asserted successfully where a government agent can claim plausibly that the constitutional right alleged to have been violated was not "clearly established" by judicial decision at the time. By gleefully refusing to rule that Mr. Ortega's constitutional rights were violated, even if not "clearly established" at the time by prior judicial decisions, the Sixth Circuit majority leaves the next American citizen arrested and jailed arbitrarily and wrongfully with no opportunity for relief. This simply provides sanction and shelter for the arbitrary arrest and jailing of American citizens in the future. And so it goes.
Robert L. Abell
www.RobertAbellLaw.com
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While the civil jury trial in federal court withers away headed for extinction as discussed in an earlier post, Sixth Circuit Oral Argument Docket: Whatever Happened To The Federal Civil Jury Trial?, a development that even as noted a commentor as Prof. Arthur Miller has lamented, Federal Civil Procedure and the Decline of Jury Trials, the Kentucky Supreme Court took pains recently to reaffirm the primacy of trial by jury in Kentucky's civil justice system in Shelton v. Kentucky Easter Seals Society, No 2011-SC-554 (November 21, 2013).
The opinion by Chief Justice John Minton reminded that Kentucky has not adopted the federal preference for summary judgments:
... with our ... rejection of the much more lenient federal [summary judgment] standard, we expressed our support for a policy that summary judgment is not to be used as a defense mechanism. Instead, summary judgment is to be cautiously employed for cases where there is no legitimate claim under the law and it would be impossible to assert one given the facts. Legitimate claims should be allowed to proceed to a jury. And we should not fear jury determinations. Admittedly, juries may be unpredictable; but relatively recent studies show that juries usually reached the same conclusion a judge would have reached had the judge decided the case as a matter of law.
And Chief Justice Minton went further declaring "that the role of the jury is held in high esteem and should not be limited except in clear circumstances" and quoted from one of the Kentucky Supreme Court's prior decisions, Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382 (Ky. 1995):
The more judges take cases away from juries, the more the concepts of reasonable conduct, negligence and gross negligence become synonymous with the view of the judge or judges on that court. Likewise, the more the interpretative power is delegated to juries, the more these concepts become the aggregate of discrete findings by juries. ... The role of the jury in interpreting the evidence and finding the ultimate facts is an American tradition so fundamental as to merit constitutional recognition. ... The conscience of the community speaks to the verdict of the jury, not the judge's view of the evidence. It may well be that deciding when to take a case away from the jury is a matter of degree, a line drawn in the sand, but this is all the more reason why the judiciary should be careful not to overstep the line.
As trial by jury disappears from the federal courts, these reminders from our Kentucky Supreme Court are nearly thrilling.
Robert L. Abell
www.RobertAbellLaw.com
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