Archive for December, 2008

LawReader Celebrates 10th. Anniversary – Future Looks Bright

Wednesday, December 31st, 2008

By LawReader Senior Editor Stan Billingsley                Jan. 1, 2009    

Today LawReader observes its first decade of existence.  How far we have come during those exciting years.  An expert advised us recently, that if all the materials contained on LawReader where placed in hard bound books and placed in library stacks, that our library would cover the surface of 6.5 basketball courts.  By placing all of this content online, we have saved a good sized forest. We at LawReader share a standing joke.  If we had known how much work it takes to be competitive in the legal research business, we probably would never have undertaken this task.  But in looking back, we are glad we accepted this challenge, and we are very proud of our ten years of growth.  We are most proud however of the comments of our users who tell us that LawReader has made them more successful in their practice of law.We set out to compete with two, billion dollar (foreign owned) corporations, for a piece of the legal research pie.  That was cheeky indeed. The early years we struggled along with the effort to accumulate data, forms, articles, and resources.  Having served as a District Judge I regularly saved cases, orders, briefs, and tips on how to practice law.   We raided my library and everyone else’s to build up a data base that we believe now exceeds the Law Digest offered by our competitor.

Our initial goal was to build a data base that provided assistance to Kentucky lawyers and judges on how to practice law in Kentucky.   We have not attempted to be all things to all lawyers in the U.S. and on a national scale.  We have carved out a niche and that is the State of Kentucky.

    Our first major improvement came when we were able to enter into a licensing agreement with VersusLaw to provide a 50 state case law data base.  Now we were able to offer an alternative to Westlaw and Lexis.  Our next step three years later was to enter into a licensing agreement with FastCase, a case law data base used by the Florida Bar Association (and many others).  We felt that FastCase was better than VersusLaw and our users agreed. 

    One of the big problems in hosting a web site is learning how to use the software.  As a novice with little computer training I had great difficulty in learning how to make bookmarks, hyperlinks, tables, and how to post data.   We flew in my niece Eva Wakefield from Maryland on several occasions and she finally was able to provide me that Eureka moment when it all began to make sense.  Eva was very important to us at a critical moment.  We still call on Eva from time to time to work out technical issues.

Mike McMain, President of LawReader, Inc, is a partner in Busald, Funk & Zevely in Florence.  He has provided invaluable business advice and guidance along the way.  He also has provided numerous legal forms which are very widely used.

   We have had the benefit of a number of technical consultants.  Among the people who have helped us set up and improve our technical infrastructure no one has done more for LawReader than Brad Scott.   

Brad is now an advertising executive in New York City.  He is one of the top consultants in the world regarding the use of the internet for advertising.   He designed for us a web site system that vastly improved our ability to store and deliver our massive data base of legal materials, and he constantly provided ideas for updates and improvements. We have seven search engines that he set up for us, that allows the most specific search capability in the industry.  Brad is married to Tasha Scott who practices law in Florence, Kentucky.

    Our first meeting with Brad went badly, as I forgot about a dinner meeting we had set up, and I failed to appear.   Fortunately he forgave me for this egregious mistake, and agreed to a second meeting.  As we drank coffee from Starbucks in a Cincinnati restaurant, he outlined for us some ideas that were far above our skill levels, but we were impressed by him, and (with a grant from the Rural Innovations program of the State of Kentucky for $25,000 ) we were able to employ him to completely redesign our web site and to write the new software that we are still using.

I remember we set up one meeting with Brad at the Metropolitan Club in Covington, and he came to the meeting wearing blue jeans.  The Club manager wrote me a letter about the dress code violation of our guest.  Never mind they were $100 designer jeans, and he was just back from a world tour where he spoke on his craft to audiences in London, England, Los Angeles, New York City, and Sydney, Australia.   Brad can wear jeans to any meeting with me anytime …anywhere.

I am a lawyer and can’t read a line of code, but it is not important to be able to write software code when you have a genius like Brad to show you how to use the code.

Brad had contacted us and said he was willing to work with us because he was impressed with our large data base.  I remember he commented that a lot of sites have fancy web interfaces, but no content.  We were just the opposite and he felt that we had potential.  

Brad had just come from Silicon Valley in California and the internet bubble had just burst.  He was very aware that many web ventures had raised a lot of money but had never developed any useful content and as a result had failed.  He understand our dream and was extremely important in helping us take big steps forward.

We also appreciate the assistance of the University of Louisville.  Their internet people gave us needed guidance and advice as we worked out our original business plan.

We must note that we had searched for over a year for a consultant and designer, and had wasted time and money on several designers who just couldn’t comprehend what we were trying to do.  One designer we consulted with tried to pass off a web site interface to us that was offered for free on the internet.  Another balked at the amount of work involved.  Several consultants wanted to change us to meet their needs, and we needed someone to design a system that conformed to our concept on how lawyers search for the law.

Brad listened to us and guided us and we put our trust in him, and in a few months we had a new interface and software that made vast improvements in our ability to deliver highly focused legal research materials.  

In 2003, my wife Gwen retired from the food service industry where she was a Sales Manager for Stouffer’s Frozen Foods and Nestle Corporation.  Some retirement, she was immediately brought on as our Chief Executive Officer (making her my boss). 

Gwen handles the business end of LawReader and oversees our staff.  Over the years she has taken on more and more duties, and I must admit she works harder than I do.

It wasn’t until l999 that the internet became fast enough  to make searching for data a viable endeavor.  Before that it was really faster to walk into a library pull down a law book and look up a case.  But when an alternative to dial up access to the internet became available in l999 we were ready to launch LawReader.   Continued improvements in the internet have made online legal research a functional alternative to printed books. 

LawReader maintains an extensive law library in our office, but frankly we very seldom have a need to use it, since our national case law data base is so extensive, and so fast to search.  One big advantage to online research is that when you find a case or a citation of the law, you can copy it and paste it into your working document or brief.   We often hear from our users, that they have cancelled all subscriptions to printed law books, and they now rely entirely on LawReader.   This means a savings to each law office of thousands of dollars a year.

In 2003 we began a feature that provides a weekly synopsis of all Kentucky Appellate decisions.   This feature allows lawyers to quickly scan over the important issues raised in appellate decisions for the week, and when the user finds a case that relates to their practice they can immediately call up the full text of the case.

In 2006 we implemented an annotated version of the Kentucky Revised Statutes.  We continue to update that resource, and are very proud of its acceptance by the legal profession.  What a time saver.  What a lot of work…but we are committed to expanding and improving this important resource.

In 2005 Judge Stephen Horner of Louisville began writing a weekly column for LawReader which examines Kentucky politics and state government.  His widely read column is non-partisan and seeks to inform our users on what is happening in Frankfort.  His ability to find out what is happening behind the scene is amazing.

In 2007 former Chase Law School professor Marty Huelsmann monitored every decision by the Ky. Supreme Court, and in 2008 published a detailed study of the Ky. Supreme Court for LawReader.  This valuable study shows the value of a resource such as LawReader and points out the possibility of future projects that will help influence the development of the law.

Our office staff have been invaluable  We particularly recognize the efforts of Shelly Chappell and Becky Kinman in carrying the heavy weight of the business end of LawReader.   Paralegals Monique and Amy have kept us moving forward in our ongoing annotation project.  There are many contribution lawyers and judges who have submitted forms, content, and suggestions to LawReader.   We particularly want to recognize Jan Shaw who was of great assistance in annotating the Rules of Evidence and Rules of Procedure as well as contributing her well read article on Adoption procedures.

The introduction of online legal research represents the most significant change in the practice of law since the invention of the typewriter.  We are proud to have been a part of the revolution.  We predict a growing need for internet publishing, and we predict that the legal profession will lead the growth in this new industry.

We continue to note that Kentucky is the only state with a resource like LawReader.   Considering the cost and the hard work required, we understand this.  We predict that someday every state will have a similar resource, and don’t be surprised if LawReader leads the way.

One of our most valuable resources is our users.  They have provided ideas and suggestions for content, and projects, and we take every suggestion seriously.  We are a business, and our subscribers are essential in helping us make this thing work.

 We are looking forward to many new additions to LawReader in the future.

But today we will pause for a moment, lift a glass of cheer as we celebrate our Tenth Anniversary, and we look forward to our Twentieth Anniversary.  We thank everyone who has helped us to be pioneers in this new industry.

    

   

     

 

User comment received Jan. 2, 2009-
 “What a wonderful summary of all that you have accomplished. I absolutely LOVE Lawreader, and tell everyone who will listen.  It really has been exciting to watch Lawreader grow and change, in such positive ways. On a regular basis, you kick the big, fat asses of your competition.  Congratulations on a decade of providing us little guys the access to an endless legal library. “ T.S.

 

Governor Recommends Extending CERS Phase-In to Ky. Retirement Board of Trustees

Wednesday, December 31st, 2008

Dec.30, 2008

 

In a press conference this morning Governor Steve Beshear urged the Kentucky Retirement Systems (KRS) Board of Trustees to move ahead with policy changes that would extend the phase-in period for reaching the actuarially required contribution (ARC) for employers participating in the County Employees Retirement System (CERS).

This administrative action would allow cities, counties and other agencies in CERS to reach their full contribution obligations over a 10-year period instead of the five-year time frame currently required by the KRS Board of Trustees.  KRS has provided information on how the extension of the phase-in would impact employer contribution rates in each fiscal year.

The extension would reduce the contributions required of employers by 1.21 percentage points for non-hazardous duty and 2.64 percentage points for hazardous duty in FY 2010.  Actuaries with the Kentucky Retirement Systems have determined the extended phase-in period is fiscally sound and would provide about $37.5 million in savings to the agencies participating in CERS next fiscal year. Using the KRS figures, KLC estimates cities would save approximately $11 million in FY10. 

“I’m recommending that the Kentucky Retirement Systems Board adopt the 10 year phase-in.  This would sharply remove the burden on cities, counties and school districts as they try to balance their budgets by July 1,” said Governor Beshear.

Governor Beshear also indicated the administration will support legislation pre-filed by Rep. Mike Cherry (D-Princeton) to require KRS to use the extended phase-in period if the KRS Board of Trustees fails to act.

KLC Executive Director/CEO Sylvia Lovely, KLC President and Richmond Mayor Connie Lawson, Madisonville Mayor Will Cox, Lexington Mayor Jim Newberry, Louisville Mayor Jerry Abramson and Princeton Mayor Gale Cherry attended the press conference to support the Governor’s call as one part of the overall need for retirement reform.

“The backs of local governments are against the wall, and every fraction of a percent that can be reduced from employer contribution rates really counts in financially trying times like these,” said Lovely.  

The extension of the phase-in period is just one component of needed reform.  Even with the extended phase-in, cities would still face an estimated $17.5 million increase in employer contributions in FY10 without additional legislation during the 2009 session.  Therefore, KLC remains committed to pursuing legislation to provide immediate rate relief in the 2009 session, including the establishment of an 80-85 percent full funding standard.  KLC and the Kentucky Association of Counties have also hired an actuary to fully evaluate all phase-in possibilities and advise local governments on other potential legislative options, including the full funding standard. 

“Our options for rate relief are limited in light of the inviolable contract that we are committed to honoring for our employees and retirees,” said Lovely.  “Cities readily embrace this effort as one of the few measures that could promise cities savings on escalating retirement costs, but we are painfully aware that more must be done to make this system sustainable.”

Please watch your inboxes on Fridays during the legislative session for the Legislative Bulletin that will provide you with regular updates on this issue and other legislative actions.   We will periodically email you Legislative Alerts for urgent issues that need your immediate attention.  If you have any questions, contact J.D. Chaney at 1-800-876-4552 or jchaney@klc.org

 

 

JUDICIAL CAMPAIGN RULES CONTINUE TO CHANGE – Ohio Judicial races given leeway for partisan ads – “there’s a fine line between saying. ‘I commit.’ and wink-wink, nudge-nudge.”

Wednesday, December 31st, 2008

 

New Rules adopted by the Ohio Supreme Court are consistent with a recent U.S. District court ruling sought by a Kentucky Judicial Candidate (Marc Carey) which allows Judicial Candidates to speak out on public issues.  Ohio Judicial Races are partisan and candidates can run as the nominee of a political party. 

 

Kentucky retains non-partisan races but has long allowed a Judicial candidate to identify his partisan registration “if asked” but forbid candidates from advertising their party affiliation.

 

Campaign gag loosened  

By JIM PROVANCE –  December 31, 2008 –The BLADE, Columbus
COLUMBUS – Ohio judges run in partisan primaries, ask for support at political conventions, and occasionally join hands with labor leaders at political events, but until now state judicial rules have forbidden them from advertising themselves as Republicans or Democrats.
 

Rules newly adopted by the Ohio Supreme Court to take effect on March 1 will lift that prohibition as well as slightly loosen the gag on what judges and judicial candidates can say on the campaign trail when it comes to legal matters.
 

The rewrite of the rules on how sitting judges and judicial candidates conduct themselves on the campaign trail is the first in about 13 years.
 

“In Ohio, we have judicial candidates running in partisan primaries but nonpartisan general elections,” said Rick Dove, the high court’s assistant administrative director, who served as staff liaison for a special

19-member rules commission appointed by Chief Justice Thomas Moyer.
Rules currently in effect allow judicial candidates to mention party affiliation in campaign literature and advertising up to the primary election in which they are identified by party on the ballot. But such references must be dropped after the primary is over.
Under Ohio law, judicial candidates appear without party affiliation on the general election ballot.
 

That will all change March 1 when Democratic judicial candidates may say they’re Democrats and Republicans may say they’re Republicans.
 

While unsuccessfully running for the high court in 2004, then-state appeals court Judge William O’Neill succeeded in getting a federal judge to prevent the state Supreme Court from enforcing its prohibition. The Cuyahoga County Republican Party had filed a complaint against the Democrat when he refused to remove references to his party from his campaign materials.
 

The decision was overturned this year by the U.S. 6th Circuit Court of Appeals in Cincinnati, but the rules-review commission, as well as state high court, opted to lift the prohibition on such references anyhow.
 

“For years, right after the primary it was as if everyone in the political world knew who was the Democrat and who was the Republican, yet they weren’t permitted to say it,” said Catherine Turcer, of Ohio Citizen Action’s Money and Politics project.
 

“At some point, it’s just about being honest, saying this is who I am,” she said. “It’s a choice. Candidates can choose not to use labels if they don’t want to, but it does give voters some tools for better understanding.”
 

The new rules will still prohibit judicial candidates from making pledges, promises, or commitments about how they’d rule on cases, but they drop an additional ban against candidates making statements that “appear” to commit themselves.
 

That rule, which dates to 1995, was generally considered to be in compliance with a 2002 U.S. Supreme Court that declared unconstitutional Minnesota’s prohibition on candidates announcing positions on issues that could come before them.
 

But the commission recommended, and the Ohio Supreme Court agreed, to adopt a model rule proposed by the American Bar Association that eliminated a portion of the gag. Mr. Dove noted that the ABA felt the latter section of the prohibition was vague and susceptible to constitutional challenge.
 

“I’m a big fan of the First Amendment,” said Ms. Turcer. “On the one hand, it would be easier for people to get good information if candidates could speak more freely. But there’s a fine line between saying. ‘I commit.’ and wink-wink, nudge-nudge.”
 

Ohio is the fifth state to adapt model rules proposed by the ABA to its needs.
 

U.S. 9th. Circuit rules three-strikes sentence unconstitutional

Tuesday, December 30th, 2008

 

The U.S. 9th Circuit Court of Appeals says a 28-years-to-life penalty for a sex offender who failed to register at the appropriate time is cruel and unusual punishment. .

By Carol J. Williams  L.A. Times  December 30, 2008

California’s three-strikes sentencing law suffered a blow Tuesday when a federal appeals court struck down as unconstitutional a 28-years-to-life sentence for a sex offender who failed to register with local police at the correct time of year.

The U.S. 9th Circuit Court of Appeals sent the case of Cecilio Gonzalez back to federal district court in Los Angeles for resentencing after finding his 2001 penalty constituted cruel and unusual punishment, which is prohibited by the 8th Amendment.

Gonzalez’s harsh sentence was grossly disproportionate to his “entirely passive, harmless and technical violation of the registration law,” the appeals court said.

The California Penal Code requires a sex offender to register whereabouts annually within five working days of an ex-convict’s birthday. Gonzalez had registered in Los Angeles County in May 2000 and confirmed his address a year later, meeting the yearly requirement but violating the deadline of his Feb. 24 birthday.

“This is not a case where my client failed to register. He failed to update his address information that was still good,” said Gia Kim, the federal public defender who argued Gonzalez’s case to the appeals court.

Registration infractions carry a maximum three-year sentence in California, and Gonzalez’s oversight wouldn’t even qualify as a crime in at least 11 states, wrote Circuit Judge Jay S. Bybee, one of the court’s more conservative judges.

Bybee also pointed out that Gonzalez, who has already been in prison for more than seven years for this third felony conviction, was facing substantially more severe punishment than that imposed in California for far more serious crimes, such as second-degree murder.

It was unclear how much significance Tuesday’s ruling would have for others sentenced to long terms for minor third offenses.

“It does show that the courts are willing to reject really outrageously long sentences for very technical offenses,” Kim said. “The opinion focused on the fact that this was a crime of omission and a crime of very little moral culpability.”

The state attorney general’s office declined to comment on the ruling or say whether it would be appealed, said Christine Gasparac, press secretary for Atty. Gen. Jerry Brown.

Efforts to ease the three-strikes rule have largely failed. The U.S. Supreme Court ruled in two challenges in March 2003 that it was a state legislature’s right to determine how best to deter criminal recidivism.

“It is enough that the state of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons advances the goals of its criminal justice system in any substantial way,” former Justice Sandra Day O’Connor wrote for the 5-4 majority in upholding 25-years-to-life sentences for the two men whose respective third-strike offenses involved shoplifting golf clubs and video tapes.

California voters approved a 2000 ballot initiative that provides drug treatment instead of life imprisonment for most third strikes involving drug possession. But voters spurned an initiative four years ago that would have required the third felony to be violent or serious to justify a harsh sentence.

Are state budget cuts fueling national financial crisis? Economist calls governors “50 Herbert Hoovers”.

Tuesday, December 30th, 2008

Economist Paul Krugman – The New York Times –Dec. 30, 2008

 

Respected economist Paul Krugman suggests that in times of recession, state governments should be spending on education and infrastructure instead of cutting expenditures.

 

Excerpts from his column:

 

“… even as Washington tries to rescue the economy, the nation will be reeling from the actions of 50 Herbert Hoovers — state governors who are slashing spending in a time of recession, often at the expense both of their most vulnerable constituents and of the nation’s economic future.

 

These state-level cutbacks range from small acts of cruelty to giant acts of panic — from cuts in South Carolina’s juvenile justice program, which will force young offenders out of group homes and into prison, to the decision by a committee that manages California state spending to halt all construction outlays for six months.

 

Now, state governors aren’t stupid (not all of them, anyway). They’re cutting back because they have to — because they’re caught in a fiscal trap. But let’s step back for a moment and contemplate just how crazy it is, from a national point of view, to be cutting public services and public investment right now.”

 

“The priority right now is to fight off the attack of the 50 Herbert Hoovers, and make sure that the fiscal problems of the states don’t make the economic crisis even worse. “

 

Three Year Study Provides Suggestions to Improve Civil Jury Trials

Monday, December 29th, 2008

 

The Bar Association of the 7th. Circuit Bar Association has conducted a study with suggestions for reformation of Civil Trial practice.  The study took three years.  In the process they reviewed 50 civil trials and tested seven new concepts of jury strategy.

 

The new concepts tested by the survey included:

 

  1. allowing juries to ask questions of witnesses in writing
  2. limiting presentations by lawyers
  3. giving jury instructions before evidence was presented
  4. permitting lawyers to make statement to jurors between witness testimony during the evidentiary part of the trial
  5. using questionnaires from jurors in the selection voir dire process
  6. always using twelve jurors
  7. giving jurors guidance about how to deliberate
  8.  

 

To read more about this story  Go to: http://www.7thcircuitbar.org/displaycommon.cfm?an=17

 

Then go to Association Projects and select 7th. Circuit Jury Project Final Report

 

Sixth Circuit Ct. of Appeals Partisanship rewards Prosecutorial Misconduct.

Monday, December 29th, 2008

 By LawReader Senior Editor Stan Billingsley

 The Law is full of doctrines.  Doctrines are useful tools in resolving issues of law. 

However, we believe it is apparent that some appellate judges are bringing to the bench doctrinaire philosophies that have little to do with a search for real justice.  Some judges always seen to find a way to uphold a conviction no matter the seriousness of the violations of defendant’s rights.   While this may be a quick way to dispose of cases, it has nothing to do with the search for justice.

 

This controversy is no where better demonstrated than on the Sixth Circuit Court of Appeals sitting in Cincinnati.

 

The current Sixth Circuit Court of Appeals is currently made up of 10 Republican appointees and six Democratic appointees.  One Democrat will take Senior Status on Jan. 1, 2009. 

 

This ideological split is evidenced by the practice of the Republican Judges of using court rules to overrule Democratic rulings by calling for an En Banc panel and then reversing Democratic rulings they don’t like.

 

In the past five years, initial verdicts by the U.S. Sixth Circuit Court of Appeals panels dominated by Democratic appointees were clearly reversed by Bush’s appointees and other Republican picks 17 times, out of 28 decisions issued by the full court.

 

In these cases, the majority upheld death sentences, ruled that the courts could rely on evidence that some justices said was tainted, declared that certain prisoners were not entitled to the appointment of counsels, rejected several constitutional claims, upheld a Bush administration regulation, ruled that disability payments were unwarranted, and refused several requests for criminal retrials.

 

This practice of allowing almost all tainted evidence to be admitted is accompanied by a policy that in the vast majority of cases refuses to sanction prosecutorial misconduct.

 

CA Judge Jeffrey S. Sutton, who was appointed in 2003 by Geo. W. Bush, has been a leader in imposing an extreme conservative philosophy on the Sixth Circuit. He has been called the intellectual engine behind some of the majority’s more controversial rulings.

 

Sutton, a former chief solicitor for the state of Ohio, attracted conservative support before his nomination by consistently pressing for states’ rights and challenging enforcement at the federal level of civil rights and disabilities laws.

 

The court’s majority has demonstrated a pro-conviction bias in criminal cases and liberally use the harmless error doctrine to overrule reversals granted by Democratic panels.  We recognize the importance of the harmless error doctrine as developed in English Common law, but it is increasingly used to forgive serious errors and serious violations of defendant’s rights.  It has been expanded now to include forgiveness of even violations of a defendant’s constitutional rights.

 

The harmless error recognizes and concedes that an error was made, but these errors are overlooked if the majority of the court feels in their own opinion that the defendant would have been convicted anyway.

 

That reasoning expresses an extreme confidence in their ability to look into jurors minds and to be able to determine how a jury might have been affected had the error not occurred.  This practice when used unwisely, is an invitation for prosecutorial misconduct.  If the prosecutors are never sanctioned for improper actions such as the withholding of evidence, why should they worry about a reversal.  

 

We suggest that the harmless error doctrine is increasingly being used as an intellectual excuse for sweeping dust under the rug.

 

An excellent example of the extremes to which the 6th. Circt. Court of Appeals is going to is found in the Arnold case.

 

Judge Sutton was the principal author of the 6th Circuit’s final decision in the Arnold case, rejecting the inmate’s appeal for a new trial. Arnold was arrested in 2002 after his girlfriend’s daughter called 911 to say he threatened to shoot her. Arnold, a high school dropout, had spent a good portion of his adult life behind bars after convictions at age 19 for assault, at 22 for grand larceny and at 24 for murder.

 

His arrest for possessing a handgun — found under the front seat of a car used by Arnold and his girlfriend — occurred four months after he left prison. At trial, however, prosecutors presented no evidence that the gun was his, and the daughter’s hearsay accusations to police were admitted at trial even though she refused to testify.

 

She told a private investigator that Arnold had no gun, but that recantation was never disclosed to the jury.

 

Judge Sutton was initially outvoted on a panel when one other Republican appointee and Judge Karen Nelson Moore, a Democratic appointee, said Arnold’s conviction was unjust.

 

Then the government appealed. Sutton wrote the en banc majority opinion, which in reversing the verdict said the evidentiary issues were not particularly egregious (???) mistakes and did not seriously affect the trial’s fairness. (i.e. harmless error).

 

“We cannot overturn the jury’s decision merely because it had to draw reasonable inferences” rather than rely on direct proof, Sutton said.

 

But Judge Moore, a former law professor who once clerked for Supreme Court Justice Harry A. Blackmun, wrote an impassioned dissent that was joined by three other Democratic appointees. They concluded that the jury had an absolute right to know that the daughter withdrew her accusation and that, as a result, Arnold should have been acquitted.

Will Parks be Closed if the Governor’s Cigarette Tax Fails? See which Senators will be the most affected by Parks Department cuts. – Should the State Police be eliminated, Should the Parks system by sold off?

Friday, December 26th, 2008


 By LawReader Senior Editor Stan Billingsley            Dec. 26, 2008


 Where to cut the state budget?   Some unpleasant decisions will have to be made if the Governor’s budget amendment plan is not adopted by the General Assembly in 2009.
The large Kentucky state budget deficit ($456 million) projected by the Governor’s Office will mandate some drastic cuts if new revenue is not found by the next session of the General Assembly.   The Governor has proposed an increase in the cigarette tax which could yield $225 million (thru the end of 2010) about one-half of the anticipated budget deficit.
Where are other areas that could be cut in 2009 and assuming no new revenue is found where will cuts be made in 2010 to address the problem?
One former state official suggested the state close down the Kentucky State Police.   The State is providing police protection to many rural counties without charge. It is not constitutionally mandated that the state provide a State Police force.  If this unlikely cut was made the counties would have to beef up their policing efforts.  Closing the Kentucky State Police would save the state $50,000,000 a year.
Some $400 million is being spent on the Dept. of Corrections to operate the growing number of prisons.  Cuts here, to be effective, will require the release of prisoners early and will require legislation to repeal mandatory sentencing laws and Persistent Felony Offender laws, and undoubtedly will provide Willie Horton type events.  But this problem could be eased by beefing up parolee supervision programs that have been adopted by other states. 
 

The current Executive Budget for Corrections directs funds to an array of institutional and community beds to accommodate an estimated six percent growth in the state felon average daily population over the biennium, from 22,618 to 23,953, an increase of 1,335.

This projected two year growth in need for 1,335 beds in this biennium represents a need for another prison in the next two years, and that need will be repeated every two years into the foreseeable future if changes aren’t made in sentencing philosophy imposed by the Legislature.

The State Road fund is another large expenditure that could be cut, but those funds are largely restricted, and it would require unpopular legislation to make any substantial cuts here.  Nevertheless, one large project styled Route 66 which is proposed to run along the southern part of the state, north of the Tennessee border, is widely criticized as a highly questionable project.  The fact that it runs through few Senatorial Districts with Democrats could make this a partisan issue since mostly Republican Senators would be effected.   

One other alternative that has been briefly discussed by officials is to examine the State Parks system.  This is not a program that is constitutionally mandated, and could be eliminated by the Legislature.  The Governor does have the authority to withhold funding for projects when the budget revenue is not sufficient for current programs.  
On Dec. l7th, the Governor stated that, Kentucky welcome centers would be closed twice a week, but the state park system for now would be spared budget cuts.

This announcement may have been a signal that if the budget problem is not fixed that the State Park System might be subject to more drastic cuts.

The Associated Press reported recently:
“Kentucky’s state park system would be spared budget cuts for now but could face future layoffs and closings under Gov. Steve Beshear’s plan to offset a hulking revenue shortfall, an official said Tuesday.
Officials do not plan funding cuts for the parks because they are considered economic drivers, said Tourism, Arts and Heritage Secretary Marcheta Sparrow. But without more money, up to 300 state workers could eventually be laid off, Sparrow said.”

    The last session of the General Assembly saw the Democratic controlled House of Representatives in favor of a watered down increase in the cigarette tax.  The Republican controlled Senate refused to consider the bill.   Republicans have indicated that they would be very reluctant to approve any tax increase.   So if the Governor does not receive the $225 million dollars he projects would be raised by his cigarette tax proposal, then by 2010, and perhaps sooner, the Governor will have to get out his budget axe and start to prioritize spending and closing down programs that are not necessary when compared to other needs of State Government.

   One old political trick in politics that always seems to work well on Congress, is the budgetary ruse of the Federal Parks program to propose that any loss of revenue will force the agency to shut down the Washington Monument.  This is one of the nations most popular tourist attractions and it is unthinkable to close it down, but the threat  always seems to inspire Congress to come up with the required funding. What Congressman wants to be voting to close down the Washington Monument?  Perhaps Gov. Beshear is signaling such a plan when he announces that he plans no additional cuts for the Parks System “for now”.

 The current two year budget appropriation for the State Parks system  is $105,004,000  for 2009 and $124,082,500 for 2010.  That totals $229 million dollars for this biennium, a sum almost exactly equal to the projected revenues that would be generated by an increase in the cigarette tax as proposed by the Governor.

If the Governor exercised his authority to start closing down State Parks, where would he start, and how far would he go? It would be hard for Governor Beshear to make cuts in State Parks programs without angering members of the Legislature.  The most pain however would be inflicted on the Republican Senate due to the fact that the vast majority (62 to 30) of Kentucky State Parks, Historical Sites, and Wildlife Management Areas are in Senatorial Districts represented by Republicans.

Our review of parks facilities and wildlife management areas indicates that 62 of these facilities are in Senatorial Districts represented by Republicans and only 30 facilities are in Senatorial Districts represented by Democrats.

Further, it should be noted that of 17 of the largest parks, usually referred to as  State Resort Parks, 15  are in Republican Senatorial Districts and only 2 are in Democratic Senatorial Districts.  Since the State Resort Parks require the most state funding, they would likely bear the majority of any across the board cuts in funding.  This translates into more Parks related job cuts being made in Senatorial Districts represented by Republican Senators.

Obviously any attempt to close the state resort category of parks, would mostly affect Republican Senators, any legislation that would be required to close or sell these parks  could be expected to meet fierce opposition in the State Senate.  That is not to say that Democrats would not be likely to oppose such legislation.  The point is that this budget item is a discretionary program, and if it is cut or eliminated that it will affect Republican Senators much more than Democratic Senators.

One alternative is to put the state’s resort parks on the market, and give private investors the opportunity to run these facilities.  Some would have to close, but the land they are on in some instances might give a one-time boost to the state treasury if sold.   If the State Parks were sold, it is possible that some of them could survive if operated as for profit facilities.  It is not likely that any for-profit parks would be willing to keep a policy of free admissions or low prices.  An of course, that old demon alcohol might creep into developer’s plans for the parks.  (There is no state law which prohibits the selling of alcohol at State Parks.  That prohibition is based on an Executive Order that could be set aside by Gov. Beshear or any Governor at their pleasure.)

    Let us make a guess about the potential value to the state in legislation that put the l7 State Resort Parks on the market.  We will examine General Butler State Park, (about five blocks from the author’s home).  Gen. Butler contains 800 acres.  A real estate development that borders on Gen. Butler State Park, is selling building lots for $30,000 an acre.  Let us assume that ½ of the land in Gen. Butler State Park (400 acres) is on land that is viable for residential use.   That would suggest a value of $12,000,000.  The value of the Lodge and conference center would be perhaps as much as $10,000,000.  The value of the campgrounds and cabins might range from $1,000,000  to $3,000,000, so a ballpark estimate of what this park could be sold for is $25,000,000. 

Other state parks contain far more acreage than Gen. Butler, and some have valuable waterfront sites, mineral rights, etc. So a guesstimate, might suggest that the state could sell off the l7 Resort Parks for $1 Billion to $2 Billion dollars.  That would  be accompanied by a reduction in current state funding for these l7 parks which we estimate is about $50 million to $75 million a year.  

If the state sold off the other wildlife management areas, historical sites, day parks, etc. the saving should be in excess of $125 million a year, and the total revenue generated from the sale of all park and wildlife management areas might approach $3 to $5 Billion dollars.  That would pump up the State’s Rainey Day Fund nicely, and could provide funding for the four new Ohio River bridges needed (i.e. two bridges in Louisville, one in Covington, and one in Trimble County.)

Some parks particularly those in the rural parts of the state, would not be commercially viable without a state subsidy, and almost surely  would be closed and turned into farm land, or perhaps sites for growing switch grass (which can be used to make bio fuels).
The justification for the parks program is that it helps economic development in the state.  It is not necessary that economic development would be negatively affected if we assume that commercial interests who would buy the parks, would be inclined to expand investment in the sites that are actually generating traffic and have a proven commercial justification.  

The majority of parks in rural areas of the state are located in Senatorial Districts controlled by Senators who have in the past held firmly to a “no new taxes” philosophy.  Kentucky’s metropolitan areas have long contributed more in tax revenue to the state than they received back from the state.  This means that the metropolitan areas of the state are supporting the Parks system for the benefit of the rural areas.  

If it comes down to operating a state park system or an educational system, which is more important?  Conservatives who oppose any new taxes, should be excited to get state government out of the parks business and let the “Free Enterprise System” do its thing.

The following chart shows the location of Kentucky State Parks and the party affiliation of their State Senator.

While we do not advocate the state selling the state parks, this is the type of decision that is being forced on the state by current legislative policy that refuses to adequately support the parks, and more importantly refuses to provide the state with necessary increased revenue at the time that costs of operation are increasing. 

   22 Republican – 1 Indep. Rep.   (62 state parks ) –

   15 Democrat (30 state parks)
SENATE DISTRICTS

SENATOR & Party Affiliation
  COUNTIES IN SENATORIAL DISTRICT
Winters     Republican
Dist. 1
Calloway, Carlisle, Fulton, Graves, Hickman, Lyon,
Trigg
Lake Barkley State Park
Columbus-Belmont State Park
Mineral Mound State Park
Obion Creek WMA
Leeper    Indep./Rep.
Dist. 2
Ballard, Marshall, McCracken
KY Dam Village State Park
Kenlake
Swan Lake WMA
Peal WMA
Barlow Bottoms WMA
Western Ky. WMA
Ky. Lake WMA
Wickliffe Mounds
Pendleton   Democrat
Dist. 3
Christian, Logan, Todd
Jefferson Davis Monument
Ridley   Democrat
Dist. 4
Caldwell, Crittenden, Henderson, Livingston, Union,
Webster
John James Audubon
Gibson   Republican
Dist. 4
Breckinridge, Grayson, Hancock, Hart, Larue, Meade
Rough River
Rhoads   Democrat
Dist. 5
Hopkins, Muhlenberg, Ohio
Lake Malone
Pennyrile Forest
Peabody WMA
Carroll  Democrat
Dist. 6
Anderson, Fayette, Franklin, Woodford
State Horse Park
Boswell  Democrat
Dist. 7
Daviess, McLean
Ben Hawes State Park
Givens  Republican
Dist. 8
  

Allen, Barren, Edmonson, Green, Metcalfe, Simpson
Barren River State Park
Nolin Lake State Park
Tori   Republican
Dist. 9
  

Hardin, Jefferson
Bernheim Forest
Schinkel  Republican
Dist. 10
Boone, Gallatin, Kenton
Big Bone Lick State Park
Dr. Martin  & Marian Adair WMA
Kerr  Republican
Dist. 11
  

Fayette
State Horse Park
Stein, K.   Democrat
Dist. 12
Fayette
State Horse Park
Kelly  Republican
Dist. 13
  

Marion, Mercer, Nelson, Taylor, Washington
My Old KY Home                                                                          
Lincoln Homestead
Ft. Harrod
Green River WMA
Green River Lake State Park
Perryville Battlefield S.H.S.
McGaha   Republican
Dist. 14
  

Adair, Casey, Pulaski, Russell
General Burnside State Park
Lake Cumberland State Park
Lake Cumberland WMA
Williams   Republican
Dist. 15
  

Clinton, Cumberland, McCreary, Monroe, Wayne,
 Whitley
Cumberland Falls State Park                                                                      Dale Hollow                                                                                           Old Old Mulkey Meeting House                                                                           Dale Hollow WMA
Thayer  Republican
Dist. 16
  

Grant, Kenton, Owen, Scott
Guthrie Gates WMA
Twin Eagle WMA
Borders  Republican
Dist. 17
  

Bracken, Carter, Greenup, Lewis, Mason, Robertson
Blue Licks Battlefield
Greenbo Lake State Park
Claude Cummings WMA
Carter Caves State Park
Grayson Lake  State Park
Grayson Lake WMA
Tygarts State Forest
Shaughnessy   Democrat
Dist. 18
Jefferson
Tapp   Republican
Dist. 19
  

Bullitt, Shelby, Spencer
Taylorsville Lake State Park
Jensen   Republican
Dist. 20
  

Estill, Jackson, Laurel, Menifee, Powell
Natural Bridge State Park
Red River Gorge
Levi Jackson State Park
Pioneer Weapons
Mill Creek WMA
Buford Republican
Dist. 21
  

Boyle, Fayette, Garrard, Jessamine
Perryville
State Horse Park
Constitution Square
Waveland
Westwood   Republican
Dist. 22
Kenton
Stine   Republican
Dist. 23
  

 Pendleton, Campbell,
Kincaid Lake State Park
Stivers   Republican
Dist.24
  

Clay, Knox, Lee, Magoffin, Morgan, Owsley,  Wolfe
Thomas Walker State Park
Harris   Republican
Dist. 25
  

Carroll, Henry, Jefferson, Oldham, Trimble
General Butler State Park
E.P. Tom Sawyer State Park
Blevins   Republican
Dist. 26
  

Boyd, Elliott, Fleming, Lawrence, Rowan
Fleming County WMA
Yatesville Lake State Park
Yatesville WMA
Palmer   Republican
Dist. 27
  

Bath, Bourbon, Clark, Harrison, Montgomery,
Nicholas
Blue Licks Battlefied State Park
Clay WMA
Turner   Democrat
Dist. 28
Breathitt, Floyd, Knott, Letcher
Jenny Wiley State Park
Kingdom Come State Park
Lillie Cornett Woods
Carr Creek State Park
Dewey Lake WMA
Robinson Forest
Smith   Republican
Dist. 29
Bell, Harlan, Leslie, Perry
Buckhorn State Park
Kingdom Come State Park
Pine Mountain State Park
Ky. Ridge State Forest
Shilalah Creed WMA
Kentucky State Forest
Martins Fork WMA
Cranks Creek WMA
Jones   Democrat
Dist. 30
Johnson, Martin, Pike
Fishtrap Lake
Paintsville Lake State Park
Breaks Interstate Park
Paintsville Lake WMA
Guthrie  (vacant)
Dist. 31
Butler, Warren    (Guthrie goes to Congress, special election will be required)
Neal   Democrat
Dist. 32
Jefferson
E.P. Tom Sawyer State Park
Worley  Democrat
Dist. 33
Lincoln, Madison, Rockcastle
Fort Boonesborough
White Hall
Harper Angel   Democrat
Dist. 34
Jefferson
E.P. Tom Sawyer State Park
Denton  Republican
Dist. 35
  

 Jefferson
E.P. Tom Sawyer State Park
Clark  Democrat
Dist. 37
Jefferson
E.P. Tom Sawyer State Park
Seum    Republican
Dist. 38
  

Jefferson
E.P. Tom Sawyer State Park

 


  See the current state budget adopted in 2009: http://osbd.ky.gov/publications/buddocs.htm
  See Interactive map of State Parks at:  http://parks.ky.gov/default.htm

17 State Resort Parks   
Resort parks include a lodge with overnight accommodations            
  State   Historic Parks                        
State Recreation Parks      
Barren River Givens  Republican
   Boone Station Ben Hawes
Blue Licks Battlefield                  Palmer   Republican    Constitution Square Big Bone Lick
Buckhorn Lake Smith   Republican    Dr. Thomas Walker Carr Creek
Carter Caves Borders  Republican    Jefferson Davis Columbus-Belmont
Cumberland Falls                 Williams   Republican    Old Mulkey Meeting House                E. P. Tom Sawyer
Dale Hollow Lake                  Williams   Republican    Perryville Battlefield Fishtrap Lake
General Butler Harris  Republican    Waveland Fort Boonesborough
Greenbo Lake Borders  Republican    White Hall General Burnside
Jenny Wiley Turner   Democrat    William Whitley Grayson Lake
Kenlake Leeper    Indep./Rep.
   Wickliffe Mounds Green River Lake
Kentucky Dam Village              Leeper    Indep./Rep.
  John James Audubon
Lake Barkley  Winters  Republican   Kincaid Lake
Lake Cumberland                  McGaha   Republican   Kingdom Come
Natural Bridge Jensen   Republican   Lake Malone
Pennyrile Forest  Rhoads  Democrat   Levi Jackson Wilderness Road
Pine Mountain Smith   Republican   Lincoln Homestead
Rough River Gibson   Republican   Mineral Mound
  My Old Kentucky Home
    Nolin Lake
 
Old Fort Harrod
  Paintsville Lake
    Taylorsville Lake
    Yatesville Lake

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State Budget Crisis Results in Steep Cuts to Legal Aid Programs –While the demand for civil legal services for the poor is growing, funding drops

Thursday, December 25th, 2008

 

December 25, 2008

 

Legal Aid of the Bluegrass , the nonprofit group that provides emergency civil legal help to the poor across Northern and Central Kentucky may have to turn the indigent away to make up for a cut in state funding. Legal Aid of the Bluegrass, which serves 33 counties.

 

Frankfort used to give $1.5 million a year for four legal aid organizations in Kentucky – including Legal Aid of the Bluegrass which serves 33 counties including Boone, Campbell and Kenton.

 

This fiscal year that was reduced to $500,000 – to be split among the four organizations. Now Gov. Steve Beshear has proposed cutting that funding in half – to just $250,000.

 

That would mean a loss of $46,000 for Legal Aid of the Bluegrass, said executive director Dick Cullison.

 

Cullison said he has already trimmed payroll by $400,000 because of the previous cuts and eliminated five or six positions in the last six months alone.

 

The proposed cuts come as the office is seeing a jump in demand for its services due to the home-loan crisis.

 

Legal aid societies across the state help people with annual incomes at or below 125 percent of the federal poverty level.  Legal Aid of the Bluegrass closed more than 4,000 cases in 2007.

6th. Circuit sets aside Ky. law restricing online sales of wine

Wednesday, December 24th, 2008

Dec. 24, 2008

 

The 6th. Circuit Court of Appeals ruled Wednesday that Kentucky must allow small out-of-state wineries to ship their wares into the state even if a customer buys the wines online or over the phone.

 

The U.S. 6th Circuit Court of Appeals’ ruling upholds an earlier decision that struck down Kentucky’s law prohibiting wine shipments from out of state.

 

The three-judge panel ruled that the in-person purchase requirement in Kentucky’s law violates the Commerce Clause of the Constitution. Judge Eric L. Clay wrote for the panel that requiring wine purchasers to drive up to 4,800 miles to buy a bottle of wine is impractical.

 

“Out-of-state wineries are clearly burdened by Kentucky’s regulatory scheme,” Clay wrote.

 

The appellant claimed Kentucky’s law gave preference to Kentucky businesses over out-of-state merchants.

 

U.S. District Judge Charles R. Judge Simpson, sitting in Louisville, twice struck down the state’s in-person requirement – first in an existing law, then in a measure passed by the General Assembly before it could take effect in 2007.

 

Judge Simpson’s ruling which upheld Kentucky’s two-case limit and the creation of the Kentucky Grape and Wine Council,  was overruled by the 6th. Circuit.

 

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Law Professor Jonathan Turley says Bush Administration Officials Should be Held to Account for Torture – Warrantless Spying on Citizens

Wednesday, December 24th, 2008

 

December 23, 2008  – BLT – Legal Times Blog

Q&A: Jonathan Turley on Holding Bush and Cheney Accountable

George Washington University Law School professor Jonathan Turley is a leading constitutional scholar and commentator who has served as counsel for several defendants in terrorism and national security cases in recent years.
On talk shows and in print, Turley has argued in the last month that the Bush Administration should not be allowed to fade quietly from the scene on Jan. 20. He says top administration officials should be held to account for what he sees as criminal violations in connection with the torture of detainees, and its warrantless surveillance program. Turley (pictured at right) also asserts that if Eric Holder Jr., President-elect Barack Obama’s nominee to be attorney general, declines to view waterboarding as a crime, the Senate should not confirm him.
Earlier in December, Turley invoked the surveillance program in federal court as part of his appeal on behalf of Ali al-Timimi, a U.S. Muslim scholar convicted on terrorism charges in 2005. Turley claims al-Timimi was wiretapped under the program, and if he was, that it violated al-Timimi’s constitutional rights and spoiled the prosecution because it was withheld from his defense.
Turley answered questions by e-mail on how and why Bush officials should be prosecuted for their conduct during the last eight years.
What are the offenses of Bush Administration officials that you think need to be redressed or punished?
“The two most obvious crimes in this administration are the torture program and the unlawful surveillance program. Despite the effort to pretend that there is some ambiguity or uncertainty on these crimes, the law is quite clear.
“Waterboarding is not some new concept in the law. This torture technique goes back to the Spanish Inquisition and probably earlier. Courts in the United States, England and other countries have long held that waterboarding is not only a crime but a war crime. We prosecuted Japanese officers for this war crime in World War II. The English sentenced people to death for this form of torture.
“After the Spanish American War of 1898 in the Philippines, Major Edwin Glenn was court martialed and sentenced to 10 years hard labor for waterboarding an insurgent. The Senate denounced the practice. President Theodore Roosevelt dismissed a general for allowing his troops to waterboard suspects. “What is fascinating about this situation is that Congress and the Administration continue to pretend that they do not see a crime committed in plain view. However, the rest of the world sees an unambiguous war crime, particularly with Cheney casually discussing his role on national television.
“This could prove a bit of a problem when Bush, Cheney, and others travel after leaving office. While they would no doubt object to the comparison, there is a similarity with General Augusto Pinochet who was constantly faced with the threat of arrest during international travel. Home countries are generally given the first opportunity to prosecute for such crimes. When they fail to do so, international efforts often follow.”
What is the crime involved in the surveillance program?
“The law is equally clear. It is a felony to engage in warrantless surveillance of this kind. Congress has enacted two statutes that provide the sole means by which the government can obtain the necessary approval for electronic surveillance: Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), 18 U.S.C. § 2510 et seq., and the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq. Together, Title III and FISA supply “the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.” 18 U.S.C. § 2511(2)(f) (emphasis added). One federal court in Detroit has already declared the program to be unlawful and we challenged the law in the Al-Timimi case.”
Which officials would you prosecute, and how low or high up the ranks would you go?
“I was asked this question last week by a member of Congress. My response was that the criminal law would extend to all who participated in the criminal act. The criminal code does not call for the prosecution of all convenient crimes or defendants.
“Politicians merely have to get out of the way and allow a special prosecutor to take this investigation wherever it would lead. Having said this, it would be difficult to hold lawyers like John Yoo, who merely gave legal advice, responsible – no matter how baffling and unsupported it proved to be. Likewise, on the unlawful surveillance program, Democratic and Republican members who knew of the unlawful program would not be subject to prosecution.
“Bush, Cheney, and high-ranking officials would be obvious targets for prosecution under either program. However, I have resisted these questions from members because it misses the point: if there was a crime, we should not be concerned about where an investigation might lead. It will lead where criminal conduct is found. We do not ask that threshold questions for bankrobbers or purse snatchers. We leave the outcome to the criminal justice system.”
Why have your assertions not gained more currency in the public debate?
“The mainstream media has bought into the concept that this is merely a political not a legal question. Indeed, media often leave the clearly misleading impression that there is an equal academic debate over whether waterboarding is torture or whether warrantless surveillance is legal. To this day, media refers to waterboarding as an ‘interrogation technique’ when courts have consistently defined it as torture.”
How specifically should this accounting be done — by the next administration, by Congress, by an independent commission, the UN?
“All civil libertarians are asking is for politicians to simply get out of the way. Democratic leadership has blocked any serious investigation in the torture crimes. It will remain a lasting stain upon that institution that it refused to act in the face of clear war crimes.
“However, all that is needed now is for members of Congress to stop obstructing this process and allow a special counsel or prosecutor to investigate these crimes.”
What about the next administration?
“Eric Holder should be asked the same question that Mukasey refused to answer in his confirmation hearing: is waterboarding a crime? If he refuses to answer or denies that it is a crime, he should not be confirmed. If he admits that it is a crime, he should order a criminal investigation.
““This is precisely why Mukasey refused to answer the question (after first stating implausibly that he did not know what waterboarding is). The appearance around the world of not only a presumptive war crime but our continued debate over whether to investigate is destroying any credibility left after eight years of controversy. The rule of law demands that crimes be investigated equally for crimes equally whether they are committed by the lowest and the highest in our society.”
Why do you think this is necessary? Why not just turn the page?
“Every criminal defendant that I have represented wanted to ‘just turn the page.’ In my view, the response of our country to these crimes is as bad as the crimes themselves. A country should not be judged by those who break its laws. However, it is legitimately judged by how we treat those who break our laws.
“If there is no investigation or prosecution for these crimes, we will confirm what our enemies are claiming: that we are hypocrites who demand accountability from everyone but ourselves. If Obama’s administration circumvents a prosecution, it will adopt the very same legal relativisim that ultimately destroyed the credibility and authority of the Bush Administration an international pariah. The ‘page’ referenced in your question is the page that contains our commitment to the rule of law and blind justice. If we turn that page, we turn our backs on the very thing that defines us and distinguished us from our enemies.”
What efforts are underway to make this inquiry happen? What are the chances it will happen, and if you think they are low, why is that?
“The Democrats are clearly still testing the water for an alternative to prosecution to see if they can get away with another commission. Leaders do not see any personal or political benefits from a prosecution. It will come down to the voters. The commission proposal shows utter contempt for the intelligence of voters.
“We have been a nation of chumps – electing officials who run on civil liberties and legal process who have silently blocked any investigations into these crimes. I am still hoping that the public will finally have enough and demand that these politicians get out of the way and allow the criminal process system to work. The key may be the Holder confirmation. If he evades this simple and direct question (as did Mukasey), he should not be confirmed.”
 What reaction are you getting to your proposal, inside and outside GW?
“I have heard from people around the country asking for ways that they can be heard. There is an obvious sense of frustration and betrayal with Democratic leaders. The criminal investigation is a litmus test of principle for the Obama administration.
“If President Obama cannot stand with the rule of law on the issue of war crimes, he is continuing the approach of politics without principle that have made the current president and current Congress the least popular in modern history. It will take considerable pressure, however.
“This week, Democratic leaders again voiced interest in a commission to determine whether to investigate for war crimes. Since when do we need commissions to investigate whether to investigate crimes? The crime here is well defined and openly committed. A commission would only work to delay any action in the hopes that voters will eventually lose interest and dismiss the issue as ‘ancient history.’ The last thing we need is another commission like the 9-11 Commission. Congress has already passed laws making torture a crime. It is now up to prosecutors to enforce those laws.”
 

Law Professor: Bush v. Gore Set to Outlast Its Beneficiary – Case cited in Cincinnati Ruling

Tuesday, December 23rd, 2008

 

ADAM LIPTAK    December 22, 2008

 

The Supreme Court’s decision in Bush v. Gore, issued eight years ago this month, was widely understood to work like that tape recorder in “Mission: Impossible.” It was meant to produce a president and then self-destruct.

 

“Our consideration is limited to the present circumstances,” the majority famously said, “for the problem of equal protection in election processes generally presents many complexities.”

 

That sentence, translated from high legal jargon into English, was often taken to mean this: The decision was a ticket for one ride only. It was not a precedent. It was a ruling, yes, but it was not law.

 

But now, as the petitioner leaves the national stage, Bush v. Gore is turning out to have lasting value after all. “You’re starting to see courts invoke it,” said Samuel Issacharoff, a law professor at New York University, “and you’re starting to see briefs cite it.”

Divorced from its earlier context, the growing point of the case is to impose order on often chaotic election processes in the states.

 

“Bush v. Gore introduced an important idea,” Professor Issacharoff said. “It is that the political process has rules, the rules have to be fairly applied and that those rules need to be known up front.”

 

Bush v. Gore was, for instance, unapologetically at the heart of a unanimous decision last month from the United States Court of Appeals for the Sixth Circuit, in Cincinnati, allowing a comprehensive challenge to Ohio voting systems to move forward. The three-judge panel acknowledged the Supreme Court’s admonition about the limited precedential value of Bush v. Gore. Nonetheless, the panel said, “we find it relevant here.”

 

What Bush v. Gore means, the panel said, quoting from the decision itself, is that once a state grants the right to vote on equal terms, it may not “by later arbitrary and disparate treatment, value one person’s vote over that of another.” Forcing people in some parts of the state to wait many hours to vote as a consequence of the arbitrary allocation of voting machines, for instance, would violate the core principle in Bush v. Gore, the panel said.

It is possible, of course, to read Bush v. Gore more narrowly than that. The case did, after all, emerge from authentically peculiar circumstances. It may be that the decision means only something like this: A court-supervised statewide recount violates equal protection guarantees when it treats similar ballots differently by instructing local officials to use new and insufficiently specified standards.

 

But even versions of that narrower reading are turning out to have a practical impact.

Bush v. Gore was front and center in the briefs and arguments last week in the Minnesota Supreme Court’s consideration of the recount litigation in the Senate race between Norm Coleman and Al Franken. The candidates’ briefs cited the case some 20 times, arguing in earnest detail about how the Supreme Court’s understanding of the role of equal protection in election administration applied in Minnesota.

 

“Bush v. Gore has a future,” said Edward B. Foley, an election-law specialist at Ohio State. “We’re now starting to see it. There is a sense, eight years later, that some of the initial reaction was an overreaction.”

In the early days, of course, the case was mocked as illegitimate in both its reasoning and its result. “That was so completely the prevailing wisdom” in the law schools, Professor Issacharoff said, “that there were even challenges as to whether Bush v. Gore could be taught as a serious case.”

 

Many judges flatly refused to consider the decision as precedent for anything, relying on the Supreme Court’s admonition and a more general unease. No Supreme Court opinion, including concurrences and dissents, has ever cited Bush v. Gore.

 

“It hasn’t been cited even in cases where it should have been cited,” said Richard L. Hasen, who teaches election law at Loyola Law School in Los Angeles and is the author of “The Untimely Death of Bush v. Gore,” published last year in The Stanford Law Review. “The case is radioactive. Anyone who touches it knows he’s playing with something very dangerous.”

 

Indeed, when the Ninth Circuit cited the case in March 2001, it was to justify its own assertion that one of its rulings was “valid only in this case.”

 

But the law is ordinarily understood as a system of neutral principles consistently applied. “To provide a reason for a decision,” Frederick Schauer wrote in The Stanford Law Review in 1995, “is to include that decision within a principle of greater generality than the decision itself.”

 

To be sure, courts sometimes limit earlier decisions to their facts, which robs them of precedential force and essentially overrules them. But what the Supreme Court did in Bush v. Gore was “historically unique,” Chad Flanders wrote in The Yale Law Journal last year. “No other majority in the history of the court,” Mr. Flanders wrote, “has applied limiting language to the very case being decided.”

 

Other scholars say the court’s admonition was a routine caution that the decision, issued very quickly, should be read narrowly, not that it should be ignored entirely.

Until the recent Sixth Circuit decision, the most important invocation of Bush v. Gore by a federal appeals court probably came in a 2006 case decided by a different panel of the same court. The decision was later vacated as moot by the full court, but the testy interaction of the panel’s judges remains instructive.

 

The dissenting judge on the three-judge panel criticized his colleagues for relying on “the Supreme Court’s murky decision in Bush v. Gore” in a case about the use of punch-card ballots in Ohio. The judge, Ronald Lee Gilman, pointed to the one-ride-only language and what he called the Supreme Court majority’s ideological inconsistency and lack of intellectual seriousness.

 

The judges in the majority were having none of that. “Murky, transparent, illegitimate, right, wrong, big, tall, short or small,” they wrote, “regardless of the adjective one might use to describe the decision, the proper noun that precedes it — ‘Supreme Court’ — carries more weight with us.”

 

“Whatever else Bush v. Gore may be,” Judge Boyce F. Martin Jr. wrote for the majority, “it is first and foremost a decision of the Supreme Court of the United States and we are bound to adhere to it.”

 

FRANKLIN CIRCUIT COURT RULING HAS INTERNATIONAL IMPLICATIONS – Kentucky’s scheme to seize internet domain name raising eyebrows on world wide web

Monday, December 22nd, 2008

 

 

A Kentucky Court Approves the Seizure of Out-of-State Companies’ Domain Names: A Dangerous Precedent that May Chill Free Speech and Impede Global Internet Communications

 

By ANITA RAMASASTRY             Monday, Dec. 22, 2008

Does a government or court have the right to seize a domain name when a website’s activities are illegal where the government or court sits, but legal elsewhere?
This is the question raised in a recent Kentucky dispute over online gambling websites. Online gambling is legal in many places in the world, but illegal in the United States. Thus, the State of Kentucky – in an effort to impede online gaming by state residents – went to court to seize 141 domain names as a means of shutting down many popular online casinos. All of the domain-name owners likely reside out-of-state.
In October, Kentucky Judge Thomas Wingate held that Kentucky’s seizure was lawful on the ground that the domain names were illegal “gambling devices” subject to Kentucky’s anti-gambling laws. He reached that conclusion first ex parte (that is, without the presence of the site operators’ attorneys) and then after a hearing. Judge Wingate thus ordered various domain name registrars to transfer ownership of the 141 domain names to Kentucky officials – which will effectively shut down the websites, or at least deny potential users access to those sites via their popular domain names. To reach the conclusion that Kentucky had the power to seize the domain names, the judge had to make several logical leaps – such as finding that the domain names were intangible property located in Kentucky.
Just last week, three judges on the Kentucky Court of Appeals heard oral argument in the case, which has the Internet world spinning. In the interim, the Court of Appeals has stayed the order, so the domain names will not be transferred to the State until and unless the Court of Appeals rules in the State’s favor. The primary basis of the appeal is that the attempted seizure violates the U.S. Constitution and Supreme Court precedent, including the First Amendment, and the principle that States cannot interfere with commerce that is national or global.
In this column, I will discuss the lower court’s ruling and why it is flawed.
The Kentucky Court’s Ruling
Initially, Kentucky’s Justice and Public Safety Cabinet filed its complaint in secret and under seal, obtaining an ex parte ruling before the gambling site operators had a chance to object. Then, some of the web site operators sought to overturn the ruling at a September 26 court hearing. Their attorneys contended, for example, that the court lacked jurisdiction over the seizure of their domain names because domains are merely contractual rights, rather than property. They also argued that because the domain names weren’t physically located in Kentucky, Kentucky did not have authority to seize them.
The court found, however, that the domain names were intangible property, similar to software or a patent. Judge Wingate also held that the state had jurisdiction over the domain names because they were located in Kentucky in that they were virtual casinos which operated like physical ones — inside Kentucky.
Finally, Judge Wingate held that the domain names themselves were illegal gambling devices. A Kentucky statute provides that illegal “gambling devices” in Kentucky are subject to forfeiture, and defines a “gambling device” as a tangible device manufactured and designed specifically for gambling.
Judge Wingate’s interpretation of the statute is thus questionable on two counts: The domain names are not tangible, and it is odd to call them “devices” for gambling in the sense that, say, a roulette table fits that definition. Yet Judge Wingate compared the domain names to “virtual keys for entering and creating virtual casinos from the desktop of a resident in Kentucky.” He reasoned that the domain name is indispensable in maintaining the player’s continuing access to the virtual casinos’ “premises.”
Judge Wingate did amend his earlier seizure order to exempt any online casino that employs geographic filtering tools to block Kentucky residents. However, as the domain name owners and Internet civil liberties groups have argued, it is very expensive and difficult to actually block sites from reaching different states or countries. In contrast, sites can effectively put disclaimers on their sites or attempt to block transactions by screening credit cards. Now, as noted above, the case is stayed pending appeal, so the domain names are currently still in the owners’ possession.
Are Domain Names Property, and If So, Where Does that Property Reside?
There is no question as to what the right practical and constitutional answer is here: Domain names registered outside of Kentucky should not be considered to be property “present” in Kentucky. If so, any government anywhere in the world could seize the domain names of any site, thus blocking the site globally – a grossly overbroad action when a government can block a site in its own country.
But what about the answer under Kentucky property law? Many courts have grappled with the issues of whether a domain name is a form of property or simply a contractual right to use a particular name to identify a certain internet protocol (IP) address on the web (similar to how a phone directory matches a name to a phone number).
To consider the issue, it is necessary to know a little more about how domain names work: The job of distributing domain names and keeping track of who controls them is delegated to registrars. There is only one “registry” for each top-level domain, including “.com”. In turn, there are hundreds of registrars who sell domain names to the public. Registrars track of who has registered each name and for how long. Each registrar has its own contractual terms, which it applies to domain name registrations, and these vary greatly.
Several courts have held that a domain name is a form of intangible property. In 2003, for instance, the U.S. Court of Appeals for the Ninth Circuit issued a decision upon which Judge Wingate relied. In Kremen v. Cohen, plaintiff Gary Kremen sued registrar Network Solutions for conversion in connection with the domain name “sex.com,” after a competitor had improperly obtained a transfer of the name away from Kremen using a forged letter provided to the registrar.
In Kremen, the Ninth Circuit confronted the issue of whether a domain name registration was a form of property that could be subject to conversion (that is, that could be illegally taken from its owner) under California law. The panel of judges – in an opinion by Judge Alex Kozinski — concluded that it was, indeed, a type of property and offered a three-part test: “[F]irst, there must be an interest capable of precise definition; second, it must be capable of exclusive possession or control; and third, the putative owner must have established a legitimate claim to exclusivity.”
Some courts have followed suit; others have ruled differently. In Network Solutions, Inc. v. Umbro International, the Virginia Supreme Court concluded that the holder of a domain name has a contract right, based on an agreement with a registrar, and held that domain names are not subject to garnishment under Virginia state law. It reasoned that “t;a domain name registration is the product of a contract for services between the registrar and registrant.”
Did the Kentucky Court Have Jurisdiction Over the Domain Names?
Even assuming that Judge Wingate (and Judge Kozinski, on whose opinion Judge Wingate relied) are right that a domain name is property, however, where is that property located?
The court in Kentucky v 141 Domain Names invoked “in rem” jurisdiction – that is, jurisdiction invoked basis on the location of the property (the “res,” or thing) itself. (Neither the registrars nor the domain owners appear to be located in Kentucky.) Judge Wingate, in turn, held that in rem jurisdiction was proper here, because the gambling websites were accessible to persons located in Kentucky and allowed them to open accounts and to gamble. But this would means that any online casino a Kentucky resident patronizes is deemed to be located in Kentucky – and also that any online casino is deemed to be located (not just to do business) everywhere a single one of its users lives.
This logic seems deeply flawed. After all, Kentucky was not seeking to ban or fine the businesses that ran the websites for illegally doing business in Kentucky. It wanted to take their domain names on the ground that the domain names were located there.
Where are domain names located? Traditionally, courts find that intangible property is located where its owner is domiciled, or in some cases (such as that of stocks) where it is registered. With respect to intangible property, such as stock, insurance policies, and rights to payment, courts have repeatedly held that such property has its location where the party controlling it may be found. And again, as noted above, none of the domain name owners appear to reside in Kentucky.
Personal jurisdiction over the registrars is a different issue; this, again, is in rem jurisdiction, asserted over the domain names. In many circumstances, states have acted to block websites from reaching their citizens, or have prohibited Internet companies from transacting in their states – by fining them or otherwise sanctioning them – but there, states asserted personal jurisdiction based on the companies’ doing business in the state.
Why the Kentucky Ruling Also Abridges Constitutional Rights
Both the domain name owners and civil rights groups have raised other important constitutional arguments in the Kentucky case. These organizations, including the Electronic Frontier Foundation and the American Civil Liberties union, have highlighted the danger that could result if a state court can order the seizure of domains regardless of where they are registered.
The constitutional issues here include whether due process is violated if the domain name registrars are hauled into court in Kentucky, when they may not have adequate contacts there to form a basis for the assertion of jurisdiction.
The First Amendment issues here, too, are strong: A state’s power to seize a domain name might have a chilling effect on speech, causing people to self-censor. Moreover, if the domain names were seized, could others refer to them – or would they also be punished?
Finally, the ability of Kentucky to seize the domain names – and thus effectively deny citizens from other states access to sites — impedes interstate commerce in the United States, and thus is a violation of the Commerce Clause.
If the Kentucky Court of Appeals sides with Judge Wingate, what will this mean for websites? The result would be both frightening and absurd. If any state or country had the power to order the seizure of sites’ domain names (even those used and registered elsewhere) on the ground that the sites violated local laws, this would give huge power to any government – including repressive regimes. As the Electronic Frontier Foundation has noted: “If the mere ability to access a website gives every court on the planet the authority to seize a domain name if a site’s content is in some way inconsistent with local law, the laws of the world’s most repressive regimes will effectively control cyberspace.”
A country that dislikes certain types of speech, for example, could order the transfer of the relevant domain names and thus effectively hijack a vital part of the Internet. Of course there is an issue of whether registrars would comply with such orders – but we should be able to depend on law, not just the registrars, to protect our rights.
             
 

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Buyer’s Remorse Prompts Appellate Court Decision – Right to Rescind Condo Purchase limited

Monday, December 22nd, 2008

MIAMI, Dec. 22 , 2008
- Property values reached an all time low this year compelling many condo speculators to back out of contracts in order to minimize their losses. Cases surfaced where plaintiffs sought to rescind their sales contracts, accusing developers of failure to comply with certain disclosure requirements mandated by the Interstate Land Sales Full Disclosure Act (ILSA). Last week, however, many plaintiffs reached a dead end with those allegations.
On December 9, the Eleventh Circuit issued the first opinion in the country from a circuit court of appeals addressing the split of authority among the federal district and state courts on whether builders, whose developments are partially exempt under ILSA, must comply with all disclosure provisions.
The Eleventh Circuit reversed the federal district court’s ruling, preventing plaintiffs from rescinding their contracts with homebuilders who rightfully believed they had met all requisite disclosure requirements for their types of developments. Akerman Senterfitt represented the National Association of Home Builders and the Florida Home Builders Association as amicus curiae in the appeal before the Eleventh Circuit.
“This favorable decision is the result of excellent work by our appellate attorneys and reflects the overall strength and experience of our appellate practice group,” said Joseph Hatchett, Chair of Akerman’s appellate practice group, former Chief Judge of the United States Court of Appeals for the Eleventh Circuit and former Florida Supreme Court Justice. “Our litigators have been involved in a number of speculative condo litigation matters this year and can expect these cases to expand regionally throughout the U.S. as long as the housing market remains depressed.”
                                                                                                                                                               

 

Beaver’s Mother Barbara Billingsley turns 93 – See how she is related to LawReader’s Editor Stan Billingsley

Monday, December 22nd, 2008

Dec. 22, 2008
Barbara Billingsley celebrates her 93rd. birthday Dec. 22, 2008. 
Actress Barbara Billingsley (born December 22, 1915) is an American film, television and character actress, who in her five decades of television came to prominence in the 1950s as an everyday mother, June Cleaver, on Leave it to Beaver, and its sequel, Still the Beaver (also known as The New Leave It to Beaver), two decades later. It was during that time she provided the voice of the unseen “Nanny” on Jim Henson’s Muppet Babies.

Barbara Billingsley’s first husband Glenn Billingsley is a cousin ( a couple of times removed) to LawReader Senior Editor Stan Billingsley.  Glenn’s father Logan Billingsley and his Uncle Sherman Billingsley, and Judge Stan Billingsley’s father were cousins and all were originally from southern Oklahoma.  

One of Judge Billingsley’s prize possessions is an autographed picture from Barbara Billingsley and a personal letter where she discusses the family history.

Sherman Billingsley was famous for owning the Stork Club, which was the top club in New York City during the 40’s and 50’s.   The Stork Club made use of television to broadcast from the club and often hosted Walter Winchell, the Kennedys  and other celebrities.  Gossip columnists staked out the club in order to catch a glimpse of the rich and famous who stopped by to be seen.  The Stork Club for many years threw THE ultimate New Year’s Eve party.

After Barbara Billingsley divorced Glenn Billingsley, she retained the name Billingsley.

Career

With a year at Los Angeles Junior College behind her, Billingsley traveled to Broadway when Straw Hat, a revue in which she was appearing, attracted enough attention to send it to New York. When, after five days, the show closed, she took an apartment on 57th Street and went to work as a $60-a-week fashion model.
As an actress on the silver screen, she had usually uncredited roles in major motion picture productions in the 1940s. These roles continued into the first half of the 1950s with The Bad and the Beautiful as well as the sci-fi story Invaders from Mars (1953). Her film experience led to roles on the sitcoms Professional Father and The Brothers and an appearance with David Niven on his anthology series Four Star Playhouse.
Billingsley became best known for her role in the 1950s and 1960s television series Leave It to Beaver as June Cleaver, wife of Ward Cleaver (Hugh Beaumont) and the mother of Wally (Tony Dow) and Beaver Cleaver (Jerry Mathers). The Cleaver household became iconic in its representation of an archetypal suburban lifestyle associated with 1950s America. In the show, Billingsley often could be seen doing household chores wearing pearls and earrings. The pearls were her idea. The actress had an unsightly surgical scar on her neck and thought that wearing a strand of pearls could cover it up for the cameras. In later seasons of the show she also started wearing high heels to compensate for the fact that the actors who played her sons were getting taller than her. [1] The sitcom show ran from 1957 to 1963 and proved to be very lucrative for Billingsley.
When production of the show ended in 1963, Billingsley became typecast as saccharine sweet and had trouble obtaining acting jobs for years. She traveled extensively abroad until the late 1970s. After an absence of 17 years from the public eye (other than appearing in two episodes of The F.B.I. in 1971), Billingsley spoofed her wholesome image with a brief appearance in the comedy Airplane! (1980), as a passenger who could “speak jive.”
She became the voice of “Nanny” and “The Little Train” on Muppet Babies from 1984 to 1991.
Billingsley appeared in a Leave It to Beaver reunion television movie entitled Still the Beaver in 1983, a year after her on-screen husband during the six-year original run of the series, Hugh Beaumont, died of a heart attack, thus, playing the widowed mother. She also appeared in the subsequent revival television series, The New Leave It to Beaver (1985-1989). In the 1997 film version of Leave It to Beaver, Billingsley played the character “Aunt Martha”.
Now 93, Billingsley recently completed a role on NBC’s sitcom My Name Is Earl.
On May 6, 2008, while being hospitalized at Cedars-Sinai Medical Center, she was unable to attend the Academy Leonard Goldenson Theatre in North Hollywood, California, where the Academy of Television Arts & Science presented, “A Salute to TV Moms.” The surviving TV moms who attended the party were: Marjorie Lord, Holland Taylor, Bonnie Franklin, Vicki Lawrence, Tichina Arnold, Cloris Leachman, Doris Roberts, Diahann Carroll, Catherine Hicks and Meredith Baxter. In Billingsley’s absence, her name was mentioned in her honor.

Personal life

Billingsley was born Barbara Lillian Combes in Los Angeles, California. She and her first husband, Glenn Billingsley, a successful restaurateur, had two sons, Drew and Glenn, Jr. Since 1974, Drew and Glenn have owned and operated Billingsley’s Restaurant in West Los Angeles, in the tradition of their father, and their great uncle, Sherman Billingsley, founder of New York City‘s very fashionable 1940s-era nightclub, The Stork Club. Billingsley divorced Glenn Billingsley, but kept his surname professionally, and later married Roy Kellino, a director. After Kellino’s death, she married Dr. William Mortenson, who died in 1981.
Billingsley is related by marriage to actor/producer Peter Billingsley, known for his starring role as Ralphie in the seasonal classic A Christmas Story. First husband Glenn’s cousin is Peter’s mother, Gail Billingsley.

Film roles

Television shows

 

“Bare Bones” does not mean No Bones!! A closing argument may be used to “Flesh Out” the instructions. But as currently applied in the courts, the Bare Bones rule is ALL BONE AND NO FLESH.

Sunday, December 21st, 2008

 

By Judge Stan Billingsley (Ret.)
 

Justice Palmore is credited with creating the Ky. Bare Bones rule for jury instructions in Cox v. Cooper, 510 S.W.2d 530 (Ky., 1974) when he said:
 

“Instructions] should not contain an abundance of detail, but should provide only the bare bones of the question for jury determination.”‘
 

Palmore has been quoted as saying:
 

what a lawyer should do if he or she is not satisfied with the trial court’s instructions: “[I]f counsel felt that the jury was too thick to get the point all he had to do was to explain it in his summation.”  (This quote comes from the Cox decision.)
 

Other decisions have explained Palmore’s Bare Bones rule and said:
 

The concept permits the instructions to be “fleshed out” in closing argument.”
 

 

      Justice Palmore did not originally forbid more robust instructions that “defined the rights of a litigant”, indeed he wrote that sometimes that something other than Bare Bones instructions might be appropriate.  In his ruling in Cox  he qualified the strict application of the rule when he said the Bare Bones rule should only be applied  “as a general proposition”.
 

Justice Palmore explained the Bare Bones rule in:
 

Cox v. Cooper, 510 S.W.2d 530 (Ky., 1974)
“ It may sometimes be appropriate for instructions to define the rights of a litigant, as for example in the instance of a peace officer sued for assault incident to an arrest, but as a general proposition they should be couched in terms of duties only. Recovery hinges not on the question of who was within his rights, but who breached a duty.
If the duty is simple enough to be stated without defining it in terms of the rights of one party or the other, that is all that is necessary, desirable, or proper.
In this case the jury was instructed that each party had the duty of not entering on the red light, and as to the light that was enough. Unmistakably it had to mean that they had the right to enter on any other color, and if counsel felt that the jury was too thick to get the point all he had to do was to explain it in his summation. Our approach to instructions is that they should provide only the bare bones, which can be fleshed out by counsel in their closing arguments if they so desire.
        Schwartz v. Humphrey, Ky., 437 S.W.2d 750 (1969), we considered at some length the question of just when it is appropriate, vel non, to confine the instructions in a controlled intersection case to the narrow issue of which driver had the traffic light in his favor. When the evidence would support an inference that both vehicles entered the intersection properly, or that one or both of the drivers thereafter could have avoided the collision by the exercise of ordinary care (as it often may be when the width of the intersecting street is such that in the course of crossing it a driver has time to observe the other vehicle’s intrusion and space in which to stop or turn aside), the instructions should not be limited to the issue of which one violated the red light. However, far from being inconsistent with that principle, the instructions given in this case were entirely in conformity with it.”
Just how far can counsel go in “fleshing out the skelton of the Bare Bones instructions?
 

While the Bare Bones rule has been readily applied by the courts, the limits of trial counsel’s right to then “flesh out” those instructions is not as easy to apply in the trial situation.  
 

In 2003 the court in Yahya v. Lexmark (see below) appeared to leave a great deal of discretion to trial counsel on how far they could go to “flesh out” the jury instructions.   In Yahya the court said an attorney could flesh out the jury instructions “…to the extent and to the measure that the respective counsel deem appropriate.”
 

Other rulings cited herein, (See Collins case)   appear to limit this right to explaining “what such instructions mean, or do not mean.”
 

One important point is not answered by the courts. What about those situations where the “duty” is stated in the instruction in the most general language possible, and the court refuses an instruction stating the actual wording of the applicable statute creating that “duty”.  How can one explain what the instruction means if they can’t discuss the actual wording of the statute that created the duty as cited in the instruction? 
 

There is no clear court ruling that says the attorney in his closing argument may cite the specific law upon which the duty mentioned in the instruction is based. Therefore there is no court ruling which allows the attorney in his closing argument to explain the underlying law.
 

In practice, it is not unusual for the court to issue an instruction compliant with the “bare bones” rule, but then ordering the attorney not to discuss the underlying statute which creates the duty upon which the instruction is based.
 

Such a practice effectively guts the “fleshing out” remedy to an incomplete “bare bones” instruction. 
 

We would suggest that our appellate courts should provide some guidance on whether or not an attorney may cite the statute upon which the instruction is based, and to provide the bench and bar with guidance about the extent of the right to “flesh out” the jury instructions on closing argument.
 

In a recent case issued by the Ky. Supreme Court Ky. Supreme Court –  2007-SC-000006-MR.pdf  TO BE PUBLISHED – McCracken Circuit Ct. -  Dec. 18, 2008  STANLEY STOKES  V.  COMMONWEALTH OF KENTUCKY, the court allowed the Commonwealth to introduce a definition from a medical dictionary under the Judicial Notice rule.
 

 But in another decision handed down the same day Ky. Supreme Court –  2007-SC-000377-MR.pdf  TO BE PUBLISHED – Fayette Circuit Court  Dec. 18, 2008
 Ondra Leon Clay  V. Commonwealth of Kentucky , the court virtually forbade the reading of a statute to the jury.
“…taking judicial notice of “the law” during the course of a trial is tantamount to instructing the jury prior to the close of the evidence.   Obviously, a court could still take judicial notice of a law, if that law constituted an adjudicative fact in a particular case . An example of this would be proving the legal drinking age if there was a dispute as to what that age is, or any other time that it might be necessary to prove what the law is as a question of fact.

This philosophy places a “dictionary definition” in a higher evidentiary status than a relevant statute published in the Kentucky Revised Statutes.

If counsel cannot read the text of the statute and explain it, and the trial court using the “bare bones” doctrine feels compelled not to instruct the jury on the actual language of the relevant law, and if the “fleshing out” doctrine is limited to only explaining the actual words contained in the bare bones instruction, then the arguing lawyer is left with nothing to explain.  

Ergo, there is virtually no meaning to the “fleshing out’ right as currently applied in our trial courts. 

 

Authorities:
 

 

Yahya v. Lexmark International, Inc. (Ky. App., 2003)
 

“Kentucky has adopted the “bare bones” approach to jury instructions. Rogers v. Kasdan, Ky., 612 S.W.2d 133. It is the duty of counsel to flesh out the instructions in closing arguments to the extent and to the measure that the respective counsel deem appropriate. Humana, Inc. v. Fairchild, Ky. App., 603 S.W.2d 918”
 

We cannot find a direct quote as used in Yahya above, but in Humana, Inc. v. Fairchild, Ky. App., 603 S.W.2d 918, the court did say:
 

“It is the respective counsel’s duty to see to it that the jury clearly understands what such instructions mean, or do not mean. Collins v. Galbraith, Ky., 494 S.W.2d 527 (1973)
 

But in Collins v. Galbraith the court held:
 

   “ In conclusion, it may be well to mention that whenever counsel feels that jurors might draw inferences that are not warranted by the specific terminology of the instructions, his opportunity to guard against it comes in the closing argument.
 

If instruction are to be kept concise and to the point, as they should be, their supplementation, elaboration and detailed explanation fall within the realm of advocacy.
 

Contrary to the practice in some jurisdictions, where the trial judge comments at length to the jury on the law of the case, the traditional objective of our form of instructions is to confine the judge’s function to the bare essentials and let counsel see to it that the jury clearly understands what the instructions mean and what they do not mean.
 

 

 

Harp v. Commonwealth, No. 2007-SC-000288-MR (Ky. 10/23/2008) (Ky., 2008)
Our precedent of longstanding leaves no doubt that we have adhered to the “bare bones” principle of jury instructions.9 Indeed, former Chief Justice Palmore apparently coined the “bare bones” phrase in a 1974 civil case, although the phrase has been similarly applied to criminal cases.10 We have explained this bare bones approach to instructions as meaning that as a general matter, “evidentiary matters should be omitted from the instructions and left to the lawyers to flesh out in closing arguments.”11 Or, as we more recently explained, jury instructions should tell the jury what it must believe from the evidence in order to resolve each dispositive factual issue while still “providing enough information to a jury to make it aware of the respective legal duties of the parties.12
        We remain committed to the bare bones instructional principle, confident that it works well in most cases to “pare down unfamiliar and often complicated issues in a manner that jurors, who are often not familiar with legal principles,
Page 7
can understand.”13 But instructions must not be so bare bones as to be misleading or misstate the law.14
        As mentioned, we have determined that the law requires specific identifiers to be placed in each count in a case involving multiple counts of the same offense. So a failure to include at least some basic evidentiary identification in the sexual abuse instructions at hand was a misstatement of the law. Furthermore, the lack of specificity in the instructions readily lends itself to a potential unanimity problem.15
        No doubt able counsel could—and in this case, did—attempt to “flesh out” the generic sexual abuse instructions in closing argument by telling the jury which specific act of sexual abuse was covered by which specific count of the charges. And, in dictum, we have appeared to approve of such attempted corrective and curative action by the Commonwealth.
In essence, our imprecise and unfortunate dictum in Bell can be taken to stand for the proposition that able counsel may “cure” a defective jury instruction in closing argument. But we very recently made it clear in a unanimous opinion that jury instructions, which a jury is presumed to follow, must be based solely upon the evidence; and “an attorney’s arguments do not constitute evidence.”20
Page 9
Therefore, we reached the plain conclusion that “the arguments of counsel are not sufficient to rehabilitate otherwise erroneous or imprecise jury instructions.”
the concept of fleshing out bare bones instructions permits counsel to attempt to explain the instructions to the jury but does not permit counsel to attempt to correct erroneous jury instructions.
 

Bell is overruled to the extent that its dictum suggests that a failure to include the requisite specific identifying language in jury instructions can be rendered a harmless error by the curative powers of counsel’s closing argument
 

 

 

Olfice, Inc. v. Wilkey, 173 S.W.3d 226 (KY, 2005)
 

 Following Cox, several other decisions from this Court and the Court of Appeals have reaffirmed our adherence to the use of bare bones instructions. Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky.1992). (“In instructing juries, Kentucky uses the `bare bones’ method…. `[Instructions] should not contain an abundance of detail, but should provide only the bare bones of the question for jury determination.”‘) Rogers v. Kasdan, 612 S.W.2d 133, 136 (Ky.1981).
(“The general rule for the content of jury instructions on negligence is that they should be couched in terms of duty. They should not contain an abundance of detail, but should provide only the bare bones of the question for jury determination.”) King v. Grecco, 111 S.W.3d 877, 882 (Ky.App.2002). (“[I]t is apparent that Kentucky is not a jurisdiction which favors instructing the jury at length regarding every subtle nuance of the law which may be relevant to a particular case.”)
        In addition to case law, several commentators have enunciated similar principles.
        [T]he function of instructions is only to state what the jury must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof. In Kentucky, the content of jury instructions on negligence should be couched in terms of duty. They should not contain an abundance of detail, but should provide only the `bare bones’ of the question for jury determination.
Page 229
        Kurt A. Philips, Jr., 7 Kentucky Practice: Rules of Civil Procedure Annotated, § 51 (5th ed.1995) (citing Webster v. Commonwealth, 508 S.W.2d 33, 36 (Ky.1974)). Justice Palmore likewise observed:
        The basic function of instructions in Kentucky is to tell the jury what it must believe from the evidence in order to resolve each dispositive factual issue in favor of the party who bears the burden of proof on that issue. In other jurisdictions, as at common law, it may be appropriate to say that the purpose of instructions is to advise the jury on the law of the case, but not in this state.
        Justice Charles M. Leibson, “Legal Malpractice Cases: Special Problems in Identifying Issues of Law and Fact and in the Use of Expert Testimony,” 75 Ky. L.J. 1, 40 (1986) (quoting John S. Palmore, Kentucky Instructions to Juries, § 13.01 (1977)).
        From the case law and commentary, it is clear that Kentucky law mandates the use of “bare bones” jury instructions in all civil cases. See Lumpkins v. City of Louisville, 157 S.W.3d 601 (Ky.2005). The Court of Appeals in this case correctly stated that jury instructions should refrain from elaborating on an abundance of detail, but still strike the proper balance in providing enough information to a jury to make it fully aware of the respective legal duties of the parties. King v. Ford Motor Co., 209 F.3d 886 (6th Cir.2000).
Indeed, “bare bones” instructions serve the courts and juries well because they pare down unfamiliar and often complicated issues in a manner that jurors, who are often not familiar with legal principles, can understand.
        ”Bare bones” instructions are proper if they correctly advise the jury about “what it must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof” on that issue. Meyers, 840 S.W.2d at 824; Leibson, supra. The question to be considered on an appeal of an allegedly erroneous instruction is whether the instruction misstated the law. Meyers, supra, at 823. It is within a trial court’s discretion to deny a requested instruction, and its decision will not be reversed absent an abuse of that discretion. King, supra.
        Thus, the question herein is whether the instructions misstated the law by failing to sufficiently advise the jury “what it [had to] believe from the evidence in order to return a verdict in favor of the party who [had] the burden of proof.” Meyers, supra.
 

Lumpkins v. City of Louisville, No. 2003-SC-0267-DG (KY 3/17/2005) (KY, 2005)
 

The Kentucky practice of “bare bones” instructions applies to all litigation including civil rights cases. The concept permits the instructions to be “fleshed out” in closing argument. See Rogers v. Kasdan, 612 S.W.2d 133 (Ky. 1981).
 

 

 

Perdue v. CSX Transportation, Inc., No. 2006-CA-000724-MR (Ky. App. 4/27/2007) (Ky. App., 2007)
 

 This jurisdiction “uses the `bare bones’ method. This method does not include explaining evidentiary matters or evidentiary presumptions with the instructions. `They should not contain an abundance of detail, but should provide only the `bare bones’ of the question for jury determination. This skeleton may then be fleshed out by counsel on closing argument.’ Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky. 1992) (Citation omitted.). Instructions must advise the jury “what it must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof.” Meyers, id.
 

Our question on review is not whether Perdue’s tendered instructions stated the substantive law more specifically, but to determine whether the delivered instruction misstated the law. Olfice, Inc. v. Wilkey, 173 S.W.3d 226 (Ky. 2005).
 

“Bare bones” jury instructions must be given with the understanding that they are merely a framework for the applicable legal principles. It becomes the role of counsel, then, to flesh out during closing argument the legal nuances
Page 11
that are not included within the language of the instruction. See Rogers [v. Kasdan], 612 S.W.2d [133,] 136 [(Ky. 1981)]. This principle was aptly stated by Justice Palmore in the Cox decision, wherein he explained what a lawyer should do if he or she is not satisfied with the trial court’s instructions: “[I]f counsel felt that the jury was too thick to get the point all he had to do was to explain it in his summation.” Cox [v. Cooper], 510 S.W.2d [530,] 535 [(Ky. 1974)].
The trial court’s instruction correctly stated the law, and the court did not abuse its discretion in refusing to give Perdue’s tendered instruction that exceeded Kentucky’s “bare bones” approach and “gave undue prominence to facts and issues.” See Rogers v. Kasdan, 612 S.W.2d at 136.
 

…The instructions were not misleading and properly guided the jury in its determination of whether the brake malfunctioned on September 26 and caused Perdue’s injuries. Perdue was free to argue during his closing argument about any of the particulars omitted from the instructions. The trial court did not abuse its discretion in failing to deliver Perdue’s tendered instructions.

Ky. Sup. Ct. rules on: LEARNED TREATISES VS. JUDICIAL NOTICE – also adjudicative facts-dictionary definition

Sunday, December 21st, 2008

 


The following discussion concerns the difference between admission of evidence under the Learned Treatise rule versus admission under the Hearsay exception under the Judicial Notice rule.  Also discussion are “adjudicative fact” and the rules for “Judicial Notice of a Law.”  The first case allows introduction of a “dictionary definition”. 

 

Ky. Supreme Court –  2007-SC-000006-MR.pdf  TO BE PUBLISHED   MCCRACKEN  CIRCUIT COURT   Dec. 18, 2008
 STANLEY STOKES
 V.
 COMMONWEALTH OF KENTUCKY
 OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING ABRAMSON, J., CONCURS BY
SEPARATE OPINION.  CUNNINGHAM, J., CONCURS BECAUSE THE INFORMATION GIVEN TO THE JURY WAS ONLY
THE UNCONTROVERTED  DEFINITION OF AN OFFENSE ALREADY INTRODUCED, NOT
NEW “PROOF,” AND WAS  THEREFORE NOT ERROR– HARMLESS OR OTHERWISE
LawReader NOTE:
This ruling notes the difference in the use of evidence admitted by the court under Under KRE 803(18), known as the Learned Treatise Rule and evidence admitted purely by Judicial Notice.
1) Learned Treatise Rule – KRE 803(18),:”The judicial notice used in this rule goes only to whether the document is a reliable authority, not that the statements read are adjudicative facts.”
2) Judicial notice under KRE 201, however, concerns only adjudicative facts . KRE 201(a) . If a fact is judicially noticed under this rule, the jury must be instructed to accept such fact as conclusive. KRE 201(g)”
******
“During rebuttal, the Commonwealth asked to be allowed to read the
definition of “psychogenic” from an unnamed medical dictionary as a learned treatise pursuant to KRE 803(18) . Defense counsel objected that under the rule, a learned treatise must be introduced through an expert witness .
 

In response, the Commonwealth replied that the trial court could simply take judicial notice of the definition.

 

The trial court ruled that no expert would be required if it took judicial notice that the dictionary was a learned treatise, to which defense counsel again made proper objection and moved for a mistrial, which was overruled .

 

The trial court then informed the jury that it was recognizing “this book,” which still remained unidentified, as a learned treatise, and that what the Commonwealth was going to read was reliable and could be considered during deliberations. The Commonwealth then defined psychogenic as “produced or caused by psychological factors .”

 

Appellant argues that the trial court abused its discretion by taking
“judicial notice” of a medical dictionary as a “learned treatise .” While there is much confusion of terms here, the trial court committed no error when it
allowed the Commonwealth to read a definition of “psychogenic” into the
record.

 

Under KRE 803(18), known as the learned treatise rule, statements from
such a document are not excluded by the hearsay rules, even though the
declarant is not available as a witness, when these statements are used in questioning an expert witness, either on direct or cross, if the statements are established as a reliable authority either by the witness, other expert testimony, or by judicial notice. The judicial notice used in this rule goes only to whether the document is a reliable authority, not that the statements read are adjudicative facts. As always, the weight of the authority must be determined by the trier of fact.

 

Judicial notice under KRE 201, however, concerns only adjudicative
facts . KRE 201(a) . If a fact is judicially noticed under this rule, the jury must be instructed to accept such fact as conclusive. KRE 201(g) . To be properly judicially noticed, the fact must not be subject to reasonable dispute, because it is generally known or can be determined by resort to sources whose accuracy cannot be reasonably questioned. KRE 201 (b) .

 

A trial court may take judicial notice of the definition of a word as an
adjudicative fact where the definition of a term is indisputable, that is, where it is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned .” KRE 201(b)(2) .

 

Essentially, KRE 201 allows judicial notice to be taken of “facts `which can be determined from unimpeachable sources.’ Robert G. Lawson, The Kentucky Evidence Law Handbook §1 .00[3][c], at 10 (4th ed. 2003) (quoting 1 Christopher B. Mueller &, Laird C. Kirkpatrick, Federal Evidence § 51 (2d ed. 1994)).

 

As Professor  Lawson has noted, such sources include general authorities such as “encyclopedias, calendars, maps, medical and historical treatises, almanacs, and public records .” Id. Beyond doubt, dictionaries fall within the same class of “unimpeachable sources,”- and thus the definitions contained in them may be judicially noticed, so long as they are indisputable. See Comerica Bank v. Lexington Ins. Co., 3 F.3d 939, 944 (6th Cir. 1993) (holding that district court was within its discretion to take judicial notice of the dictionary definition of a word); B.V.D . Licensing Corp. . Body Action Design, Inc ., 846 F.2d 727, 728 (Fed. Cir. 1988) (“Courts may take judicial notice of . . . dictionaries .”) ; Richard
H. Underwood &, Glen Wissenberger, Kentucky Evidence 2005-2006 Courtroom Manual 44 (2005) (“Judicial notice is taken of the English language . : .Representative authoritative sources for verification [of facts] include such materials as historical works, science and art books, language and medical journals and dictionaries, calendars, encyclopedias . . . .” (emphasis added)) ; see also Werk v. Parker, 249 U.S . 130, 132-33 (1919) (“We deem it clear, beyond question . . . that the court was justified in taking judicial notice of facts that appeared so abundantly from standard works accessible in every considerable library.”) ; Samuel A. Thumma and Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 rule are met:
Id. at 501 . ff. L. Rev. 227, 248 (1999) (noting that “by 1920, the
(Supreme) Court had decided that taking judicial notice of dictionary
definitions unquestionably was proper”) .

 

Indisputability of a definition. can be buttressed by cross-referencing the definition with other dictionaries or authorities. Specifically, judicial notice may be taken of the definitions of medical terms from a medical dictionary, Campbell v. Shelton, 727 N.E.2d 495, 502 (Ind. Ct.App. 2000), and those definitions are admissible into evidence in a jury trial, assuming of course that the other requirements of the judicial notice

 

We are mindful that there is a distinction between referring to a dictionary in a fact finding setting for the purpose of judicially noticing the meaning of a word, on one hand, and consulting such a source upon appellate review to discern the meaning of a term for purposes of, for example, statutory construction. . . .

 

Nevertheless, the preceding authority reflects that our courts generally regard dictionaries as `sources whose accuracy cannot reasonably be questioned .’ See Evid. R. 201 (a) .

 

We conclude, therefore, that a court may take judicial notice of a dictionary definition of a word, so long as the other conditions set out in Evid. R. 201 are met.

 

No suggestion has been made that the definition read to the jury in this case was not accurate, and the Appellant did not object to the content of the definition, only to the medical dictionary being treated as a learned treatise .

 

The trial court intended to take judicial notice of the meaning of the term
“psychogenic,” and found a medical dictionary to be an indisputable source of the definition . Since the accuracy of the definition was readily ascertainable, the trial court did not abuse its discretion in allowing it to be read to the jury.

 

Whether it was appropriate for this evidence to be introduced during rebuttal is perhaps another matter, but this has(to)  rise to the level of a palpable error.

 

The Appellant also takes Issue  with the use the Commonwealth made of
this definition in closing argument.

 

Since it was appropriate for the trial court to take judicial notice of the definition of “psychogenic,” it follows that it was appropriate for the Commonwealth to comment on that definition in closing argument, provided its inferences were reasonable .”
 

 

Ky. Supreme Court –  2007-SC-000377-MR.pdf  TO BE PUBLISHED  FAYETTE CIRCUIT  Dec. 18, 2008
 ONDRA LEON CLAY
 V.  
COMMONWEALTH OF KENTUCKY
 OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING
LAWREADER NOTE:
 

Taking judicial notice of the law is usually prohibited, but exceptions are discussed when this is allowed.
“A judicially noticed fact must be one not subject to reasonable dispute” because it concerns a matter “[g]enerally known” or a matter “[c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
 ”[a]nything which can be `looked up’ in an authoritative source is a candidate for this type of judicial notice.
The judge should ask two questions :
(1) Does the source provide the precise fact to be noticed; and
(2) Is the source accurate
 When a court or an agency finds facts concerning the immediate parties-who did what, where, when, how, and with what motive or intent the court or agency is performing an adjudicative function, and the facts are conveniently called adjudicative facts.
…taking judicial notice of “the law” during the course of a trial is tantamount to instructing the jury prior to the close of the evidence.
 Obviously, a court could still take judicial notice of a law, if that law constituted an adjudicative fact in a particular case . An example of this would be proving the legal drinking age if there was a dispute as to what that age is, or any other time that it might be necessary to prove what the law is as a question of fact.

 

Other authorities discussing adjudicative facts:
Hacker v. Baesler, 812 S.W.2d 706 (Ky., 1991)
A rezoning ordinance is not a general law, but represents a decision on reclassification of a specific property, a decision of adjudicative fact which must be based on substantial evidence. Moreover, the General Assembly has expressly provided for judicial review of the outcome. None of these characteristics is found in bills of Congress or the General Assembly.
 

 Hume v. Franklin County Fiscal Court (Ky. App., 2003)  NO. 2002-CA-000947-MR.
 In this case, the fiscal court’s finding that the proposed zone map amendment is in agreement with the adopted comprehensive plan was clearly a determination of an adjudicative fact. Given that the fiscal court did not conduct its own trial-type hearing but instead relied on that conducted by the planning commission, it was required by McKinstry and McDonald to make any decision regarding an adjudicative fact on the basis of the record developed by the planning commission
 

Sullivan University System, Inc. v. Louisville Metro Board of Zoning Admustment, No. 2007-CA-001794-MR (Ky. App. 8/8/2008) (Ky. App., 2008)
We are persuaded that the Board’s findings of fact in this case were sufficient to allow for a meaningful review of the adequacy of the proceedings. The essential adjudicative fact before the Board was whether Sullivan’s use of the subject property was a permitted use — that of a library — regardless of its for-profit status as a user. The evidence before the Board indicated that the Lowell Avenue structure housed no literary or other media materials for student or faculty reference or loan. It provided no work space for students or faculty. No staff members were assigned to the building to assist students or faculty with research or to provide any library services whatsoever. Moreover, a Sullivan employee assigned to the property described the house as merely a “computer tech office.” This evidence was more than adequate to support the Board’s decision.
U.S. v. Mentz, 840 F.2d 315 (C.A.6 (Ohio), 1988)
In a criminal trial, the trial judge and the jury have well-defined roles, refined over many years of constitutional adjudication. The trial judge instructs the jury on the law applicable to the issues raised 5 and, in appropriate circumstances, may comment on the evidence. United States v. White Horse, 807 F.2d 1426, 1430 (8th Cir.1986); United States v. Johnson, 718 F.2d 1317, 1322, 1324-25 (5th Cir.1983) (en banc); 8A J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice p 30.05, at 30-40 (1987). The jury then independently determines the facts, and applies the law to those facts, in reaching its fateful decision. White Horse, 807 F.2d at 1430; Johnson, 718 F.2d at 1325. See also 2 C. Wright, Federal Practice & Procedure Sec. 485, at 711 (1982). However, the trial judge invades the jury’s province when, instead of simply instructing on the law, he applies the law to facts he has determined.
Page 320
See White Horse, 807 F.2d at 1430 (“when the judge is no longer deciding the law that applies to the evidence, but rather is applying the law to the facts–facts that are determined after assessing the probative value of evidence introduced at trial–the judge has invaded the jury’s province.”). 6
        There can be little doubt that a trial judge commits error of constitutional magnitude “when he instructs the jury as a matter of law that a fact essential to conviction has been established by the evidence, thus depriving the jury of the opportunity to make this finding.” Id. at 1429 (citation omitted). This is tantamount to a directed verdict for the prosecution, a result that is condemned by the Constitution. Martin Linen Supply Co., 430 U.S. at 572-73, 97 S.Ct. at 1355; United Brotherhood of Carpenters & Joiners of America, 330 U.S. at 408, 67 S.Ct. at 782.
 

Taylor v. Charter Medical Corp., 162 F.3d 827 (C.A.5 (Tex.), 1998)  even though a court may take judicial notice of a “document filed in another court … to establish the fact of such litigation and related filings,” 12 a court cannot take judicial notice of the factual findings of another court. This is so because (1) such findings do not constitute facts “not subject to reasonable dispute” within the meaning of Rule 201; 13 and (2) “were [it] permissible for a court to take judicial notice of a fact merely because it had been found to be true in some other action, the doctrine of collateral estoppel would be superfluous.”
 

We agree [with the Second and Eleventh Circuits] that courts generally cannot take notice of findings of fact from other proceedings for the truth asserted therein because these are disputable and usually are disputed. However, it is conceivable that a finding of fact may satisfy the indisputability requirement of Fed.R.Evid. 201(b). This requirement simply has not been satisfied in this case. 17
        It is not necessary at this point for us to determine whether courts in this circuit are never permitted to take notice of the factual findings of another court or are permitted to do so on rare occasion, subject to the Rule 201′s indisputability requirement, because the Milonas courts’ state actor determination cannot clear the rule’s “indisputability” hurdle. 18 That Old Provo Canyon was a state actor for the purposes of the Milonas suit (let alone for the purposes of the present suit) was certainly open to dispute and was, in fact, disputed by the parties. That determination simply was not the type of “self-evident truth[ ] that no reasonable person could question, [a] truism[ ] that approach[es] platitude[ ] or banalit[y],” as required to be eligible for judicial notice under Rule 201. 19
        In addition, the Milonas courts’ state actor determination is not an “adjudicative fact” within the meaning of Rule 201. Whether a private party is a state actor for the purposes of § 1983 is a mixed question of fact and law
Page 831
and is thus subject to our de novo review. 20 Rule 201 authorizes the court to take notice only of “adjudicative facts,” not legal determinations. 21 Therefore, a court cannot take judicial notice of another court’s legal determination that a party constituted a state actor for the purposes of § 1983: That determination is neither an adjudicative fact within the meaning of Rule 201 nor beyond “reasonable dispute.”
 

KRE 201   JUDICIAL NOTICE OF ADJUDICATIVE FACTS           
(a)    Scope of rule.  This rule governs only judicial notice of adjudicative facts.
(b)    Kinds of facts.  A judicially noticed fact must be one not subject to reasonable dispute in that it is either:
(1)    Generally known within the county from which the jurors are drawn, or, in a non-jury matter, the county in which the venue of the action is fixed; or
(2)    Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
                (c) When discretionary.  A court may take judicial notice, whether requested or not.
                (d) When mandatory. A court shall take judicial notice if requested by a party  and supplied with the necessary information.
   (e) Opportunity to be heard.  A party is entitled upon timely request to an opportunity to be heard as to the propriety  of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f)      Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
(g)    Instructing the jury.  The court shall instruct the jury to accept as conclusive any fact judicially noticed.
KRE 803 HEARSAY EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL     
The following are not excluded by the hearsay rules, even though the declarant is available as a witness:
(18)Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established  a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. 
If admitted, the statements may be read into evidence but may not be received  as exhibits.

See List of Wall Street’s Ponzi scheme victims who were swindled by Bernard Madoff

Saturday, December 20th, 2008

The fallout from Bernard Madoff’s alleged Ponzi scheme reverberated around the world as the list of investors facing losses widened. Among the biggest losers were charities, hedge funds, and banks in Europe and Asia. Below, see some of the most exposed investors and sort by the amount of potential losses. –Updated 12/19/08 

http://s.wsj.net/public/resources/documents/st_madoff_victims_20081215.html 

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Court of Appeals issues 23 important decisions this week – Ky. Supreme Court issues 14 decisions this week – See topics discussed.

Saturday, December 20th, 2008

 

LawReader subscribers can access these cases with keywords, synopsis and links to the
 

full text at COURT OF APPEALS DECISIONS FOR DEC. 19, 2008  –   or     

 

 KY. SUPREME COURT DECISIONS FOR DECEMBER, 2008
                     

Non-subscribers can sign up for LawReader by going to SIGN UP – PRICING 
 

                                Topics discussed this week include:
 

SUPREME COURT –
worker’s compensation – timely notice of injury
 

subsequent employment after award – reopening of claim
 

improper reopening of proof to allow new physician evaluation of claimant
location for criminal trial – waiver –proper forum – double jeopardy
 

duty to notify parent on arrest of minor – Miranda – cross-examination re: prior inconsistent statement – probable cause
 

Judicial notice – learned treatises – reopening proof once jury sent out to deliberate may be allowed
 

Batson challenge – judicial notice – adjudication facts – judicial notice of a law
 

Miranda – Public safety exception – double jeopardy when two charges for one possession of firearm – guilty plea does not preclude double jeopardy appeal
 

statute of limitation for recoupment of Medicaid overpayments- appeal allows raising of a law not cited in court
 

COURT OF APPEALS -
 

Reformation of mortgage –
 

 statute of limitations after federal lawsuit dismissed –
 

judge’s response to jury’s question –instructions-issue preclusion –
 

statute of limitation of parties not named in prior federal lawsuit—
 

Appointment of special commissioner –
 

waiver-proof of damages for building construction defects—
 

Appeal procedures –
 

negligent supervision not supported by a tort as required —
 

 compliance with mediation rules mandating attendance of party with full settlement authority –
 

contempt of court- criminal contempt/civil contempt—
 

premature summary judgment when party had not completed discovery—
 

trip and fall case –open and obvious standard –visibility factor is vital—
 

wife not entitled to continuance at final divorce hearing based on judges review of her consistent dilatory actions—
 

shared custody –
 

court erred in denying child support retroactive to motion –
 

medical expenses allocation—
 

open records –request for attorney fees and costs due to delay in compliance—
 

juvenile commitment –waiver of separate hearings – findings of act—
 

ssi payments may be used in calculation of child support obligation –
 

court did not make record or make record-remanded for due process hearing—
 

 worker’s compensation – current employer held liable for injury to worker which occurred while he was working for prior employer—
 

flawed jury verdict should have been sent back to jury—
when criminal defendant is entitled to free copy of the record—
 

child sexual abuse – use of dog to touch child’s privates –
 

marihuana use not generally admissible, possession of pornography and sex toys not admissible—
 

youthful offender eligible for probation consideration upon resentencing at age 18
        
 

 

Jon Draud , Education Administrator who has been ill recently has resigned.

Friday, December 19th, 2008

FRANKFORT, Ky. —Gov. Beshear issued the following statement:

“I want to thank Jon Draud for his distinguished career and longstanding commitment to public service in Kentucky, particularly our children. I also wish to extend to Jon my best wishes for his continued and full recovery. As this transition of leadership occurs, I look forward to working with the Board of Education as a new leader is chosen who will move Kentucky forward in our efforts to create the best educational system in America. I am committed to doing whatever it takes to reach that goal – for our children and for our state’s future.”