Louisville Law Examiner Serving the University of Louisville School of Law Community
Volume 9, Number 4 Louisville, Kentucky, February, 1984 Circulation 5400 
Lawsuit Brings Changes
 To Women's Prison
By Tim Cocanougher 
A decision pending in the federal
courts, Canterino v. Wilson, 567 F.
Supp. 174 (W.D. Ky. 1982) is making 
Kentucky a frontrunner for women's
 rights in prison. The plaintiffs are a class
of women in the Kentucky Correctional 
Institution for Women (commonly
 referred to as Pewee Valley). Lead
counsel for the plaintiffs is Walker
 Smith of the Legal Aid Society in 
Louisville. Assisting her are David 
Friedman and Ann Marie Regan, also
with Legal Aid, and Les Abramson, a
 professor at the University of Louisville 
School of Law. After the original
complaint was filed, the U.S. 
Department of Justice intervened as 
plaintiff and the A.C.L.U. National 
Prison Project joined as well. One 
attorney for the United States is Karen
 Holt, a 1983 U of L Law School
 graduate and the A.C.L.U. attorney is
laudia Wright.
The defendants are four named
offi ials of the state's Corrections
Cabinet and one named official from the
tate education department. The
education department was brought in
because it was responsible for
educational and vocational training
which was a major issue .
The plaintiffs claim has a unique twist
which is causing many states to take
notice of this decision. The major issue
· is sex discrimination. Only one other
case, Glover v. Johnson, 478 F. Supp.
1075 (E.D. Mich. 1979), has brought a
women prisoners' rights claim
incorporating sex discrimination.
However, Glover only dealt with the
issue in a superficial manner; Canterino
has dissected the issue to reach its full
potential.
A little background is necessary to
understand the women's claim. Five
years ago, male prisoners at the
Kentucky State Reformatory and
Kentucky State Penitentiary brought an
action which alleged the Corrections
Department violated their Eighth
Amendment rights. This claim was
based largely on deplorable prison
conditions.
In April of 1980, a consent decree was
issued which forced these institutions to
improve conditions. The decree
provided for improvements in programs
such as classification, industries, and
recreation.
The women at Pewee Valley were
keeping close tabs on the ruling and were
encouraged by its outcome. In the
summer of 1980, they contacted
Abramson, who was the attorney for the
male prisoners. Abramson then elicited
the help of Smith at Legal Aid to be lead
counsel because his obligations
precluded him from devoting his full
time to the project.
On October 31, 1980, the complaint
Judge Alan Farber presiding
Pewee Valley inmates install plumbing and wiring in a makeshift bathroom as
part of training in Building Maintenance, one of the non-traditional courses
available as a result of their suit against the state's Corrections Cabinet.
was filed. For the next two years, the
plaintiffs gathered information in
support of their claims. This included
interviewing every woman incarcerated
at Pewee Valley (the Women's Law
Caucus from U of L assisted in the
interviewing process) and finding
experts to testify concerning the
women's rights.
(continued on page 7)
Sntall Clai01s Court Lets You ''Do It Yourself'
By Neil Ward
The plaintiff admitted the defendant
had been his girlfriend, but he insisted
the living room furniture he was suing to
get back had been purchased for his wife
and the defendant was only supposed to
keep it until Christmas, when the
plaintiff intended to surprise his wife
with it.
The defendant claimed the plaintiff
had bought her the furniture as a gift.
She had recently gotten back together
with her old boyfriend, who had just
been released from the penitentiary, and
now the plaintiff was mad and wanted
the furniture back for his wife.
The only evidence presented was a bill
of sale for the furniture by the plaintiff
and one witness by the defendant, who
under oath decided she didn't know who
owned the furniture.
The case was one of almost a hundred
a week that Judge Alan Farber hears as
presiding judge in the Jefferson County
Small Claims Court. Farber, who
graduated from the U of L School of
Law in I969, has been a judge since I980
and is currently serving his rotation time
in the small claims division of district
court.
"With the exception of juvenile and
probate court, all district court judges
serve four months in small claims
court," Farber said. "Some judges
don't care for it, but I enjoy small claims
court. It's different than other courts. In
regular district court, the facts are laid
out by the attorneys and the judge just
applies the law. In small claims court, a
judge often has to ferret out the facts.
I've found small claims court often
forces a judge to make more Solomon­like
decisions than he would normally
make."
Attorneys can represent a party in
small claims court. But when they do,
Farber said it often results in a "quasi­disaster".
"I think the intent of the Legislature
in establishing small claims court was to
have an informal proceeding where
minor claims could be resolved without
attorneys," Farber said.
Because the court is informal and
designed for lay . people to represent
themselves, judges will normally listen
to hearsay and otherwise improper
evidence in trying to work out an
equitable solution without undue delay
and complications.
But since the small claims division is a
court of law, the rules of evidence do
apply. And if a party makes a proper
objection, the judge is bound to sustain
it.
"A lay person doesn't know when to
object and if an attorney is killing the
other party with his knowledge of the
law, I try to be as fair to the lay party as
I can," Farber said.
When attorneys become involved or if
the issues are too complex, the judge has
discretion to transfer the case to the
regular civil division of district court.
Getting your case into small claims
court is a simple procedure. The
plaintiff goes to the clerk's office of the
small claims court and files a complaint,
which consists of the plaintiff's and
defendant's names and addresses, a
simple statement of the cause of action
and the damag~::s sought.
The filing fee in Jefferson County (the
fees connected with small claims court
very from county to county) is $18.00,
which includes the cost of serving the
summons by mail.
"The plaintiff has to provide the
defendant's correct address in order to
serve the process by mail," said Zigne
Blair, a judicial clerk for over five years
in small claims court. "If the defendant
is a corporation, the plaintiff can call
Frankfort and get the address of the
service of process agent from the
Secretary of State and we'll mail the
summons to the agent," Blair said. "If
the summons can't be served by mail, it
costs an additional $10 to get the sheriff
to serve it."
The advantages of small claims court
in resolving minor disputes is readily
apparent when you compare the $18.00
filing fee with a fee of over a $100 to file
in circuit court.
Once the complaint is filed, the
defendant must have 20 days notice
before the court date. So in order to
comply with the notice period and also
because of the court docket, it normally
(continued on page 3)
..
Page2 Louis,·illl' l.a\\ Examinl•r. Fehruar~· , 1984
~----------------------------------------------------------~ Louisville Law Examiner
EDITORIAL BOARD
Judy Hoge
Editor-in-Chief
Neil Ward
Associate Editor
Crystal Collins
Associate Editor
Photography Editor
Tim Cocanougher
Yolanda French
John Schaaf
Managing Editor
Jon Hardy
Brandeis Brief Editor
Winnie McConnell
Night Associate Editor
STAFF
Todd Hollenbach
Mike Schafer
David Taylor
Joel D. Zakem
Professor LAURENCE W. KNOWLES, Consultant
The Louisville Law Examiner is published six times during the academic
y~ar in the interest of the University of Louisville School of Law community.
Articles are invited from faculty members, students, and members of the bar
who wish to do freelance work. Any proposed article should be cleared with
the Editor as to topic and length.
Address all communications to The Louisville Law Examiner, School of
Law, University of Louisville, Louisville, Kentucky 40292.
Phone: 502-588-6398.
U of L Profs Write Legal
Guidebook for Athletes
Editor's Note: Law for Asphalt Athletes
(A Legal Guide for Hikers, Runna5 and
Bicyclists), was written hy University (~f
Louisville Law School Professors
Ronald W. Eades and Laurence W.
Knowles. Both are avid runners. Third­year
student Marc Mwphy, an ardent
walker, provided the book's illustra­tions.
By Laurence W. Knowles
With the advent of running and
bicycling for fun (and the public display
of "healthiness") a whole new traffic
phenomenon has been created. The
roads are full of all sorts of travelers
going all sorts of speeds by all sorts of
means. Do the newcomers to the roads,
the bicyclists and joggers, know the
traditional rules? Do the inhabitants of
the roads, the drivers, know the
prerogatives of the newcomers?
One of the characteristics of traffic
laws is that they, many times, cannot be
intuited. Natural reason or native
intelligence won't get a person very far
in figuring out traffic laws. In torts a
person can anticipate he should not
injure people; in contracts a person can
ethically expect that he will be held to his
word; and in criminal law, stealing and
murder can reasonably be foreseen to be
punishable conduct. Can a person
morally anticipate that he sho uld drive
on the right hand side of the road? (How
would the English feel?) Or who has the
right-of-way at intersections? Indeed, in
Mexico, in · approaching a narr:Q'
bridge, the first car to flash its lights has
the right of way!
The second unique thing about traffic
laws is that they deal with a not so
uniquely human factor, "the territorial
imperative." Made popular years ago by
Robert Ardrey's anthropological best
seller of the same name, the "territorial
imperative" theory is that people, like
animals, have an instinct for making
space their exclusive domain. They are
very jealous of their turf. When we
recognize that streets and roadways are
occupied by all sorts of travelers, cars,
bicycles, and pedestrians, competing for
the same space, or its variant, the right ­of-
way, the parallel becomes clear.
Indeed his right of way seems to be the
American motorist's most guarded
possession .
Becoming more specific, what one of
us has not enjoyed the feelings of
outrage when someone butts into a line
ahead of us? Our space has been
snatched from us. And the indignation
and annoyance felt are monstrously
disproportionate to the actual
inconvenience of one more person in line
ahead of us. And who of us has not
deliberately accelerated his car to
prevent some presumptious interloper
from gaining a place in traffic? While
the same interloper, had he
acknowledged our prerogative and
showed it, would have been graciously
admitted to our traffic line. In short,
people want their prerogatives
recognized, and the recognition is much
more valuable than the prerogative
itself. The combat between cars and
bikes furnishes an excellent example.
Motorists who think a bicyclist is where
he should not be will blow their horns in
indignation and disapproval.
Conversely, a bicyclist who thinks he's
where he has the right to be may convey
his contempt by familiar semiotic
gesture, given by the hand. Moreover,
joggers running two or more abreast
may appear to a bicyclist fellow traveler
to be taking up more than their lawful
share of the road. Are they?
The purpose of Asphalt Athletes is to
clearly tell road u ers where they can be
and where they can't be, according to
the law. Travelers who know (not guess)
the rights of other travelers will enjoy
lower blood pressure, less indignation,
and a far more pleasant trip
psychologically.
To those more fiscally minded, to be
in the wrong place in the road at the
wrong time may cost t-l::iem. And-failure
to yield to another's lawful right of way
may be disastrous. It just makes
economic sense to know traffic rules.
The book itself is a complete
explanation of the Kentucky laws
covering bicyclists and pedestrians. It is
written for the average non-lawyer
reader in non-legal terms. (Don't leave
home without it.) It is available at the U
of L bookstores, Hawley-Cooke, the
Downtown YMCA, running and
bicycling stores, and the Continuing
Legal Education office at the Law
School. Single copies are priced at $3.25.
But because the book is mainly a public
service, very generous discounts to
encourage wide distribution will be
made to groups, clubs, or race sponsors.
We will even put an organization's name
and logo on the cover of the book.
Interested parties may contact Susan
Bourne, Continuing Legal Education
Director for the Law School for further
information or purchases.
What's Your Highway I.Q.?
QUESTIONS:
I. How far in advance before turning
right or left must a bicyclist signal?
2. May a bicyclist signal a right turn
by pointing with his right arm in
the direction of the turn?
3. May a jogger run in the street if he
or she faces traffic while so doing?
4. If a car is stopped at a stop sign
and a jogger is on a curb, who has
the right of way?
5. Does Kentucky State law forbid
bicycling on sidewalks?
6. Must bicycles stop at stop signs?
7. If a dog manages to become
unleashed, through no negligence
on the owner's part, and bites a
jogger, is the owner liable?
8. Does Kentucky law forbid
bicycling while intoxicated?
9. If a jogger is injured because of
sidewalk disrepair, is the land
owner liable?
I 0. If a bicycling path is available,
may a bicyclist use the roadway
anyway?
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Photo by Cr)•sta/ Collins
By Winnie McConnell
Two University of Louisville evening
law students are getting a first-hand look
at how Kentucky's lawmaking process
works during the state's 1984 legislative
session which convened last -month.
Bob Fallon and Dan Meyer are
serving as analysts for the Legislative
Research Commission (LRC), the staff
arm of the Kentucky Legislature. While
Fallon has taken a leave of absence from
law school this semester to devote full
time to the LRC, Meyer continues to
work for the Legislature and attends
evening classes at U of L.
"I enjoy the legislative process
because what the lawmakers do is
important," said Fallon, a second-year
tudent. "Working during the session
makes you appreciate what the
legislators are doing. You get the feeling
that what goes on in Frankfort has a
beneficial impact on peoples' lives
through the passage of new legislation."
Under $1,000
Louisville Law Examiner, February, 1984
NIGHT and DAY
Night Students Work as
Legislative Analysts
As a legislative fiscal analyst for the
Budget Review Office, Fallon handles
budget requests and reviews the fiscal
impact of bills dealing with county
sheriffs, county clerks and the state's
Department of Transportation.
However, this job is nothing new to
Fallon, who has worked with the LRC
for the past six years.
Since Fallon said he needed to put
"bread on the table," he decided to
concentrate all his energies on the State
Legislature.
"Any evening law student knows it's
physically and mentally demanding to
work and go to law school and try to
give an honest, good faith commitment
to both," said Fallon. "I just didn't
believe I could work and attend school
at the same time and do that."
While Fallon said he believes his work
during the legislative session will have
little effect on making him a better law
student, he thinks his associations with
the Legislature will give him valuable
insights into the lawmaking process.
"I really look forward to going back
to law school this summer," said Fallon.
"I feel the break this semester from
school will give me a new perspective in
my studies."
Meanwhile, Meyer, a third-year law
student, has taken upon himself the
challenges of working for the
Legislature each weekday and attending
law school four nights a week.
Meyer, who has worked as a
legislative analyst since 1979, has grown
accustomed to commuting to Frankfort
and returning to Louisville to attend law
classes. "Anybody who works full time
and goes to law school at night either has
to be crazy or is sincerely devoted to the
profession,'' said Meyer.
In his job, Meyer works for the
Legislature's Business Organizations
and Professions Committee for which he
drafts legislation, researches current
legislative issues and helps prepare for
the committee's meetings during the
session.
While Meyer said he wouldn't
recommend his work and school
schedule to every law student, he
believes law school has been an asset to
his legislative position.
"It's enhanced my job performance in
that I understand the lawmaking process
more clearly now than before," he said.
"Law school has benefited me and has
expanded my knowledge of the work I
do with the Legislature."
Meyer said he enjoys his work and
decided to sacrifice his time and go an
extra year to law school rather than
curtail his lifestyle for the benefit of
getting a law degree one year earlier.
''Law school alone keeps me busy on
the weekends," Meyer said. "And now
with the Legislature in session, there will
be more of a crunch at work for me
too."
Claims Resolved Without Attorneys
(continued from page 1)
takes about five to six weeks to get to
court.
Once the case goes to court, the
plaintiff and defendant each get an
opportunity to explain their side to the
judge. Besides allowing almost any kind
of evidence to be introduced, judges are
also liberal in allowing the plaintiff to
prove damages. Farber pointed out that
the purpose of the court is to allow a
party, regardless of education or
experience, to handle his own case. As a
result, the parties often don't have ade­quate
records or documentation of their
claims. But if the plaintiff proves his
case and offers a reasonable calculation
of the damages, the judge will usually
award that amount.
However, in awarding damages the
judge usually allows only compensatory
damages and not consequential or
incidental damages. So if you have to
take someone to small claims court for
$25, you can't recover for the wages yo11
lose by missing work to come to court or
for any other expenses except court costs
which you incur from the action.
And regardless of how malicious the
defendant's action, punitive damages
are never awarded.
If either party disagrees with a judge's
Photo by Neil Jf./arti
Judge Alan Farber presides over Small
Claims Court, where disputes are settled
quickly and inexpensively.
decision, the case can be appealed to
circuit court. In such cases, Farber
advises both parties to retain counsel,
because the proceedings get more formal
and technical.
If a plaintiff gets a judgment in small
claims court, the defendant has 10 days
to pay. If the defendant fails to pay in 10
days, the plaintiff can return to the·
clerk's office and request a bill of
discovery, which costs two dollars.
"The bill of discovery compels the
defendant to return to small claims
court, where the judge asks him specific
questions regarding where he works,
how much he makes and what real and
personal property he owns," said Jerry·
Roberts, supervisor of the small claims
division. "If the defendant fails to show
up for the bill of discovery, the judge
issues a forthwith order of arrest and the
sheriff arrests the defendant and places
him under a $100 bond until the
defendant appears in court.''
Once the judge completes the bill of
discovery, he gives it to the plaintiff,
who can then use it to help him collect
the judgment. Assuming the defendant
is solvent, the plaintiff can take the bill
of discovery to the clerk's office and the
clerk will place a lien on the defendant's
real or personal property or garnish his
wages.
Currently, all claims brought in small
claims court must be for $1,000 or less,
but a bill has been introduced in the
Legislature that would raise the limit to
$1500.
Page3
~--~~------~--------~-, Class Action
1927
Edward P. Hill, Frankfort, former
Chief Justice of the Kentucky Court
of Appeals·, is "going on eighty" and
says he "exchanged the gavel for the
maddoc, sledge hammer, and the
chain saw." Hill says the class of
1927 "enjoyed instructors Shack
Miller, Ben Washer, and others who,
by day were on the firing line, and
could give us a lot of practical
benefits."
1950
William A. Ingram was named to
the U.S. District Court in 1976 by
President Ford and is presently the
only full-time judge sitting at the
Northern District of California's
branch courthouse in San Jose. He
was previously on the municipal and
superior courts in Santa Clara
County, and has sat with the Ninth
U.S. Circuit Court of Appeals on
occasion.
Stanley E. Preiser was recently
honored by the Kentucky Academy
of Trial Attorneys as a true "Fighter
for the People". Mr. Preiser is with
the firm of Preiser & Wilson ·in
Charleston, West Virginia.
1967
Larry B. Franklin, partner in -the
law firm of Franklin & King, has been
named "Lawyer of the Year" by the
Louisville Bar Association. '
1970
Charles (Chuck) Simpson Ill,
Louisville, does insurance and ·
bankruptcy work, serves as counsel to
the Jefferson County Judge­Executive,
and is the new Jefferson
County Alcoholic Beverage Control
Administrator.
1973
Thomas J. Knopf was elected chief
judge of Jefferson District Court for
1984 and 1985 . Knopf was elected to
district court in 1977.
1978
Mary Otto has been selected as a
Branch Chief in the Office of Chief
Counsel, Disclosure Litigation
Division, Internal Revenue Service in
Washington, D.C.
1983
Mark Ashburn is with the office of
Saladino, Carneal & Pierce in
Paducah, where he is primarily doing
personal injury and worker's comp
litigation.
Frank G. (Biff) Simpson,
Prestonsburg, is with the Office of
Staff Counsel, working for Harris S.
Howard, Kentucky Court of Appeals
Judge in the Seventh Appellate
District.
SUMMER
LAW STUDY
In
Dublin
London
Mexico City
Oxford
Paris
Russia-Poland
San Diepo
Foreign Law Programs
Univ. of San Diego School of Law
Alcala Park, San Diego CA 92110
Page4 Louisville l.aw Examint>r, h•hruar~. 1984
Brandeis Brief •
On October 12, 1983, the Supreme
Court of Kentucky in Miles v. Shauntee,
82-SC-641-DG, 30 K.L.S. 12 (p. 14
10-13-83}, and companion cases held
unconstitutional the Kentucky Uniform
Residential Landlord and Tenant Act
(URLTA), KRS 383.505 - 383.715, as
special legislation prohibited by Sections
59 and 60 of the Kentucky Constitution.
The Court, speaking through Special
Justice William M. Deep, further held
that there is no implied warranty of
habitability in Kentucky, tenants have
no independent cause of action under
local housing and health codes, and the
Consumer Protection Act's prohibitions
against "unfair, false, misleading or
deceptive acts or practices" do not apply
to a landlord's failure to repair or
maintain a rental unit. This· affirmed a
1982 opinion of the Kentucky Court of
Appeals.
Following up on . this landmark
decision the Law Examiner has obtained
the following comments from some of
the major participants and from one of
our professors, who has done extensive
research in ·the area of Kentucky
landlord-tenant law.
Attorney for the
Landlord
Ben B. Hardy is a 1951 graduate of the
University of Louisville School of Law.
Mr. Hardy specializes in real estate law
with the firm of Hardy and Hardy, and
represented the landlord, Kenneth
Shauntee, in the case in question.
What actually happened in the case of
Kenneth Shauntee vs. Ethal Miles? The
tenants of the proprerty at 1780 Wilson
Avenue, Louisville, Kentucky, from
around 1971-72 were a woman named
Ethal Miles and her four infant children
together with an additional full time
employed adult. When they moved into
the house there was no heat source of
any type and Ethal Miles had her own
space heater installed. Her landlady
from that time until January 25, 1978
was Nancy Carta. Shortly before
January 25, 1978 the City of Louisville's
Department of Building and Housing
listed numerous violations of their hous­ing
code, both interior and exterior.
On January 25, 1978 Nancy Carta
sold the property to Kenneth Shauntee,
a young man of moderate means. On
February 6, 1978, the tenant entered into
a written lease with the new owner, Ken­neth
Shauntee. That lease provided
"The owner will make all interior
repairs to satisfy the Department of
Building and Housing in the next three
months. To make all outside violation
corrections when weather permits but
not more than six months."
Shauntee got a copy of an inspection
sheet from the Department of Building
and Housing listing all violations
needing corrections. Shauntee made all
interior repairs and all outside violation
corrections to the satisfaction of the
Department of Building and Housing
and obtained from the City of
Louisville's Department of Building and
Housing·approval of all such corrections
as completed satisfactorily as of an in-spection
made on July 24, 1978.
The tenant paid rent to Shauntee
monthly from the time Shauntee became
the owner of the property in January,
1978 until October, 1979 when the te­nant
told Shauntee she was not going to
pay any more rent until Shauntee made
additional repairs that she wanted him
to make to the property. Shauntee
thereupon told her that he was being left
no choice but to have her evicted. She
never again paid any rent to Shauntee.
Shauntee filed a forcible detainer action
to evict the tenant for non-payment of
rent.
The tenant rushed to the Building and
Housing ·officials requesting a re­inspection
of the property and listing of
all code violations to be utilized by her
for the forcible detainer hearing. She ap­peared
at the forcible detainer hearing
with legal counsel claiming numerous
.defenses and counterclaims based upon
the Uniform Residential Landlord Te­nant
Act.
Utilizing a statutory right under
URLTA, she paid the monthly rental
payments into the clerk of the court pen­ding
the determination of the issues she
had created. Since her counterclaims ex­ceeded
the jurisdictional limitations of
the District Court, she was granted the
right to transfer from District Court to
Circuit Court to press her claims. While
the action was pending in December,
1980 the tenant was successful in getting
the City of Louisville to determine that
the space heater she had installed 8 or 9
years before was inadequate. Based
upon that finding, the City of Louisville
made an emergency installation of an
additional heating unit at Shauntee's ex­pense;
filing a lien against his property
as security for the recovery of its costs.
Circuit Court determined that
URL T A was unconstitutional and nqt
available as a defense.
The tenant thereupon claimed a legal
right to the same defenses and
counterclaims under Implied Warranty
of Habitability and/or the Consumer
Protection Act. This resulted in a trial of
factual issues in Circuit Court. The Trial
Court determined factually that none of
the code violations complained of by the
tenant was sufficient to affect habitabili­ty.
The Circuit Court additionally found
as a conclusion of law that Implied War­ranty
of Habitability and the Consumer
Protecton Act were not the law in Ken­tucky.
Shauntee thereupon obtained from
the Circuit Court an order directing the
District Court to complete the eviction
of the tenant from the property in the
forcible detainer proceeding. She
thereupon obtained from the Court of
Appeals the right to remain in the pro­perty
during the entire appeal time upon
the condition that she continue to pay
the monthly rental to the Receiver of the
Circuit Court. Some months thereafter
the attorney for the tenant informed the
Court of Appeals that the property was
now in such disrepair that the City of
Louisville officials found it to be unfit
for human habitation and again with the
assistance of the City of Louisville the
tenant's family was moved into public
housing. The tenant then moved the
• • Supreme Court,s J
Court of Appeals to permit her to
discontinue the monthly payment of rent
to the Receiver of the Jefferson Circuit
Court. This order was granted.
The tenant was permitted to proceed
throughout the entire action in forma
pauperis with an attorney supplied by
the Legal Aid Society, Inc., in spite of
the fact that the premises were occupied
by another adult who had full-time
employment and wages.
Without URL T A the only issue per­mitted
in the forcible detainer pro­ceeding
filed by Kenneth Shauntee
would have been the issue of the right of
Shauntee to receive back the possession
of the property based upon the failure
and refusal of the tenant to pay rent.
The obvious immediate result of the for­cible
detainer proceeding in District
Court would have been a finding of guil­ty
of forcible detainer against the tenant
and upon her failure to relinquish
possession of the property within a
reasonable time thereafter, the Court
would have issued a writ of restitution of
the premises.
Because of URL T A the tenant was
permitted to remain in possession of the
premises for more than two years. Dur­ing
this time she committed such exten­sive
waste that the premises were found
unfit for human habitation by the City
of Louisville and were closed and taken
from the rental market. Kenneth
Shauntee therefore received back posses­sion
of his now valueless house two
years later, vacant and closed and en­cumbered
by a lien for a heating unit.
Immediately following the abandonment
of the destroyed property, the tenant
was relieved of the obligation of paying
any further rent to Shauntee although
the litigation continued.
Throughout these proceedings Ken­neth
Shauntee has not been furnished
counsel by any agency of government,
has been required to pay his own court
costs, and after having been apparently
successful in the litigation, his only
remedy is a claim for damages for waste
against a judgment-proof tenant.
Attorney for the
Tenant
Robert Frederick Smith, a 1975
graduate of the University of Louisl'ille
School of Law, is an alforney with the
Legal Aid Society in Louisville. Smith
represented Ethal Miles, the tenant in­volved
in this case.
Ethal Miles and her young children
rented property at 1780 Wilson Avenue,
Louisville, Kentucky. After many years
at the property, it was purchased by a
new landlord. Pursuant to the lease
which was signed, the landlord agreed to
make certain repairs within a short
period of time and also contracted that
the Uniform Residential Landlord
Tenant Act (URL TA}, KRS 383.505, et
seq., applied to their tenancy.
As time passed, the condition of the
property deteriorated. This was solely
because of the landlord's failure to
comply with URL T A and Louisville's
Housing Code. In October, 1979, after
repeated requests by Ms. Miles for
repairs and the continuing deterioration
of the property, she refused to pay reni.
The landlord then initiated a Writ of
Forcible Entry and Detainer in the
District Court of Jefferson County.
As shown at trial, there were
numerous Housing Code violations, in
varying degrees of seriousness, which
included a life-threatening lack of heat
and total lack of weathertightness.
Despite the fact that the City continually
cited the landlord for his failure to
comply with the Housing Code during
the pendency of the litigation, he made
no repairs and, eventually, the property
was found to be uninhabitable and the
Miles family relocated with the help of
the City's relocation assistance.
At the trial, the landlord admitted
that he made promises for repairs which
he did not do, that Ms. Miles
complained about needing repairs, that
Louisville Law Examiner, Februar~· . 1984 Pa~e 5
uling on Landlord-Tenant Act Examined
he received notices from the City of
Housing Code violations (including a
24-hour notice to provide adequate
heat), that he didn't even have a
certificate of compliance to rent the
property in the first place. [A certificate
of compliance is a document issued by
the Louisville Department of Housing
authorizing the rental of property.
Housing Code §200.00 et seq. See also
Louisville Board of Realtors v. City of
Louisville, 634 S.W.2d 163 (Ky. App.
1981).] The landlord also admitted that
Ms. Miles hadn't been the cause of any
of the deteriorating conditions of the
property. The Housing Code inspectors
testified of the inspections made over a
five-mqnth period of time and that each
inspection contained at least · eight
Housing Code violations. Ms. Miles also
introduced pictures which graphically
depicted the Housing Code violations.
Robert Earl Stewart, Ph.D., ·a professor
from the University of Louisville's
Speed Scientific School, testified (based
upon testing done at the property) of the
heat loss and lack · of weathertightness
associated with this property. Dr.
Stewart was also able to calculate that
when the exterior temperature was
below 40° Fahrenheit, the interior of the
property would be uninhabitable. In
conjunction with this testimony,
weather records for Louisville for the
pa 1 three years were also introduced.
This "uninhabitability" was
transferred into a human condition by
Ms. Miles' testimony at trial. She spoke
of ice forming on the inside of the
house, water coming through the ceiling,
holes in walls extending to the outside,
cold drafts coming through the house,
bugs, the leaking toilet, falling ceilings,
peeling paint and inadequate doors.
Despite the overwhelming and
uncontradicted testimony, this all too
typical scenario resulted in the most
devastating decision for tenants in
Kentucky history.
The Kentucky Supreme Court found
that URL T A is unconstitutional, there is
no implied/express warranty of
habitability in residential housing, and
under these facts no false, deceptive or
misleading trade practice had occurred.
As noted, there were three major
claims pressed by Ms. Miles. She
claimed a cause of action for the
landlord's breach of URL T A, the
Consumer Protection Act (KRS
367 .I 10) and the Louisville Housing
Code.
The Kentucky Supreme Court, despite
the fact that Jefferson and Fayette
Counties were first and second in multi­family
overcrowded and dilapidated
dwellings and first and fourth with
dilapidated and overcrowded single
family residences, found that there was
no rational basis for the Act's current
limited application. (URL T A applied
only to Jefferson and Fayette Counties.)
Had such a rational basis been found by
the Court, URLTA would not be
deemed "local" or "special legislation"
and thus not run afoul of Kentucky's
Constitution. The Kentucy Supreme
Court also rejected a virtually nationally
acceptable concept of A_merican
jurisprudence when it found that there
was no warranty of habitability in
residential tenancies. Pernell v. Southall
Realty, 416 U.S. 363,94 S.Ct. 1723, 40
L.Ed.2d 198 (1974).
States which have adopted similar
versions of URL T A include Alaska,
Arizona, California, Connecticut,
Delaware, Florida, Hawaii, Iowa,
Kansas, Michigan, Nebraska, New
Mexico, Ohio, Tennessee, Virginia and
Washington.
Such a decision came about despite
Kentucky precedent that local
ordinances control contracts made
within its jurisdiction, and despite the
inequality of bargaining power on the
part of tenants and the decreasing size of
the rental market in the City of
Louisville. See Krenitz v. Baron, 252
S.W.2d 58 (Ky. 1942); Reitzv. Williams,
458 S.W.2d 613 (Ky. 1979); Corbin
Deposit Bank v. Kin~, 384 S. W .2d 302
( 1964). The Court also rejected the
tenant's claim that there had been a
Consumer Protection Act violation, that
is, even though the landlord had made
many promises but no repairs, that there
was no false, deceptive or misleading
trade practice.
The legacy of Ethal Miles is yet to be
fully played out. Yet, in the first winter
subsequent to the decision there was one
death directly attributable to the
landlord's refusal to make repairs, and
the tenant's unskilled attempts at
providing needed repairs.
U of L Professor
Comments
Leonard R. Jaffee has been a Pn~fessor
~~l Law at the University ~~l Loui.wille
since /972. He hold'i J.D . .fi"om Rutgers
School ~~l Law. Professor }(~flee has
recently completed a hook on landlord­tenant
law.
Things are not as they seem. Not
having a.n "implied" contract remedy
when his landlord violates a housing
code is not a death sentence for the
tenant - just a litigational mess and
extra cost for everyone, except lawyers,
who'll make more money even if they'll .
have a few more headaches.
Shauntee nothwithstanding, the
tenant still has a private remedy in tort
(negligence) if the landlord's violation
injures the tenant's body. Higgins In­vestments,
Inc. v. Sturgill, 509 S. W. 2d
(Ky. I 974); Reitz v. Williams, 458
S.W.2d 613 (Ky. 1970); Roland v. Grif­fith,
291 Ky. 248, 163 S.W.2d 496
(1942); Mullins v. Nordlow, 170 Ky.
169, 185 s.w. 825 (1916).
And apparently the tenant can get an
injunction against the landlord's chronic
code-violation. Injunctions lie to
prevent life-threatening safety hazards.
Harris Stanley Coal & Land Co. , ..
Chesapeake & Ohio Ry. Co., 154 F.2d
450 (6th Cir. 1946) (diversity action
depending on Kentucky Law),
distinguishing Brand-enburg v.
Photo by Judy Hoge ·
Petroleum Exploration, 218 Ky. 557,291
S. W. 757 (1927) (not involving .. safety
hazard); Seifried v. Hays, 81 Ky. 377, 50
Am. Dec. 167 (1883), approved in
Dulaney v. Fitzgerald, 277 Ky. 568, 13
S. W .2d 767 (1929). Housing Code safety
regulations typically seek to prevent life­threatening
hazards. Typically the
hazards they address are ongoing, and
so appropriate subjects for injunctive
relief.
How curious the Court's intrepidness.
One of its reasons was that without
express legislative statement "to the
contrary the... tenant takes... the
premises as he ... finds them ... and the
landlord... has no obligation to
repair. .. " Sic transit coatimundi. If the
landlord has no obligation to repair,
how come the tenant can enjoin the
landlord to do so, or, at least, recover
for personal injuries when the landlord
doesn't?
So, you say, tenant can't sue for the
value of repair or nonrepair. Look
again.
Tenant needn't live in a death trap
until he's injured. This and the tenant's
right to an injunction imply a tenant's
right to restitution for the tenant's
repairs. Besides, the tenant could die
awaiting enforcement of an injunction.
Suppose, his landlord recalcitrant, the
tenant himself takes the death out of the
trap. Tenant was entitled to have
landlord make the outlay. And, at least
given a slow-depreciating repair,
landlord would be unjustly enriched
were he not to reimburse tenant for the
fair value of the work.
Well ... still tenant can't withhold rent
if landlord refuses to pay up, right?
Suppose, having spent a I.ot to cure the
violation, tenant can't affurd to pay all
of one month's rent: Tenant asks
landlord to forgive the deficit in
exchange for tenant's forgiving part of
the restitution landlord owes. "No
way," says landlord.
Tenant sues in circuit court. Rather
than · counterclaim for rent, landlord
brings a district court action in forcible
detainer - on the ground that tenant
wrongfully withheld possession after
landlord terminated the tenancy on the
strength of a lease term saying the
landlord can do so if tenant is short in
rent.
Landlord could have counterclaimed
in ejectment - as well as for rent - in
tenant's circuit court suit. Why can't
tenant get an injunction against
landlord's harrassment? Mightn't the
circuit court issue a protective decree on
the ground that landlord's action is
merely retaliation and "blackmail"?
I grant you that ejectment is slothful
and sometimes mightily expensive and
detainer is neither - unless it is
wrongful, which will cost the claimant
often-hefty damages. I grant you too
that a landlord has a legitimate interest
in not having to keep bringing rent
actions against a contumacious tenant.
But, come on. Landlord could have
set-off the rent shortage against the
restitution claim, and his "legitimate"
reason for bringing detainer would have
evaporated.
True, the court in Tinsley v. Majorana
240 S.W.2d 539 (Ky. 1951), ruled
against the tenant-defendant despite the
fact tenant had pleaded in bar that
landlord had brought detainer merely to
coerce the tenant to dismiss a damages
action he had earlier brought against
landlord. But the tenant's action involv­ed
an "entirely different" claim - ap­parently
having nothing to do with the
lease or the landlord-tenant relation.
Also, the tenancy had expired naturally,
not by the landlord's suspectly-timed ex­ercise
of power of termination - so that
the claim of "coercion" was tenuous.
And, tenant there sought to bar relief,
not merely stay in pending outcome of
his suit. Too, the outcome of the
Tinlsley tenant's suit would not affect
the necessity of his landlord's action. If
the tenant's claim in our case is
righteous, only hypertechnicality would
suggest that landlord's rent claim's "in­dependence"
supports his detainer ac­tion.
If fact, our tenant might be able to
defend in bar where the Tinsley
defendant could. not - because the
Tinsley court stressed the problem that
tenant's claim was "entirely different,"
and the Tinsley case is otherwise
palpably distinct. Tenants are allowed
equitable defenses to detainer claims.
Edwards-Pickering Co. v. Rhodes, 203
(Ky. 95, 261 S.W. 884 (1924). Harrass­ment
vis-a-vis tenant's restitution
action would be a proper equitable
defense. And, despite the Shauntee
Court of Appeals' mysterious musings
(given a wink of approval by the
Supreme Court), Johnson v. Haynes,
330 s;W.2d 109 (Ky. 1959), did not say
that a tenant could not ever defend or
counterclaim on repair grounds m
(continued on page 6)
Page6 Louisvilll' Law Examinl'r, hhruary, 1984
Court's Landlord-Tenant Decision Analyzed
(continued from page 5)
his/ her /its landlord's detainer action.
The Johnson court said that the tenant
was remitted to his "ordinary" remedies
for the landlord's violations of his
obligation to repair precisely because the
violation did not deprive the tenant of
"the use and occupancy of any part of
the rented premises." A safety code
violation could deprive a tenant of "use
and occupancy of... his premises"- at
least constructively. Johnson did not say
that a constructively evictive condition
could not, early on, be a defense or
counterclaim in a rent-arrearage-based
detainer action. And tenant's relief or
defense does not depend on his/ her
vacating as soon as the evictive condi­tion
starts. Cox v. Hardy, 371 S.W. 2d
945 (Ky. 1963).
Now suppose tenant had n·otified
landlord, in advance, that if the landlord
did not cease violating the code he/ she
(tenant) would be compelled (as before)
to cure the violation himself/herself and
withhold some rent. Landlord says
nothing and-doesn't repair. Rent comes
due. Tenant withholds some and does
the repairs. Landlord sa,ys nothing but ·
does bring detainer after tenant brings
suit in restitution. Our landlord may be
" estopped." See Mont2omery v.
Blocher, 194 Ky. 280, 239 S.W. 46
(1922).
In Montgomery, the court seems to
have said that if a landlord let a tenant
make expensive improvements after his
term had expired and then brought
detainer, the landlord would be
"estopped" from maintaining the action
unless he/she had first reimbursed the
tenant. Our landlord, then, should have
said: "Repair if you like; but if you
withhold rent, I'll bring detainer."
Havirlg said nothing, our landlord might
well have "estopped" himself when, by
silence, the landlord "induced" the
tenant to end his term and still improve
the premises to the landlord's gain.
It may be that the Montgomery court
would distinguish our tenant from the
tenant whose term had naturally
expired, our tenant having "violated"
the lease by withholding rent and the
lease having provided for unnatural
termination for such "violations ." But
then court would merely remit our
tenant fo his remedies in "ordinary"
proceedings.
Well, our ~errant had already brought
those proceedings (before the detainer
was brought). Our landlord could have
gotten adequate (and fair) relief in the
same proceedings. And, even if ~ur
tenant's case does not perfectly fit
within the Montgomery doctrine on
"estopped" as a pleading in bar within a .
detainer action, still it ·seems to fit within
the principle at work there.
. So, our circuit court should award our
tenant a protective decree against our
landlord's maintaining detainer.
Otherwise tenant would be injured
irreparably - lose the premises and the
real (property) value of the repair. And
. his remedies in the detainer action are
inadequate ~ at least since none may be
available.
The rest of Shauntee's implied
warranty opmton is even more
vulnerable than its housing-code
holdings. A good lawyer can run right
through or around most or all of the lot
of it - but at the cost of more court
time and greater litigational expense for
both landlord and tenant. Personal
injuries are likely to cost more than
contract actions for nonrepair. The
negligence, restitution, and injunction
actions I've described are likely to be
longer and involve more complicated
pleading, proof, and analysis than
would a "breach" of housing-code
"warranty" action. Other Shauntee run­arounds
would be similar. And I have a
sneaky feeling that there may be
something silly in a rule that spurs two
or three actions when another rule
would lead to the same place with just
one.
Alternatives
to URLTA?
Edwin L. Cohen is a local atlorney
engaged in the general practice of law
with the firm of Cohen and Cohen. He
graduated from the Uni versity of
Louisville 'School of Law and was
admitted to the Kentucky Bar in 1958.
By Edwin L. Cohen
and Ben B. Hardy
The different degrees of risk of loss
between the tenant, entitled to posses­sion
by the terms of the lease, and the
landlord, entitled to rent according to
the terms of the lease are balanced by
KRS 383. The tenant is entitled to
possession so long as the rent is paid . .
The landlord is entitlted to a summary
provision for forcible detainer if the rent
should not be paid. The only issue in the
summary proceeding is whether or not
the rent has been paid. This is as it
should be. The value of that building is
hundreds of times the value of one
month's rent. Unless the courts provide
a forum for quick decisions on entitle­ment
to possession, society will have, as
it did in Kentucky, many repetitions of
facts similiar to Miles v. Shauntee.
The common law remedy for non­payment
of rent was self help. Each par­ty
was entitled to use only such force as
was necessary to retain or regain posses­sion.
There was so much violence that
hundreds of years ago the statute of for­cible
entry and detainer (now KRS 383)
was enacted to balance the risk of loss
and the equities between the parties.
The doctrine of independent
·covenants provides that in a forcible de­tainer
the only issue is the right to
possession determined by trial on the
issue of payment vel non of rent. The
doctrine of mutual dependence of lease
requirement is not constitutionally re­quired,
Lindsey v. Normet, 405 US 56,
65-67 (1972).
The landlord wants to protect his in­vestment,
preserve the property, and
receive a continous stream of rental pay­ment.
The landlord is not generally so
short-sighted as to not keep the premises
in repair. The tenant has various
remedies. The first and most effective is
to request that the necessary repairs be
made in order that the business relation­ship
continue. If the landlord does not
repair, the tenant may terminate the
relationship at the end of the lease (most
residential leases are for no more than
one year), or if the premises are
uninhabitable leave immediately. The
doctrine of constructive eviction permits
this. The tenant has no further liability
on the terms of the remaining lease
because there has been a failure of con­sideration.
The right to po.ssession is the
threshold issue of landlord-tenant rela­tions.
URL T A did not equitably balance
the risk of loss between the landlords
and the tenants, and permitted the
tenants to hold hostage the property of
the landlords during litigation (real or
fanciful) for an indeterminate length or
period of time.
URL T A was destructive of the hous­ing
stock because the tenant held the
landlord's property hostage during
litigation. Landlords realized that their
property was subject to the depreciation
and waste of tht; tenant and that they
had no ability to physically protect the
property. U RL T A put the tenant in a
position to keep possession of the
premises and avoid paying rent to the
landlord at the time the rent is most
needed, mainly to do necessary repairs,
and always for taxes, insurance and
mortgage payments. These conclusions
are not only those of the writers (both of
whom frequently represent landlords)
but are the conclusions of schoarly
research.
In the American Bar Foundation
Research Journal, Volume 1980, Sum­mer
#3, Samuel Jan Brake) published a
stud_y, "URLTA In 9peratio!l, The
Oregon Experience" . His conclusions
were: the act is decidedly pro-tenant (p.
567); "habitability" is used defensively
to resist possessory actions and comes
as an afterthought (p. 567-569); the
presumption of retaliatory eviction
grants tenant a life estate in the property
(p.576); nonpayment of rent is the crux
of almost 80 percent of the cases (p.580);
and URL T A is fundamentally irrelevant
to the typical landlord-tenant case of
rent delinquency (p. 582).
Donald M. Mcintyre in his article,
"URL T A In Operation, The Ohio Ex­perience'',
supra, concluded
enforcement of the housing code would
be more effective protection for tenants
living in rundown housing (p. 604): and
most landlord-tenant problems in urban
centers involve social policy
considerations beyond the reach of
private civil suits (p. 606).
in our society the investors are not
blind nor slow-witted. When the lending
institutions see that long-term mortgages
can not safely be made on residential
apartment complexes because there is no
assurance that the landlords can repay
the mortgages, the source of funds either
evaporates or the rates of interest rise to
levels appropriate for risky loans. Now
the lenders no longer need to be fea~ful
of long term real estate investment in
Jefferson and Fayette counties. The
economic consequences of Miles v.
Shauntee will be favorable to the tenants
as well as the landlords. There will be
construction of new apartments and the
older residential units will not be
prematurely removed from the market.
URL T A is an imposition of costs
above, beyond, and unnecessary to the
regular enforcement of the housing
code. Under the police power it is the
function of the housing code to regulate
the quality of habitation necessary for
safe, healthy living conditions. URLTA
resulted in the premature removal of
dwelling units from the housing market,
resulted in higher rents for the housing
units remaining, and no new housing
starts in older neighborhoods. It's
unlikely that the drafters of the act
understood or approved the results of
their social engineering.
Editor's Note: The bailie continues. At
press time a Petition for Rehearing is
still pending in the Supreme Court of
Kentucky. In addition, Representative
Aubrey Williams is currently seeking to
re-enact a modified landlord-tenant law
before the 1984 Kentucky General
Assembly in House Bill No. 224 (84 BR
1128 introduced Janucuy 3, 1984).
LEX IS:
A Useful Tool
By Mike Schafer
There is an alternative to the
tedious job of legal research at the
University of Loui sville School of
Law called LEXIS. LEXIS is a
computer research service- pTovided
by Mead Data Central. U of L's fees
for use and rental average about
$13,000 a year. A law firm will pay
three to four times this amount for
th e same services. Part of the huge
savings to the uni versit y stem s from
the inability to use the system during
the peak hours from 2 p.m. until 5
p.m .
LEXIS may be used by professors,
and by law students who have
success fully completed their moot
court and le g al re search
requirement s. LEXIS is a dynamic
research tool ; however, research is
limited to school related project s.
·when using LEXIS, the researcher
selects words which he believes may
have been used in court opinion s. The
computer th an searches through all
cases in th e selected divi sion of the
court system (i .e., U.S. Supreme
Court) for opinions containing that
word or group of words. This system
has the advantage of not limiting the
researchers to categories provided by
the lawbook editors. However, it may
turn up cases which use a word in a
different manner than intended . For
example, if the word "will" was
entered in the computer, the
researcher would find cases involving
decedent's estates, as well as those
mentioning "will" in passing (i.e.
free will).
Improvements in LEXIS are
planned. Professor Gene Teitlebaum
plans to make training available to
students on a regular basis when addi­tional
librarians are added to the
staff. Proposed equipment upgrades
will be largely cosmetic, such as an
automatic coupler for the telephone
and a more compact terminal. LEXIS
will continue to be a valuable research
tool.
l.ouisvi\h_· ·La\\ Examiner, Fehruar~·, 1984 Page 7
Grenada Revisited
Invasion Has Strained U.S.-European Relations
In the last issue (~f the Examiner, we
presented an article dealing with the
international law implications (~f the
inl'{tsion (~f Grenada by the U.S. This
month, Geoffrey J. Benne//, visiting
pn~fessor from Britain's Uni1•ersity (~l
Leed5, looks at the invasion's possible
long-term effects on U.S.-European
relations.
Geoffrey J. Bennett,
Associate Professor
Ronald Reagan and Margaret
Thatcher do not normally disagree.
When they do disagree, and so
fundamentally that it is described as the
most serious diplomatic rift since the
Suez crisis of thirty years ago, it is clear
that something has gone wrong. Nor, in
the present political climate in Europe,
does the invasion of Grenada look to !)e
an incident which can gradually be
glossed over. The fear expressed in some
quarters is that what has happened is a
symptom of thinking in the Reagan
Administration which indicates scant
regard both to principles of
international law and to the wishes and
concerns of traditional allies.
Mrs. Thatcher has stated, with
characteristic directness, the underlying
objection to the clear breach of
international law and the United
Nations Charter. "I am totally and
utterly opposed to communism and
terrorism," she declared in a phrase
whose combination of supposed evils
would hardly cause serious misgivings in
the hearts of even the most diehard
Republicans. She went on, "But if you
are going to pronounce a new law that
wherever there is communism imposed
against the will of the people then the
U.S. shall enter, then we are going to
have really terrible wars in the world."
The question which provoked the
Prime Minister's response came from an
American citizen who implied that the
British position ill became a country
which had received U.S. support in the
Falklands war. That such an implied
comparison could be drawn suggests
that many of the difficulties in Anglo­American
and European relations
emanate more from a regrettable
ignorance than calculated indifference.
Viewed from London, the greatest
similarity between Grenada and the
Falklands is the suspicion that, perhaps
like most such cases, the American and
Argentinian invasions were more of a
response to domestic politics than an
international rescue. In the case of
Grenada, a sovereign Commonwealth
country was invaded by another
sovereign country in breach of
international law. In the case of the
Falklands, whatever one may think of
the political decision to devote such
Prison Offers Training
(continued from page f)
The plaintiffs complaint contained
three main issues. The first was sex
discrimination. The women claimed they
should be given the same opportunities
as the men were allowed under the
consent decree.
A brief comparison of the
opportunities in men's and women's
prisons shows why the women brought
this claim. After the consent decree, men
were given 14 vocational and
educational training programs; women
had two: they were taught to be
secretaries or housewives. Men obtained
five prison industries (prison industries
are the highest paying jobs inside the
prison); women had zero. Now, when
the men are released, they have been.
trained for jobs with an average entry
level salary of $16,000; the women have
been trained for jobs with an average
entry level salary of $11 ,000.
The second issue in the women's
complaint involved the incentive level
system used at Pewee Valley. This was
not as much a sex discrimination issue
as it was an unconstitutional procedure
on its face.
The plan placed the women in various
levels depending on their conduct and
the amount of time they had been
incarcerated.
The third issue involved access to the
courts. The women's prison contained a
skeleton law library, very little legal aid
training and an attorney was not made
available by the state.
In April of 1982, a four-week trial was
held in the federal District Court in
Louisville with Judge Edward Johnstone
sitting. Relief was granted for most of
the plaintiff's claims and the state was
ordered to make changes. A hearing in
July of this year will be held to
determine if the state has complied with
Judge Johnstone's order.
According to David Friedman, the
female prisoners' standard of living has
improved. The women now have three
vocational programs (building
maintenance, business and office
planning, and home economics), and
one prison industry (printing). On-the­job
training courses are also available in
landscaping, food service, outside
maintenance, water treatment, and
janitorial services.
The building maintenance program
allows the most exposure to a non­traditional
field. This program was
initiated in July of 1983. Mike Fleitz, an
instructor with the Bureau of Vocational
Education, currently has 12 women
enrolled in this class.
"I teach them electrical wmng,
plumbing, woodworking, and
construction. Welding instructions will
soon be added," said Fleitz.
The inmates receive a certificate
human and financial resources to the
enterprise, British subjects, at the
request of the lawful government, were
relieved of subjection to a foreign
invading power. The two cases are
hardly comparable. At the very least,
there appears to have been no suggestion
of a failure by Britain to consult with her
American allies.
Perhaps the most damaging long-term
consequence of the Grenadian episode
has yet to be fully appreciated by the
Reagan Administration. During a long
and politically heated year, an issue of
the utmost public concern has been the
deployment of Cruise missiles
throughout Europe. As talks between
Russia and America appear to yield little
in the way of tangible results, even more
public interest has become concentrated
on the circumstances of deployment and
the limitations on their actual use. In
particular, concern has been expressed
in Britain over the lack of a so-called
physical dual key. In other words, it
would be only unthinkable, not
physically impossible, for the missiles to
be fired without the agreement of the
British government.
At a time when every European
government which has accepted the
placing of Cruise missiles has been at
pains to meet a growing tide of public
anxiety about controls on their use, the
invasion of Grenada has seriously
undermined the credibility of those
assurances. A recent optmon poll
showed that 73 percent of the British
electorate now mistrusts Washington's
assurances on the joint Anglo-US use of
Cruise. In an emergency debate in the
House of Commons the Foreign
Secretary was pilloried by the opposition
through Jefferson State Vocational
School upon successful completion of
the program, as well as compensation of
$.40 per day.
The institution has made other
attempts to expose their residents to
non-traditional jobs. For example, the
women were allowed to participate in a
CET A-funded truck driving school
during the past year.
Living conditions have also been
improved with the implementation of a
less severe "modified level" system.
parties for the way in which British
representations to Washington were
solicited too late and to no effect. Even
his Conservative Party supporters failed
to show the customary support for their
own minister under savage attack. If
the anger and sense of political hurt
which Washington's actions provoked
were not foreseen, they were certainly
foreseeable. At best they indicate a
worrying neglect for the sensibilities of
the Europeans and the countries on the
borders of the Eastern block where the
first casualties of any East-West
confrontation might be felt. If it
becomes a common view that the
Reagan Administration was aware of the
political consequences, the difficulties
for the current pro-American European
governments will, if anything, only
become greater. President Reagan's
statement that: "We are a nation with
global responsibilities. We are not
protecting someone else's interest. We
are there protecting our own" may well
be interpreted as a disingenuous but
sinister expression of the
administration's feeling. The reassuring
chime it was intended to make with the
American electorate may sound quite
different elsewhere. Whether the long­term
cause of East-West detente is
helped or hindered by a weakening of
American influence and prestige over
Europe is another and highly
contentious question. There might be
some, however, who will conclude that
American votes may have been
purchased in the short term at the
expense of longer term political
ambitions to control the deadly Cruise
game which is conceived to be of such
crucial interest to the Reagan
Administration.
Access to the courts has also been
improved, with a sufficient law library
and an appointed attorney available 20
hours a week.
Friedman thinks the state has not met
all of the plaintiffs' demands, "But a lot
has already been accomplished. The
women may not have the same
advantages received by their male
counterparts, but their daily lifestyle has
vastly improved." Friedman sees more
changes occurring within the next few
years.
Pewet> Valley residents train on word processing machines.
PageS Louisville Law E:\amint•r, h•hruar~. 1984
..----Briefs------.
Representing the Farmer
The University of Louisville School of Law is sponsoring a seminar entitled
Representing the Farmer on March 9, at the Holiday Inn Midtown, Bowling
Green, Kentucky. The fee is $65. Credit will be given for 7 hours of CLE.
Employee Benefits Seminar
A seminar in Employee Benefits: Practical Aspects of the New Rules will be
presented by the School of Law on February 17, in the Founders Union Building
on Shelby Campus. The seminar costs $65, and carries 7.5 hours of CLE credit.
For further information concerning CLE seminars, contact Susan A. Bourne at
(502) 588-7806.
Professor Warns Honored
Carl A. Warns, Jr., Professor of Labor Law, has been honored by the
American Arbitration Association for his outstanding contributions to the
responsible use of arbitration. Professor Warns has been an arbitrator since 1948,
and is the author of many articles on labor law.
Guaranteed Student Loan Program
The Law School Assured Access Program has recently been establi shed to
enable law students to borrow money for their education, with no repayment
while in school. Information is available from Lee Netherton in Room 214.
New Library H~urs
Effective immediately, the Law School Library will be open on the following
schedule:
Monday- Friday 7 a.m . until2 a .m.
Saturday 9 a.m. until Midnight
Sunday 1 p.m. until2 a.m.
A special schedule will be in effect during exam periods, to be announced at a
later date.
LBA Elects New Officers
The Louisville Bar Association recently announced its officers for 1984.
President: Charles E. Ricketts, Jr.
President-Elect: Sheryl G. Snyder
Vice-President: Rebecca Westerfield
Secretary: Darryl W. Durham
Treasurer: Daniel T. Goyette
Photo br Joel Zakem
Daniel Sheehan, Chief Counsel for and direcfor of the private in-vestigation of
the Karen Silkwood case, spoke to law students in the Allen Court Room
recently.
Louisville Law Examiner
School of Law
University of Louisville
Louisville, Kentucky 40292
Non-Profit
Organization
U.S. POSTAGE
PAID
Permit No. 769
Louisville, KY
John M. Harlan Louis D. Brandeis 1 .
~~· ,- · -
Louisville 1
Law Examiner
Volume 9
Brandeis Brief:
Landlord-Tenant
Ruling Examined
.................. page 4
Women Prisoners
Gain Rights at
Pewee Valley
.................. page 1
Small Claims Court
Offers Quick,
Inexpensive Justice
................. . page 1
Professors Publish
Legal Guide For
"Asphalt Athletes"
.................. page 2
Grenada RevisUed:
Professor offers a
British Point of View
.................. page 7
February, 1984 Number4