Ky Supreme Court v. Ky General Assembly: Who Makes Law in KY?

Remember in high school civics when you learned about “separation of powers?”  You know the drill:   The legislative branch makes the laws, the judiciary interprets the laws, and the executive branch enforces the laws.  Well, in the context of protective orders, it looks like the Kentucky Supreme Court may need to go back to school.

A little background might be useful here.  Protective orders are the legal remedy domestic violence victims use to access the court system and seek protection from their abusers.  The remedy was created by statute – KRS 403.715 et. seq.  In the very first part of the statute, Kentucky’s legislative body, the General Assembly, declared that the intent of the statute is to “[t]o allow persons who are victims of domestic violence and abuse to obtain effective, short-term protection against further violence and abuse in order that their lives will be as secure and as uninterrupted as possible . . . .”

The process of obtaining an order of protection, very simply put, goes something like this:  A victim goes to the courthouse, or intake center, or clerk’s office and completes a petition for an emergency protective order (EPO).  The petition is presented to a judge and, if it establishes the existence of domestic violence and abuse, the EPO is entered.  The order is then served on the batterer, along with a summons ordering the batterer’s appearance at a full hearing.  If, after the hearing, the court again finds the existence of domestic violence, a more permanent order, known as a domestic violence order (DVO), is entered.[1]

But what happens if the court, on reviewing the petition for an emergency order, does not find the existence of domestic violence or abuse?  Does she still get to go forward to a full hearing to try and convince the court of her need for protection?  In KRS 402.745(1), the General Assembly answered this question with an unequivocal yes:

If, upon review of the petition as provided for in KRS 403.735, the court determines that the allegations contained therein do no indicate the presence of an immediate and present danger of domestic violence and abuse, the court shall fix a date, time, and place for a hearing and shall cause a summons to be issued for the adverse party.

Protective orders are akin to civil lawsuits.  In a civil suit, say a trespass case, the process is initiated with the filing of a complaint.  In a trespass case, the complaint may be accompanied by an order seeking an emergency injunction preventing the defendant from entering onto the plaintiff’s property.  Even if the emergency order is not granted, the plaintiff still gets to go forward and prove that he is a victim of trespass.

The General Assembly thought the same should hold true for domestic violence victims.  If the petition for an EPO is denied, the petitioner still gets the opportunity to be heard by the court.  The court still must issue summons to the respondent and hold a hearing with both parties present before dismissing the case.  Like our trespass case, the suit does not end only because petition for emergency relief was not granted.

Makes sense?  To me it does and, apparently, it did to the General Assembly.  Not so much to the Kentucky Supreme Court.  Last year, the Kentucky Supreme Court adopted new rules of criminal and civil procedure, as well as new rules governing Family Courts.  In FCRPP 10 (Family Court Rules of Practice and Procedure), the Court stated, in relevant part:

FCRPP 10 shall read:  If an emergency protective order is not issued . . .for failure to state an act or threat of domestic violence between the parties, the finding of the . . . failure to state an act or threat of domestic violence shall be noted on the petition by the judge, and no summons shall be issued.

What’s a judge to do?  The Kentucky General Assembly has said a judge must issue a summons if the emergency order has been denied.  They made this very clear when they said a court “shall cause a summons to be issued to the adverse party.”  In legal speak, “shall” is a mandatory term that means the judge doesn’t have another option.  The Kentucky Supreme Court, however, says “no summons shall be issued.”  Again, the word shall means a judge doesn’t have a choice – under the rule, they can’t issue a summons.

Here’s where separation of powers problem occurs.  Both the Supreme Court and the General Assembly are legislating – that is, making law.  What the Supreme Court is ignoring is their high school civics lesson – only the state’s legislative body can make the law.  The Supreme Court only gets to interpret it.

The irony here comes in at the end of the process, regardless of what a family court judge chooses to do.[2]  Say a victim seeks an EPO, it’s denied, and a judge issues a summons, holds a hearing, finds domestic violence exists and enters a DVO.  The respondent appeals the DVO, saying, in part, no summons should have been issued pursuant to FCRPP 10.  The case goes first to the Court of Appeals, but for a final resolution, guess where it will end up?  That’s right, the Kentucky Supreme Court!  Are they going to follow the General Assembly’s pronouncement or their own rule?

Sadly, the bigger problem is not what will happen if a case ends up before the Kentucky Supreme Court.  The bigger problem is the countless victims who will essentially be kicked out of court all over the state by judges who choose to follow the erroneous rule of the Supreme Court.  We’ve all heard stories of judges who will do nearly anything to erect barriers to victims seeking protection.  The Kentucky Supreme Court has handed these judges a huge barrier to use at will.

[1] Obviously, this is the way the protective order process is supposed to work in a perfect world.  If anyone knows where that is, let us know; we want to relocate there.

[2] If I were a judge, I would follow the statute because the pronouncement of a legislative body trumps the statement of a Court that is exceeding its constitutional authority.  Incidentally, I aced high school civics.

Systematic Failure

What would the criminal justice court system look like as it pertains to domestic violence if it were designed today? Years ago, domestic violence wasn’t considered a crime. Beating your wife was like vandalizing your car. It’s stupid to mess up your own property, but not criminal. Now, people recognize domestic violence as the crime it is. However, the current system reflects the old way of thinking more than the new one.

Naturally, this leads one to wonder why the system hasn’t been revamped. Domestic violence is the single most complex crime, and as such, it deserves the attention of specialized court system. There needs to be a court specifically designed to handle domestic violence cases, so that everyone who works within this specialized system will be specialized. The lawyers, the judges, the court personnel — all of them should be specifically trained in domestic violence, so we can tackle this epidemic effectively.

A unique Domestic Violence court system is a feasible goal. But first, it needs to be thought of as a priority. And for inscrutable reasons, domestic violence doesn’t make the cut. Domestic violence is the most underreported crime (National Crime Statistics Report, 1993), and so the statistics that we have do not reflect the full magnitude of domestic violence. But even with this missing data, studies show every 9 seconds, a woman is battered (Family Violence Prevention Fund, 1994). Approximately 25 percent of women are victims of intimate partner violence during their lifetime.  According to the Federal Bureau of Investigation, in 2001, over 1,300 murders were committed by a spouse or intimate partners. These numbers equate to nearly four murders a day. Thirty-one percent of women report being physically or sexually abused by a husband or boyfriend at some point in their lives (Commonwealth Fund survey, 1998). In 1995, the cost of intimate partner rape, physical assault and stalking totaled $5.8 billion each year for direct medical and mental health care services and lost productivity from paid work and household chores. When updated to 2003 dollars, the cost is more than $8.3 billion (Centers for Disease Control and Prevention, National Center for Injury Prevention and Control. 2003).

These numbers are huge, and if you take into account the fact that many cases of domestic violence aren’t reported, then the numbers get even bigger. All these numbers should add up to change. All these numbers should tell people that something is wrong. And not only is it wrong, but it’s expensive — both in terms of lives and money. Domestic violence may occur “inside the home” but it is everybody’s problem. Every single one of us — male or female, child or adult, we all pay for domestic violence. And perhaps the most frightening fact of all is that domestic violence is a generational crime. This means that the above numbers will multiply as the generation witnessing or being targeted by the violence grows older.

Yet, everything is still more or less the same. Domestic violence is not decreasing in scale or incidence. One in five high-school girls are still being sexually or physically violated. Moms are still dying. Children are still growing up watching daddy hit mommy. Judges still send partners back out of the courthouse and tell them to forgive and forget, as if the victim can control the violence.

In fact, the victim has no control whatsoever; the offender uses violence as a means of wresting control from his victim. Domestic violence is a learned behavior. If a man beats a woman once, he will beat her twice. If you put him in jail for a short period of time, he will emerge with the angry belief that it was his wife or girlfriend’s fault that he was imprisoned, and he will seek revenge. Unless courts intervene right away, at the first instance of violence, the cycle will become nearly impossible to break. Courts must prescribe batterers’ intervention and other forms of offender treatment to first-time offenders. So-called Anger Management, which is often the go-to answer, is simply not an antidote to domestic violence. Men who are violent with their intimate partners manage their anger extremely well; after all, they only show their anger in the private sphere, behind closed doors. If a man learns that he can get away with abusing his girlfriend or his wife without suffering the same sort of consequences he might for beating a coworker, then he will keep doing it. Domestic violence is a learned behavior. Domestic violence follows a pattern. These two key attributes render domestic violence and domestic homicides the most predictable of crimes.

However, courts historically have refrained from looking at patterns. Instead, there is a long-standing precedent for courts only to pass judgments on specific, isolated incidents. This works for the majority of cases, but when it comes to domestic violence, this method falls flat. Again, this is because domestic violence is a pattern, and so a proper sentencing requires consideration of all evidence. Good judges will ask for the context of a crime and they will ask for all related incidents. Unfortunately, not all judges are good judges.

Let’s look at a case that unfolded right here in Louisville, Kentucky in 2008. William “Gerry” Seidl and Dorene Seidl had been married for 47 years. On August 25, 2008, Gerry shot and killed Dorene. Just five days before, Dorene Seidl appeared before Judge Joseph O’Reilly to ask for an order of protection. In the petition, Dorene claimed that her husband had previously put a gun to her head, and on a separate occasion had told her “I’m just going to kill myself and get it over with. Do you want to go with me?” She had just separated from her husband, and testified that she was afraid for her life as he had threatened to kill her if she left. (For all those who ask, “Why doesn’t she leave?” this is why: women who leave are 75% more likely to be attacked and killed.) The judge told her that it was a “he said, she said” case, and denied her the protective order. When she was murdered a few days later, Judge O’Reilly said his prayers were with the family, but he upheld his decision, saying that he did not find the burden of proof that violence occurred to issue a Domestic Violence Order.

He couldn’t find the burden of proof? Now, no judge wants someone in their court to wind up in the obituary pages, but it’s hard to believe that Judge O’Reilly couldn’t find any evidence of violence. Dorene gave sworn testimony at her court hearings. Sworn testimony is evidence. Additionally, after the murder, local papers came out with many illuminating pieces of information — information that Judge O’Reilly should have known. “She had two prior judicial findings of domestic violence,” said Marcia Roth of the Mary Byron Project.

“When an older woman has to become public and say that the man she’s been married to, in this case for 47 years, has been abusive, I would think that would cause someone to pay attention to what she’s saying,” Roth said. 

And it’s not like Judge O’Reilly didn’t know about any of this history. There was a paper trail he could have followed, and moreover, Dorene testified before him on August 20 and told him the history. During the hearing, Mrs. Seidl said that she had been granted a protective order from her husband in 1995 to 1996. In that 1995 petition, she stated to authorities that her husband didn’t want her to go to jury duty, got out a pistol, put in a clip and allegedly said, “I will kill you.”  She retold this story and many others to Judge O’Reilly. If you watch the recording of the hearing (which I have), then you’ll notice that Dorene and Gerry told the Judge a whole lot of stories. He seemed impatient with both of them and disinterested in what they had to say. Of course, he couldn’t have foreseen the murder, but if he had taken the two more seriously, perhaps he could’ve prevented it.

Why do I say this? Because of this: Judge O’Reilly asked both Gerry and Dorene for their final words before he made his ruling. Gerry blabbered about how much he loved his wife and how much he was looking forward to their 50th anniversary in three years. Dorene was more concise. She simply said, I’m going to divorce you. And that was it. Dorene avowed that she was going to leave for good. Her chance of critical injury jumped 75 percent. Her words coupled with the Judge’s denial of protection essentially sealed Dorene Seidl’s fate.

Since Judge O’Reilly denied Dorene the DVO, the EPO that was temporarily in effect automatically expired. The EPO had given the police the right to take away Gerry’s guns, but since the DVO was not granted, the Jefferson County Sheriff’s Office had to give Gerry Seidl his guns back. In a calculated move, Gerry gave the guns to his son-in-law and told him to let Dorene know that the guns were no longer in his possession. He then went out and bought a new gun for himself — a purchase he would not have been able to make if the judge had issued a domestic violence order.

 On August 25, Dorene went to the house she shared with her husband in order to pick up some belongings. She thought she’d be safe; to her knowledge, Gerry no longer had any guns and she even brought a relative along just in case. Little did she know that her husband, who repeatedly swore his love for her under oath, had gone out and purchased a gun specifically for her murder. Gerry Seidl shot and killed his wife of 47 years as soon as she walked into range of his gun.  

Clearly, judges are not perfect. They are fallible and vulnerable to prejudice just like every other human being. But unlike every other human being, judges are given godlike power to decide the fate of the people who appear before the court. Obviously there should be some oversight, but the truth is that the little oversight that exists doesn’t do a whole lot.

Every state has some sort of committee that oversees that retirement and removal of judges. However, it is unclear how exactly the committee is chosen and how exactly it works. There is very little transparency, and the public has virtually no ability to do anything about bad judges except vote them out of office. And as a previous post pointed out, most people are unaware of judges’ track records, and most people are likely to vote for the judge with name recognition —that is, the one already instated. And so, unless the public gets access to court records and takes advantage of reading them (which is unlikely), no one, except for those in the courtroom, really knows who the good judges are.

There is no oversight, except by the electorate. And that is why we, the people, must get involved.

Judges: For your information…

The last blog post discussed the importance of having good judges in the system. The two basic methods used in the selection of judges in the United States are election and appointment. Elective methods may be either partisan or nonpartisan. In partisan elections, the judicial candidate is nominated by a party and runs with a party identification. In nonpartisan elections, the judicial candidate is generally nominated in a nonpartisan primary and runs in the general election without a party label. Appointment methods used in other states differ on where the responsibility rests for the important decisions; they are made either by the governor, the legislature or a judicial nominating commission. The method which uses the judicial nominating commission is generally referred to as merit selection or the Missouri plan. Most states use a combination of elected and appointed systems.

The president makes all federal judicial appointments with the advice and consent of the Senate. Additionally, significant roles are played in the selection process by the senator of the president’s party from the state in which the vacancy exists, the Justice Department and the American Bar Association.

The debate on whether elections or appointments lead to the best judges on the bench is ongoing. There are pros and cons to both avenues of judicial selection. Either way, there may be corruption and unfair play. The appointment of federal judiciary abides by the idea that judges generally should be insulated from the election and campaign processes, for purposes of keeping them focused on the law and court cases. Yet some worry that the appointment and confirmation of judges by elected officials is not sufficiently democratic.

Then again, elected judges may be more susceptible to catering to campaign funders and special interests, which would create a conflict or interest in their rulings. Electing judges forces them to beg campaign cash from the very people who would appear before them in court. It forces voters to choose from clogged slates of unknown names. Without any legitimate reason, voters may choose their candidates based on factors such as ballot position, ethnic surnames and who bought the most TV ads. Judicial elections have become costly showdowns between corporate and union lobbies, with clueless voters in the crossfire. Politics has infiltrated the judicial campaigns, making them high-stakes races, drawing in big money and increasingly negative advertising.

Here’s how judicial selection breaks down by state:


  • Connecticut
  • Delaware
  • Hawaii
  • Massachusetts
  • Maine
  • New Hampshire
  • New Jersey
  • New York
  • Rhode Island
  • Vermont
  • South Carolina
  • Virginia

Merit Selection:

  • Alaska
  • Arizona
  • Colorado
  • Iowa
  • Indiana
  • Kansas
  • Maryland
  • Missouri
  • Nebraska
  • Oklahoma
  • South Dakota
  • Utah
  • Wyoming
  • California
  • Florida
  • Tennessee

Non-Partisan Election:

  • Georgia
  • Idaho
  • Kentucky
  • Louisiana
  • Michigan
  • Minnesota
  • Montana
  • North Dakota
  • Nevada
  • Ohio
  • Oregon
  • Washington
  • Wisconsin

Partisan Election:

  • Alabama
  • Arkansas
  • Illinois
  • Mississippi
  • North Carolina
  • New Mexico
  • Pennsylvania
  • Texas
  • West Virginia


Governor or Legislative Appointment: In 12 states, judges are appointed by the
governor or (in South Carolina and Virginia) the legislature. Gubernatorial appointments
usually require the consent of the upper house of the legislature or the participation of a special commission such as an executive council. In most of these states, judges serve a term (ranging from 6 to 14 years) and then may be reappointed in the same manner. In Massachusetts, New Hampshire, and Rhode Island, judges enjoy lifetime or near-lifetime tenure.

Merit Plan: In 16 states, judges are nominated by a nonpartisan commission, and then appointed by the governor. Judges serve a term and then are subject to a retention election, where they run alone, and voters can either approve another term or vote against them. Terms vary but on the whole are less than those in appointment states. A merit selection plan generally has three key elements: (1) a list of qualified candidates (usually three) developed by a nonpartisan judicial nominating commission made up of lawyers and non-lawyers; (2) appointment of the judge by the governor from the list developed by the nominating commission; (3) a short probation period for the judge followed by a retention election in which the judge has no opponent but must receive enough “yes” votes to be retained.

Nonpartisan Election: In 13 states, judges run for election. Their political
affiliations are not listed on the ballot, and so voters, unless specifically informed, do not know a candidate’s political party. These judges serve a term and then may run for
reelection. The terms range from 6 to 10 years.

Partisan Election: In 9 states, judges run for election as a member of a political
party. They serve a term in the range of 6 to 10 years for the most part and then may run for reelection.