“Kentucky claims that writing an advice column that appears in a newspaper in the state — in the specific case of their complaint, the Lexington Herald-Leader, though it appears in others as well — is not an act of freedom of the press, but rather practicing psychology without the required license.” [Brian Doherty] “John Rosemond has been dispensing parenting advice in his newspaper column since 1976, making him one of the longest-running syndicated columnists in the country.” The Kentucky Board of Examiners of Psychology had its attention called to Rosemond by a local complaint about a column in which he advised parents about how to handle a sullen teen but did not recommend they seek professional help. The Board, along with the state’s attorney general, proceeded to demand that he submit to a cease-and-desist order on such matters as whether he can be bylined as a “psychologist”; Rosemond is licensed as such in his home state of North Carolina, but not in Kentucky. The Institute for Justice is defending Rosemond and has filed an action against the state. [AP]
Update from the Kentucky AG’s office: don’t blame us, we let our lawyers lend themselves out for state agency work and it was by inadvertence that our letterhead was used on what went to Rosemond. As Caleb Brown notes, this opens up new questions even if it answers some others.
The Colorado Supreme Court, wisely resisting a national campaign of school funding litigation, has turned down a lawsuit arguing that the state is obliged under its constitution to step up school spending. [Denver Post, KDVR, opinion in State v. Lobato]
I’ve got a post up at Cato at Liberty about the Colorado decision, noting that although school finance litigators make a lot of noise about educational quality, they are actually on a mission of “control —specifically, transferring control over spending from voters and their representatives to litigators whose loyalty is to a mix of ideologues and interest groups sharing a wish for higher spending.” I quote from a section on school finance litigation that I wound up cutting from my book Schools for Misrule about the enormous impact such suits have had in other states:
Vast sums have been redistributed as a result. Lawmakers in Kentucky enacted more than a billion dollars in tax hikes. New Jersey adopted its first income tax. Kansas lawmakers levied an additional $755 million in taxes after the state’s high court in peremptory fashion ordered them to double their spending on schools.
The results have been at best mixed: while some states to come under court order have improved their educational performance, many others have stagnated or fallen into new crisis. Colorado is fortunate not to join their ranks. (& reprint: Complete Colorado)
P.S. From a Colorado Springs Gazette report, Jul. 31, 2011:
“Putting more money into a broken system won’t get a better results. There are improvements that could be made without money,” says Deputy Attorney General Geoffrey Blue. …
He points to a Cato Institute study that showed spending on education across the country has skyrocketed but test scores didn’t improve.
“That would mean that potentially every cent of the state budget would be shifted over to K-12 education,” says Blue, who heads the office’s legal policy and government affairs.
An international brewing company that uses a red-and-orange “#9″ mark on one of its brands is suing Lexington, Ky. craft brewer West Sixth Brewing Co., which uses a black-and-green “6.” “If it was on a coaster, and the person across the table was colorblind and fairly stupid, I suppose there might be some initial confusion. … there might be a problem if somebody is holding their beer upside down.” [Lowering the Bar; Kentucky.com]
A Covington, Ky. man escaped jail time on a disorderly conduct charge after falsely yelling “bingo” in a room of bingo players. The arresting officer compared the offense to falsely yelling “fire” in a theater. [NKY.com, David Frum, Daily Beast ("You Can't Yell 'Bingo' Around a Bunch of Old People and Not Expect to Be Arrested")]
How to be gentlemanly in a cease-and-desist. [Mashable, Popehat]
A t-shirt company declined to print message shirts for the Lexington, Ky. gay rights organization, explaining that to do so would be contrary to its beliefs. The group proceeded to file a complaint with the Lexington Human Rights Commission, which says it intends to apply subpoena power and that the t-shirt printer faces fines under a city ordinance if found to have “discriminated.” [Eugene Volokh, Bruce MacQuain/QandO]
The College Sports Council has recent reports from New York City, where both boys’ and girls’ squads have been sidelined following a New York Civil Liberties Union (NYCLU) suit over fall vs. spring scheduling (related earlier here, here, and here), and Kentucky, where quotas have prevented formation of a boys’ team.
“In a new move against the online gambling industry, Gov. Steve Beshear’s administration is attempting to use an obscure state law to recover losses incurred by Kentuckians who placed bets through Web sites.” Three times the losses, in fact. [Stephanie Steitzer, Louisville Courier-Journal]
Those of you who have attended my “Law of McDonald’s” talks in California and Florida may recall the case of the strip search hoax. A Florida man who was unusually persuasive would call dozens of fast food restaurants until he could find someone who would believe he was with the police and who would disrobe employees (or themselves) at his instructions; though there have been other lawsuits seeking to blame the fast food restaurants for this, courts have generally thrown them out. One exception was the case of Ogborn v. McDonald’s, where two targets of the hoax successfully sued for millions. On Friday, the Kentucky Court of Appeals largely affirmed the lower court judgment, though it reduced the punitive damages received by Donna Summers (who gave an Alford guilty plea for her role in the strip search) from $1 million to $400,000. McDonald’s hasn’t yet decided whether to appeal to the Kentucky Supreme Court. (Andrew Wolfson, “Appeals court upholds $6.1 million strip-search verdict against McDonald’s”, Kentucky Courier-Journal, Nov. 20, via ABA Journal).
“U.S. Bankruptcy Judge Joan Lloyd ruled Friday that attorney Bruce Atherton and [financier] Randall Scott Waldman ‘blatantly breached’ their duty to the owner of a Louisville tool machinery company by forcing him out of business and seizing his assets. …Atherton was suspended from practicing law last month by the Kentucky Supreme Court based on his guilty plea in September in Pennsylvania federal court to charges that he aided a scheme in which other defendants allegedly ‘busted out’ small businesses by pretending to buy them, then draining their assets before the deals were completed.” [Louisville Courier-Journal via ABA Journal]
The story is from Kentucky, but it’s different from and evidently unrelated to the much-publicized episode in which three lawyers from that state arranged to divert large sums from the proceeds of a group settlement of fen-phen claims. Patricia Fulkerson of Nelson County sued the lawyer and law firm that had represented her in her fen-phen claim, saying that the lawyer sexually harassed her and that the law firm (quoting Andrew Wolfson in the Louisville Courier-Journal) “exaggerated her heart injuries — and those of other clients — so it could collect higher fees”:
A former paralegal in the firm, Fonda Walters, testified in a deposition that it exaggerated the injuries of a half-dozen clients, and that their initial test results, which had showed little or no heart damage, were altered. …Walters acknowledged she was fired from the firm in connection with a dispute over a bonus she claims she was owed.
The law firm’s defense raised (inter alia) an interesting argument:
Those lawyers also have argued that the alleged altering of Fulkerson’s medical records by the Florida-based firm of Wasserman Riley & Associates also doesn’t amount to negligence because “the claimed goal of the alleged malpractice was to get her more money.”
Apparently the judge rejected that argument, though. In a second Journal-Courier report dated June 22 — the same date as the above item, but presumably subsequent to it — Wolfson reports that Fulkerson’s lawsuit “has been successfully mediated and will be dismissed, lawyers for both sides said.” Speaking to the Broward-Palm Beach (Fla.) New Times, partner Jay Wasserman called the claims of diagnosis-embellishment “absolute nonsense”:
Wasserman also says there were only about six claims filed among the many prospective clients who received the complimentary tests. “If [falsifying results] was going on, why didn’t we have a much bigger number?” Wasserman asks, adding that since the reports were produced by experts and would be part of the case, it wouldn’t be possible to fake them, even if he wanted to.
More: Ronald Miller.
You may recall the earlier trial of the Kentucky fen-phen attorneys who had stolen tens of millions of dollars from their clients ended in a mistrial for two and an acquittal for their third compatriot. This time around, a federal court jury, after ten hours of deliberation, found William Gallion and Shirley Cunningham Jr. guilty of eight counts of fraud and one count of conspiracy. A streamlined prosecution case no doubt helped make a difference; defense attorneys sought to blame the matter on Stan Chesley, who negotiated the underlying settlement and received millions more than he was contracted to receive, and it remains mysterious why he was not charged. [Courier-Journal]
The state of Kentucky enacted a new sales tax on the services of telecommunications companies. It also forbade the companies from breaking the tax out as a line item on customer’s bills — that might get people mad at the legislators, after all. The Sixth Circuit, Sutton, J., ruled that under the intermediate level of First Amendment scrutiny applied to limitations on commercial speech, the “no-stating-the-tax” provision was unconstitutional. (BellSouth v. Farris, Sept. 9).