Archive for June, 2009

U.S. Supreme Court Throws Out Missouri Law Against Disrupting a Funeral. KRS 525.055 Adopted in 2006 may be affected.

Tuesday, June 30th, 2009

U.S. Supreme Court Throws Out Missouri Law Against Disrupting a Funeral.  KRS 525.055 Adopted in 2006 may be affected.

 

June 30, 2009

The U.S. Supreme Court on Monday refused to consider Missouri’s appeal of a court order barring the state from enforcing a law restricting protests near funerals.

State lawmakers in 2006 enacted two new laws creating buffer zones between demonstrators and funerals and processions. The legislation targets a Topeka, Kan., church whose members have picketed outside the funerals of people killed during the Iraq war, stating that they believe soldiers are dying as divine punishment because the United States harbors homosexuals.

Months after the laws took effect, Westboro Baptist Church member Shirley Phelps-Roper filed a lawsuit seeking to have the protest bans tossed out over free speech concerns. A federal appeals court in St. Louis ruled that Missouri cannot enforce the protest ban until the lawsuit is resolved.

The U.S. Supreme Court on Monday denied without comment Missouri’s appeal of that order barring enforcement.

Numerous states have passed laws restricting protests at funerals, and some have been challenged. For its version, Missouri lawmakers crafted two largely similar measures to create a fallback position in case one is invalidated by the courts.

The primary law bars protests near any funeral, procession or memorial service from an hour before until an hour after the service. The secondary measure specifically states that protesters must stay back at least 300 feet. Both provisions levy the same penalty — up to six months in jail and a $500 fine for a first offense and up to one year in jail and a $1,000 fine for repeat offenders.

Phelps-Roper, who also challenged a similar ban in Ohio, is represented by the American Civil Liberties Union of Eastern Missouri. Lawyers are still going through evidence for the case, and a trial on the merits of the constitutional challenge could come in July 2010.

ACLU attorney Tony Rothert said Monday the lawsuit was prompted by two provisions in Missouri’s law. He said that without a specific distance requirement and a roving buffer zone that follows the procession, Phelps-Roper couldn’t be guaranteed the ability to lawfully protest.

“It bans protests in public areas and public streets and sidewalks in a way that the Supreme Court has never allowed to happen,” Rothert said.

Missouri Attorney General Chris Koster said the Supreme Court’s decision is preliminary, and his office will continue fighting in court to preserve the ban and protect families mourning the death of loved ones.

“We are trying to stop these protests in Missouri, and the General Assembly has given us instructions to do everything we can to allow military families to bury their loved ones in peace,” said Koster, a Democrat.

Two St. Joseph lawmakers sponsored the bans after members of the Kansas church protested outside the 2005 funeral of a soldier from their legislative districts.

Nixon v. Phelps-Roper, 08-1244.

Kentucky passed a law in 2006 that may be affected by the U.S. Supreme Court ruling in Nixon v. Phelps-Roper.

 

 KRS 525.055 Disorderly conduct in the first degree.

(1) A person is guilty of disorderly conduct in the first degree when he or she:

(a) In a public place and with intent to cause public inconvenience, annoyance, or alarm, or wantonly creating a risk thereof:

1. Engages in fighting or in violent, tumultuous, or threatening behavior;

2. Makes unreasonable noise; or

3. Creates a hazardous or physically offensive condition by any act that serves no legitimate purpose; and

(b) Acts in a way described in paragraph (a) of this subsection within three hundred (300) feet of a:

1. Cemetery during a funeral or burial;

2. Funeral home during the viewing of a deceased person;

3. Funeral procession;

4. Funeral or memorial service; or

5. Building in which a funeral or memorial service is being conducted; and

(c) Acts in a way described in paragraph (a) of this subsection at any point in time between one (1) hour prior to the commencement of an event specified in paragraph (b) of this subsection and one (1) hour following its conclusion; and

(d) Knows that he or she is within three hundred (300) feet of an occasion described in paragraph (b) of this subsection.

(2) Disorderly conduct in the first degree is a Class A misdemeanor.

Effective: June 26, 2007

History: Amended 2007 Ky. Acts ch. 107, sec. 2, effective June 26, 2007. — Created 2006 Ky. Acts ch. 50, sec. 1, effective March 27, 2006; and ch. 51, sec. 1, effective March 27, 2006.

Legislative Research Commission Note (3/27/2006). This section was created by 2006 Ky. Acts ch. 50, sec. 1, and 2006 Ky. Acts ch. 51, sec. 1, which are substantially identical and have been codified together.

U.S. Supreme Court Reverses 100% of 6th. Circuit’s appeals, 96% of 9th Circuit’s, this term

Monday, June 29th, 2009

 

Excerpts from L..A. Times   - Carol J. Williams   June 29, 2009

 

During the current term of the U.S. Supreme Court justices reversed, at least partially, 94% of the Ninth Circuit Court of Appeals rulings. Part of the reason, experts say, is the court is perceived as liberal and partial to the underdog.

 

From prisoners’ rights to environmental protection, laws set by the West’s powerful appeals court were overturned in 15 of the 16 cases reviewed this term by the U.S. Supreme Court.

The reversals affect a broad range of civil rights and business practices challenged in the nine states and two Pacific territories covered by the U.S. 9th Circuit Court of Appeals. The justices shot down four rulings seen as protecting nature against industrial hazards and five cases asserting claims by convicts that their rights were abused.

Judicial analysts attribute the high reversal rate at least partly to the 9th Circuit’s reputation as a liberal-dominated bench, even though more recent conservative appointments have diluted that influence. Experts, including former law clerks, say the Supreme Court justices are more inclined to look over the shoulders of the 9th Circuit judges they suspect of favoring the underdog.

The high court historically reverses the majority of all cases it reviews — 76% so far this term, with three decisions still pending. Legal analysts say that’s because they seek to correct what they see as erroneous interpretations by lower courts or to settle conflicting views among the circuits about a law’s meaning.

“Pretty much all courts have a generally high reversal rate before the Supreme Court,” said Adam Samaha, a constitutional law professor at the University of Chicago. “The justices have a practice of taking a case for purposes of changing what happened below.”

Long-running trend

But the 9th Circuit’s record this term, with 94% of its cases reversed at least in part, extends a long-running trend of being disproportionately overturned. The 9th Circuit — the only one in which a majority of judges were appointed by Democratic presidents — has had a larger-than-average share of its cases overturned in eight of the last 10 years.

“It’s true that the 9th Circuit is slightly more liberal, generally speaking, than the Supreme Court, and that probably accounts for the more frequent reversal rate the 9th Circuit has,” said Jeffrey L. Fisher, who teaches at Stanford Law School. But he attributes the appeals court’s dominance of the high court docket to the unique issues emanating from the diverse region it covers.

“A lot of important policy cases involving interesting and difficult questions come out of the 9th Circuit. The West is known for its experimentation, the initiative process — things that bring constitutional questions to the fore more often,” Fisher said.

The sole 9th Circuit case affirmed in full, involving an Oregon boy with learning disabilities, held that parents don’t have to send their special education students to public schools before seeking reimbursement for private-school tuition.

Students’ rights also were at issue in one of the two cases affirmed in part and reversed in part, the strip search of a 13-year-old Arizona girl by school authorities that the justices ruled was an unconstitutional intrusion. However, they overturned the circuit’s ruling that school officials, who were searching for drugs, could be held liable for violating the girl’s constitutional protection against unreasonable search and seizure.

Most analysts dismiss statistics on reversal as of little significance, given the small number of cases reviewed from most circuits. The 6th and 8th circuits, which together cover 11 states from Tennessee to the Dakotas, saw 100% of their cases reversed this term. The 11-state region accounted for only nine cases on the high court’s 83-case docket.

Even with the 9th Circuit’s larger sample size, it is hard to read much into its variance with the overall reversal rate, said David Hoffman, a Temple University law professor.

“Because the circuit is large, it produces a lot of cutting-edge law, due to industries concentrated in the circuit and the large variation of underlying states and state criminal laws,” Hoffman said.

 

U.S. SUPREME COURT – CRIME LAB TECHNICIANS MUST APPEAR IN COURT FOR CROSS-EXAMINATION

Friday, June 26th, 2009

 

The defense bar today gains the formidable power to require the government to transport the analyst to the courtroom at the time of trial,” Justice Kennedy wrote.

 

The U.S. Supreme Court on Thursday June 25, 2009 change some 90 years of precedent and ruled that Crime Lab Technicians must be available in the courtroom for cross-examination.   This may affect Kentucky rulings regarding BA technicians who have been allowed to file written reports.

 

Crime laboratory reports may not be used against criminal defendants at trial unless the analysts responsible for creating them give testimony and subject themselves to cross-examination, the Supreme Court ruled Thursday in a 5-to-4 decision.

 

 The ruling was an extension of a 2004 decision that breathed new life into the Sixth Amendment’s confrontation clause, which gives a criminal defendant the right “to be confronted with the witnesses against him.”

 

Four dissenting justices said that scientific evidence should be treated differently than, say, statements from witnesses to a crime. They warned that the decision would subject the nation’s criminal justice system to “a crushing burden” and that it means “guilty defendants will go free, on the most technical grounds.”

 

The two sides differed sharply about the practical consequences of requiring testimony from crime laboratory analysts. Justice Anthony M. Kennedy, writing for the four dissenters, said Philadelphia’s 18 drug analysts will now each be required to testify in more than 69 trials next year, and Cleveland’s six drug analysts in 117 trials each.

Noting that 500 employees of the Federal Bureau of Investigation laboratory in Quantico, Va., conduct more than a million scientific tests each year, Justice Kennedy wrote, “The court’s decision means that before any of those million tests reaches a jury, at least one of the laboratory’s analysts must board a plane, find his or her way to an unfamiliar courthouse and sit there waiting to read aloud notes made months ago.”

 

Justice Antonin Scalia, said, “the court is not entitled to ignore even an unwise constitutional command for reasons of convenience.

 

“The confrontation clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination,” Justice Scalia wrote.

 

“The sky will not fall after today’s decision,” he added.

 

But that is not how prosecutors saw it. “It’s a train wreck,” Scott Burns, the executive director of the National District Attorneys Association, said of the decision.

“To now require that criminalists in offices and labs that are already burdened and in states where budgets are already being cut back,” Mr. Burns said, “to travel to courtrooms and wait to say that cocaine is cocaine — we’re still kind of reeling from this decision.”

 

The decision came in the wake of a wave of scandals at crime laboratories that included hundreds of tainted cases in Michigan, Texas and West Virginia. William C. Thompson, a professor of criminology at the University of California, Irvine, said those scandals proved that live testimony from analysts was needed to explore potential shortcomings in laboratory reports.

 

“The person can be interrogated about the process, about the meaning of the document,” Professor Thompson said. “The lab report itself cannot be interrogated to establish the strengths and limitations of the analysis.”

 

In February, the National Academy of Sciences issued a sweeping critique of the nation’s crime labs. It concluded, for instance, that forensic scientists for law enforcement agencies “sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.”

 

Cross-examination of witnesses, Justice Scalia wrote, “is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” He added that the Constitution would require allowing defendants to confront witnesses even if “all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Teresa.”

The case arose from the conviction of Luis E. Melendez-Diaz on cocaine trafficking charges in Massachusetts. Part of the evidence against him was a laboratory report stating that bags of white powder said to have belonged to him contained cocaine. Prosecutors submitted the report with only an analyst’s certificate.

 

The decision, Melendez-Diaz v. Massachusetts, No. 07-591.

 

.

Justice Kennedy said the majority had upended 90 years of settled law from six federal appeals courts and courts in 35 states.

 

“The court’s holding,” Justice Kennedy wrote, “is a windfall to defendants, one that is unjustified by a demonstrated deficiency in trials, any well-understood historical requirement, or any established constitutional precedent.”

 

Seven Senators who voted against Slots Bill face potential Voter Backlash in 2010

Thursday, June 25th, 2009

 

Columnist Larry Dale Keeling wrote in the Herald-Leader blog that the Senate Appropriations and Revenue Committee defeat of the Governors Racetrack slots bill has cost the districts of seven Republican Senators millions of dollars in education projects.  He predicts that those seven state Senators, who are up for re-eleciton in 2010, will face some backlash for their vote to kill the Gov.’s bill in their committee denying it a vote of the full Senate.

 

Keeling wrote:

“Seven Republicans who voted to kneecap Ol’ Slots during Monday’s Senate Appropriations and Revenue Committee face re-election next year, assuming they choose to seek it. Sen. Bob Leeper, the Paducah Independent who caucuses with the Republicans and voted with them on this issue, also faces a 2010 race.

By voting against Slots Bill, six of the seven Republicans and Leeper deprived their districts of K-12 and post-secondary education projects approved by the House and scheduled to be funded with revenue generated by allowing Kentucky racetracks to compete slot machine for slot machine with “racinos” in other states.

The loss in Majority Floor Leader Dan Kelly’s district was minimal — a $1.87 million project in Mercer. But other districts saw far more significant amounts of proposed spending disappear as a result of their senators’ no votes. County

Leeper’s district, for instance, lost projects worth $9.7 million in Marshall County and $17 million in McCracken. County

Sen. Alice Forgy Kerr’s no vote helps deprive Fayette County of $7.4 million in school construction, the University of Kentucky of $136.6 million and the Bluegrass Community and Technical of $1 million. College

A&R Chairman Charlie Borders’ district took a big hit as a result of his vote: school construction worth $3.1 million in Bracken County, $18 million in Carter County, $19 million in Lewis County and $15.7 million in Robertson. Maysville Community and Technical lost a $5 million project as well. College County

Bullitt, in Sen. Gary Tapp’s district, lost an $18.4 million project as a result of Slots Bill’s defeat. However, Tapp is not seeking re-election next year.

In the district of Sen. Ernie Harris, another no vote, Carroll County lost $2.2 million, Henry County lost $20 million and Trimble lost $10.5 million. County

Sen. Brandon Smith also cast a no vote that helped keep his district from receiving school projects worth $4.1 million in Leslie County and $13.4 million in Perry County, plus a $15 million project for Hazard Community and Technical.” College

WAVE television in Louisville, who are noted for their Republican slanted editorial opinions,  blasted Sen. David Williams, and those Louisville area Senators who voted against the bill.  They called for the removal of Sen. Ernie Harris, Sen. Denton, and Sen. Seum. Denton and Seum are not up for re-election until 2012.

Ky. House votes to balance budget, create jobs, and lower taxes on military pay

Wednesday, June 24th, 2009

June 24, 2009

Frankfort – Classroom funding will be protected, Kentucky companies will have further incentive to expand, our men and women in uniform will get much-deserved tax relief, and large bridge projects will now be able to move forward under legislation strongly supported today in the state House of Representatives.

            “This short special session has a long list of accomplishments, and every Kentuckian will benefit,” said House Speaker Greg Stumbo, D-Prestonsburg.  “It will move the state forward in numerous ways, and speed up our recovery during these trying economic times.  I am proud of the leadership the House has shown, and of the way both the House and Senate came together in difficult times.”

            The bills sent to Governor Steve Beshear today for his signature will do such things as:

 

*          Overcome the billion-dollar shortfall for the upcoming fiscal year.  “This largely follows the governor’s plan, which shields classroom funding, our universities and critical health programs like Medicaid from cuts.  We also made sure, though, that state employees will not have to forfeit any holiday pay as had been proposed,” said House Majority Floor Leader Rocky Adkins, D-Sandy Hook.

 

*          Recognize the sacrifice of those serving in the military by exempting their active-duty military pay from the state income tax.  “The House made this a priority this legislative session, because our military families deserve it for all they have done for us,” said House Majority Caucus Chairman Bob Damron, D-Nicholasville.  “Kentucky now will be an even more inviting place for them to live, especially those who may have considered other states.”  This exemption complements one already in place for pay earned in a combat zone, and it will apply to those serving in the National Guard and the Reserves.

 

*          Establish a funding mechanism for road projects costing at least $500 million.  “This is landmark legislation that ensures these projects will be built in a timely manner while protecting our Road Fund,” said House Speaker Pro Tem Larry Clark, D-Louisville.  “The proposed Louisville bridges would have been severely hampered if we did not pass this, and other large projects like I-69 in Western Kentucky would have also been held up.”  Under the legislation, Kentucky will create a new authority that, with state and local input, will issue the bonds for “mega” projects and then serve as the conduit to pay them off.

 

*          Implement a new vehicle trade-in tax credit.  “The vast majority of states, including every one surrounding us but Virginia, allow people to count the value of their trade-in when it comes time to pay taxes on the new vehicle they are buying,” said House Majority Whip John Will Stacy, D-West Liberty.  “This one measure alone should spur auto sales in Kentucky, and since we are the third-largest producer of vehicles in the nation, this will help not just car-buying families but also those who work in our auto assembly and parts factories as well.”

 

*          Create Kentucky’s economic stimulus plan.  “This far-ranging package does such things as provide incentives to Kentucky-based companies to re-tool and re-train in order to stay competitive and not have to leave Kentucky to realize these benefits,” said state Rep. Tommy Thompson, D-Philpot, who sponsored this legislation in the House.  “This law will also help us bring a NASCAR Sprint Cup race to the Kentucky Speedway and bring the Breeders’ Cup to Churchill Downs.  Additionally, it will make Kentucky more attractive to the film and television industry, and it will clear the way for us to compete for a next-generation battery plant in Hardin County that would put Kentucky at the forefront of an industry that could single-handedly reduce our independence on foreign oil.”

                  Rep. Thompson also noted the bill includes a boost to the housing industry, by giving current homeowners a strong incentive over the next year to buy a new home.  “First-time home buyers already receive substantial credits from the federal government, so this would complement that program for homeowners thinking about moving,” he said.  “This incentive should help our home construction industry clear out inventory and get people back to work.”

                  In addition, Speaker Pro Tem Clark noted the legislation gives the Jefferson Community and Technical College the authority to use its own money to buy property that is next to its downtown Louisville campus.

                  The University of Kentucky, meanwhile, would have authorization to continue expanding its hospital and to allow private funding for renovating Commonwealth Stadium and to construct a new baseball stadium.

 

            “By all indications, 2009 will forever be seen as a watershed year for Kentucky, based on what the legislature was able to do during the past two weeks and in the legislative session earlier this year,” House Speaker Stumbo said.  “These laws will move the state forward in ways that did not even seem possible just six months ago.  The end result is stronger schools and universities; proper care for our neediest citizens; well-deserved benefits for our soldiers, small businesses and new-car buyers; and a way forward to make our highway system the envy of the nation.  There are still plenty of challenges ahead, certainly for our signature horse industry, but if we can continue working together, I am confident even better days are ahead.”

 

-30-

 

 

HB 369 regarding new law for loss of driver’s license for certain theft offenses goes into effect. KRS 532.356(a) – See AOC Forms for suspension, reinstatement and Hardship Licenses

Wednesday, June 24th, 2009

 

HB 369 goes into effect today June 25th.  It raises the threshold amounts for theft-related offenses, and contains a provision which requires a court to declare upon conviction for these offenses that a defendant is ineligible to operate a motor vehicle for the period of time that any restitution is owed. This is incorporated into KRS 532.356.   The scope of this bill includes Class A misdemeanor, Class D felony and Class C felony theft-related convictions specifically enumerated in KRS 532.356(3)(a).

 

The AOC has developed a series of forms to be used in order to accomplish the license revocation. Here’s how the process works:

 

·       Upon conviction, the court enters an order using AOC-341A (Order Suspending License for Restitution Owed).

 

·       Per KRS 532.356(3)(b), a defendant may apply for a hardship license under KRS Chapter 189A. Because the court may waive compliance with provisions relating to alcohol treatment and ignition interlock devices, a separate hardship license application (AOC 492.1) and order (AOC 493.1) have been developed.

·       Once restitution is paid, a defendant may apply to the court for license reinstatement (AOC-493.2). If the court determines that restitution has been paid in full (taking into consideration the payment of any restitution fees if appropriate), the court enters an order reinstating the license (AOC 493.3).

·       These documents are transmitted by the clerk by mail to the Department of Transportation, Division of Driver Licensing 

 

 

 

LICENSE SUSPENSION FOR THEFT-RELATED OFFENSES

(KRS 532.356)

 

1.      Upon receipt of AOC-341.A, Order Suspending License for Restitution Owed, apply the “Entered” stamp, add the date and your initials and enter on a document screen using document code “OSFR”. Mail Order to the Transportation Cabinet daily:

 

Transportation Cabinet

Division of Driver Licensing

200 Mero Street, 2nd Floor

Frankfort, KY 40622

 

2.            Hardship Driver’s License

 

A defendant may apply for a hardship driver’s license, which restores

driving privileges.  KRS 532.356, 189A.410. 

 

(1)   Defendant applies in county where offense occurred. 601KAR 12:060 Sec. 1.  Defendant must complete AOC Form 492.A, Affidavit for Hardship License and AOC Form 492.1, Application for Hardship License (Restitution Owed/Theft Related Offense).  Apply the “FILED” stamp to the affidavit and application; add the date and your initials.

 

(2)   File the affidavit “AFHD” and application “AHDT” on document screens in the same case as underlying charge. Set hearing date on the scheduled events screen. Do not collect a filing fee. Distribute the application according to the list at the bottom of the application.

 

(3)   Enter order, AOC Form 493.1, Hardship Driver’s License Order (Restitution Owed/Theft-Related Offense). Apply the “ENTERED” stamp; add the date and your initials. Enter on a document screen using document code “OHLT”.  Distribute the order according to the list at the bottom of the order.

 

(4)   If granted, defendant presents to driver’s license clerk in defendant’s county of residence his/her identification and:

 

1) two (2) copies of order,

 

2) withdrawal notice (WTH) from Division of Drivers

                Licensing (If not available, call 800-344-2552 to obtain

                expiration date of hardship license), and

 

(5)   License issued.

 

1) A copy of the order is stapled to laminated license and

               given to defendant with decal. (If AOC Form 493.1 is

               used, attach yellow copy)

 

 

3.   Reinstatement of Driver’s License (Restitution Paid in Full)

 

(1)   Defendant must complete AOC form 493.2, Motion and Order for Reinstatement of Driver’s License.  Upon receipt, apply the “FILED” stamp; add the date and your initials.   Schedule a hearing by completing a scheduled events screen using a scheduled event code of “RLR” (Review License Reinstatement-Theft Related)  and file the motion by completing a motion screen using a motion type code of “RDL” (Motion to Reinstate Driver’s License). 

 

(2)   When a signed order is received:

 

(a) Apply the “ENTERED” stamp to the order; add the date and your

initials.  Do not use the “FILED” stamp.

 

(b) Enter the order on the document screen including a brief description. Use document code “ORLG” (Order Reinstating Driver’s License – Granted) – or “ORLD” (Order Reinstating Driver’s License – Denied).  This constitutes entry of the order; the order does not become effective until this is done.  RCr 11.04.  This is combined with the notation of service of notice of entry of the judgment as described below.

 

(c)  After the order is entered, serve notice of entry as shown in the                                         distribution list at the bottom of the form.

 

 

 

 

I

 COMMONWEALTH OF KENTUCKY PLAINTIFF

VS.

Name: __________________________________________ DEFENDANT

Address: _____________________________________________

Comes the Defendant and provides the following information in support of a request for a hardship license:

1. On ______________________, ________, I [ ] plead guilty to OR [ ] was found guilty of a theft by unlawful taking offense in ________________________________ Circuit/District Court.

2. I was convicted and sentenced to pay restitution in the amount of $_______________.

3. Suspension of my driver’s license hinders my ability to: (Check all that apply)

[ ] Continue my employment. [ ] Continue attending school or an educational institution.

[ ] Obtain necessary medical care. [ ] Attend court-ordered counseling or other programs.

[ ] Attend driver improvement, alcohol, or substance abuse education programs.

 

At the hearing, I will provide to the Court proof of motor vehicle insurance and notarized documents, as stated on page 2 of this form, depending on whether the hardship license is sought for employment; educational; medical; alcohol; substance abuse education or treatment; court-ordered counseling; or other programs.

 

WHEREFORE, Defendant prays this Application for Hardship Driver’s License will be granted for the remainder of the

suspension period.

_________________________________________________

Defendant’s Signature

_________________________________________________

Defendant’s Attorney (if any)

Date: _________________, 2____.

Distribution:

Court File

Defendant

Defense Attorney

County Attorney

Commonwealth Attorney

Case No. ___________________

Court ______________________

County _____________________

 

 

 

 

 

AOC-492.1 Doc. Code: AHDT

Rev. 6-09

Page 1 of 2

Commonwealth of Kentucky

Court of Justice www.courts.ky.gov

KRS 532.356 Application for Hardship Driver’s License

(Restitution Owed /Theft-Related Offense)

 

l e x

e t

j u s t i t i a

 

COMMON WEALTH OF KE N TUCK Y

COURT OF JU S T I C E

CLERK’S USE ONLY

Hearing Date: ____________________, 2____.

Time _______________ [ ] a.m. [ ] p.m.

AOC-492.1

Rev. 6-09

Page 2 of 2

INSTRUCTIONS TO DEFENDANT

FOR COMPLETING APPLICATION

When fi lling in your NAME as the “DEFENDANT” on page one of this form, also include your

ADDRESS.

1. You must provide the following type of NOTARIZED document(s) depending on the reason you are requesting a license. Form AOC-492.A “Affi davit for Hardship Driver’s License” may be used for this purpose.

A. If the license is sought for employment purposes: A written, sworn statement from your employer detailing your job, hours of employment, and the necessity for you to use a motor vehicle either in work or in travel to and from work. If you are self-employed, provide the described information together with a sworn and notarized statement attesting to the truth of the above information.

B. If the license is sought for education purposes: A written, sworn statement from the school or educational institution that you attend containing your class schedule, courses being taken, and necessity for you to use a motor vehicle in travel to and from school or other educational institution.

A license for educational purposes shall not include participation in sports, social, extracurricular, fraternal or other noneducational activities.

C. If the license is sought for medical purposes: A written, sworn statement from a physician or other medical professional licensed (but not certified) under Kentucky laws, attesting to your normal hours of treatment, and the necessity to use a motor vehicle to travel to and from the treatment.

D. If the license is sought for alcohol or substance abuse education or treatment purposes: A written, sworn statement from the director of any alcohol or substance abuse education or treatment program as to the hours in which you are expected to participate in the program, the nature of the program, and the necessity for you to use a motor vehicle to travel to and from the program.

E. If the license is sought for court-ordered driver improvement, counseling or other programs: A copy of any court order relating to treatment, participation in driver improvement programs, or other terms and conditions ordered by the court relating to you which require you to use a motor vehicle in traveling to and from the court-ordered program. The court order must include the necessity for use of a motor vehicle.

2. A sworn statement must be signed by a notary public.

3. NOTE TO DEFENDANT: You must pay a service fee to the Kentucky Transportation Cabinet for issuance of a hardship license. The Cabinet may refuse issuance of a hardship license should your driving history reveal a current withdrawal, denial, suspension, cancellation or revocation of driving privilege in any state/licensing jurisdiction. 601 KAR 12.020, Sec. 3.

4. IF YOU ARE COMPLETING THIS FORM ON A COMPUTER, SUBMIT THREE (3) SIGNED COPIES OF THE APPLICATION [plus the appropriate notarized Affi davit(s)] TO THE CIRCUIT CLERK. If you received this Application from the Circuit Clerk, submit only the completed three-page carbon pack [plus the appropriate notarized Affi davit(s)] to the Circuit Clerk.

 

COMMONWEALTH OF KENTUCKY PLAINTIFF

VS.

Name: __________________________________________ DEFENDANT

Address: ________________________________________

________________________________________

Date of Birth: ___________________ Driver’s License No.: _____________________

 

FINDINGS OF FACT

Defendant having applied for a hardship driver’s license, and the Court having held a hearing on the application, the Court makes these FINDINGS OF FACT:

1. Defendant’s Kentucky driver’s license has been suspended by an order entered in _____________________

Circuit/District Court for the period of time that restitution in the amount of $ __________________________ is owed.

2. There is reasonable cause to believe suspension of defendant’s driver’s license hinders his/her ability to: (Check all

that apply):

[ ] Continue his/her employment. [ ] Attend court-ordered counseling or other programs. [ ] Continue attending school or an educational institution. [ ] Obtain necessary medical care. [ ] Attend driver improvement, alcohol, or substance education programs.

3. Defendant has provided the Court proof of motor vehicle insurance AND document(s) stated on page 2 of this form required for obtaining a license for the following purposes: [ ] Employment; [ ] Educational; [ ] Medical;

[ ] Alcohol or Substance Abuse Education or Treatment; OR [ ] Court-Ordered Counseling or other programs.

 

Distribution: White – Court File Yellow – Defendant Pink – Division of Driver Licensing

Case No. ____________________

Court _______________________

County ______________________

Citation No. __________________

 

 

 

 

 

AOC-493.3 Doc. Code: ORLG or

ORLD

Rev. 6-09

Commonwealth of Kentucky

Court of Justice www.courts.ky.gov

KRS 532.356

Case No. _____________________

Court ________________________

County ______________________

 

ORDER DRIVER’S LICENSE  REINSTATEMENT GRANTED OR DENIED

 

COMMONWEALTH OF KENTUCKY PLAINTIFF

VS.

_______________________________________________ DEFENDANT

Date of Birth: ____________________________

Driver License Number: _______________________ State: __________

 

ORDER

The above-named defendant has provided proof to the Court of full repayment of restitution owed in this case in the following form:

______________________________________________________________________

_____________________________________________________________________________________________________________________________________________

 

Now, therefore, pursuant to KRS 532.356 the defendant:

[ ] is eligible Doc. Code: ORLG

[ ] is not eligible Doc. Code: ORLD

to obtain a motor vehicle operator’s license.

Date: ________________________, 2________ ______________________________________

JUDGE

Distribution:

Court File

Defendant

Division of Driver Licensing

 

 

 

 

 

 

AOC-341.A Doc. Code: OSFR

Rev. 6-09

Commonwealth of Kentucky

Court of Justice www.courts.ky.gov

KRS 532.356

Case No. _____________________

Court ________________________

 

ORDER SUSPENDING LICENSE FOR County ______________________

RESTITUTION OWED (THEFT-RELATED)

COMMONWEALTH OF KENTUCKY PLAINTIFF

VS.

________________________________________________ DEFENDANT

Date of Birth: _______________________________

Driver License Number: _______________________ State: ____________

The above-named defendant:

1. has been adjudged guilty of an offense arising from one or more of the following charge(s): KRS 434.650, 434.655,

434.660, 434.670, 434.690, 514.030, 514.040, 514.050, 514.060, 514.070, 514.080, 514.090, 514.110, 514.120, 506.120;

and

2. has been Ordered to pay restitution in the amount of $___________________________.

Therefore, the Court declares that the defendant is ineligible to operate a motor vehicle for the period of time that any restitution remains unpaid. Defendant shall immediately surrender his/her driver’s license to the circuit clerk. In order to have his/her license reinstated, defendant shall present proof of full payment of restitution to the Court.

 

Date: ________________________, 2________ ____________________________________

Judge

Distribution:

Court File

Defendant

Division of Driver Licensing

 

 

 

 

AOC-493.2 Doc. Code: RDL

Rev. 6-09

Commonwealth of Kentucky

Court of Justice www.courts.ky.gov

KRS 532.356

Case No. _____________________

Court ________________________

MOTION FOR DRIVER’S LICENSE County _______________________

REINSTATEMENT

COMMONWEALTH OF KENTUCKY PLAINTIFF

VS.

_______________________________________________ DEFENDANT

Date of Birth: ____________________________

Driver License Number: _______________________ State: __________

On ______________________, ________, I [ ] plead guilty to OR [ ] was found guilty of a theft by unlawful taking offense. I was convicted and sentenced to pay restitution in the amount of $_________________________________.

I hereby swear and affi rm that I have repaid the restitution owed in full. Wherefore, the Defendant prays the Court enter an Order directing the reinstatement of his/her driver’s license.

_________________________________________________

Defendant’s Signature

_________________________________________________

Clerk

Date: _________________, 2____.

Distribution:

Court File

Defendant

Defense Attorney

County Attorney

Commonwealth Attorney

Clerk’s Use Only

Hearing Date: _____________________

Time: _________________ [ ] a.m. [ ] p.m.

 

 

 

 

AOC-493.1 Doc. Code: OHLT

Rev. 6-09

Page 1 of 2

Commonwealth of Kentucky

Court of Justice www.courts.ky.gov

KRS 189A.400-.460; 601 KAR

12.060; KRS 532.356

 

HARDSHIP DRIVER’S LICENSE ORDER

(RESTITUTION OWED/

THEFT-RELATED OFFENSE)

l e x

e t

j u s t i t i a

COMMON WEALTH OF KE N TUCK Y

COURT OF JU S T I C E

NOTICE TO DEFENDANT

  1. If the Court grants your application, present this Order, the Driving Privilege Withdrawal Notice, and some form of identification to the Circuit Court Clerk in your county of residence to receive your hardship driver’s license.

 

This ORDER ALONE DOES NOT CONSTITUTE YOUR DRIVER’S LICENSE. The Kentucky Transportation Cabinet reserves the right to refuse issuance of a hardship license should your driving history record reveal a current withdrawal,

denial, suspension, cancellation or revocation of driving privilege in any state or licensing jurisdiction. 601 KAR 12.020(2),(3).

2. Defendant must have the hardship license in his/her possession at all times during which he/she is operating or authorized to operate a motor vehicle. Defendant shall not operate a motor vehicle at any time or place or for any purpose other than those authorized above. Violation is a Class A misdemeanor resulting in revocation of his/her

license for the initial period plus an additional six (6) months.

 

ORDER IT IS HEREBY ORDERED defendant is GRANTED a hardship license subject to these conditions:

 

Use is limited to: [ ] Employment [ ] Educational [ ] Medical [ ] Court-ordered counseling or other programs [ ] Alcohol or Substance Abuse Education or Treatment

Time of use: ___________________________________________________________________________________

Place of use: ___________________________________________________________________________________

Other: _________________________________________________________________________________________

[ ] Defendant must have a functioning Ignition Interlock Device (IID) installed on each vehicle he/she owns or leases.

a. While using a hardship license:

[ ] Defendant shall not operate a motor vehicle or motorcycle without a functioning IID.

[ ] Defendant shall not operate motor vehicle or motorcycle without functioning IID, EXCEPT in course of his/her job when motor vehicle/motorcycle is employer-owned & employer has been notifi ed of this prohibition.

b. Defendant shall provide proof of installation of functioning IID(s) to the Court and periodically report verification of proper functioning of IID(s) according to this schedule: ___________________________________________________

________________________________________________________________________________________________.

c. Defendant shall have IID(s) serviced and monitored at least every thirty (30) days for proper functioning by an entity  approved by the Kentucky Transportation Cabinet.

d. Defendant shall be required to pay reasonable cost of leasing or buying, installing, servicing, and monitoring the IID(s). If defendant fails to submit required proof, the hardship license is subject to immediate revocation and defendant

may be held in contempt of court.

[ ] Compliance with Ignition Interlock Device requirements is hereby WAIVED pursuant to KRS 532.356.

[ ] Compliance with the provisions of KRS 189A relating to alcohol treatment is hereby WAIVED pursuant KRS 532.356.

Date: ______________________, 2_______ ______________________________________

Judge

 

INSTRUCTIONS TO JUDGE

Defendant must provide the following type of document(s) depending upon the reason the defendant seeks a license:

1. For a license for employment purposes: A written, sworn statement from defendant’s employer detailing defendant’s job, hours of employment, and the necessity for defendant to use a motor vehicle either in work or in travel to and from work. If the defendant is self-employed, the above information must be accompanied by the defendant’s

sworn and notarized statement attesting to the truth of the information.

2. For a license for educational purposes: A written, sworn statement from the school or educational institution of defendant’s attendance, defendant’s class schedule, courses being taken, and necessity for defendant to use a motor vehicle in travel to and from school or other educational institution. A license for educational purposes shall not include participation in sports, social, extracurricular, fraternal, or other noneducational activities.

3. For a license for medical purposes: A written, sworn statement from a physician or other medical professional licensed (but not certified) under Kentucky laws, attesting to defendant’s normal hours of treatment, and the necessity to use a motor vehicle to travel to and from the treatment.

4. For a license for alcohol or substance abuse education or treatment purposes: A written, sworn statement from the director of any alcohol or substance abuse education or treatment program as to the hours in which defendant is expected to participate in the program, the nature of the program, and the necessity for defendant to use a motor

vehicle to travel to and from the program.

5. For a license for court-ordered counseling or other programs: A copy of any court order relating to treatment, participation in driver improvement program, or other terms and conditions ordered by the court relating to the defendant which require the defendant to use a motor vehicle in traveling to and from the court-ordered program. The court order must include the necessity for use of a motor vehicle.

6. The court has the option of establishing a payment schedule.

INSTRUCTIONS TO CLERK

1. Assign same case number as underlying charges. Enter on case jacket or docket sheet. File in same case jacket or fi le as underlying charges.

2. If application is granted, driver’s license clerk should issue a duplicate license and attach yellow copy of order to license.

3. In the event defendant does not submit to you the required documentation, a bench warrant shall issue.

 

AOC – 493.1

Rev. 6-09

today June 25th.  It raises the threshold amounts for theft-related offenses, and contains a provision which requires a court to declare upon conviction for these offenses that a defendant is ineligible to operate a motor vehicle for the period of time that any restitution is owed. This is incorporated into KRS 532.356.   The scope of this bill includes Class A misdemeanor, Class D felony and Class C felony theft-related convictions specifically enumerated in KRS 532.356(3)(a).

 

 

The AOC has developed a series of forms to be used in order to accomplish the license revocation. Here’s how the process works:

·       Upon conviction, the court enters an order using AOC-341A (Order Suspending License for Restitution Owed).

·       Per KRS 532.356(3)(b), a defendant may apply for a hardship license under KRS Chapter 189A. Because the court may waive compliance with provisions relating to alcohol treatment and ignition interlock devices, a separate hardship license application (AOC 492.1) and order (AOC 493.1) have been developed.

·       Once restitution is paid, a defendant may apply to the court for license reinstatement (AOC-493.2). If the court determines that restitution has been paid in full (taking into consideration the payment of any restitution fees if appropriate), the court enters an order reinstating the license (AOC 493.3).

·       These documents are transmitted by the clerk by mail to the Department of Transportation, Division of Driver Licensing.

 

 

 

 

 

LICENSE SUSPENSION FOR THEFT-RELATED OFFENSES

(KRS 532.356)

 

1.      Upon receipt of AOC-341.A, Order Suspending License for Restitution Owed, apply the “Entered” stamp, add the date and your initials and enter on a document screen using document code “OSFR”. Mail Order to the Transportation Cabinet daily:

 

Transportation Cabinet

Division of Driver Licensing

200 Mero Street, 2nd Floor

Frankfort, KY 40622

 

2.            Hardship Driver’s License

 

A defendant may apply for a hardship driver’s license, which restores

driving privileges.  KRS 532.356, 189A.410. 

 

(1)   Defendant applies in county where offense occurred. 601KAR 12:060 Sec. 1.  Defendant must complete AOC Form 492.A, Affidavit for Hardship License and AOC Form 492.1, Application for Hardship License (Restitution Owed/Theft Related Offense).  Apply the “FILED” stamp to the affidavit and application; add the date and your initials.

 

(2)   File the affidavit “AFHD” and application “AHDT” on document screens in the same case as underlying charge. Set hearing date on the scheduled events screen. Do not collect a filing fee. Distribute the application according to the list at the bottom of the application.

 

(3)   Enter order, AOC Form 493.1, Hardship Driver’s License Order (Restitution Owed/Theft-Related Offense). Apply the “ENTERED” stamp; add the date and your initials. Enter on a document screen using document code “OHLT”.  Distribute the order according to the list at the bottom of the order.

 

(4)   If granted, defendant presents to driver’s license clerk in defendant’s county of residence his/her identification and:

 

1) two (2) copies of order,

 

2) withdrawal notice (WTH) from Division of Drivers

                Licensing (If not available, call 800-344-2552 to obtain

                expiration date of hardship license), and

 

(5)   License issued.

 

1) A copy of the order is stapled to laminated license and

               given to defendant with decal. (If AOC Form 493.1 is

               used, attach yellow copy)

 

 

3.   Reinstatement of Driver’s License (Restitution Paid in Full)

 

(1)   Defendant must complete AOC form 493.2, Motion and Order for Reinstatement of Driver’s License.  Upon receipt, apply the “FILED” stamp; add the date and your initials.   Schedule a hearing by completing a scheduled events screen using a scheduled event code of “RLR” (Review License Reinstatement-Theft Related)  and file the motion by completing a motion screen using a motion type code of “RDL” (Motion to Reinstate Driver’s License). 

 

(2)   When a signed order is received:

 

(a) Apply the “ENTERED” stamp to the order; add the date and your

initials.  Do not use the “FILED” stamp.

 

(b) Enter the order on the document screen including a brief description. Use document code “ORLG” (Order Reinstating Driver’s License – Granted) – or “ORLD” (Order Reinstating Driver’s License – Denied).  This constitutes entry of the order; the order does not become effective until this is done.  RCr 11.04.  This is combined with the notation of service of notice of entry of the judgment as described below.

 

(c)  After the order is entered, serve notice of entry as shown in the                                         distribution list at the bottom of the form.

 

 

 

 

I

 COMMONWEALTH OF KENTUCKY PLAINTIFF

VS.

Name: __________________________________________ DEFENDANT

Address: _____________________________________________

Comes the Defendant and provides the following information in support of a request for a hardship license:

1. On ______________________, ________, I [ ] plead guilty to OR [ ] was found guilty of a theft by unlawful taking offense in ________________________________ Circuit/District Court.

2. I was convicted and sentenced to pay restitution in the amount of $_______________.

3. Suspension of my driver’s license hinders my ability to: (Check all that apply)

[ ] Continue my employment. [ ] Continue attending school or an educational institution.

[ ] Obtain necessary medical care. [ ] Attend court-ordered counseling or other programs.

[ ] Attend driver improvement, alcohol, or substance abuse education programs.

 

At the hearing, I will provide to the Court proof of motor vehicle insurance and notarized documents, as stated on page 2 of this form, depending on whether the hardship license is sought for employment; educational; medical; alcohol; substance abuse education or treatment; court-ordered counseling; or other programs.

 

WHEREFORE, Defendant prays this Application for Hardship Driver’s License will be granted for the remainder of the

suspension period.

_________________________________________________

Defendant’s Signature

_________________________________________________

Defendant’s Attorney (if any)

Date: _________________, 2____.

Distribution:

Court File

Defendant

Defense Attorney

County Attorney

Commonwealth Attorney

Case No. ___________________

Court ______________________

County _____________________

 

 

 

 

 

AOC-492.1 Doc. Code: AHDT

Rev. 6-09

Page 1 of 2

Commonwealth of Kentucky

Court of Justice www.courts.ky.gov

KRS 532.356 Application for Hardship Driver’s License

(Restitution Owed /Theft-Related Offense)

 

l e x

e t

j u s t i t i a

 

COMMON WEALTH OF KE N TUCK Y

COURT OF JU S T I C E

CLERK’S USE ONLY

Hearing Date: ____________________, 2____.

Time _______________ [ ] a.m. [ ] p.m.

AOC-492.1

Rev. 6-09

Page 2 of 2

INSTRUCTIONS TO DEFENDANT

FOR COMPLETING APPLICATION

When fi lling in your NAME as the “DEFENDANT” on page one of this form, also include your

ADDRESS.

1. You must provide the following type of NOTARIZED document(s) depending on the reason you are requesting a license. Form AOC-492.A “Affi davit for Hardship Driver’s License” may be used for this purpose.

A. If the license is sought for employment purposes: A written, sworn statement from your employer detailing your job, hours of employment, and the necessity for you to use a motor vehicle either in work or in travel to and from work. If you are self-employed, provide the described information together with a sworn and notarized statement attesting to the truth of the above information.

B. If the license is sought for education purposes: A written, sworn statement from the school or educational institution that you attend containing your class schedule, courses being taken, and necessity for you to use a motor vehicle in travel to and from school or other educational institution.

A license for educational purposes shall not include participation in sports, social, extracurricular, fraternal or other noneducational activities.

C. If the license is sought for medical purposes: A written, sworn statement from a physician or other medical professional licensed (but not certified) under Kentucky laws, attesting to your normal hours of treatment, and the necessity to use a motor vehicle to travel to and from the treatment.

D. If the license is sought for alcohol or substance abuse education or treatment purposes: A written, sworn statement from the director of any alcohol or substance abuse education or treatment program as to the hours in which you are expected to participate in the program, the nature of the program, and the necessity for you to use a motor vehicle to travel to and from the program.

E. If the license is sought for court-ordered driver improvement, counseling or other programs: A copy of any court order relating to treatment, participation in driver improvement programs, or other terms and conditions ordered by the court relating to you which require you to use a motor vehicle in traveling to and from the court-ordered program. The court order must include the necessity for use of a motor vehicle.

2. A sworn statement must be signed by a notary public.

3. NOTE TO DEFENDANT: You must pay a service fee to the Kentucky Transportation Cabinet for issuance of a hardship license. The Cabinet may refuse issuance of a hardship license should your driving history reveal a current withdrawal, denial, suspension, cancellation or revocation of driving privilege in any state/licensing jurisdiction. 601 KAR 12.020, Sec. 3.

4. IF YOU ARE COMPLETING THIS FORM ON A COMPUTER, SUBMIT THREE (3) SIGNED COPIES OF THE APPLICATION [plus the appropriate notarized Affi davit(s)] TO THE CIRCUIT CLERK. If you received this Application from the Circuit Clerk, submit only the completed three-page carbon pack [plus the appropriate notarized Affi davit(s)] to the Circuit Clerk.

 

COMMONWEALTH OF KENTUCKY PLAINTIFF

VS.

Name: __________________________________________ DEFENDANT

Address: ________________________________________

________________________________________

Date of Birth: ___________________ Driver’s License No.: _____________________

 

FINDINGS OF FACT

Defendant having applied for a hardship driver’s license, and the Court having held a hearing on the application, the Court makes these FINDINGS OF FACT:

1. Defendant’s Kentucky driver’s license has been suspended by an order entered in _____________________

Circuit/District Court for the period of time that restitution in the amount of $ __________________________ is owed.

2. There is reasonable cause to believe suspension of defendant’s driver’s license hinders his/her ability to: (Check all

that apply):

[ ] Continue his/her employment. [ ] Attend court-ordered counseling or other programs. [ ] Continue attending school or an educational institution. [ ] Obtain necessary medical care. [ ] Attend driver improvement, alcohol, or substance education programs.

3. Defendant has provided the Court proof of motor vehicle insurance AND document(s) stated on page 2 of this form required for obtaining a license for the following purposes: [ ] Employment; [ ] Educational; [ ] Medical;

[ ] Alcohol or Substance Abuse Education or Treatment; OR [ ] Court-Ordered Counseling or other programs.

 

Distribution: White – Court File Yellow – Defendant Pink – Division of Driver Licensing

Case No. ____________________

Court _______________________

County ______________________

Citation No. __________________

 

 

 

 

 

AOC-493.3 Doc. Code: ORLG or

ORLD

Rev. 6-09

Commonwealth of Kentucky

Court of Justice www.courts.ky.gov

KRS 532.356

Case No. _____________________

Court ________________________

County ______________________

 

ORDER DRIVER’S LICENSE  REINSTATEMENT GRANTED OR DENIED

 

COMMONWEALTH OF KENTUCKY PLAINTIFF

VS.

_______________________________________________ DEFENDANT

Date of Birth: ____________________________

Driver License Number: _______________________ State: __________

 

ORDER

The above-named defendant has provided proof to the Court of full repayment of restitution owed in this case in the following form:

______________________________________________________________________

_____________________________________________________________________________________________________________________________________________

 

Now, therefore, pursuant to KRS 532.356 the defendant:

[ ] is eligible Doc. Code: ORLG

[ ] is not eligible Doc. Code: ORLD

to obtain a motor vehicle operator’s license.

Date: ________________________, 2________ ______________________________________

JUDGE

Distribution:

Court File

Defendant

Division of Driver Licensing

 

 

 

 

 

 

AOC-341.A Doc. Code: OSFR

Rev. 6-09

Commonwealth of Kentucky

Court of Justice www.courts.ky.gov

KRS 532.356

Case No. _____________________

Court ________________________

 

ORDER SUSPENDING LICENSE FOR County ______________________

RESTITUTION OWED (THEFT-RELATED)

COMMONWEALTH OF KENTUCKY PLAINTIFF

VS.

________________________________________________ DEFENDANT

Date of Birth: _______________________________

Driver License Number: _______________________ State: ____________

The above-named defendant:

1. has been adjudged guilty of an offense arising from one or more of the following charge(s): KRS 434.650, 434.655,

434.660, 434.670, 434.690, 514.030, 514.040, 514.050, 514.060, 514.070, 514.080, 514.090, 514.110, 514.120, 506.120;

and

2. has been Ordered to pay restitution in the amount of $___________________________.

Therefore, the Court declares that the defendant is ineligible to operate a motor vehicle for the period of time that any restitution remains unpaid. Defendant shall immediately surrender his/her driver’s license to the circuit clerk. In order to have his/her license reinstated, defendant shall present proof of full payment of restitution to the Court.

 

Date: ________________________, 2________ ____________________________________

Judge

Distribution:

Court File

Defendant

Division of Driver Licensing

 

 

 

 

AOC-493.2 Doc. Code: RDL

Rev. 6-09

Commonwealth of Kentucky

Court of Justice www.courts.ky.gov

KRS 532.356

Case No. _____________________

Court ________________________

MOTION FOR DRIVER’S LICENSE County _______________________

REINSTATEMENT

COMMONWEALTH OF KENTUCKY PLAINTIFF

VS.

_______________________________________________ DEFENDANT

Date of Birth: ____________________________

Driver License Number: _______________________ State: __________

On ______________________, ________, I [ ] plead guilty to OR [ ] was found guilty of a theft by unlawful taking offense. I was convicted and sentenced to pay restitution in the amount of $_________________________________.

I hereby swear and affi rm that I have repaid the restitution owed in full. Wherefore, the Defendant prays the Court enter an Order directing the reinstatement of his/her driver’s license.

_________________________________________________

Defendant’s Signature

_________________________________________________

Clerk

Date: _________________, 2____.

Distribution:

Court File

Defendant

Defense Attorney

County Attorney

Commonwealth Attorney

Clerk’s Use Only

Hearing Date: _____________________

Time: _________________ [ ] a.m. [ ] p.m.

 

 

 

 

AOC-493.1 Doc. Code: OHLT

Rev. 6-09

Page 1 of 2

Commonwealth of Kentucky

Court of Justice www.courts.ky.gov

KRS 189A.400-.460; 601 KAR

12.060; KRS 532.356

 

HARDSHIP DRIVER’S LICENSE ORDER

(RESTITUTION OWED/

THEFT-RELATED OFFENSE)

l e x

e t

j u s t i t i a

COMMON WEALTH OF KE N TUCK Y

COURT OF JU S T I C E

NOTICE TO DEFENDANT

  1. If the Court grants your application, present this Order, the Driving Privilege Withdrawal Notice, and some form of identification to the Circuit Court Clerk in your county of residence to receive your hardship driver’s license.

 

This ORDER ALONE DOES NOT CONSTITUTE YOUR DRIVER’S LICENSE. The Kentucky Transportation Cabinet reserves the right to refuse issuance of a hardship license should your driving history record reveal a current withdrawal,

denial, suspension, cancellation or revocation of driving privilege in any state or licensing jurisdiction. 601 KAR 12.020(2),(3).

2. Defendant must have the hardship license in his/her possession at all times during which he/she is operating or authorized to operate a motor vehicle. Defendant shall not operate a motor vehicle at any time or place or for any purpose other than those authorized above. Violation is a Class A misdemeanor resulting in revocation of his/her

license for the initial period plus an additional six (6) months.

 

ORDER IT IS HEREBY ORDERED defendant is GRANTED a hardship license subject to these conditions:

 

Use is limited to: [ ] Employment [ ] Educational [ ] Medical [ ] Court-ordered counseling or other programs [ ] Alcohol or Substance Abuse Education or Treatment

Time of use: ___________________________________________________________________________________

Place of use: ___________________________________________________________________________________

Other: _________________________________________________________________________________________

[ ] Defendant must have a functioning Ignition Interlock Device (IID) installed on each vehicle he/she owns or leases.

a. While using a hardship license:

[ ] Defendant shall not operate a motor vehicle or motorcycle without a functioning IID.

[ ] Defendant shall not operate motor vehicle or motorcycle without functioning IID, EXCEPT in course of his/her job when motor vehicle/motorcycle is employer-owned & employer has been notifi ed of this prohibition.

b. Defendant shall provide proof of installation of functioning IID(s) to the Court and periodically report verification of proper functioning of IID(s) according to this schedule: ___________________________________________________

________________________________________________________________________________________________.

c. Defendant shall have IID(s) serviced and monitored at least every thirty (30) days for proper functioning by an entity  approved by the Kentucky Transportation Cabinet.

d. Defendant shall be required to pay reasonable cost of leasing or buying, installing, servicing, and monitoring the IID(s). If defendant fails to submit required proof, the hardship license is subject to immediate revocation and defendant

may be held in contempt of court.

[ ] Compliance with Ignition Interlock Device requirements is hereby WAIVED pursuant to KRS 532.356.

[ ] Compliance with the provisions of KRS 189A relating to alcohol treatment is hereby WAIVED pursuant KRS 532.356.

Date: ______________________, 2_______ ______________________________________

Judge

 

INSTRUCTIONS TO JUDGE

Defendant must provide the following type of document(s) depending upon the reason the defendant seeks a license:

1. For a license for employment purposes: A written, sworn statement from defendant’s employer detailing defendant’s job, hours of employment, and the necessity for defendant to use a motor vehicle either in work or in travel to and from work. If the defendant is self-employed, the above information must be accompanied by the defendant’s

sworn and notarized statement attesting to the truth of the information.

2. For a license for educational purposes: A written, sworn statement from the school or educational institution of defendant’s attendance, defendant’s class schedule, courses being taken, and necessity for defendant to use a motor vehicle in travel to and from school or other educational institution. A license for educational purposes shall not include participation in sports, social, extracurricular, fraternal, or other noneducational activities.

3. For a license for medical purposes: A written, sworn statement from a physician or other medical professional licensed (but not certified) under Kentucky laws, attesting to defendant’s normal hours of treatment, and the necessity to use a motor vehicle to travel to and from the treatment.

4. For a license for alcohol or substance abuse education or treatment purposes: A written, sworn statement from the director of any alcohol or substance abuse education or treatment program as to the hours in which defendant is expected to participate in the program, the nature of the program, and the necessity for defendant to use a motor

vehicle to travel to and from the program.

5. For a license for court-ordered counseling or other programs: A copy of any court order relating to treatment, participation in driver improvement program, or other terms and conditions ordered by the court relating to the defendant which require the defendant to use a motor vehicle in traveling to and from the court-ordered program. The court order must include the necessity for use of a motor vehicle.

6. The court has the option of establishing a payment schedule.

INSTRUCTIONS TO CLERK

1. Assign same case number as underlying charges. Enter on case jacket or docket sheet. File in same case jacket or fi le as underlying charges.

2. If application is granted, driver’s license clerk should issue a duplicate license and attach yellow copy of order to license.

3. In the event defendant does not submit to you the required documentation, a bench warrant shall issue.

 

AOC – 493.1

Rev. 6-09

Here We Go Again: U.S. Supreme Court to tackle clarity of Miranda warnings again

Monday, June 22nd, 2009

The U.S  Supreme Court agreed June 22, 2009 to hear another case over just how explicit the Miranda Warning language must be.

In its landmark 1966 Miranda v. Arizona ruling, the high court set out to protect the constitutional right of people not to incriminate themselves once in custody. The court said the police have to tell defendants they can have a lawyer represent them, even if they can’t afford one.

Since 1966, dozens of prosecutors and defendants have asked the court to clarify its ruling. The court has addressed many of those appeals and reaffirmed its basic ruling in 2000.

Along the way, the justices made clear they don’t insist that every police officer use precisely the same words, so long as the important details are clear, even to people with no legal training or little or no schooling.

Monday they agreed to examine what the Tampa, Fla., police told Kevin Dewayne Powell after his arrest on Aug. 10, 2004.

The Florida Supreme Court overturned the conviction on grounds the Tampa police didn’t adequately convey to Powell that he was allowed to have a lawyer with him during questioning.

Before he confessed, Powell signed a statement that said he could remain silent and, if he did talk, what he said could be used against him in court. The statement added:

“You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.”

The Supreme Court’s original Miranda ruling said whatever words the police used they had to make clear that a suspect could “have the lawyer with him during interrogation.”

Florida’s highest court found the Tampa warning fell short of this essential element because Powell was “never unequivocally informed that he had the right to have an attorney present at all times” during the police interview and limited the narrower right “to talk to” counsel to the period “before answering any of our questions.” The Florida justices ruled that the last sentence of what Powell signed “did not supply the missing warning of the right to have counsel present during police questioning because a right that has never been expressed cannot be reiterated.”

The Supreme Court has been asked to resolve differences between federal circuit courts of appeals on how explicit police must be informing a defendant that a lawyer can sit in on their interrogations.

The case is 08-1175, Florida v. Powell.

 

U.S. Supreme Court Rules Parents of Special Ed Students Can Seek Compensation for Private Schooling of Their Children

Monday, June 22nd, 2009

June 20, 2009

The Supreme Court ruled this week that parents of special education students who opt for private school instead of trying the public system cannot be barred from seeking public reimbursement for their tuition costs.

The court ruled 6-3 Monday in favor of a teenage boy from Oregon whose parents sought to force their local public school district to pay the $5,200 a month it cost to send their son to a private school.

Federal law calls for school districts to reimburse students or their families for education costs when public schools do not have services that address or fulfill the students’ needs. Under the Individuals with Disabilities Education Act, the nation’s special education students are entitled to a “free and appropriate public education.”

Schools have argued that the law says parents of special education students must give public special education programs a chance before seeking reimbursement for private school tuition.

Justice John Paul Stevens said in his majority opinion that the federal Individuals with Disabilities Education Act requires a school district to pay for private special ed services if the public school doesn’t have appropriate services.

“We conclude that IDEA authorizes reimbursement for the cost of special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school,” Stevens said.

In its appeal, the Forest Grove School District said students should be forced to at least give public special education programs a try before seeking reimbursement for private tuition. If not, parents would bypass public schools and go directly to private school — and then ask for reimbursement from school systems already burdened by ever-increasing costs.

The court’s decision does not require reimbursement, but Stevens said school officials “must consider all relevant factors, including the notice provided by parents and the school district’s opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child’s private school education is warranted.”

Justice David Souter, Antonin Scalia and Clarence Thomas dissented

NEW RULE CREATES DUTY OF LAWYERS TO REPORT ETHICAL VIOLATIONS OF THE CODE OF PROFESSIONAL RESPONSIBILITY.

Monday, June 22nd, 2009

 

By Stan Billingsley, LawReader Senior Editor – June 20, 2009

 

One of the important new ethic rules applying to the legal profession, which became effective on June 15, 2009, makes an important change in the duty to report ethical violations to the KBA Inquiry Commission.

 

Until this new provision of the Code of Professional Responsibility became effective their was no duty of a lawyer to report a violation of the Code.

 

    A different rule has been applied to judges.  Canon Three of the Code of Judicial Conduct has long required judges to report ethical violations which come to their attention.

 

“(2) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Kentucky Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Kentucky Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects should inform the appropriate authority.”

 

   In an unpublished opinion written by Judge Taylor in 2008, and joined in by Judges Keller and Vanmeter the Court of Appeals said:

 

Amburn v. Delahanty, No. 2007-CA-000067-MR (Ky. App. 4/4/2008) (Ky. App., 2008)

 

“A lawyer does not have a duty to report what he believes to be unethical conduct against another lawyer. The Court does have such a duty to report unethical conduct if the circumstance presents itself. The Court has prepared a bar complaint regarding attorneys, Foster Haunz, Michael Schwartz and Jackson Andrews.”

 

As of June 15, 2009, the ruling in Amburn v. Delahanty is voided by an amendment to the Rules of Professional Responsibility.

 

NEW RULE EFFECTIVE JUNE 15, 2009:

 

II. SCR 3.130(8.3) Reporting professional misconduct

The proposed new rule SCR 3,130(8.3) shall read:

(a) A lawyer who knows that another lawyer has committed a criminal act or has engaged in conduct involving dishonesty, fraud, or deceit that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer shall report such act or conduct to the Association’s Bar Counsel.

 

OLD RULE:

 

 SCR 3.130(8.3) Misconduct

It is professional misconduct for a lawyer to:

(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) State or imply an ability to influence improperly a government agency or official; or

(e) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable Rules of Judicial Conduct or other law.

HISTORY: Adopted by Order 89-1, eff. 1-1-90

 

 

(Note the Old Rule was titled:  SCR 3.130(8.3) Misconduct   (and did not mention a duty to report violations.)

 

The new rule 8.3 now has a new title and a new provision which says:

 

II. SCR 3.130(8.3) Reporting professional misconduct

The proposed new rule SCR 3,130(8.3) shall read:

 

(a)   A lawyer who knows that another lawyer has committed a criminal act or has engaged in conduct involving dishonesty, fraud, or deceit that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer shall report such act or conduct to the Association’s Bar Counsel.

 

The language of the new commentary suggests that not every violation needs to be reported.

 

(New Supreme Court) Commentary:

(1) Self-regulation of the legal profession requires that members of the profession initiate a disciplinary investigation when they know that another lawyer has violated certain minimum standards of behavior as described in the Rule. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

(2) If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement exists in many jurisdictions but has proved unenforceable. The Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. Lawyers requiring assistance in determining the need to report an incident of misconduct may confer with their Supreme Court District Committee member. Pursuant to SCR 3.530(7) a lawyer’s communications with a District Committee member are confidential.

(3) Paragraph (a) of the Rule requires that a lawyer who knows that another lawyer has committed specified inappropriate acts, as defined in this Rule, report the facts of such conduct to Bar Counsel. While a measure of judgment in complying with the Rule is appropriate, the Rule and Comments are designed to encourage compliance and to provide clarity as to the types of conduct that must be reported to Bar Counsel.

 

 

Supreme Court Conservative Majority says Innocent Have No Constitutional Right to Access DNA Evidence Would Could Prove Their Innocence – Guess They Never Heard of Due Process

Saturday, June 20th, 2009

After noting that DNA testing has an “unparalleled ability both to exonerate the wrongly convicted and to identify the guilty,” a five-member majority of the Supreme Court said there was no right to the convincing reviews. If that strikes you as strange, you’re not alone.

DNA lab work has become the new gold standard in deciding guilt or innocence. A slender hair, a scrap of skin or drop of blood or body fluid can all spell jail time or freedom for a suspect accused of a serious crime.

While many states have adopted varying standards to allow such testing, some states haven’t. That gives rise to an unequal standard of justice, a situation that the high court was called on to rectify.

But the conservative majority didn’t follow through. Instead it decided the matter should be left to the states to hash out, a spot of reasoning that will continue a pattern of differing rules and the very real fear that full justice won’t be served.

If high-tech genetic fingerprinting is as accurate as touted, then it should be embraced and made consistent. At the same time, there need to be rules to limit endless appeals and meritless efforts to delay justice.

DNA evidence is a crucial tool available to prosecutors, police and defense attorneys. Prisoners on death row have been freed while nearly forgotten cases have finally been solved when stored-away evidence was re-examined for DNA matches.

The country has come a long way from the O.J. Simpson trial in 1995 when damning DNA evidence was disregarded by the jury that acquitted him. Now the tests are correctly regarded as the most reliable evidence at a crime scene, particularly in sex assaults.

The case that drew the court ruling was typical of the choppy legal landscape of DNA testing. A rape suspect had asked to pay for new DNA testing after being convicted in Alaska. His lawyer didn’t seek a test during the trial, and state law didn’t guarantee his right to one after his conviction.

The majority opinion said such disputes were best left to state legislatures, not the federal courts, to work out. It’s a predictably tame and restrained ruling from the court’s conservative bloc.

It’s also an insensitive result, one that downplays the importance of a powerful new force for justice. Both sides in criminal cases have lost a chance for a federal standard in DNA testing. Full justice wasn’t served.

 

Gov. Beshear’s Budget Bill w/Racetrack Slots now up to Senate – Williams Issues Double Dare Warning to Gov. and House Speaker –How to Contact Your Senator

Saturday, June 20th, 2009

 The Senate President, David Williams has issued a double-dare to House Speaker Greg Stumbo and Gov. Steve Beshear regarding the Racetrack Slots proposal.  Before the bill passed the House on Friday by a vote of 52-45, Williams sent a message that it would not pass the Senate.

It is believed that the bill will be assigned to the Senate Budget Committee which is controlled by a Republican majority, and that the proposal will never be allowed to go to the full Senate for a vote.  The Senate has adopted its own budget proposal which involves helping the racing industry by tapping some $19 million from state funds.

Under Senator David  Williams’ alternate budget plan, which would not include Gov. Beshears racetrack slots bill which was passed in the House on Friday,  the Personnel Cabinet would fund their proposal in part by transferring $7 million from the state employee insurance trust fund to the Kentucky Horse Racing Commission as a loan no later than July 1, 2009. The provision was included in the Senate version of the budget proposal

The Senate approved this provision without discussion. It is  found on page 267 of the 269-page bill. The loans must be repaid to the state employee insurance trust fund at 6 percent interest, starting with at least $1 million per year in 2011.

Williams office emphasized that these funds would only be loaned to the various race tracks, and that the 6-percent interest the loans would produce were a better return on the funds than they normally get from other investments.

If you have an opinion you have over the weekend to lobby your Senator and express your views.

The Budget Committee is made up of the following 17 Senators  (Live links):

 

Full Ky. State Senate – 21 Republicans  16 Democrats  1 Independent

 

SENATOR

DISTRICT

COUNTIES

B

Blevins Jr., Walter

27

Boyd, Elliot, Fleming, Lawrence, Rowan

 

Borders, Charlie

18

Bracken, Carter, Greenup, Lewis, Mason, Robertson

 

Boswell, David E.

8

Daviess, McLean

 

Buford, Tom

22

Boyle, Fayette, Garrard, Jessamine

C

Carroll, Julian

7

Anderson, Fayette, Franklin, Woodford

 

Clark, Perry

37

Jefferson

D

Denton, Julie

36

Jefferson

G

Gibson, Carroll

5

Breckinridge, Grayson, Hancock, Hart, Larue, Meade

 

Givens, David P.

9

Allen, Barren, Edmonson, Green, Metcalfe, Simpson

H

Harper Angel, Denise

35

Jefferson

 

Harris, Ernie

26

Carroll, Henry, Jefferson, Oldham, Trimble

J

Jensen, Tom

21

Estill, Jackson, Laurel, Menifee, Powell

 

Jones II, Ray S.

31

Johnson, Martin, Pike

K

Kelly, Dan

14

Marion, Mercer, Nelson, Taylor, Washington

 

Kerr, Alice Forgy

12

Fayette

L

Leeper, Robert J. “Bob”

2

Ballard, Marshall, McCracken

M

McGaha, Vernie

15

Adair, Casey, Pulaski, Russell

N

Neal, Gerald A.

33

Jefferson

P

Palmer II, R. J.

28

Bath, Bourbon, Clark, Harrison, Montgomery, Nicholas

 

Pendleton, Joey

3

Christian, Logan, Todd

R

Reynolds, Mike

32

Butler, Warren

 

Rhoads, Jerry P.

6

Hopkins, Muhlenberg, Ohio

 

Ridley, Dorsey

4

Caldwell, Crittenden, Henderson, Livingston, Union, Webster

S

Schickel, John

11

Boone, Gallatin, Kenton

 

Seum, Dan “Malano”

38

Jefferson

 

Shaughnessy, Tim

19

Jefferson

 

Smith, Brandon

30

Bell, Harlan, Leslie, Perry

 

Stein, Kathy W.

13

Fayette

 

Stine, Katie Kratz

24

Campbell, Pendleton

 

Stivers, Robert

25

Clay, Knox, Lee, Magoffin, Morgan, Owsley, Wolfe

T

Tapp, Gary

20

Bullitt, Shelby, Spencer

 

Thayer, Damon

17

Grant, Kenton, Owen, Scott

 

Tori, Elizabeth

10

Hardin, Jefferson

 

Turner, Johnny Ray

29

Breathitt, Floyd, Knott, Letcher

W

Westwood, Jack

23

Kenton

 

Williams, David L.

16

Clinton, Cumberland, McCreary, Monroe, Wayne, Whitley

 

Winters, Kenneth

1

Calloway, Carlisle, Fulton, Graves, Hickman, Lyon, Trigg

 

Worley, Ed

34

Lincoln, Madison, Rockcastle

 

Kentucky Human Rights Commission issues Rulings for June

Friday, June 19th, 2009

June 19, 2009

 

RICHMONDThe Kentucky Commission on Human Rights Board of Commissioners at its meeting today ruled to accept four conciliations. It dismissed 24 complaints with findings of no probable cause and two withdrawals without settlement but with a right to sue.

The commission held its meeting in Richmond at the Arlington Association to give people in central Kentucky the opportunity to learn about the commission’s purpose and about their rights to equal opportunity in Kentucky. The commission occasionally holds its board meetings away from Louisville headquarters for this reason and as budget allows.

Conciliations:

Michelle Carroll-Piver v. the City of Fort Thomas in Ft. Thomas: Michelle Carroll-Piver of Romeoville, Illinois, claimed the City of Fort Thomas discriminated against her at the West Southgate Park based on her minor son’s disability (causing him to use a wheelchair and walker) in a public accommodation. This would be a violation of the Kentucky and U.S. Civil Rights acts. The Kentucky Americans with Disabilities Act Coordinator Office found the park to be noncompliant with ADA requirements. Prior to a commission determination of probable cause, the parties agreed to conciliate the matter. The city agreed to modify the West Southgate Park no later than nine months from the date of this agreement by providing a handicap parking space, installing an appropriate curb at the entrance, installing a new latch system at the gate for easier access and implementing several other modifications to make the park complaint with the ADA. The city agreed to compensate Carroll-Piver with $1,000.

Bobby Brown v. Jewish Hospital and St Mary’s Healthcare in Louisville: Bobby Brown of Louisville alleged the hospitals discriminated against him based on disability in a public accommodation, a violation of the Kentucky and U.S. Civil Rights acts. He alleged the facilities’ denied him an interpreter. The respondents denied any violations of the law, and the parties agreed to conciliate. The respondents agreed to compensate Brown with $2,500 and undergo civil rights compliance training and commission monitoring for one year.

Tamir Blay v. Securitas Security Services USA, provider of Town Square Mall Security in Owensboro: Tamir Blay alleged the company discriminated against him based on his race, African American, in a public accommodation, a violation of the Kentucky and U.S. Civil Rights acts. He claimed a mall security guard asked him for identification but did not ask Blay’s white friend who was shopping at the mall with him. He said a group of security guards escorted him off the mall premises and told him not to return. He claimed he was harassed and forced to leave because he is black. The company denied any violations of the law, and the parties agreed to conciliate. The respondent agreed to compensate Brown with $3,000 and undergo civil rights compliance training and monitoring for one year.

Sang Huynh v. Family Dollar Store at 5320 S. Third Street in Louisville: Sang Huynh alleged the store discriminated him based on his national origin, Vietnamese, in a public accommodation, a violation of the Kentucky and U.S. Civil Rights acts. He claimed he attempted to pay the cashier for his purchase but the person refused to accept payment saying she would not take change. However, the cashier just afterward accepted change from Hyun’s friend, a white American, Huynh and his friend alleged. The Family Dollar Store denied any violations of the law, and the parties agreed to conciliate the matter. The respondent agreed to compensate Huynh with $100 and undergo training and commission monitoring.

The Kentucky Commission on Human Rights is the state government agency that enforces the Kentucky Civil Rights Act and federal civil rights laws.

 

Supreme Court Sets Aside Age-Bias Rule and Makes Suits Harder to Win

Friday, June 19th, 2009

With workplace age-discrimination claims rising rapidly, the Supreme Court made it much harder Thursday June 18, 2009,for older workers to win in court.

The 5-4 decision reversed a long-standing rule. Many federal appellate courts had decided that if a worker could show age was one of the factors in a layoff or demotion, then the employer was required to prove it had a legitimate reason for its action apart from age.

 

The court’s conservative majority, led by Justice Clarence Thomas, threw out this two-step approach. Instead, the court said, workers bear the full burden of proving that age was the deciding factor in their dismissal or demotion.

Because workers claiming such discrimination almost certainly will not be present while their employers discuss laying them off or demoting them, analysts said, it will be extremely difficult to obtain hard evidence that age was the key factor.

“This is a significant and marked change,” said Diana Hoover, a corporate defense lawyer in Houston. “It imposes a difficult burden on the employee. You are not going to have an employer stand up and announce, ‘I’m discriminating against you because of your age.’ “

The ruling comes as concern about age discrimination is rising, especially as companies downsize in the difficult economy. The U.S. Equal Employment Opportunity Commission said the number of new age-bias claims last year rose by 29% from 2007.

Businesses applauded the decision in Gross vs. FBL Financial Services, saying employers sometimes settle weak claims to avoid battling before a jury over the real reasons behind a layoff.

“This is extremely important to small-business owners,” said Karen Harned, executive director of the National Federation of Independent Business. She said employers should not have to defend themselves in court “based on speculative evidence that age was merely a motivating factor in an employer’s decision.”

But the National Senior Citizens Law Center, AARP and several civil rights groups sharply criticized it, urging Congress to trump the ruling with legislation.

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) likened it to the Lilly Ledbetter decision from two years ago.

In that case, the same 5-4 majority said a woman who for years had been paid less than men for the same work could not sue because she had not learned about the discrimination until she retired — long after the statute of limitations had expired.

Congress passed a bill to reverse the Ledbetter decision early this year. President Obama made it the first measure he signed into law.

Leahy said in a statement that the age-bias decision “reminds me of the court’s wrong-headed ruling in Ledbetter. Five justices acted to disregard precedent and ignore the plain reading and common understanding of the statute that Congress passed to protect Americans from discrimination based on their age.”

The court said the two-step rule could still be applied in bias cases involving discrimination claims on the basis of race, sex, religion or national origin.

But age-bias claims must adhere to a stricter standard, Thomas said: An older worker must prove “that age was the reason” behind the employer’s action.

In discrimination lawsuits involving what lawyers call “mixed motive” cases, a worker previously might have had a valid claim of discrimination if age or another prohibited factor, such as race, was one of the motivations behind a firing or demotion.

Thomas acknowledged that Congress and the Supreme Court had authorized this approach, but he said it could not be applied to age discrimination cases.

“The burden of persuasion does not shift to the employer,” he said, “even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”

In 1991, Congress amended the law covering discrimination on the basis of race, sex, religion and national origin to allow mixed-motive claims. It did not revise the age bias law. Thursday’s majority said that age, therefore, should be treated differently.

Joining Thomas were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Samuel A. Alito Jr.

The dissenters, led by the court’s senior justice, John Paul Stevens, described the ruling as “especially irresponsible” and “an unabashed display of judicial lawmaking.” Stevens seemed particularly upset that the court had decided a different issue than it had announced when it accepted the case last year.

“Unfortunately, the majority’s inattention to prudential court practices is matched by its utter disregard of our precedent and Congress’ intent,” he wrote.

 




U.S. Supreme Rules No Constitutional Right to DNA test

Thursday, June 18th, 2009

The Supreme Court said today that DNA possesses a unique ability to free the innocent and convict the guilty, but the justices nonetheless ruled that prisoners do not have a constitutional right to demand DNA testing of evidence that remains in police files.

In a 5-4 ruling, the court’s conservative bloc agreed to stand back and allow states to work out the rules for new testing of old crime samples.

Already, 47 states and the federal government have enacted laws or rules that allow prisoners under some circumstances to obtain DNA tests, the high court said.

Chief Justice John G. Roberts Jr. said the majority saw no need for “a freestanding and far-reaching constitutional right of access to this type of evidence.” Upholding such a new right “would take the development of rules and procedures in this area of out of the hands of legislatures and state courts shaping policy in a focused manner and turn it over to federal courts,” he said.

While Roberts stressed the virtues of judicial restraint, the dissenters said the court was abdicating its duty to seek justice.

Alaska does not give prisoners a right to obtain DNA testing, and William Osborne, a convicted rapist, belatedly sought testing of a semen sample. He and another man were accused of abducting a prostitute near Anchorage, beating her and leaving her nearly dead in the snow. She survived and identified Osborne as her attacker.

His lawyer did not seek DNA testing during his trial, but he sued to obtain the tests after his conviction. He even offered to pay for the test.

Osborne won in the U.S. 9th Circuit Court of Appeals, but lost in the Supreme Court today.

Justice John Paul Stevens, in dissent, said Alaska has the evidence that “will conclusively establish” whether Osborne committed the rape.

“If he did, justice has been served by his conviction and sentence,” Stevens wrote. “If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice.”

Stevens said the prisoner in this situation has a right to “test the evidence at his own expense and to thereby ascertain the truth once and for all.”

Justices Ruth Bader Ginsburg, David H. Souter and Stephen G. Breyer joined in dissent.

Besides Alaska, only Massachusetts and Oklahoma have not decreed by law that at least some convicted inmates can obtain DNA testing.

The Innocence Project in New York says 232 people have been freed from prison through DNA testing.

Dr. Ted predicts Slot Bill to pass House and has enough votes in Senate to pass if it is allowed out of committee by Williams

Thursday, June 18th, 2009

 

“Before the special session began, only 40 or so legislators were in favor of allowing VLTS at racetracks. . The House Democratic Leadership won over nearly 20 members with the inclusion of additional school construction projects in HB 1.

There are enough votes on the State Senate floor to pass HB 2. However, the sentiment in Frankfort is that State Senate President David Williams might let the bill die in the Appropriations and Revenue (A&R) committee. This committee has 11 Republicans, including Chair Charlie Borders (S.D. 18), 5 Democrats, and 1 independent, co-chair Bob Leeper (a former Republican).”

The U.S. Supreme Court has limited the role of the courts in reviewing arbitration awards under federal law.

Thursday, June 18th, 2009

In a 6-3 decision Tuesday June 16, 2009, the justices said, that there may be other legal avenues besides the Federal Arbitration Act to enable a larger role for the courts in examining the work of arbitrators.

The case before the Supreme Court involved a cleanup dispute between toy maker Mattel Inc. and the owner of a factory site in Oregon contaminated with an industrial solvent.

An arbitrator initially ruled in favor of Mattel, and the Supreme Court ruling is helpful to the toy manufacturer.

The Federal Arbitration Act “confines its expedited judicial review” to narrow circumstances, Justice David Souter wrote in the majority opinion.

Souter added, however, that the court is “is no position” to address possible alternatives to reliance on the Arbitation Act.

The issue before the Supreme Court was whether Mattel and Hall Street Associates LLC could agree in advance to broad court review of an arbitration award to correct any errors of law.

An arbitrator ruled that Mattel did not have to pay for environmental cleanup on Hall Street’s property. A federal judge subsequently rejected the arbitrator’s legal reasoning. The 9th U.S. Circuit Court of Appeals in San Francisco sided with Mattel, saying the Arbitration Act bars judicial review of arbitration awards in such circumstances.

The appeals court finding in favor of Mattel underscores the concern of some businesses that are hesitant to settle disputes through arbitration. These businsses say that in most cases they cannot appeal to a judge if an arbitrator rules against them.

Expanding judicial review could have a positive impact, encouraging parties in a dispute to enter arbitration, knowing that serious errors could be corrected by the courts. Others in the business community say that the downside to expanded court review is that it could lead to an increase in the cost and time that result from losing parties attempting to overturn arbitration awards.

SUPREME COURT OF THE UNITED STATES

HALL STREET ASSOCIATES, L. L. C. v. MATTEL, INC.

certiorari to the united states court of appeals for the ninth circuit

 

Argued November 7, 2007—Decided March 25,No. 06–989. 2008

                                                 

                                                           SYLLABUS

The Federal Arbitration Act (FAA), 9 U. S. C. §§9–11, provides expedited judicial review to confirm, vacate, or modify arbitration awards. Under §9, a court “must” confirm an award “unless” it is vacated, modified, or corrected “as prescribed” in §§10 and 11. Section 10 lists grounds for vacating an award, including where the award was procured by “corruption,” “fraud,” or “undue means,” and where the arbitrators were “guilty of misconduct,” or “exceeded their powers.” Under §11, the grounds for modifying or correcting an award include “evident material miscalculation,” “evident material mistake,” and “imperfect[ions] in [a] matter of form not affecting the merits.”

        After a bench trial sustained respondent tenant’s (Mattel) right to terminate its lease with petitioner landlord (Hall Street), the parties proposed to arbitrate Hall Street’s claim for indemnification of the costs of cleaning up the lease site. The District Court approved, and entered as an order, the parties’ arbitration agreement, which, inter alia, required the court to vacate, modify, or correct any award if the arbitrator’s conclusions of law were erroneous. The arbitrator decided for Mattel, but the District Court vacated the award for legal error, expressly invoking the agreement’s legal-error review standard and citing the Ninth Circuit’s LaPine decision for the proposition that the FAA allows parties to draft a contract dictating an alternative review standard. On remand, the arbitrator ruled for Hall Street, and the District Court largely upheld the award, again applying the parties’ stipulated review standard. The Ninth Circuit reversed, holding the case controlled by its Kyocera decision, which had overruled LaPine on the ground that arbitration-agreement terms fixing the mode of judicial review are unenforceable, given the exclusive grounds for vacatur and modification provided by FAA §§10 and 11.

Held:

    1. The FAA’s grounds for prompt vacatur and modification of awards are exclusive for parties seeking expedited review under the FAA. The Court rejects Hall Street’s two arguments to the contrary. First, Hall Street submits that expandable judicial review has been accepted as the law since Wilko v. Swan, 346 U. S. 427 . Although a Wilko statement—“the interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation,” id., at 436–437 (emphasis added)—arguably favors Hall Street’s position, arguable is as far as it goes. Quite apart from the leap from a supposed judicial expansion by interpretation to a private expansion by contract, Hall Street overlooks the fact that the Wilko statement expressly rejects just what Hall Street asks for here, general review for an arbitrator’s legal errors. Moreover, Wilko’s phrasing is too vague to support Hall Street’s interpretation, since “manifest disregard” can be read as merely referring to the §10 grounds collectively, rather than adding to them, see, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 , or as shorthand for the §10 subsections authorizing vacatur when arbitrators were “guilty of misconduct” or “exceeded their powers.” Second, Hall Street says that the agreement to review for legal error ought to prevail simply because arbitration is a creature of contract, and the FAA is motivated by a congressional desire to enforce such agreements. Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213 . This argument comes up short because, although there may be a general policy favoring arbitration, the FAA has textual features at odds with enforcing a contract to expand judicial review once the arbitration is over. Even assuming §§10 and 11 could be supplemented to some extent, it would stretch basic interpretive principles to expand their uniformly narrow stated grounds to the point of legal review generally. But §9 makes evident that expanding §10’s and §11’s detailed categories at all would rub too much against the grain: §9 carries no hint of flexibility in unequivocally telling courts that they “must” confirm an arbitral award, “unless” it is vacated or modified “as prescribed” by §§10 and 11. Instead of fighting the text, it makes more sense to see §§9–11 as the substance of a national policy favoring arbitration with just the limited review needed to maintain arbitration’s essential virtue of resolving disputes straightaway. Dean Witter, supra, at 217, 219, distinguished. Pp. 7–12.

    2. In holding the §10 and §11 grounds exclusive with regard to enforcement under the FAA’s expedited judicial review mechanisms, this Court decides nothing about other possible avenues for judicial enforcement of awards. Accordingly, this case must be remanded for consideration of independent issues. Because the arbitration agreement was entered into during litigation, was submitted to the District Court as a request to deviate from the standard sequence of litigation procedure, and was adopted by the court as an order, there is some question whether it should be treated as an exercise of the District Court’s authority to manage its cases under Federal Rule of Civil Procedure 16. This Court ordered supplemental briefing on the issue, but the parties’ supplemental arguments implicate issues that have not been considered previously in this litigation and could not be well addressed for the first time here. Thus, the Court expresses no opinion on these matters beyond leaving them open for Hall Street to press on remand. Pp. 13–15.

196 Fed. Appx. 476, vacated and remanded.

    Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Ginsburg, and Alito, JJ., joined, and in which Scalia, J., joined as to all but footnote 7. Stevens, J., filed a dissenting opinion, in which Kennedy, J., joined. Breyer, J., filed a dissenting opinion.

To read full decision go to:  HALL STREET ASSOCIATES, L.L.C. V. MATTEL, INC.
[Opinion]

Cincinnati Sheriff Will Start Patrolling In Kentucky….He is spending $90,000 in federal stimulus money to buy fancy boat to patrol a river owned by Kentucky. What’s wrong with this picture?

Wednesday, June 17th, 2009

 

Cincinnati Sheriff Simon Leis, has obtained the approval of the Hamilton County Commissioner to use $90,000 in federal stimulus money to purchase a fancy boat to patrol the Ohio River across from Covington and Newport, Kentucky. 

 

This suggests that Sheriff Leis intends to extend his law and order crusade into Kentucky waters.  The state border between Kentucky and Ohio is just a few feet from the Ohio Shore.  We are not sure that he will have enough room to turn this fancy patrol boat around without leaving the state of Ohio.

 

We remember when Chris Gorman of Louisville was Attorney General.  He warned the state of Indiana that if they floated any of their casino river boats in Kentucky waters he would seize them and charge them with gambling in Kentucky.

 

We haven’t heard anything from Attorney General Conway, but we are sure he will protect our border.  Perhaps we could get some of the stimulus money to build a fence like they are doing on the U.S. Mexican border, to keep those pesky Ohioans out of the Bluegrass state.

 

More seriously, we imagine that when you put Sheriff Deputies on the River, you can expect them to start making boating DUI arrests.   Will they deport the people they arrest to Cincinnati for trial or will they drag them up the river bank to the Kenton County Courthouse?

 

Perhaps Kentucky should just surrender the whole river to Sheriff Simon, and then turn around and send a bill to the Ohio Governor for the money to build the new bridge to replace the Brent Spence bridge …that will be about $1.5 billion dollars to be saved by Kentucky taxpayers.

 

 

 

Attn. Gen. Conway Issues Opinion Finding that Constitutional Amendment Is Not Necessary

Monday, June 15th, 2009

JACK CONWAY -  ATTORNEY GENERAL

 

June 15,2009

 

Subject: Video Lottery Termials at Kentucky’s Horse Race Tracks

Requested by: State Representative Jody Richards, 20th Legislative District

 

Written by: Jennifer Black Hans  Assistant Attorney General

 

Syllabus: The General Assembly may authorize the Kentucky Lottery

Corporation to establish, license, reguate and tax video lottery

terminals at designated horse racing tracks under Ky. Const. § 226(1) without futher amendment to the Kentucky  Constitution.

 

Statutes construed: Ky. Const. § 226, KR § 238.505, KR § 154A.010, KR §

154A.060, KR § 154A.063

GAGs cited: OAG 05-003, OAG 99-008, OAG 93-58, OAG 92.127 and

OAG 80-409

Opinion of the Attorney General

 

INODUCTION

By letter dated May 7, 2009, State Representative Jody Richards requests

the Attorney General’s opinion concerning whether electronic games at Kentucky’s

race tracks are allowed under Section 226 of the Kentucky Constitution.

AN EQUAL OPPORTUNITY EMPLOYER M/F/D ~

OAG 09-004

Page 2

A. Factual Context for Opinion

Pursuant to 40 KA 1:020 Section 3, official opinions of the Attorney General

must involve “an actual, current factual situation.” After receiving Representative

Richards’ initial request, the Office of the Attorney General sent two (2)

letters seeking additional information, particularly the specific draft legislation

upon which his inquiry was based. In response, on June 1, 2009, Representative

Richards wrote that the General Assembly was not in session, and, therefore, he

could not provide a specific bill draft. In lieu of a specific bill draft, Representative

Richards provided the following questions:

 

(1) Is a video lottery terminal whereby a patron wins by matching numbers,

pictures, or symbols considered to be a slot machine and therefore prohibited

under Section 226 of the Kentucky Constitution?

 

(2) Is it permissible for the Kentucky Lottery Corporation to allow one or

more vendors to have or operate several video lottery terminals at a single

location; several dozen terminals at the same location or several hundred

terminals at the same location?

 

While more specific, the foregoing questions still did not provide a specific bil

draft for legal analysis. Moreover, the additional questions presented are too

conclusory to be useful to a legal opinion concerning whether electronic games at

Kentucky’s race tracks are allowed under Section 226 of the Kentucky Constitution.

Therefore, this opinion wil squarely address the initial- non-conclusory

question presented by Representative Richards on May 7,2009.

 

Since the date of Representative Richards’ original request, additional

facts have been presented on this question. On June 3, 2009, Governor Steve

Beshear issued a Proclamation convening the General Assembly into Special

Session to begin on June 15, 2009, for the sole purpose of considering the

amendment of the Fiscal Year 2009-2010 state budgets and related budget reduction

plans. On June 4, 2009, the Governor amended his Proclamation to include

consideration of the following subjects:

 

 (1) Enacting legislation authorizing the Kentucky Lottery Corporation to

establish, license, regulate and tax video lottery terminals at authorized

licensed racetracks in Kentucky.

 

(2) Amending or repealing only those provisions of the Kentucky Revised

Statutes specifically necessary to implement the subjects and provisions

of this amended Proclamation.

 

(3) Declaring an emergency thereby making any legislation enacted pursuant

to this amended Proclamation effective upon the signature of the

Governor.

 

On June 9, 2009, the Office of the Governor issued a draft of the legislation

for which it seeks the General Assembly’s consideration during the Special

Session. This opinion will rely on the Governor’s draft of the video lottery terminals

gaming legislation 1 as the actual and current factual basis upon which its

legal analysis will rest.

 

B. Authority for Opinion

 

KR § 15.025 requires the Attorney General to furnish opinions when a

public question of law is submitted by any member of the Legislature. The

Attorney General possesses the authority to issue an opinion if the question

presented in writing “is of such public interest that the Attorney General’s

opinion on the subject is deemed desirable.” The question presented meets both

of the foregoing conditions.

 

This opinion will seek to reconcile five (5) prior opinions of the Attorney

General, which interpret Section 226 of the Kentucky Constitution. Specifically,

the prior opinions to be analyzed are OAG 80-409,92-127,93-058,99-008 and 05-

003. This will however be a new opinion that will offer a fresh review of the

relevant constitutional, statutory and case law addressing the issue.

This opinion is limited in scope to the constitutional question presented

and the factual context described above – specifically whether video lottery

termals at Kentucky’s race tracks are permitted under Section 226 of the Kentucky

Constitution. Policy considerations, such as long-term economic stability

 

1 See Draft of gaming bill at web page for Governor Steve Beshear.

 

and forecasts, the financial health of the horse racing industry, and societal

interests regarding gambling do not fall under the opinion authority of the

Attorney General and will not be considered. Instead, these policy matters are

appropriately left to legislative debate durng the Special Session or during

future Regular Sessions of the General Assembly.

 

ANALYSIS

 

  1. Legal Issues Presented
  2.  

The Governor’s amended Proclamation convening a Special Session of the

General Assembly includes as one of its sole purposes amending the Kentucky

Revised Statutes to authorize the Kentucky State Lottery Corporation to establish,

license, regulate and tax video lottery games and video lottery terminal

(hereinafter “VL T”) at licensed horse racing tracks in the Commonwealth of

Kentucky. As discussed in the introduction to this opinion, the questions presented

by Representative Richards on June 1,2009, are not sufficiently detailed in

their legal presumptions and are ultimately too conclusory to be a useful starting

point for a legal analysis of the question regarding the constitutionality of VL Ts

at race tracks. It is also necessary for this opinion to step back and reassess the

prior opinions issued on this subject, in order to more fully answer the current

question before the General Assembly – may Kentucky’s legislators consider the

Governor’s proposal concerning VL Ts at Kentucky’s race tracks without a constitutional

amendment.

 

Using the context of the Governor’s draft legislation concerning VLTs, this

opinion will seek to answer the following two (2) legal questions:

(1) Is VLT gaming a “lottery” as provided under Section 226(3) of the

Kentucky Constitution prohibiting “lotteries … (and) schemes for

similar purposes” unless otherwise exempted under Sections 226(1)?

 

(2) If VLT gaming is a lottery under Section 226(3), which would otherwise

be constitutionally prohibited, does VL T gaming as proposed

by the Governor’s draft gaming bill fall within the “state lottery”

exception contained in Section 226(1)?

OAG 09-004

Page 5

B. History of Kentucky’s Constitutional Prohibition on Lotteries & Its Exceptions

The history of Section 226 of Kentucky’s Constitution of 1891 is significant

to this legal inquiry, and therefore, is provided in summary below. As adopted

by the 1891 Constitutional Convention, Section 226 of the Kentucky Constitution

included explicit language forbidding “lotteries and gift enterprises … (and)

schemes for similar purposes.”2 This language, currently codified as §226(3),

remained unchanged for nearly 100 years.

 

In 1988, Kentucky voters adopted a constitutional amendment, codified at

§226(1), permitting the General Assembly to establish a Kentucky state lottery

and a state lottery to be conducted in cooperation with other states. Soon thereafter,

former Governor Wallace Wilkerson convened the General Assembly in

Special Session. The 1988 Special Session of the Kentucky General Assembly

passed and Governor Wilkinson signed into law enabling legislation adopting

the Kentucky state lottery and creating the Kentucky Lottery Corporation, an

independent, de jure municipal corporation and political subdivision of the

Commonwealth of Kentucky. KR 154A.020. The Kentucky Lottery Corporation

was empowered to conduct and administer lottery games, which would result in

“the maximization of revenues” to the state. KR 154A.060. House Bill 1 as

enacted (1988 Ex. Sess.) provided that “‘Lottery’ mean(t) any game of chance

approved by the corporation and operated pursuant to this chapter.” KR §

154A.010(3) (1988 Ex. Sess.) (Emphasis supplied). Further, the HE 1 permitted the

Kentucky Lottery Corporation to specify “the tyes of games to be conducted,

including but not limited to, instant lotteries, on-line games and other games

traditional to the lottery…” Id. (Emphasis supplied).

 

This authority was revised in 1990, when the General Assembly amended

KR Chapter 154A to prohibit the Kentucky Lottery Corporation from (1) approving

or operating a lottery based on amateur athletics; (2) approving or

operating any casino or similar gambling establishment; or (3) approving or

2 This language, including the phrase “schemes for similar purposes,” was original to the 1891

Constitution. But d. Jeffery R. Soukup, Rolling The Dice On Precedent And Wagering On Legislation:

The Law Of Gambling Debt Enforceability In Kentucky After Kentucky Off-Track Betting, Inc. v. Mcburney and KRS § 372.005, 95 Ky. L.J. 529,534 (2006-2007) (stating that the 1992 amendment added the language “schemes for similar purposes,” thereby expanding the prohibition).

 

 GAG 09-004 operating any game played with cards, dice, dominos, slot machines, roulette wheels, or where winners are determined by the outcome of a sports contest.

KR § 154A.063, 1990 Ky. Acts ch. 470 § 77 (eff. 1990). Since 1990, Kentucky’s

statutory law has banned casino. and casino-style gaming, including slot machines.

The significance of the 1990 amendment to the state lottery is highlighted

here for legal as well as factual reasons. As is discussed below in section F of this

opinion if casino-style games and slot machines were unconstitutional, why then

was there a need to ban these games by statute? Under a constitutional interpretation

contrary to this opinion, such a legislative action would have therefore

been superfluous. A universal tenant of statutory construction is that the General

Assembly is presumed to have intended to do what it attempts to do by statutory

enactment. See Reyes v. Hardin County, Ky., 55 S.W.3d 337 (2001), quoted in Liquor

Outlet, LLC v. Alcoholic Beverage Control Bd., Ky.App, 141 S.W.3d 378, 386 (2004).

Finally, in 1992, Kentucky’s voters adopted a second constitutional

amendment permitting the General Assembly to authorize charitable lotteries

and charitable gift enterprises. Ky. Const. §226(2). In the next Regular Session in

1994, the General Assembly enacted legislation codified at KR Chapter 238

permitting charitable gaming. Included within the definition of “charitable

gaming” and “special limited charitable games” under this chapter were a broad

category of games, including bingos, raffles, roulette, blackjack, poker, and keno.

See KR § 238.505(2), (17). Just as it did in the 1990 amendment to the state lottery,

the General Assembly in its 1994 charitable gaming legislation prohibited

slot machines and electronic gaming by statute. KR § 238.505(2).

 

  1. Constitutional Principles

 

An analysis of the foregoing sections of the Kentucky Constitution must

rely on certai basic principles of constitutional law and construction. It is well

established that state government possesses al powers not otherwise denied to it

by the 1891 Constitution of Kentucky. Rouse v. Johnson, Ky. 28 S.W.2d 745 (1930).

Specifically, the lawmaking power for the Commonwealth is vested to the General

Assembly, which exists to exert the sovereign authority of state governent.

The Kentucky Supreme Court has specifically held that the General Assembly

may enact legislation on any subject uness otherwise prohibited by the Constitution of Kentucky. Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907,

913 (1984); Brown v. Barkley, Ky., 628 S.W.2d 616 (1982).

 

Legislative enactments car a strong presumption of constitutionality.

 

Kentucky Sheriffs Assn Inc. v. Fischer, Ky., 986 S.W.2d 44, 447 (1999); Rose v.

Council for Better Education, Inc., Ky., 790 S.W.2d 186, 209 (1989). Doubts regarding

the constitutionality of a legislative enactment must be resolved in favor of

the sovereign authority of the Commonwealth of Kentucky, which is retained by

its citizens and vested in the lawmaking authority of Kentucky’s legislators,

who are as representatives of its citizenry. See, e.g., Kentucky Harlan Coal Company

v. Holmes, Ky., 872 S.W.2d 446 (1994); Walters v. Bindner, Ky., 435 S.W.2d 464, 467

(1968). In Kentucky Sheriffs, a state representative filed suit in Campbell County

challenging the constitutionality of legislation increasing the allowable compensation

for public officials. The Kentucky Supreme Court upheld the legislation

and the law making power of the General Assembly, stating:

 

Courts are obligated to If draw all reasonable inferences and implications”

from a legislative enactment as a whole in order to sustain its validity, if

possible. Graham v. Mils, Ky., 694 S.W.2d 698, 701 (1985). We will not disturb

a legislative enactment based upon a finding of the General Assembly

that is neither arbitrary nor capricious. See Kentucky Harlan Coal Co. v.

Holmes, Ky., 872 S.W.2d 446, 455 (1994).

 

Kentucky Sherifs Ass’n Inc. v. Fischer, supra at 447. Finally, the Kentucky Supreme

Court has recognized that governmental officers who rely upon an Attorney

General’s opinion would be acting in good faith. Babb v. Moore, Ky., 374 S.W.2d

516 (1964).

D. The Meaning of Lottery”: Commonwealth v. Kentucky Jockey Club

In light of these constitutional principles, the decision of Kentucky’s highest

court in Commonwealth v. Kentucky Jockey Club, Ky., 38 S.W.2d 987 (1931) offers

a sound constitutional framework upon which to base our current analysis. In

Jockey Club, the Kentucky Court of Appeals upheld legislation authorizing pari-mutuel

wagering on horse races, holding that such wagering is not a prohibited

lottery. Representing the weight of authority among the states at the time, the

reasoning adopted in Jockey Club, still provides the best interpretation of state

constitutional provisions addressing the lottery prohibition. Contrary to the

conclusion opined in GAG 93-58, see infra, the Jockey Club decision is not an

anomaly of law, but rather represents the current and enforceable constitutional

interpretation on this point.

 

As stated in the historical section B above, Section 226(3) of the Kentucky

Constitution of 1891 provides that Except as provided in this section, lotteries and gift enterprises are forbidden, and no privileges shall be granted for such purposes,

and none shall be exercised, and no schemes for similar purposes

shall be allowed. The General Assembly shall enforce this section

by proper penalties. All lottery privileges or charters heretofore

granted are revoked.

 

Ky. Const. §226(3). The term “lotteries” is not defined by the Constitution. Rather,

Section 226(3) distinguishes “lotteries” from other forms of gaming as

prohibited, unless otherwise provided within one of the exceptions.

The authoritative and binding opinion issued by the Court in Jockey Club

squarely addresses this point and defines “lotteries” narrowly. In Jockey Club,

supra, the former Court of Appeals concluded that the prohibition against lotteries

was not understood by those adopting the 1891 Constitution to outlaw other

forms of gaming. Id. at 994. The Court carefully examined the proceedings of the

1890 Constitutional Convention to elucidate its interpretation:

 

At the time section 226 was being considered in the convention that

framed the Constitution, an amendment was proposed forbidding

every species of gambling. Volume 1. Debates of Constitutional Convention

p. 1172. The delegate who proposed the amendment was

asked whether his proposition embraced the prohibition of betting

upon the speed of horses, to which he responded that it was his

purpose to forbid all species of gambling and all games of chance in

every conceivable form. He argued that all gambling was equally

wrong, and that it was unfair to denounce gambling in the form of

a lottery and to countenance it in other form, such as betting upon

horse races, and the like. The delegate from Lexington argued that

it was not the appropriate place to deal with pooling privileges

upon race courses, and other forms of gambling, because lotteries

theretofore had been licensed by the Legislature, and the object of

the pending section was not to deal with any other species of gambling,

but to prohibit the Legislature from granting licenses to lotteries.

The amendment was rejected, thus indicating that it was the

intention of the Convention not to include in section 226 anything

but lotteries of the type familiar at the time.

 

Jockey Club, 38 S.W.2d at 993 (Emphasis supplied) (citing 1 Constitutional Proceedings

& Debates in the 1890 Convention 1172-1175.) The Court went on to explain its

reliance on the Debates:

 

The debates of a Constitutional Convention are not conclusive of

the meaning of the Constitution, but it is proper to resort to them in

order to ascertain the purpose sought to be accomplished by a particular

provision … (t)he debates by individual members may be

equivocal, but the decisions of the Convention itself are authoritative

as to what it intended.

 

ld. Therefore, the Court in Jockey Club relied upon the authoritative action of the

Convention as a whole as evidenced by the Debates.

The specific definition adopted by the Court distinguished games of pure

chance from games determined by any element of skill:

 

A lottery, it is said, is a species of gambling, described as a scheme

for the distribution of prizes or things of value, by lot or by chance,

among persons who have paid, or agree to pay, a valuable consideration,

for the chance to share in the distribution…

Id. at 992. Based on this interpretation of lotteries, the Court held that pari-mutuel

wagering on horse racing did not fall within the general prohibition

again lotteries. The Court opined that while chance may be essential to the

result, a horse race depends on more than mere chance, as distinguished from a

traditional concept of a lottery. Id. at 992.

Subsequent to the Jockey Club decision, lower court decisions in Kentucky’s

appellate courts have generally followed the reasoning that Section 226′ s

lottery prohibition applies to games of pure chance. See, e.g., Otto v. Koso/sky, 476

S.W.2d 626, 629 (Ky. App. 1972) (Bingo Lottery Act permiting cities to authorize

bingo fell within Section 226′ s lottery prohibition because, like a .traditional

OAG 09-004

Page 10

lottery, the outcome was determined “purely by lot or chance”) (emphasis

supplied); Commonwealth v. Malco-Memphis Theatres, Inc., 169 S.W.2d 596 (Ky.

App. 1943) (Section 226 prohibited promotional drawing by theater). The appellate

courts have consistently referenced the test set forth in Jocke Club, defining

lottery as an activity which includes the following elements: (1) chance, (2) a

prize and (3) consideration. Malco-Memphis Theatres, supra at 598. This “pure

chance” rule is also referred to as the “English Rule.” Similarly, other state courts

have followed the Jockey Club opinion in holding that pari-mutuel wagering is

not a prohibited lottery but rather a form of gaming that does not depend on

mere chance. Jockey Club, supra at 992; see also Barnes v. Bailey, 706 S.W.2d 25, 32

(Mo. 1986); Opinion of the Justices No. 205, 251 So.2d 751, 753 (Ala. 1971); State ex

rel. Gavalac v. New Universal Congregation of Living Souls, 379 N.W.2d 242, 244

(Ohio 1977).

 

Deviating but not completely departing from the Jockey Club decision are

Kentucky Supreme Court cases adopting a broader interpretation of the constitutional lottery

 

prohibition. See A.B. Long Music Co., Ky., 429 S.W.2d 391, 394 (1968)

(the word ‘lottery’ is a generic term embracing all schemes for the distribution of

prizes by chance for consideration); Commonwealth v. Allen, Ky., 404 S.W.2d 464

(1966) (following Washington state precedent holding that a referral sellng plan

was a lottery). These cases follow more closely decisions from other states that

prohibit as “lotteries” games that distribute a prize predominantly by chance.

This is sometimes referred to as the” American Rule.”

 

Kentucky case law may then be viewed as a hybrid with cases adopting

both the English and American Rules regarding the meaning of lottery as used in

Ky. Const. § 226(3). Under ths hybrid precedent, games whereby a patron wins

by matching numbers, pictures, or symbols are lotteries subject to the constitutional

prohibition unless otherwise exempted. The electronic nature of the proposed

gaming in the form of VLTs does not alter this conclusion. See, e.g., Opinion

of the Justices, 795 So.2d 630, 642 (Ala. 2001) (holding that video poker games are

“lotteries” since “no amount of skill will ever determine the ultimate outcome of

a video game … and the programmed gaming device will, ‘over continuous

play/ always prevail”)

A prior opinion of former Attorney General Steve Beshear supports our

reliance on the reasoning adopted in the Jockey Club case. Also relying on the

decision in Jockey Club and interpreting Section 226 of the Kentucky Constitution

prior to the 1988 and 1992 amendments, OAG 80-409 opined that “there are

OAG 09-004

Page 11

games of chance which are not lotteries … (and) a distinction at law and in fact

between gaming and lotteries which calls for a difference in treatment of the

two.” Id. OAG 80-409 concluded that certain games may be permitted by the

General Assembly without violating Section 226. Id.

 

Unlike the facts presented in OAG 80-409, no part has currently proposed

permitting certain games of chance, which are not lotteries. Rather, even

those interests promoting expanded gambling concede for purposes of this

inquiry that VLTs would be considered a lottery under §226(3), unless exempted

under the state lottery as provided under §226(1).

 

E. The I/State Lottery” Exemption

During the Regular Election of 1988, Kentucky voters approved a constitutional

amendment, codified at Ky. Const. §226(1) permitting legislation for and

the operation of a state lottery:

 

The General Assembly may establish a state lottery to be conducted

in cooperation with other states… (and) operated by or on behalf of

the Commonwealth of Kentucky.

 

§226(1). During the course of the debates that resulted in §226(1), the legislature

defeated language that would have constitutionally limited the state lottery to

“weekly lotteries or drawings.” HFA 3 to HB 1 (1988 Regular Session), Ky. H.R.

Jour, 1988 Reg. Sess. at p. 2109. This House Floor Amendment sponsored by State

Representative Louis Johnson was an explicit attempt to exclude games that

could eventually be played on electronic devices or slot machines. The debate,

which was captured on video by Kentucky Educational Television, demonstrates

both the intent of Rep. Johnson in offering the amendment and the intent of the

House in rejecting it. . See Tapes of the proceedings of the General Assembly, HB 1,

HFA 3, March 11, 1988. Since §226(1) did not define “lottery,” the framers’ intent

may be ascertained by reviewing the constitutional debates. See, e.g., Barker v.

Stearns & Lumber Co., 152 S.W.2d 953, 956 (Ky. 1941).

Representative Johnson offered his amendment by referencing a newspaper

article about the confusion that occurred in New York and New Jersey

concerng what was and was not intended by lottery amendments in those

states. Representative Johnson expressed that his amendment was intended to

OAG 09-004

Page 12

insure that electronic gaming and slot machines would not be the “logical next

step” for the state lottery. In response, State Representative William Donnermeyer

told the House that the amendment would have the opposite result, only

generating confusion, and urged the House to vote agait it. Representative

Donnermeyer’s comments included a statement, quoted in OAG 99-008, explaining

that the language of the amendment itself did not include slot machines.

House Amendment 3 was defeated on a roll call vote of 37-48. Tapes of the proceedings,

supra.

 

It is authoritative that the legislature defeated the amendment. Why the

amendment was rejected is another matter entirely. In opining that §226(1)

prohibited VLT’s, OAG 99-008 relied upon the comment of Representative

Donnermeyer out of context and concluded that the legislature specifically relied

on this “assurance” when rejecting the amendment. This conclusion in OAG 99-

008 is highly speculative. To presume that the entire General Assembly voted on

the amendment based entirely on a single comment is inconsistent with Kentucky

law. It is the determination of the legislative body as a whole and not the

comment of a single legislator that is controlling. This point was recently articulated

by the Kentucky Supreme Court in a criminal case involving a question of

legislative intention:

 

Interpretations of Constitutions by rules of implication are most

hazardous, and, if ever employed at all, it ought to be done in those

instances only where the subject-matter and language leave no

doubt that the intended meaning of the clause which may be under

investigation may be reached in that way only, and be reached that

way with approximate certainty.

 

Posey v. Commonwealth, 185 S.W.3d 170, 190 (Ky. 2006).

Once again, the Jockey Club case is illustrative: “The debates by individual

members may be equivocal- but the decisions of the Convention itself are authoritative

to what is intended.” Jockey Club, 38 S.W. 2d at 993. Therefore, Kentucky’s

highest court guides us that while we may rely upon the authoritative action

evidenced by a vote in legislative history, a comment made by a single representative

during legislative debate cannot be controlling.

OAG 09-004

Page 13

By squarely rejecting the Johnson floor amendment, the General Assembly

adopted a broader scope for the term “state lottery,” supporting a conclusion

that §226(1) permits the General Assembly to authorize electronic gamg under

the auspices of the Kentucky Lottery Corporation without need for a constitutional

amendment. Once again, it is a universal rue of statutory construction that

the legislature is presumed to have intention for its acts. Reyes, 55 S.W.3d at 34.

More specifically, Kentucky precedent provides that “(a)ll statutes are presumed

to be enacted for the furtherance of a purpose on the part of the legislature

and should be construed so as to accomplish that end rather than to render

them nugatory.” Commonwealth ex rei. Martin v. Tom Moore Distillery Co., 287 Ky.

125, 152 S.W.2d 962, 967 (1939).

 

F. Construction of Legislative Authority for Gaming under the State Lottery

Exception

 

Further supporting the conclusion that the General Assembly possesses

the constitutional authority to expand the state lottery is the General Assembly’s

own legislative construction of the 1988 and 1992 Amendments. A primary rule

of statutory construction directs courts to “look to the history of the ties and

the state of existing things to ascertain the intention of the framers of the Constitution

and the people adopting it, and a practical interpretation wil be given to

the end that the plain manifested purpose of those who created the Constitution,

or its amendments, may be carried out.” Keck v. Manning, Ky., 231 S.W.2d

604,607 (1950). Legislative construction of constitutional provisions contemporaneous

to the adoption of the provisions is persuasive. Shamburger v. Duncan, Ky.,

253 S.W.2d 388, 392 (1952).

 

Legislative construction of the state lottery exemption, supports the conclusion

that the term “lottery” has the same meaning under Ky. Const. § 226(1) as

it does under Ky. Const. § 226(3). A canon of construction holds that identical

terms within a single act are intended to have the same meaning. See, e.g., Estate

of Cowart v. Nicklos Drilling Co., 505 U.s. 469,479, 112 S.Ct. 2589, 120 L.Ed.2d 379

(1992); Sullvan v. Stroop, 496 U.s. 478, 484, 110 S.Ct. 2499, 110 L.Ed.2d 438 (1990).

Contemporaneous to the adoption of the 1988 state lottery constitutional exemption,

then-Governor Wallace Wilkinon called a special session of the General

Assembly to enact House Bil 1 creating the state lottery and establishing the

Kentucky Lottery Corporation. House Bil 1 defied lottery as “any game of

chance” not otherwise disapproved by statute. KR § 1S4A.010(3) (1988 Ex. Sess.)

 

The original language adopted in HB 1 (1988 Ex. Sess.) also empowered the

Kentucky Lottery Corporation to conduct games “including but not limited to,

instant lotteries, on-line and traditional games.” KR 154A.060 (1988 Ex. Sess.),

HB 1 at Section 5(1)(d)(1) (emphasis supplied). The provisions adopted and

codified in 1988 clearly demonstrate that the General Assembly did not interpret

the State Lottery Amendment as listing the types of games the Kentucky Lottery

Corporation Could operate. The plain language of HE 1 – “including but not

limited to” –expressly recognizes that other games may be adopted.

In 1990, the General Assembly withdrew via statute some of the breadth

granted to the state lottery when it passed HE 814 codified at KR 154A.063, in

which it disapproved games based on sporting contests and casino and casino type

gamg. Subsequent to the 1990 statutory limits imposed by the legislature,

the Attorney General issued an opinion considering whether a new Kentucky

Lottery-Pick 7 Game, based on the Breeder’s Cup qualified as a permissible

lottery. OAG 92-127 adopted the definition of lottery adopted by the Courts

under Section 226(3) (lottery prohibition) to define lottery under Section 226(1)

(state lottery exemption). As such, the Attorney General opined that the new

game, which included all the Jockey Club elements? was a lottery authorized by

Section 226(1) and KR Chapter 154A to be conducted on behalf of the Commonwealth

of Kentucky.

 

G. Reconciling the Prior Opinions

 

In 1993, former Attorney General Chris Gorman considered the question

of expanded gambling under the State Lottery. Proposed at that time was the

question of whether casino gambling could be authorized by the General Assembly

without a constitutional amendment. OAG 93-58. Relying on cases from

other states, particularly Indiana, see State v. Nixon, 384 N.E.2d 152 (1979), the

Attorney General opined that Kentucky’s Jockey Club case was an aberration and

limited the case to its facts. Further, the opinion wrongly concluded that Kentucky

case law adopts the” dominant factor” or American rule in interpreting the

term “lottery.” Further, it concluded that although “lottery” under §226(3) – the

prohibition language – was broad enough to encompass casino-style gaming, the

term “lottery” under §226(1) – within the context of the state lottery – was not.

 

3 A “lottery” is a game of chance that distributes a prize for valuable consideration; whether a

game qualifies as a “game of chance” depends on whether “chance permeates the entire scheme.” OAG 92-127 at 3-.

 

Therefore, it concluded that the General Assembly could not authorize the

Kentucky State Lottery to adopt casino gaming.

 

OAG 93-58 and a subsequent opinion, OAG 99-08 relying on the same,

were fundamentally flawed. First, reliance on the Nixon decision from Indiana is

misplaced, since Indiana’s constitutional language and history is not the same.as

Kentucky’s and since the Nixon decision is directly contrary to Kentucky’s own

precedent – Jockey Club. Further, both OAG 93-58 and 99-08 present a strained

reading of the term “lottery” and ignore that even the General Assembly believed

in 1988 that it possessed the authority to allow the Kentucky Lottery

Corporation to market any game of chance under the umbrella of the state lottery.

These opinons also ignored the basic canon of legislative construction that

presumes that the General Assembly has intention and purpose for its actions,

Reyes, 55 S.W.3d at 342, for to presume otherwise would render legislative action

superfluous or a nugatory. Tom Moore Distillery Co., 152 S.W.2d at 967 (1939).

In 2005, the Attorney General considered an opinion request from the legislature

regarding the question of expanded gambling. OAG 05-003. In response,

the Attorney General opined that gaming that fell with the definition of a

lottery could not be authorized by the legislature, except within one of the two

constitutional exceptions provided under Section 226(1) and (2). However, the

opinon also explained that the constitutional history of the lottery prohibition

coupled with the “pure chance” line of cases suggested that gaming, which does

not fall within the traditional definition of a lottery, may be permitted by statute,

“which is inherently more flexible than the dictates of the (C)constitution.” Id.

OAG 05-003, while departing from the 1993 and 1999 opinions, was in fact

consistent with prior opinions, including OAG 92-127, supra, which permitted the

Kentucky state lottery to market a game based on the Breeder’s cup and OAG 80-

409, supra, which adopted the Jockey Club reasoning as its own.

Therefore, OAG 05-003, OAG 92-127 and OAG 80-409 are consistent and

offer reconciling views. Each of these prior opinions construes the term “lottery”

to have the same meaning in both §226(1) and §226(3). Each of the above opinions

adopts the reasoning of the Jockey Club decision at its binding definition of

“lottery.” Further, the consensus of these opinions supports our conclusion that

the General Assembly may constitutionally authorize electronic gaming in the

OAG 09-004

Page 16

form of VLTs within its law making power, consistent with constitutional and

legislative history, and without the need for a constitutional amendment.

The two (2) opinions that have reached a contrary conclusion are simply

not consistent with the relevant case law and are flawed in their constitutional

and legislative construction. As such, we agree with OAG 05-003, which questioned

the continuing validity of the prior inconsistent opinions.

 

Expanding on the reasoning of OAG 05-003, this opinion intends to offer

the binding constitutional principles and legislative history that offers the necessary

underpinning for the conclusion that VL Ts may be permitted by statute.

What the General Assembly may do withi its lawmaking power, it may similarly

un-do. Boone County v. Town of Verona, Ky., 227 S.W. 804, 805 (1921); Rouse v.

Johnson, Ky., 28 S.W.2d 745 (1930). “The General Assembly is not dependent

upon the provisions of the Constitution to give it power to legislate upon a

subject. Its powers of legislation extend into every zone wherein it is not prohibited

by a provision of the Constitution, or, in other words, it may do whatever

the Constitution does not prohibit its doing.” Lakes v. Goodloe, Ky., 242 S.W. 632,

636 (1922).

G. Case Law from Other States

Other states with constitutional provisions and histories that are similar to

Ky. Const. § 226 offer support for the opinion that the Kentucky General Assembly

can authorize VLTs as proposed under the state lottery exception of Ky.

Const. § 226(1). In State of West Virginia ex rel Cities of Charleston, et al. v. West

Virginia Economic Development Authority, 588 S.E.2d 655 (W. Va. 2003), the West

Virginia Supreme Court upheld as constitutional a statutory enactment closely

tracking the VL T legislation proposed by Governor Beshear in his draft gaming

bill. In the West Virginia case, the question presented was whether legislation

authorizing VLTs at race tracks was constitutional pursuant to West Virginia’s

constitutional amendment authorizing that state’s lottery. Id.

Expanded gaming opponents as petitioners argued that the Racetrack

Video Lottery Act of 1994 and the Limited Video Lottery Act of 2001 violated

West Virginia’s constitutional provision prohibiting lotteries. At the outset, the

court indicated that petitioners had a high bar to overcome, specifically that

legislative enactments carry a presumption of constitutionality. Id. at 664. The

court then conducted a thorough overview of the constitutional history regarding

gaming, which was virtually identical to Kentucky’s, with an original prohibition

against lotteries that was amended by the electorate in 1984 to permit a

state lottery. Id. at 665

 

The court also directly considered and summarily rejected the petitioners’

contention that the voters adopting the state lottery amendment never intended

to amend the constitution to permit VLTs. Id. at 667. The court deferred to its

own precedent, concluding that the term lottery had the same meaning when

used in both constitutional provisions – the prohibition and the state lottery

exemption. Id. Finally, the court turned to the legislature’s own findings to

support this conclusion, and granted them great deference. Id. at 669.

The West Virginia Supreme Court concluded:

 

that the video lottery created pursuant to the Racetrack Video Lottery

Act, W.Va.Code §§ 29-22A-1, et seq., is a lottery which is regulated,

controlled, owned and operated in the manner provided by

general laws enacted by the West Virginia Legislature so that it

properly and lawfully may be conducted in accordance with the

exception to the prohibition against lotteries set forth in article VI,

section 36 of the West Virginia Constitution. Further, we hold that

the video lottery created pursuant to the Limited Video Lottery

Act, W.Va.Code §§ 29-22B-101, et seq., is a lottery which is regulated,

controlled, owned and operated in the manner provided by

general laws enacted by the West Virginia Legislature so that it

properly and lawfully may be conducted in accordance with the

exception to the prohibition against lotteries set forth in article VI,

section 36 of the West Virginia Constitution.

Id. at 670.

The decision in West Virginia was followed by cases in Kansas and New

York, which upheld expanded lottery acts regulated by and benefitting the state

without further amendments to their respective state constitutions. See, e.g.,

Dalton v. Pataki, 835 N.E.2d 1180 (N.Y. 2005); State ex rel Six, v. Kansas Lottery, 186

P.3d 183 (Kan. 2008).

 

The New York Court of Appeals, interpreting amendments to the Indian

Gaming Regulatory Act, held that video lottery gaming was a “lottery” within

meaning of state constitution and that legislation permitting use of VLTs at

designated racetracks was constitutional. Dalton v. Pataki, 835 N.E.2d at 1192-

1193. The Court did distinguish VLTs operated from a central processing device

from slot machines, which permit a single player to play against an individual

machine. Id. This latter form of electronic gaming was compared by the Court to

casino-style gaming (blackjack, poker or roulette), which the Court held would

require a constitutional amendment. Id.

 

Even among favorable court opinions, such as Dalton, there is a distinction

between slot machines and VLTs. The legislation proposed by Governor Beshear

to be considered during the Special Session proposes the establishment of a

central communication system to receive auditing programming information and

to be used by the state to activate and disable VL Ts. See Draft of gaming bil at

Section 27. Therefore, as proposed, the VLTs contemplated by Kentucky would

be consistent even under New York’s analysis.

 

In Kansas, the Attorney General fied an original action challenging the

constitutionality of the Expanded Lottery Act of 2007. State ex rel Six, v. Kansas

Lottery, 186 P.3d 183. The factual circumstances considered by the Kansas Supreme

Court were nearly identical to the circumstances presented now in Kentucky:

This appeal asks us to resolve tension among the historical ban on

lotteries contained in the Kansas. Constitution, later amendments to

the constitution that permit lotteries under certain circumstances,

and recent legislative action seeking to increase state revenues by

establishing supervised gambling venues.

 

Kansas Lottery, 186 P.3d at 186. The court upheld the statute enactig expanded

gamg, which provided for gaming in casinos and at pari-mutuel racetracks in

designated zones. Id. at 187.

 

The Kansas cour relied on its own precedent, Kansas ex rel. Stephan v. Finney,

867 P.2d 1034 (Kan. 1994), which held that the state lottery amendment was

sufficiently broad to encompass casino gaming. The court in Kansas Lottery (2008)

therefore followed this precedent, and held that the language of the Kansas state

lottery amendment permitted its legislature to adopt casino gambling without

further constitutional amendment. Id. at 190.

 

Unlike Kansas’ case law, there is no specific Kentucky case holding that

casino gaming is a lottery. While disagreeing with OAG 92-127 regarding the

expanded gaming under the state lottery, OAG 93-58 (invalidated by OAG 05-

003), does opine that casino-style gaming in the form of slot machines would

constitute a “lottery” within the meaning of Section 226(3). However, the Governor’s

proposal does not seek to expand the Kentucky State Lottery to alow

casinos, and this opinion does not and cannot consider such a hypothetical

proposal. See 40 KA 1:020 (3).

 

Other illustrative cases from other states had similar results. The Oregon

Supreme Court upheld legislation authorizing the Oregon Lottery Commission

to install VLTs in establishments previously licensed to sell alcohoL. Ecumenical

Ministries of Oregon v. Oregon State Lottery Commission, 871 P.2d 106 (Ore. 1994).

 

In Pennsylvania, the state’s highest court upheld the Race Horse Development

and Gaming Act, which authorized gaming licenses to allow the installation and

operation of slot machines to assist Pennsylvania’s horse racing industry. Pennsylvanians

Against Gambling Expansion Fund v. Pennsylvania, 877 A.2d 383 (Pa.

2005). Finally, in Tichenor v. Missouri State Lottery Commission, 742 S.W.2d 170

(Mo. 1988), the Missouri Supreme Court rejected the contention of petitioners

that the state lottery exemption should be narrowly construed due to the historic

prohibition on lotteries. Rather, the Missouri court adopted a liberal construction

holding that it “should hesitate to imply restrictions which are not expressly

stated.” Id. at 174.

 

This opinion does not mean to suggest that the Kentucky courts are

obligated to follow any precedent other than Kentucky’s own decisions. Specifically,

the foregoing cases from other states offer direct and tangible support for

Kentucky courts to follow the binding precedent offered in the Jockey Club decision.

CONCLUSION

 

In sum, it is the opinion of the Attorney General that the General Assembly

may authorize the Kentucky Lottery Corporation to operate video lottery

terminals at designated horse racing tracks under Ky. Const. § 226(1) without

further amendment to the Kentucky Constitution.

 

Jack Conway

Attorney General

Every once in a while an Appellate Judge Charms Us With a Pithy Quote…..Judge Huddleston shines on this one….

Monday, June 15th, 2009

Opinion by Senior Judge HUDDLESTON

 “ Accordingly, we decline to review Appellants’ allegation of error with respect to the allocation of peremptory challenges. FN25. The distinction is as clear as the one between a demand for one’s “fair share” and a request for “some more.” See CHARLES DICKENS, OLIVER TWIST, 55-58 (Peter Faircloth ed., Penguin Classics 1985) (1837-9): The room in which the boys were fed was a large stone hall, with a copper at one end, out of which the master, dressed in an apron for the purpose, and assisted by one or two women, ladled the gruel at meal-times; of which composition each boy had one porringer, and no more—except on festive occasions, and then he had two ounces and a quarter of bread besides. . . . A council was held; lots were cast who should walk up to the master after supper that evening, and ask for more; and it fell to Oliver Twist.

        The evening arrived; the boys took their places. The master, in his cook’s uniform, stationed himself at the copper; his pauper assistants ranged themselves behind him; the gruel was served out; and a long grace was said over the short commons. The gruel disappeared; the boys whispered each other, and winked at Oliver, while his next neighbors nudged him. Child as he was, he was desperate with hunger, and reckless with misery. He rose from the table, and advancing to the master, basin and spoon in hand, said; somewhat alarmed at his own temerity:

`Please, sir, I want some more.’ “

Brown v. Commonwealth, No. 2003-CA-001093-MR (KY 4/1/2005) (KY, 2005)

Federal Court Allows Civil Suit Against Prosecutor To Continue

Sunday, June 14th, 2009

 

LawReader.com                June 14, 2009

 

U.S. District Judge Jeffrey White of San Francisco has allowed a civil claim against a former U.S. Justice Department lawyer proceed for his work in drafting legal opinions upholding the right of the government to torture terroristic suspects.

 

Jose Padilla claims that a former Bush administration lawyer drafted legal theories that led to his alleged torture.  Padilla is serving a 17 year sentence on terror charges.

 

White ruled Radilla may be able to prove that John Yoo, now a law professor at the Univ. of California at Berkeley, went beyond the normal role of an attorney when helped write the Bush administration’s detention and torture policies, then drafted legal opinions to justify those policies.

 

White’s ruling rejected the government’s arguments that the courts are barred from examining top-level administration decisions in wartime, or that airing “allegations of unconstitutional treatment of an American citizen on American solid would damage nation security.”                                                                                                                                  

 

Yale Law Professor Tahlia Townsend, an attorney with the Lowenstein International Human Rights Clinic at Yale Law School who represented Padilla, said “It’s a really significant victory for accountability and our constitutional system of checks and bla

 

The ruling is consistent with Kentucky law which only allows qualified immunity for actions of a prosecutors who were acting outside the scope of their official duties.                                                                                                       Prosecutors have an absolute immunity for official acts as an advocate.  The dividing line between these duties is often murky, but in this case a Federal Judge did not buy the government argument that drafting torture policies was within the official scope of duties of a prosecutor, and thus were only protected by qualified immunity.