... and Justice for All

Use of a Cass Gilbert Desk, $2764.18 and Three Lies; the Federal Indictment of West Virginia Supreme Court Justice Allen Loughry

A federal indictment unsealed today reveals that the career of West Virginia Supreme Court Justice Allen Loughry is in ashes and for the following, at least according to the Indictment: use of a Cass Gilbert desk (for about four years), $2764.18 and three lies. I got interested in this because news stories mentioned Cass Gilbert, who is the architect of one of my most favorite buildings in New York, the Woolworth Building, which I could see from my office in the old Legal Aid building, and the West Virginia Supreme Court, which some years ago caused our United States Supreme Court to rule that in some instances campaign contributions and expenditures for a judicial candidate can be so shockingly excessive that they're just too much to let slide, Caperton v. A.T. Massey Coal Company. 

First, the most interesting part: Cass Gilbert. Gilbert, as the indictment recites, was "a noted and nationally-known architect who designed many prominent buildings in the United States, including the United States Supreme Court building in Washington, DC, the Woolworth Building in New York City, and the State Capitol of West Virginia." Gilbert also designed the Chamber of the West Virginia Supreme Court and selected or approved furnishings for the Capitol including five desks used by the then members of the West Virginia Supreme Court, desks that became known as the "Cass Gilbert" desks; the Cass Gilbert "desks were well known by employees of the Supreme Court and were valued for their craftsmanship and historical significance." No doubt.

Allen Loughry was elected to the West Virginia Supreme Court in 2012. Some few years earlier he authored and published a book titled Don't Buy Another Vote, I Won't Pay for a Landslide: The Sordid and Continuing History of Political Corruption in West Virginia, which, according to the indictment, recites "a lengthy catalogue of crimes committed by West Virginia public officials, including judges and other elected officials." 

It appears that things began unraveling for Justice Loughry based on his use of some of the state fleet vehicles. "On August 25, 2016, one of the Justices of the Supreme Court wrote memoranda to the Administrative Director of the Supreme Court, asking very specific questions about instances when Loughry had reserved a Supreme Court vehicle in 2013-2016," the indictment recites. Loughry, who received the memo, responded with his own missive "questioning vehicle usage by other Justices" and asserting that his own use of state vehicles had been related strictly to court business. It appears that the Justices convened the following month, September 2016, to discuss a formal policy regarding vehicle usage but did not formulate or issue any policy.

The matter lay apparently fallow for about a year until Fall 2017 when "news media in Charleston, West Virginia began investigating and reporting about, extraordinary spending by the Supreme Court." These reports continued apparently for some time with a lot of snooping around, snooping that discovered a missing leather couch. The indictment recites:

    43. In the midst of the reporting about questionable spending by the Supreme Court, the news media reported on November 26, 2017, that a leather couch was missing from the Supreme Court's offices in the State Capitol. The next day, on November 27, 2017, defendant arranged for Supreme Court employees to remove a leather couch from his home in Charleston and return it to the Supreme Court.

    44. Three days after having the leather couch removed from his home and returned to a Supreme Court warehouse, defendant arranged for have Supreme Court employees return to his home to remove the Cass Gilbert desk that had been in his home for more than four years.

Prior to having the couch and Cass Gilbert desk returned, the indictment alleges that Justice Loughry took some proactive diversionary steps: he met on November 20, 2017, with "a Special Agent of the FBI, a representative of the United States Attorneys office for the Southern District of West Virginia, to report his own concerns about spending by other Justices of the Supreme Court and the former Administrative Director that he believed was unauthorized or otherwise inappropriate." And so, "following the meeting, the FBI in the United States attorneys office initiated a criminal investigation into the possible misuse of state funds by members of the Supreme Court to determine if any federal crimes had been committed and if so, by whom."

There are 22 counts in Loughry's indictment. Three regard fraudulent claims for mileage reimbursement in instances in which Loughry used a state vehicle, 14 regard instances in which Loughry allegedly used a state vehicle for personal business and two regard the payment made ($836) to a moving company by the state to move the Cass Gilbert desk from the Capitol building to Loughry's home. These claims come to a grand total of $2764.18. The remaining charges arise from alleged lies to the FBI and a witness tampering charge. 

I can't find a picture of a Cass Gilbert desk but here are some of his buildings:

 

Cass Gilbert buildings

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• 
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 The above are going clockwise: the Woolworth Building, New York; Minnesota State Capitol, St. Paul; Finney Chapel, Oberlin College; Detroit Public Library.

Robert L. Abell
www.RobertAbellLaw.com

 

 

What is Bourbon, Who was Colonel Taylor and Why is Kentucky Bourbon So Good?

I know little of the Lanham Act, which regards trademarks, but the 6th Circuit's opinion in Sazerac Brands LLC v. Peristyle LLC answers these questions: what is bourbon, who was Colonel Taylor and, perhaps most important of all, why is Kentucky bourbon so good?

Judge Jeffrey Sutton helpfully explains and answers these questions:

Colonel Edmund Haynes Taylor, Jr., “the most remarkable man to enter the whiskey industry during the post-Civil War years,” built the Old Taylor Distillery in 1887. Once the “most magnificent plant of its kind in Kentucky,” the distillery fell into disrepair after the Colonel’s death. ...

In the inimitable words of our late colleague Boyce Martin: “All bourbon is whiskey, but not all whiskey is bourbon.” Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., 679 F.3d 410, 414 (6th Cir. 2012). Bourbon must be made from a grain mixture that is at least 51% corn. 27 C.F.R. § 5.22(b)(1)(i). It must be distilled to no more than 160 proof, barreled at no more than 125 proof, and bottled at no less than 80 proof. Id. It must be aged in charred new oak barrels. Id. And it is a drink of place: It must come from Kentucky.

Generally speaking. As busy bodies from other States like to point out, bourbon need not come from Kentucky, just the United States. Id. § 5.22(l). Hence its moniker: America’s native spirit. But let Kentucky have its due. Over 95% of the world’s bourbon flows from an old Kentucky home. Bourbon Facts, Kentucky Distillers’ Association (2018), https://kybourbon.com/bourbon_culture-2/key_bourbon_facts/. A constellation of circumstances gives the Bluegrass State unique advantages in making bourbon: the local creative spirits, long lost to history, who innovated the brew; the State’s pure limestone waters, plentiful oak trees, and a grain-friendly climate, all needed to produce the drink; the too-many-to-count hollows in the eastern part of the State, all needed to sustain the continued production of the drink during Prohibition; and a rich and richly preserved history of bourbon making that stretches back to the late 18th century, all part of the experience of drinking bourbon today.

One part of that history involves the legacy of distiller Colonel Edmund Haynes Taylor, Jr. A jack of all trades, Colonel Taylor brought together marketing, finance, quality control, and lobbying capabilities under one roof, giving rise to the modern bourbon industry. See Reid Mitenbuler, Bourbon Empire: The Past and Future of America’s Whiskey 152 (2015). One historian has called Colonel Taylor “the most remarkable man to enter the whiskey industry during the post-Civil War years” and “a bridge between the old ways and the new.” Gerald Carson, The Social History of Bourbon: An Unhurried Account of Our Star-Spangled American Drink 87–88 (1963).

Taylor built the Old Taylor Distillery in 1887 in Woodford County, Kentucky. The distillery resembled a medieval limestone castle, surrounded by pergolas, pools, turrets, and gardens, earning distinction as the “most magnificent plant of its kind in Kentucky.” Mitenbuler, supra, at 151. But beauty and success gave way to decay, and the distillery eventually fell into financial ruin. It exchanged hands several times in the decades after the Colonel’s death and even served as a consolidation warehouse during Prohibition. Production ceased for good in 1972.

All of which is good and useful to know and quite a story.

 

Robert L. Abell
www.RobertAbellLaw.com

Does the Fourth Amendment Permit a Warrantless Search of a Vehicle Parked in the Driveway?

"No" the Supreme Court has answered in Collins v. Virginia. The case arises from an intersection of two prongs to the Fourth Amendment: (1) the protection offered a home and its immediate surroundings (called "curtilage") and, (2) the automobile (better called the motor vehicle) exception to the warrant requirement. 

Here's what happened. Police became suspicious that Ryan Collins had and was operating a stolen motorcycle. They set up surveillance of Collins'residence and saw parked there at the top of the driveway a motorcycle covered by a tarp. A police officer walked up the driveway, lifted up the tarp, recorded the license plate and VIN numbers, which were then used to confirm that the motorcycle was stolen. Collins was later arrested at the house, while standing in its front door, and charged with receiving stolen property.

Collins argued that the Fourth Amendment prohibited police from walking up the driveway of his residence and examining the motorcycle. The state, having nothing better to rely upon, argued that the vehicle exception to the Fourth Amendment applied and allowed the warrantless search.

The Court held that the vehicle "exception [to the Fourth Amendment] does not permit an officer without a warrant to enter a home or its curtilage in order to search the vehicle therein."

This seems an easy case and, indeed, the ruling commanded an 8-1 majority. Unsurprisingly, Justice Alito dissented and colorfully lambasted the majority:

An ordinary person of common sense would react to the Court's decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with the reality of everyday life. If that is the law, he exclaimed, "the law is a ass – a idiot." C. Dickens, Oliver Twist 277 (1867).

That is harsh and misdirected criticism since all the Court was doing was applying the very core of the Fourth Amendment's purpose:

• When it comes to the Fourth Amendment, the home is first among equals. Florida v. Jardines, 569 U.S. 1, 6 (2013).
  
  
• At the Amendment's very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Silverman v. United States, 365 U.S. 505, 511 (1961).
  
  
• To give full practical effect to that right, the court considers curtilage – "the area 'immediately surrounding and associated with the home -- to be part of the home itself for Fourth Amendment purposes. Oliver v. United States, 466 U.S. 170, 180 (1984).
  
  
• The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened. California v. Ciraolo, 476 U.S. 207, 212-13 (1986).

Justice Alito will likely go his entire tenure on the Supreme Court without ever voting for a criminal defendant; for some umpires with some batters it is a strike every time. According to him, government agents should be able to walk right onto your property and rummage around in your belongings. Wake up, Sam!

Robert L. Abell
www.RobertAbellLaw.com