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Legal Program

2008-2009 Legal Docket

Wednesday, March 25, 2009, 11:20 am

In the past year, the American Civil Liberties Union of Kentucky defended the constitutional rights of all citizens by fighting to protect:

Freedom of Speech and Assembly
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Vicsbingo.com v. Wingate
Kentucky Court of Appeals / Kentucky Supreme Court

    The Kentucky Court of Appeals recently overturned a decision by Judge Thomas Wingate that would have allowed state officials to seize 141 internet domain names because the websites constituted illegal “gambling devices” in the Commonwealth. We signed onto an Amicus brief with the Electronic Frontier Foundation and the Center for Democracy and Technology that detailed various arguments to the Court of Appeals about why Judge Wingate’s order represented an unconstitutional exercise of authority. Specifically, we argued that Judge Wingate’s order allowed state officials to ostensibly shut down all communications on those websites, including communications that are protected speech under the First Amendment.

    The Court of Appeals ultimately overturned Judge Wingate’s decision, but did so without reaching the constitutional questions. Rather, the Court of Appeals ruled that internet domain names do not constitute “gambling devices” under Kentucky law. Kentucky officials elected to appeal the decision, however, and we expect to file an amicus brief detailing our constitutional arguments to the Kentucky Supreme Court later this year.

McQueary v. Stumbo
United States District Court

    In 2006, the ACLU of Kentucky filed suit challenging restrictions on freedom of speech in a statute criminalizing protests at military funerals. The law sought to eliminate the protest activities of members of the Westboro Baptist Church whose members appear at military funerals to proclaim that God is punishing the United States for tolerating homosexuality.

    Our challenge focused upon those provisions in the law that specifically restricted speech on public property near funerals, wakes, memorial services and burials because the restrictions prohibited even non-disruptive, non-disorderly speech and visual displays. U.S. District Court Judge Karen Caldwell granted our request for a preliminary injunction effectively barring Kentucky’s enforcement of the challenged provisions on the basis that those portions of the law were overbroad and “restrict substantially more speech than necessary to prevent interference or disruption of funerals.”

    As a result of the Court’s preliminary injunction decision (and before the Court issued a final ruling in the case), the 2007 Ky. General Assembly amended the statute to eliminate those provisions we challenged. In 2008, the parties submitted briefs to the court addressing whether the legislative amendments effectively ended the litigation (rendered the case moot) or whether the state’s ability to reenact the challenged provisions require the court to issue a final ruling. We expect a ruling on this issue and whether the plaintiffs are “prevailing parties” later this year.

Freedom of Religion
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Gingerich, et al. v. Commonwealth
Commonwealth v. Menno Zook, et al.
Kentucky Court of Appeals / Graves Circuit Court

    These two cases contain the consolidated appeals of nine separate Amish men in Graves County, Kentucky from their criminal convictions for failing to display slow-moving emblems (fluorescent yellow-orange triangles) on their horse-drawn buggies. These particular defendants are members of the Swartzentruber Amish community, an ultra-conservative branch of the Old Order Amish. They maintain that the requirement of displaying a slow-moving vehicle emblem violates their sincerely held religious beliefs because it represents a worldly symbol that encroaches upon their adherence to the Biblical teaching to “shun” those things that are “of the world.” County officials refused to consider the Swartzentrubers’ proposed alternative safety measure ⎯ grey reflective tape outlining the rear perimeter of the buggies ⎯ despite evidence establishing that the reflective tape is equally effective, if not more so, at improving the buggies’ nighttime visibility.

    The ACLU of Kentucky represented several of the Amish at a jury trial conducted in November, 2008, and those cases are currently on appeal to the Graves Circuit Court. The remaining defendants were represented by Mr. Robin Irwin, a private counsel who donated his services, at a bench trial earlier in the year. Because of Mr. Irwin’s inability to continue the representation, those individuals are now represented by the ACLU of Kentucky in their pending appeal before the Kentucky Court of Appeals. The defense is based upon §§ 1 and 5 of the Kentucky Constitution, because we believe those provisions provide greater protection for Kentuckians to freely exercise their religion than does the First Amendment to the U.S. Constitution. At the November trial, we also argued that because only Amish individuals have been charged under this law in Graves County for the last two years (despite evidence that non-Amish individuals frequently violate the law), the targeted enforcement against the Amish constitutes selective enforcement of the law in violation of the Equal Protection Clause of the 14th Amendment.

ACLU of Kentucky, Walker and Howe v. McCreary Co., Kentucky
    ACLU of Kentucky, Lee and Durham v. Pulaski Co., Kentucky
United States District Court / Sixth Circuit Court of Appeals

    On August 4, 2008, United States District Court Judge Jennifer B. Coffman issued permanent injunctions prohibiting Pulaski and McCreary Counties from posting three separate Ten Commandments displays in their respective courthouses. This ruling represented the culmination of almost ten years of litigation over the Counties’ religiously-motivated attempts to post their Decalogue displays.
    In her opinion, Judge Coffman recapped the litigation history and noted that the Counties’ first displays, erected in 1999, consisted solely of framed copies of the Ten Commandments and were accompanied by overtly religious ceremonies. After the ACLU of Kentucky initiated litigation on behalf of several McCreary and Pulaski residents, the Counties supplemented their Decalogues with additional documents that “were largely religious in nature” in an attempt to avoid First Amendment liability. Judge Coffman agreed with the ACLU’s arguments regarding the Counties’ religious motivations and issued preliminary injunctions prohibiting both the first and second displays. In response, the Counties removed their second displays, appealed the preliminary injunction decision and then, after obtaining new counsel, dropped their appeals and erected the third displays - the Foundations of American Law and Government display.
    The Foundations of American Law and Government displays consisted of “historical documents” including American (and earlier Colonial and British) political and patriotic documents, and the Ten Commandments. Judge Coffman again granted a preliminary injunction barring these displays because the displays’ history showed that the Counties’ purpose in erecting them was predominantly religious in nature and thus in violation of the Establishment Clause. Although the Counties appealed the injunction barring the third displays, both the Sixth Circuit Court of Appeals and the United States Supreme Court upheld Judge Coffman’s decision.
    In her August 4 ruling, Judge Coffman noted that each of the Counties’ three displays violated the Establishment Clause because: (1) the Counties acted with a predominantly religious purpose in erecting them; and (2) the Counties failed to take sufficient action since the Supreme Court’s 2005 decision to “purge” the unlawful taint from their earlier conduct to justify the third displays.
    The Counties appealed Judge Coffman’s decision to the Sixth Circuit Court of Appeals where the parties have submitted their legal arguments to the Court. Oral arguments at the Sixth Circuit will likely occur this summer.

ACLU of Kentucky, Meredith and Harper v. Grayson Co., Kentucky
United States District Court / Sixth Circuit Court of Appeals

    This case is from our second set of challenges to Ten Commandments displays in county buildings. U.S. District Judge Joseph McKinley granted our request for a preliminary injunction in 2001 barring the display before the case was stayed (held in abeyance) pending the outcome of the Supreme Court decision in the McCreary and Pulaski cases. After the McCreary/Pulaski decision, the parties conducted discovery (i.e. factual development through witness depositions, etc.) and submitted their briefs to the court. On March 28, 2008, Judge McKinley agreed with us that the County erected its display for a predominantly religious reason and granted our request for a permanent injunction prohibiting the County from posting its display.

    The County appealed this decision, and both parties have now submitted their legal arguments to the Sixth Circuit Court of Appeals. We will be arguing this case before the Sixth Circuit on April 23, 2009.

University of the Cumberlands
Kentucky Supreme Court

    The Kentucky Supreme Court has agreed to hear this case in which several plaintiffs successfully sued Kentucky over its funding of a private, religious college for the construction of a pharmacy school building and the establishment of a scholarship fund. Judge Roger Crittenden ruled that the 10 million dollar appropriation to construct the pharmacy school building violated §§ 5 and 189 of the Kentucky Constitution because it represented a direct payment of public funds to a religious school for educational purposes. Judge Crittenden also found that the permanent scholarship fund violated § 51 of the Kentucky Constitution because the General Assembly did not reenact or publish at length various Kentucky laws amended by the provision.

    We will be filing an Amicus brief in conjunction with the Americans United for the Separation of Church and State supporting Judge Crittenden’s ruling by focusing on the historical underpinnings of §§ 5 and 189 of the Kentucky Constitution and the framers’ intent in adopting such provisions.

Hillview Police Department
Resolved without litigation

    The City of Hillview Mayor submitted a memo to city employees in 2005 along with donated bumper stickers entitled "Keep the Ten Commandments." The memo "requested" that city employees place the donated bumper stickers on all city-owned vehicles. As a result, marked police cruisers were adorned with these bumper stickers (which also direct the reader to a pair of websites that extol the virtues of the Ten Commandments as a religious symbol and emphasize the need to publicly display them as a means of support for the Christian faith). After receiving a complaint from a dedicated ACLU member, we submitted a demand letter to the Chief of the Hillview Police Department requesting that all such bumper stickers be removed from the department’s vehicles. On February 7, 2008, Chief Ray Wilburn agreed to our request and issued a directive requiring the removal of all such bumper stickers.

Military Entrance Processing Stations / Gideons
Resolved without litigation

    In 2007, we received an inquiry regarding the lawfulness of the military’s practice of allowing members of Gideons International access to the Military Entrance and Processing Station (MEPS) in Louisville for the purpose of distributing Bibles to new inductees. We initiated a Freedom of Information Act request that uncovered a fairly widespread practice of allowing Gideons access to MEPS facilities across the country. Based upon this information, the national ACLU Religious Freedom Project coordinated a joint effort between several state affiliates and successfully negotiated with the military to allow retired Colonel Mike Pheneger (Board Member, ACLU Florida) to observe these practices firsthand at various MEPS facilities.

    On November 6, 2008, the military adopted a new policy allowing equal access to all outside organizations to place (not personally distribute) literature in the MEPS facilities. Due to subsequent information tending to indicate that the Louisville MEPS may not be in compliance with the new regulation, we will continue to monitor the situation and will assess possible responses in coordination with the Religious Freedom Project.

Equal Protection
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Say v. Stumbo
United States District Court

    The ACLU of Kentucky, in conjunction with cooperating attorneys Jack B. Harrison, Ali Razzaghi and Patricia Foster, filed this lawsuit challenging on equal protection grounds Kentucky's prohibition on obtaining a Concealed Deadly Weapon Permit on the basis of alienage. U.S. District Judge Thomas B. Russell agreed with us that the law likely violated the 14th Amendment’s equal protection clause because it discriminated against lawful permanent residents (such as our client) on the basis of alienage without advancing a compelling governmental interest or being narrowly tailored to achieve that governmental interest. Judge Russell therefore granted our request for a preliminary injunction barring Kentucky from enforcing the citizenship requirement.

    In 2008, the Kentucky Legislature responded to Judge Russell’s decision by amending the Deadly Weapon Permit law to delete the citizenship requirement. On June 25, 2008, Judge Russell then entered the parties’ agreed order converting the preliminary injunction to a permanent injunction (thereby ensuring our status as a “prevailing party” in the litigation) and bringing a successful end to the merits of the litigation.

A.N.A., et al. v. Breckinridge Co. Bd. of Education, et al.
United States District Court

    This case is a direct challenge to the federal Dept. of Education’s 2006 regulations that expand the ability of public schools to segregate students on the basis of sex.

    Prior to 2006, the Dept. of Education’s regulations interpreted Title IX as strictly prohibiting the implementation of educational programs on the basis of gender (except in very limited circumstances). The Dept. of Education issued new regulations in 2006, however, that allow schools to operate single-sex classes if: (1) their implementation is based upon an “important objective”; (2) they are administered in an “evenhanded manner”; and (3) participation is completely voluntary.

    At Breckinridge County Middle School, school officials began implementing single-sex classes in 2003 but allowed parents to “opt-out” of the classes and instead have their children attend co-ed classes. At the beginning of the 2007-2008 school year, however, school officials implemented the single-sex classes without notifying parents or providing them an opportunity to "opt-out.” The parents initially retained private counsel and filed suit but subsequently discontinued their relationship with private counsel and sought ACLU assistance.

    In cooperation with the Women’s Rights Project, the ACLU of Kentucky assumed representation of the plaintiffs in April, 2008. The plaintiffs filed an Amended Complaint that added the Dept. of Education as a defendant and directly challenged the constitutionality of the 2006 regulations. The plaintiffs’ primary claims are: (1) that the Dept. of Education’s 2006 regulations are unconstitutional because they allow schools to segregate students on the basis of gender without showing an “exceedingly persuasive justification” as required by the Equal Protection clause, (2) even if the regulations are constitutional, Breckinridge County Middle School’s single-sex plan does not comply with the 2006 regulations because students are not afforded a “substantially equal coeducational alternative” to the single-sex classes, and (3) because Breckinridge Middle receives federal funding from other governmental agencies (e.g. Dept. of Agriculture, Dept. of Health and Human Services), it is bound to follow those agencies’ regulations prohibiting sex-based discrimination (those agencies’ regulations mirror the Dept. of Education’s pre-2006 regulations and thus prohibit single-sex classes).

    This case remains in a relatively preliminary stage after having litigated a number of threshold issues during 2008. We expect the litigation to continue to develop during 2009.

Reproductive Freedom
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Cochran v. Commonwealth
Kentucky Supreme Court

    In this criminal matter, the Commonwealth seeks to pursue criminal charges against a pregnant woman for creating a risk of injury to her fetus by ingesting illicit drugs. In cooperation with the national ACLU’s Reproductive Freedom Project, we submitted an Amicus brief to the Kentucky Supreme Court outlining the constitutional limitations on criminal prosecutions against pregnant women. Specifically, we argued that: 1) the Kentucky legislature never intended for Kentucky’s criminal laws to apply to the conduct of pregnant women (in relation to their unborn fetuses) and that recent court decisions that allow criminal prosecutions of 3rd parties for inflicting injuries upon pregnant women (that result in harm to their unborn viable fetuses) do not contradict this intent; 2) criminal prosecution of a pregnant woman in relation to her fetus unconstitutionally violates her right to privacy; and 3) application of Kentucky’s criminal statutes in this manner is unconstitutionally vague because it fails to provide pregnant women with fair notice of what conduct might subject them to criminal prosecution and because it grants virtually unfettered discretion to law enforcement to arbitrarily apply the law.

    The ACLU successfully argued these points to the Kentucky Supreme Court in an Amicus brief in 1993 and again to the Kentucky Court of Appeals in 2003. A more recent Kentucky Supreme Court decision has raised some question, however, about the proper application of Kentucky’s criminal laws to pregnant women and we seek to prevent the reversal of those prior favorable precedents. We expect a decision in the Cochran case later this year.

Death Penalty
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Wilson v. Rees
United States District Court

    In this case, the ACLU of Kentucky, the Louisville Metro Public Defender’s office and ACLU cooperating attorney Michael J. O’Hara are representing a Kentucky death row inmate, Mr. Gregory Wilson, in an 8th Amendment challenge to Kentucky’s lethal injection protocol. Specifically, the suit alleges that Kentucky’s three drug combination poses a substantial and unnecessary risk that inmates will suffer an excruciating death in violation of the 8th Amendment’s ban on cruel and unusual punishment.

    Specifically, Kentucky’s current execution protocol calls for the administration of three separate drugs: sodium thiopental, pancuronium bromide and potassium chloride. Sodium thiopental is a short acting barbituate designed to place the inmate in an anesthetized state. The second drug, pancuronium bromide, is a curare derived muscle paralytic that completely paralyzes the inmate’s body. This drug serves no purpose in the actual execution other than to render the inmate completely immobile thereby preventing any involuntary muscle convulsions, spasms or signs of distress. The third and final drug, potassium chloride, is a strong alkaline chemical that serves to interrupt the heart’s functioning thereby causing the inmate to go into cardiac arrest.

    The state’s failure to properly mix, administer or monitor the injection of sodium thiopental or the inmate’s state of consciousness places the inmate in a great deal of risk that the first drug’s effectiveness will lessen prior to the administration of the third drug. In that event, the inmate would attain a state of consciousness but be unable to communicate this fact because of the total muscle paralysis induced by the pancuronium bromide.

    An issue of whether Wilson’s claims can go forward or are barred by the applicable statute of limitations is currently pending with the Court.

Privacy/Due Process
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Hubbard v. Tradewater Point Rehabilitation Facility (Sex Offender Residency Restriction)
Administrative Hearing - Cabinet for Health & Family Services

    Paul Hubbard, Jr., a convicted sex-offender who suffers from advanced Multiple Sclerosis, moved into a Hopkins County nursing home in June, 2008. Mr. Hubbard is non-ambulatory, requires 24 hour care and suffers from diminished mental capacity due to his illness. In June, 2008, he obtained permission from the Ky. Dept. of Probation and Parole to move into the Hopkins County facility (as is required by law). According to the facility’s staff, Mr. Hubbard spent the next several months at the facility as an “ideal” patient.

    Near the end of 2008, local law enforcement evaluated sex offender registrants in Hopkins Co. for compliance with Kentucky’s 1000’ residency restriction requirement (registrants are prohibited from residing within 1000’ of schools, daycares, playgrounds, etc.). Law enforcement officials determined that Mr. Hubbard’s nursing home facility was within 1000’ of the local high school’s parking lot and therefore directed the nursing home to discharge Mr. Hubbard (this despite their acknowledging that Mr. Hubbard posed no threat to public safety). Accordingly, the nursing home initiated involuntary discharge/transfer proceedings against Mr. Hubbard and we undertook his representation in the administrative appeal of that decision.

    At the administrative hearing, we defended Mr. Hubbard on the grounds that the discharge/transfer decision violated his substantive due process rights in that it impermissibly infringed on his rights to receive adequate medical care and to establish a residence. Despite uncontroverted evidence establishing the facts set out above, Administrative Law Judge Andrew T. Smith rejected Mr. Hubbard’s argument and upheld the facility’s discharge petition. In consultation with the client and his family, we determined that further legal action was not warranted because although the client was involuntarily discharged, he was admitted into a facility with a higher overall rating within two blocks of the previous facility.

Juror Questionnaire Forms
Resolved without litigation

    Here, we learned that Graves Circuit Court Judge Timothy C. Stark issued juror summonses in connection with a pending capital case nearing trial. Included in the juror questionnaire forms were the following questions:

    - What is your religious affiliation?
    - If married, what is your spouse's religious affiliation?
    - How often do you attend church?
    - Do you or your spouse hold an office or position at your church?
          If so, please specify

    We submitted a letter to Judge Stark and the Administrative Office of the Courts outlining our concerns over the inclusion of those questions on the basis that the questions represented an impermissible invasion of jurors’ interest in the nondisclosure of private matters. We specifically noted that although such information might be appropriately compelled in rare circumstances where the information would touch upon the jurors’ ability to impartially decide a case, the routine inclusion of those questions (as appeared to be the case here) would impermissibly encroach upon the jurors’ privacy interest in the information and would erode the community’s confidence in the judicial system and the jury selection process. We also noted that the routine inclusion of these questions would invite litigants to improperly exercise peremptory challenges based upon religious affiliation in violation of the 14th Amendment’s Equal Protection clause.

    In response to our inquiry, we received an assurance from the Administrative Office of the Courts on April 1, 2008 that Judge Stark does not routinely include those questions in his juror questionnaire forms and that he would not use the specific form at issue in any future cases.

LGBT
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Pedreira v. Kentucky Baptist Homes for Children, Inc.
Sixth Circuit Court of Appeals

    In this case, the state-funded Ky. Baptist Homes for Children (now Sunrise Children’s Services) fired Alicia Pedreira for being a lesbian because that was inconsistent with the organization’s religious-based standards. In 2000, the national ACLU’s LGBT Project, the ACLU of Kentucky and Americans United for the Separation of Church and State filed a lawsuit on behalf of Ms. Pedreira and other Kentucky taxpayers seeking to challenge Kentucky’s funding of KBHC. Ms. Pedreira’s discrimination claims were dismissed on the basis that although religious-based discrimination is unlawful, the discrimination at issue here was based upon her sexual orientation and not her religious affiliation. After several years of continued litigation over the remaining Establishment clause claims, the District Court dismissed the case in March, 2008 on the basis that the plaintiffs did not have standing to challenge the legislative appropriations to KBHC because there was not a sufficient “nexus” between the appropriations and the allegedly unconstitutional actions.

    The Plaintiffs appealed to the Sixth Circuit Court of Appeals where Alex Luchenitser of Americans United argued on behalf of the plaintiffs on March 11, 2009. We expect a ruling from the Sixth Circuit later this year.
Morrison v. Boyd County Board of Education
Sixth Circuit Court of Appeals

    This case originated as one in which the ACLU represented some students who wished to form a Gay-Straight Alliance group at their school. Although the school initially denied the students’ request, the school agreed to allow the GSA after the ACLU sent a letter to the school's Site Based Decision Making Council in October, 2002. The Boyd Co. Board of Education overruled this decision, however, and rejected the students’ request to form a GSA. In response, the ACLU of Kentucky and the national ACLU’s Lesbian and Gay Rights Project initiated a lawsuit on behalf of the students.

    The Board of Education initially sought to circumvent our efforts on behalf of the students by "suspending" all student organizations throughout the school district. This tactic proved unsuccessful, however, and U.S. District Judge David Bunning granted our request for a preliminary injunction and ordered the GSA be recognized and afforded equal status with other student organizations. The parties eventually reached an agreement whereby the Board agreed to recognize the GSA, treat it as any other student organization and to implement a district-wide mandatory anti-harassment program for all middle and high school students, faculty and staff. Despite the ACLU's offer of assistance, the Boyd Co. Board of Education elected to develop the program without ACLU involvement or advice.

    The anti-harassment program developed by the Board ultimately resulted in a legal challenge by another Boyd County student, Timothy Morrison, who was represented by the Alliance Defense Fund. The plaintiff challenged the Board’s anti-harassment program on the basis that: (a) the training program violated the First Amendment by prohibiting students from expressing disagreement with, or criticisms of, homosexuality, and (b) the mandatory attendance requirement violated the right to freely exercise one’s religion because the program’s content contradicted his religious beliefs. We agreed with Morrison’s first argument (but not his second) and on that basis sought to intervene in the lawsuit. Judge Bunning refused to decide the constitutional free speech question, however, because the Board adopted a new anti-harassment policy that all parties agreed satisfied constitutional scrutiny.

    Morrison appealed Judge Bunning’s decision to avoid ruling on the constitutionality of the first training program and we agreed with Morrison that the Court should have reached that question. On that issue, the ACLU of Kentucky and that national ACLU’s LGBT Project participated in Morrison’s appeal to the Sixth Circuit Court of Appeals and in July, 2007, Sharon McGowan of the national ACLU’s LGBT Project argued the point at the Sixth Circuit.

    After initially obtaining a favorable opinion in a split 2-1 decision in October, 2007, one of the two majority judges abruptly reversed course and sided with the judge previously in the minority. This second opinion, issued in April 2008, held in favor of the Board and rejected Morrison’s claim that his request for nominal damages required the court to reach the constitutional question. The litigation recently came to a final conclusion in February, 2009 when the U.S. Supreme Court refused Morrison’s petition for cert. to review the second (and final) opinion from the Sixth Circuit.

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