The subpoena's in the mail

A fellow Kentucky lawyer called me at the office today. Apparently, he had seen my previous post about the recent changes made by the Kentucky Supreme Court to Rule 45 of the Kentucky Rules of Civil Procedure concerning subpoenas. There not being a lot of commentary in the blogosphere about the new rule changes, he had called me to discuss some of their ramifications.


The issues that this lawyer raised were two-fold: (1) under the new CR 45, can a subpoena be served by certified mail; and (2) if so, does the circuit clerk's office need to mail the subpoena, or can the lawyer's office mail it? I will digest here what he and I reasoned together the answers to those questions should be.

First, the new CR 45.03(1), which became effective April 1, 2009, states that "A subpoena may be served in any manner that a summons might be served." Previously, that sentence read, "A subpoena may be served by any officer by whom a summons might be served." That change represents more than a change of just a few small words. Under CR 4.01(1)(a), a summons may be served via registered mail or certified mail return receipt requested. The clear implication of this rule change is that a subpoena may also now be sent by certified mail to the recipient, and need not be personally served by an "officer," i.e., by the county sheriff. Especially for small law practices, this represents a huge cost savings when serving subpoenas out of your home county; the cost of mailing a certified letter with a green return receipt card is much less than the $40 now charged by the sheriffs. Permission under the new rules to mail subpoenas seems fairly straightforward.

The second issue is slightly more complex, but not by much. The new Rule 45 is not crystal clear on the issue from whom the subpoena delivered by certified mail must be sent. Standing alone, the new CR 45.03(1), which permits subpoenas to be served in the same manner as a summons, might seem to also include the procedural requirement found in CR 4.01(1) that the circuit clerk be the person to place the summons (or, in this case, a subpoena) in the mail. If that is the way the new rule is to be interpreted, then it completely vitiates the economy that the new CR 45.03 permits by allowing certified mail as the form of service and that CR 45.01(2) permits by allowing licensed Kentucky attorneys to "issue and sign a subpoena on behalf of the court." It is this commentator's humble opinion that CR 45.01 precludes this absurd interpretation of CR 45.03.

As amended effective April 1, the new CR 45.01(2) provides, "The clerk or other authorized deputy shall issue a subpoena signed but otherwise in blank, to a party requesting it, who shall fill it in before service. An attorney licensed to practice law in this state may also issue and sign a subpoena on behalf of the court." CR 45.01(2) thus distinguishes between issuing, signing, and filling in a subpoena. By default, a circuit clerk must issue and sign a subpoena, leaving it to the party to fill it in before service. The changes to Rule 45, however, now permit an attorney for a party to issue, sign, and fill in a subpoena.

It is a canon of interpretation applicable to both statutes and rules of court that the provisions of a statute or rule should be construed in such a way as to avoid any redundancy. In other words, legislatures and courts are presumed to have meant something by the words they chose to use. The key here is what is meant by "issuing" the subpoena. It cannot mean the same as the physical act of signing it, and it cannot mean the same as drafting the subpoena or filling it in. Thus, I believe the correct interpretation of what is meant by "issuing" a subpoena is placing it in the hands of the person who is to serve it, or in the case of a subpoena sent by certified mail, placing it in the hands of the U.S. Postal Service. This is the only interpretation of the new rule that completely makes sense and avoids any obvious redundancy.

At the end of our conversation, I think that my colleague and I had achieved an agreement among ourselves that this is the proper interpretation of the recent changes to Rule 45. (I will refrain from naming this lawyer, in the event that he and his client need to take a litigation position that differs from the interpretation to which we agreed. Of course, it would be my opinion that, if he did so, he would be wrong.) I welcome any other comments that fellow practitioners have on this subject. These rule changes are obviously very new, and it may be some time before any definitive case authority is handed down by Kentucky's appellate courts on the subject. A conversation among the members of the bar may be of some use in reaching consensus and navigating these new developments in Kentucky law.

Sixth Circuit slams Kentucky wine shipment laws

On Christmas Eve, the U.S. Court of Appeals for the Sixth Circuit handed an early Christmas gift to out-of-state small farm wineries who wish to ship their wines directly to Kentucky residents. The Sixth Circuit's opinion in Cherry Hill Vineyards, LLC v. Lilly is available here.

Affirming a summary judgment entered by U.S. District Judge Charles Simpson of Louisville, the Court of Appeals held that portions of KRS 243.155 and 244.165, which require a consumer to make an in-person purchase at the winery before the wine can be shipped directly to the consumer, violated the Commerce Clause of the U.S. Constitution because the statutes impermissibly discriminate, in effect, against interstate commerce. The original plaintiff, the Huber Winery in Starlight, Indiana, had been dismissed from the suit in the district court. Cherry Hill, a winery located in Oregon, then assumed prosecution of the litigation. The appeal from the district court to the Sixth Circuit was taken by a wine wholesalers' trade association after the state officials charged with enforcing the statutes at issue had declined to appeal the decision. Thus, prior to discussing the merits of the constitutional question, the Court of Appeals had to wade through a discussion of the appellants' standing to appeal the summary judgment.

McClatchy Newspapers has an interesting perspective on the decision of this case. Their report is available here. McClatchy notes that the Sixth Circuit's decision in this case conflicts with a decision on a similar issue by the Seventh Circuit, thus setting the stage for possible review by the Supreme Court.

(H/t How Appealing)

Dishonorable mention

Kentucky's Supreme Court has been bestowed the dishonor of being the featured entry in today's "This Week in Liberal Judicial Activism," a regular feature at Bench Memos. The reason? On September 24, 2002, "By a vote of 4 to 3, the Kentucky supreme court rules (in Commonwealth v. Wasson) that Kentucky’s statutory prohibition of homosexual sodomy, dating from 1860, violates a right of privacy and a guarantee of equal treatment implicit in Kentucky’s 1891 constitution."

To rehash an old debate at this site, the article's author helpfully explains what he means by "liberal judicial activism":

Let me offer a few points of explanation of what I mean by the term “liberal judicial activism”:

1. For rulings on questions of constitutional law, I will identify judicial decisions that wrongly override laws or policies that flow from the democratic processes and instead entrench, in the name of the Constitution, liberal policy preferences.

2. I intend to use the term “judicial passivism” for judicial decisions that make the opposite error—that fail to enforce constitutional guarantees. Because the two errors are often related—it’s no surprise that justices and judges who embrace the make-it-up-as-you-go-along approach to inventing rights that aren’t in the Constitution also will ignore rights that are in it—I may occasionally include instances of liberal judicial passivism.

3. For rulings on non-constitutional questions, I will identify judicial decisions that implausibly construe legal texts to reach liberal policy results.

4. I will not be not probing the subjective motivations of judges. To identify a decision as an instance of liberal judicial activism does not necessarily mean that I am alleging that the judges responsible for the decision have indulged, deliberately or otherwise, their own policy preferences, though I certainly believe that often to be the case. It might instead be that they misconceive the judicial role or that they simply err. In terms of the injury done to American citizens’ power of self-governance, the cause of the error is of little interest.

To me, this is a much more meaningful definition of "judicial activism" than the typical how-many-statutes-did-they-vote-to-strike-down or how-many-precedents-did-they-overturn analyses that are much more easily quantifiable. Any thoughts of your own? Do you think the more objective, quantifiable definition is better? If so, why?

Recent reversals in tort reform debate?

The Wall Street Journal Online edition has this editorial about the resurgence of anti-tort reform efforts in the states. The piece highlights the importance of the down-ticket races in the November elections. Here are a couple of key graphs:

As voters mull the stakes in this year's election, here's an issue that ought to ring alarms in the ears of serious people: tort reform. After 20 years of state and federal efforts to reform a runaway legal system, the trial bar is reviving the monster.

***

Plenty of legislatures remain wary of walking back down the highway of ruinous lawsuits, while many Governors say they'll veto this legislation. Still, the lawsuit industry is counting on discontent this fall to help flip a few more legislatures and governorships to pro-tort majorities, laying the groundwork for their proposals to become law. Tort reformers will have to push back.

Once is OK, but never again, Court says

A recent decision of the Court of Appeals of Kentucky has attracted national attention. The Court held that homosexuals cannot adopt their partners' children as if they were a stepparent. However, because the statute of limitations for challenging an adoption had expired, the Court let stand the adoption in this particular case. Judge Glenn E. Acree wrote the opinion for the Court, Judge James H. Lambert concurred, and Judge Michelle M. Keller concurred in result. The opinion in S.J.L.S. v. T.L.S., 2006-CA-001730-ME, 2008 WL 4181994 (Ky. App., Sept. 12, 2008) is available here.


The Louisville Courier-Journal reported:

In a harshly worded opinion, the Kentucky Court of Appeals has barred
judges from allowing lesbians to adopt as though they are a stepparent.

Ruling 3-0 in a Jefferson County case, the court said that stepparent
adoptions are allowed only when the stepmother or father is married to the
biological parent, and marriages between gays are forbidden by both statute and
Kentucky’s constitutional amendment banning same-sex marriage.

In a 62-page ruling issued Friday about the case, the court said that with
a “wink-wink” and a “nod-nod,” Family Court Judge Eleanore Garber and lawyers
for a lesbian couple ignored those laws . . .

The Alliance Defense Fund has coverage of the case here. Diana Skaggs at Kentucky's own Divorce Law Journal has coverage here and here. Michael Stevens at Kentucky Law Review posts on this case here.

Mark your calendar!

The Louisville Lawyers' Chapter of the Federalist Society for Law and Public Policy Studies will host a judicial forum for candidates for the Supreme Court of Kentucky on Wednesday, October 22, at noon at Vincenzo's Italian Restaurant in downtown Louisville.

Featured will be the incumbent, Justice Lisabeth Hughes Abramson, and her opponent, Jefferson Circuit Court Judge Jim Shake. The program will be moderated by UK College of Law Professor Paul Salamanca. This will be an excellent opportunity to hear both candidates speak, and to decide for yourself which is the better candidate for the Supreme Court.

More details and registraton information will follow.

New features

There are two new features to announce to you. First, you will notice the Election Projection widget near the top right corner of this webpage. The content there is downloaded automatically and updated daily by The Blogging Caesar to reflect the most up-to-date analysis of the projected 2008 Electoral College results. Considering we are only 70 or so days away from the election, I thought this may spark some interest.

Also, you will notice an updated Blogroll, also on the right side of this page. Rather than simply providing you with links to the various blogs, the new format allows you to see when each of those pages was last updated and the title of the most recent post there. Enjoy!

Supreme Court statistics

As mentioned in my previous post, SCOTUSblog is an invaluable resource for all things related to the Court. One of their best features is their StatPack, which they regularly update during and at the end of each Supreme Court term.

Their "End of Term 'Super StatPack'" is chock-full of interesting statistical tidbits. Like these:

• This term, the Justices with whom Chief Justice Roberts most often agrees are Justices Scalia and Alito (88% of the time). No one Justice agrees with any other Justice as frequently. The Chief agrees with Justice Kennedy (84%) more often than he does Justice Thomas (79%).
• The conservative Justice that the media and the Left seem to despise most, Justice Antonin Scalia, is in agreement with every other Justice on the Court at least 63% of the time (Breyer); he agrees with liberals Stevens and Souter 64% of the time, and with the liberal Justice Ginsburg 65% oth the time. If you disregard the unanimously decided cases, Justice Scalia still agrees with the liberal members of the court a majority of the time - with Breyer, 53% of the time; with Stevens and Souter, 55% of the time; and with Ginsburg, 56% of the time.
• The Chief Justice was the member of the Court most frequently in the majority in all cases decided this term (89.7% of the time). The Chief was also the member most often in the majority in non-unanimous cases (85.1%).
• The Supreme Court decided 30% of its cases unanimously, compared to 20% being decided by a 5-4 vote.

I was actually quite surprised to see the extent that the Justices actually agreed with each other. The dissents seem to make the most headlines, but seeing the amount of agreement in their opinions seems to give creedence to the reports of a high degree of collegiality among the members of the Court.

New SCOTUS case on punitive damages could have broad implications

For those of you who are interested in the workings of the appellate courts, and particularly the Supreme Court of the United States, if you are not reading the SCOTUSblog with regularity, then you are really missing out. I encourage you to add its RSS feed to your news aggregator as soon as you are able.

As it does every year during the last week of its session, the Supreme Court was busy last week handing down one monumental decision after another. One that was noticed, but still seemed to be overshadowed by other opinions, was the Court's opinion in the Exxon Valdez case, Exxon Shipping Co. v. Baker. SCOTUSblog featured a guest post that I thought merited some discussion.

First, about the decision itself: The part of the Exxon opinion by Justice Souter that seemed to get the most coverage in the press was the remittitur of punitive damages awarded against Exxon to $507.5 million. (The trial court jury had awarded $287 million in compensatory and $5 billion in punitive damages, with the District Court calculating that the "total relevant compensatory damages" were $507.5 million; the Ninth Circuit had later reduced the punitives award to $2.5 billion.) The Court explicitly adopted a 1:1 ratio as the "fair upper limit" of a punitive damages award in all maritime cases. Slip op., at 40.

The Court also had some interesting comments about its past punitive damages cases. This one I found most interesting:

In State Farm [Mut. Auto. Ins. Co. v. Campbell, 538 U. S. 408], we said that a single-digit maximum is appropriate in all but the most exceptional of cases, and "[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee." 538 U.S., at 425.

Applying this standard to the present case, we take for granted the District Court’s calculation of the total relevant compensatory damages at $507.5 million. See In re Exxon Valdez, 236 F. Supp. 2d 1043, 1063 (D. Alaska 2002). A punitive-to-compensatory ratio of 1:1 thus yields maximum punitive damages in that amount. (Slip op., at 42.)

The $2.5 billion punitives award sanctioned by the Ninth Circuit represented a roughly 5:1 ratio of punitives-to-compensatory damages in this case, still within a "single-digit maximum" under State Farm. But the Supreme Court slammed the door on even single-digit multipliers in maritime cases (unless, of course, that single digit is 1).

Before Exxon, the Supreme Court's punitive damages jurisprudence spoke in verbal terms about how punitive damages must be proportional to compensatory damages; now, seeming frustrated at the lower courts not getting the hint, it has explicitly capped punitive damages in all Federal question cases. The importance of this decision, and the projected impact it will have in both Federal and state punitive damages cases, is summarized by Richard Samp of the Washington Legal Foundation in his post:

First, there is little reason to believe that Justice Souter’s discussion of 1:1 ratios (of punitive damages to compensatory damages) is limited to maritime law cases. Rather, his opinion suggests that the ratio applies in any federal-question case in which Congress has not spoken to the issue of appropriate limits on punitive damages. * * *

Second, Souter very clearly was not indicating that a 1:1 ratio is the maximum permissible in all federal question cases. Rather, he limited himself to cases in which the defendant was not acting intentionally or maliciously (but merely recklessly) and was not acting “primarily by desire for gain.” * * *

Third, today’s decision will dramatically change the manner in which courts review punitive damages in a federal question case. In the past, many appeals courts have stated that the only limits on punitive damages awards are those imposed by State Farm and other due process cases, even when the cause of action was one arising under federal law. Hereafter, courts will also be required to review such awards to determine whether they are excessive under federal common law.

Fourth, by confining itself to a discussion of ratios, the Court avoided addressing an issue that repeatedly arises in punitive damages cases: what do you do when the actual damages are small but the defendant has acted in a particularly heinous manner (e.g., Judge Posner’s hotel which purposely did nothing about its known bedbug problem)? Conversely, what about the defendant whose not-particularly-blameworthy conduct caused massive damages; such a defendant gets scant protection from a 1:1 ratio, yet the compensatory damages award by itself is likely to have significant deterrent and punitive effects. * * *

Finally, today’s decision may cause some States to rethink their punitive damages jurisprudence. While recognizing that judges need to impose some limits on jury awards, state court generally have confined themselves to verbal formulations of those limits (e.g., does the award “shock the conscience”). Today’s decision may persuade at least some state courts that such formulations do little to eliminate unpredictability of awards and that they should act on their own to impose numerical limits.

What do you think the effect of this case will be on punitive damages in Kentucky? Will Kentucky's courts or the General Assembly "rethink their punitive damages jurisprudence"?

The jural rights doctrine that the Kentucky courts have created out of the "penumbras" of Sections 14, 54, and 241 of the Kentucky Constitution has heretofore kept the General Assembly from placing any sort of cap on punitive damages. But in light of the Supreme Court's opinions in State Farm and Exxon, it seems that a legislative cap - not a hard-dollar cap (usually $250,000) that has often been discussed by the legislators in Frankfort, but instead a multiple-of-compensatory damages cap - might pass constitutional muster.

If the Due Process Clause of the 14th Amendment to the U.S. Constitution, as interpreted by State Farm, requires that a singe-digit multiplier maximum "is appropriate in all but the most exceptional of cases" and that in the case of high compensatory awards, even a 1:1 ratio is an appropriate maximum, what could prevent the General Assembly from codifying this constitutional limit? The U.S. Constitution obviously trumps the Kentucky Constitution, so if the General Assembly was to codify these Federal constitutional holdings of the Supreme Court of the United States, I do not see how a Kentucky court could hold that the legislation violated the Kentucky Constitution. Thus, I wonder if the General Assembly could enact a law capping punitive damages in Kentucky at a 1:1 (or similar) ratio to compensatory damages?

The advocates of tort reform now have additional ammunition with which to reign in the proverbial "runaway jury." Will they realize it? If they do, will they act?

Louisville v. Duke in court, not on the court

It appears that the University of Louisville has sued Duke University for breaching a contract to play a four-game football series. Duke apparently backed out with three games left. Louisville has sued Duke for $450,000 ($150,000 for each of the three remaining games) because, under the contract, three dates with a "team of similar stature" could not be arranged.

The folks over at the Volokh Conspiracy have posted on this very topic. Much more interesting than the story, however, are the comments to the VC post.

Duke is 6-45 over the past five football seasons. So they are no good. But they play in the vaunted Atlantic Coast Conference, one of the toughest conferences for football in Division I-A (now known as the Football Bowl Subdivision or something). Thus, a win against Duke means much more for bowl selection purposes than a win over a similarly weak team from a less powerful conference, or against a Division I-AA opponent. So, Louisville went to court because it was unable to schedule three games against a similarly weak opponent from a similarly strong conference.

Any thoughts on which college might have a football "team of similar stature" to Duke?


UPDATE (6/29/08 2:02 p.m.): The Sports Law Blog has this coverage of Duke's victory in the Franklin Circuit Court.