Archive for July, 2009

Britain’s House of Lords Surrender Their Role As the Highest Court in United Kingdom

Thursday, July 30th, 2009

 

The House of Lords will be replaced as the highest court in the land when the doors open for business at the UK’s first separate Supreme Court in October.

 

July 30, 2009 -BBC

 

As the Law Lords ruled on Thursday that there must be a clarification of the law on assisted suicide, following a legal challenge by multiple sclerosis sufferer Debbie Purdy, they were handing down their final judgements from the House of Lords.

At the same time, an ancient constitutional anomaly was coming to an end.

In most other democracies the judiciary is separate from the legislature – the people who assess whether laws are being properly applied are different from those who write them.

But in Britain the House of Lords – a legislative body – has also been the nation’s highest court: the supreme court of appeal for the whole of the UK in civil cases and for England, Wales and Northern Ireland in criminal cases.

For hundreds of years appeals heard in the House of Lords were presided over by peers who may not even have been lawyers, let alone judges.

Ennobled judges

This changed with a major shake-up of the court structure in the mid-1870s.

Since then, the judicial work of the House has only been done by professional judges “ennobled” so that they may sit in the House of Lords – the 12 Law Lords.

They became the equivalent of other countries’ Supreme Court judges.

The Law Lords are appointed by the Queen on the advice of the prime minister, usually from the ranks of the senior Appeal Court judges in each part of the UK.

 

In future justices of the UK Supreme Court will be appointed by the Queen on the recommendation of the Judicial Appointments Commission.

The Law Lords work full-time on judicial business. Although they are full members of the House and may speak and vote on all business, they rarely do so.

And they cannot sit on an appeal if they have previously expressed an opinion that is relevant to the case.

Once retired, they remain members of the House and can participate much more freely in debates on legislation and public policy – several do so.

However, in effect their role has been as Supreme Court judges that sit among politicians.

But from October, as a result of the Constitutional Reform Act 2005, the UK will for the first time have a separate Supreme Court.

When the new UK Supreme Court opens the Law Lords will become its first justices.

In short, the act provides for the separation of the Supreme Court from Parliament and from government.

The gradual, centuries-old separation of constitutional powers within the UK will finally be complete.

John Meyers Named Executive Director of Ky. Bar Association

Thursday, July 30th, 2009

 Lexington attorney John D. Meyers is the new executive director of the Kentucky Bar Association, replacing Jim Deckard, who resigned to return to private practice in February.

Meyers was selected after a four-month search. He has been the association’s interim executive director and director of its continuing legal education program.

In making the announcement, KBA President Charles E. “Buzz” English, Jr., of Bowling Green, said Meyers’ knowledge of the association and his solid working relationship with KBA members statewide will allow him to serve the KBA with vision and versatility.

“Since joining the staff of the KBA in October, 2005, John has energized and expanded our CLE program and, in the process, greatly enhanced its benefit to our membership,” English said.

Meyers will lead a staff of 53 employees as he oversees the programs, policies and activities adopted by the Board of Governors, the KBA’s governing body. There are currently 16,029 members of the KBA.

“This is an incredible honor for me to serve as the executive director of an organization that seeks to serve not only Kentucky’s legal community, but the many Kentuckians who depend upon its services,” Meyers said. “I look forward to leading the Kentucky Bar Association as we continue our commitment to professionalism and public service.”

A native of Lexington, Meyers is a graduate of Lafayette. He received a bachelor of science degree from Purdue University and a law degree from the University of Kentucky college. He is married to Janie Fergus, also of Lexington. of Law High School

The KBA oversees discipline of its members and tries to promote the efficiency and improvement of the judicial system. For more information on the KBA, visit www.kybar.org or contact the Kentucky Bar Center in Frankfort at (502) 564-3795.

LawReader Judge May Be Viewed on Today Show July 30th.

Wednesday, July 29th, 2009

Thursday morning July 30th.  Matt Simons, our tech  guy for LawReader  will be in New York City, and will wear his LawReader Judge robe and white wig, and will try to get viewed on the Today Show when they scan the crowd.  

 

If you get a chance to watch the Today Show tomorrow morning  see if you can spot the tall guy in a Red Robe and White Wig carrying a large sign that says LawReader.com…

 

He is taking his son on a trip to Boston and is stopping over in NYC.  He was eager to wear his LawReader costume.  Matt is a natural actor and has worn his LawReader Judge get up at numerous KBA conventions and seminars.

 

This will be great fun if it works out.

Internet Radio Talk Show Host Hal Turner Arrested for Threatening Three Federal Appeals Court Judges in Chicago Over Recent Decision Upholding Handgun Bans

Tuesday, July 28th, 2009

 

Hal Turner, an intermittent internet radio talk show host and blogger, was arrested today by FBI agents at his home in North Bergen, N.J., on a federal complaint filed in Chicago alleging that he made internet postings threatening to assault and murder three federal appeals court judges in Chicago in retaliation for their recent ruling upholding handgun bans in Chicago and a suburb.

Internet postings on June 2 and 3 proclaimed “outrage” over the June 2 handgun decision by Chief Judge Frank Easterbrook and Judges Richard Posner and William Bauer, of the Chicago-based 7th U.S. Circuit Court of Appeals, further stating, among other things: “Let me be the first to say this plainly: These Judges deserve to be killed.” The postings included photographs, phone numbers, work address and room numbers of these judges, along with a photo of the building in which they work and a map of its location.

Turner, 47, of North Bergen, N.J., was arrested this morning after FBI agents went to his residence to execute a search warrant. He was charged with threatening to assault and murder three federal judges with intent to retaliate against them for performing official duties in a criminal complaint filed today in U.S. District Court in Chicago. He is scheduled to have an initial court appearance at 12:30 p.m. tomorrow (Thursday) before U.S. Magistrate Judge Michael A. Shipp in U.S. District Court in Newark.

“We take threats to federal judges very seriously. Period,” said Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, who announced the charges with Robert D. Grant, Special Agent-in-Charge of the Chicago Office of the Federal Bureau of Investigation. The United States Attorney’s Office for the District of New Jersey and the FBI Office in Newark are providing local assistance.

According to the complaint affidavit, several lawsuits were filed challenging handgun bans in Chicago and suburban Oak Park after the U.S. Supreme Court ruled in 2008 that the Second Amendment entitles handguns at home for self-protection. On June 2, 2009, the 7th Circuit issued an opinion in National Rifle Association v. Chicago, Nos. 08-4241, 08-4243 & 08-4244, affirming a district court’s decision to dismiss the cases challenging the local handgun bans. The unanimous decision was written by Chief Judge Easterbrook and joined by Judges Posner and Bauer.

On June 8, law enforcement agents were directed to postings on a web site. The front page of the site contained an entry dated June 2, 2009, that was titled: “OUTRAGE: Chicago Gun Ban UPHELD; Court says ‘Heller’ ruling by Supreme Court not applicable to states or municipalities!” After describing the decision, a lengthy entry followed, which is contained in the complaint affidavit. In addition to proclaiming “These judges deserve to be killed,” the entry notes that it was the same 7th Circuit Court of Appeals that decided the case of Matt Hale, a white-supremacist who was imprisoned after being convicted of soliciting the murder of a U.S. District Court judge in Chicago. The entry further noted that the same judge’s mother and husband were murdered by a gunman in her home. The posting then stated:

“Apparently, the 7th U.S. Circuit court didn’t get the hint after those killings. It appears another lesson is needed.”

The complaint charges that the posting was updated the next morning on June 3, 2009, with the following content:

“Judges official public work addresses and a map of the area are below. Their home addresses and maps will follow soon. Behold these devils.”

Below this headline, the entry listed the names, photos, phone numbers, work addresses and room numbers of the three judges involved in the handgun decision, as well as a photo of the Dirksen Federal Courthouse in Chicago and a map. The photo of the building had been modified to include arrows and a label referencing “Anti-truck bomb barriers,” according to the affidavit.

If convicted, threatening to assault or murder a federal judge carries a maximum penalty of 10 years in prison and a $250,000 fine. The Court, however, would determine the appropriate sentence to be imposed under the advisory United States Sentencing Guidelines.

The government is being represented by Assistant United States Attorneys William Ridgway and William Hogan.

The public is reminded that a complaint contains only charges and is not evidence of guilt. The defendant is presumed innocent and is entitled to a fair trial at which the government has the burden of proving guilt beyond a reasonable doubt.

MEDIA CONTACT:

United States Attorney’s Office, 312-353-5300
Northern District of Illinois

 

Governor Beshear make four appointments to Judiciary. Charles W. Hardin, Ira D. Newman, George W. Davis, & Robert Costanzo as Judges

Friday, July 24th, 2009

FRANKFORT, Ky. – Governor Steve Beshear today (July 24, 2009)  announced the following judicial appointments.

  • The Honorable Charles William Hardin, of Richmond, has been appointed District Judge of the 25th Judicial District, Division 1, consisting of Clark and Madison counties. Hardin most recently practiced general law with Marc Robbins Law Office in Richmond. He received his Juris Doctor from Salmon P. Chase College and a bachelor’s degree from Eastern Kentucky University. The appointment replaces the Honorable William G. Clouse, who was elected Circuit Judge of the 25th Judicial Circuit, Division 1, consisting of Clark and Madison counties.
     
  • The Honorable Ira Dean Newman, of Berea, has been appointed Circuit Judge for the 25th Judicial Circuit Family Court, Division 3, consisting of Clark and Madison counties. Newman previously practiced with the Appalachian Research and Defense Fund of Kentucky, Inc. He received his Juris Doctor from the University of Kentucky College of Law and a bachelor’s degree from Berea College. The appointment replaces the Honorable Jean C. Logue, who was elected Circuit Judge of the 25th Judicial Circuit, Division 2, consisting of Clark and Madison counties.
     
  • The Honorable George W. Davis III, of Ashland, has been appointed Circuit Judge for the 32nd Judicial Circuit, Division 1, consisting of Boyd County. Davis most recently served as District Judge for the 32nd Judicial District, Division 1. He received his Juris Doctor from the University of Louisville and a bachelor’s degree from the University of Kentucky. The appointment replaces the Honorable Marc Rosen, who has resigned.
     
  • The Honorable Robert V. Costanzo, of Pineville, has been appointed Circuit Judge for the 44th Judicial Circuit, consisting of Bell County. Costanzo most recently practiced law with the Administrative Office of the Courts.  He received a Juris Doctor from Salmon P. Chase College of Law and a bachelor’s degree from Lincoln Memorial University. The appointment replaces the Honorable James L. Bowling Jr., who has resigned.

###

 

 

Was Black Harvard Professor Properly Charged with Disorderly Conduct? See the actual law for yourself.

Friday, July 24th, 2009

See Massachusetts  Disorderly Conduct Statute – Whether Black Harvard Professor was In Violation of the Law turns on his home being a public place….

 

Com. v. LePore, 666 N.E.2d 152, 40 Mass.App.Ct. 543 (Mass. App. Ct., 1996)

 

A person is “disorderly” under G.L. c. 272, § 53, “if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof; he: (a) engages in fighting or threatening, or in violent or tumultuous behavior; or (b) makes unreasonable[40 Mass.App.Ct. 546] noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or (c) creates a hazardous or physically offensive condition by an act which serves no legitimate purpose of the actor.”

 

Alegata v. Commonwealth, 353 Mass. 287, 304, 231 N.E.2d 201 (1967). Commonwealth v. Feigenbaum, 404 Mass. 471, 474, 536 N.E.2d 325 (1989). “

 

 ‘Public’ means affecting or likely to affect persons in a place to which the public or a substantial group has access.” Alegata v. Commonwealth, supra

 

Virginia Court Applies Melendez-Diaz Supreme Court Ruling On Confrontation of Experts to BA technicians Who Calibrate the Machine- May effect Speeding Cases

Thursday, July 23rd, 2009

 

By Robert McCartney   The Washington Post - July 23, 2009

Drunk drivers and potheads, rejoice. If you get caught, the Supreme Court has made it easier for you to beat the rap, at least in Virginia and maybe soon elsewhere in the region.

That pesky Bill of Rights is creating hurdles for the police again. The justices ruled 5 to 4 last month that prosecutors can’t make their cases by relying just on a document like a lab report (yes, it was marijuana) or breath test printout (he blew twice the legal limit, your honor). Now, the state must also make available as witnesses the lab technicians, breathalyzer operators or other individuals who prepared the documents.

The court said that’s necessary because of the Sixth Amendment, which guarantees defendants’ rights to confront their accusers at trial. The argument boils down to “You can’t cross-examine a machine.” The ruling is right in theory but really wrong in practice.

On the bright side, the decision shines a light on the problems created by the assembly-line justice that our society uses to deal with drunken driving and marijuana use. These two offenses dominate our courts, partly because other institutions such as the family, school system and religious institutions have proved incapable of handling them effectively. The courts rely so much on the mechanical tests, which the court now dislikes, in large part to save money.

On the other hand, the ruling is going to force a lot of costly changes with little practical long-term benefit. It will require new laws and court procedures, and cost a lot of money to hire and train additional forensic technicians and other employees, to make it work.

Worse, it hands a new weapon to defense lawyers that’s going to benefit them mostly in battles over procedure rather than justice. Because the state won’t be able to produce witnesses in many cases, defense lawyers already are saying they expect to win more acquittals at trial. More to the point, they expect to get their clients shorter jail sentences, fewer driver’s license suspensions and less punishment generally in the plea bargains that settle the vast majority of these cases.

The ruling has already led to scores of postponed cases and some outright drunken driving acquittals in Fairfax County, a high-volume district where it’s impractical at present to get lab analysts or technicians to appear at every case. Gov. Timothy M. Kaine (D) on Wednesday called a special one-day session of the Virginia legislature for Aug. 19 to address the issue.

By contrast, the impact has been minimal in the District and Maryland. The District has been making witnesses available since 2006, and Maryland has a law enabling prosecutors to invite the defense to effectively accept the use of documents alone before the trial starts.

The impact could mushroom, though, and affect more jurisdictions and more kinds of cases. Two Fairfax judges have ruled in DWI cases that the prosecutor had to make available not only the operator who performed the breath test but also the technician who calibrated the machine or certified it as part of routine maintenance every six months. Defense attorneys are also hoping that they could start requiring police to make available the technicians who calibrate radar guns or other equipment used to catch speeders.

“Everything from speeding to murder is affected by this,” Fairfax County Commonwealth’s Attorney Raymond F. Morrogh said. “Nobody’s going to have their rights protected more. It’s just going to be a game of ‘Can we get the lab techs here?’ ”

Much of the burden in Virginia will fall on the state’s Department of Forensic Science, which does the labwork to prove that that green powder was in fact weed and that the defendant’s blood alcohol level was in fact above the legal limit. The drug section gets about 32,000 cases a year and is asked to testify in person in what it calls “an extremely low percentage.” If its 43 examiners had to testify in just half the cases, that’d be 372 court appearances each a year — leaving not much time for conducting the labwork.

The court case, called Melendez-Diaz v. Massachusetts, was noteworthy in several ways. First, the ruling was written by conservative Justice Antonin Scalia for an unusual majority including one other conservative and three liberals. Scalia’s critics might be surprised that he took the lead in helping criminal defendants, but give the man his due: He’s always said he’s a strict constructionist who just wants to interpret the Constitution as it’s written. The Sixth Amendment says, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Scalia also wrote the landmark ruling, Crawford v. Washington, in 2004, on which Melendez is based.

The dissenters in Melendez, led by Justice Anthony M. Kennedy, argued forcefully that the decision risks overburdening the state. They also suggested that the court ought to take into account technical advances since the 18th century.

Stephen Saltzburg, professor of criminal law and procedure at George Washington University, said Scalia was right to say that scientific tests are a kind of testimony that defenders need to be able to challenge. But he added that the dissenters “had a very strong argument that perhaps there could be an exception for these highly reliable mechanical tests that didn’t exist when the framers wrote the Sixth Amendment.”

 

Ohio Ex-Post Facto Sex offender Reporting law ruled Unconstitutional

Tuesday, July 21st, 2009

July 21, 2009

By Mike Sever  Record-Courier staff writer

An opinion by the 11th District Court of Appeals in Warren may rekindle the debate over whether Ohio’s Adam Walsh Act sex offender law is constitutional.

It may be a brief debate, since the Ohio Supreme Court is expected to render its decision on the constitutionality sometime this fall.

A three-judge panel of the district court, which covers Ashtabula, Geauga, Lake, Portage and Trumbull, handed down the opinion Monday in a Lake County case in which a convicted sex offender is contesting his reclassification as a Tier III offender. 

In a 2-1 decision, the court found the new law that resulted in his reclassification unconstitutional.

Under his original 2002 sentence, Jason Ettenger was required to register annually at the sheriff’s department wherever he lived for 10 years.

Under Ohio’s Adam Walsh Act, Ettenger was reclassified and required to register personally with the sheriff’s office once every 90 days for life. The new law stiffened the penalties for failure to register as a sex offender as well as re-classifying nearly every offender convicted in the past 10 years.

Classification of offenders is now determined by the crime they were convicted of. No evidence is weighed on whether the defendant is likely to re-offend.

When the new law took effect Jan. 1, 2008, hundreds of cases were filed across Ohio, challenging the reclassifications as double jeopardy since they already had been sentenced and classified.

In Portage County, more than 80 cases were headed for reclassification when local judges issued a blanket stay “pending a final decision by the Ohio Supreme Court or the federal district court.”

Judges Timothy P. Cannon and Diane V. Grendell found the new law unconstitutional, but for different reasons. They reversed the Lake County court’s decision and sent the case back for reconsideration.

Judge Mary Jane Trapp, dissented from the judgment and other points by Cannon and Grendell, but concurred on their analysis of the separation between legislative and judicial powers, and due process issues brought up in the appeal.

 

Congress Considers Information Age Solutions in Copyright Laws

Tuesday, July 21st, 2009


by Irvin Muchnick‚ Jul. 21‚ 2009

Last week brought one of those quirky stories, combining legal confusion and Big Brother overtones – the kind technology journalists love to bat around. Amazon.com, whose Kindle appliance is taking the book industry by storm, discovered that it hadn’t acquired the electronic rights to George Orwell’s Animal Farm and 1984, which Amazon was already marketing on Kindle. Amazon immediately pulled the books out of its e-catalogue and remotely expunged them from the Kindle accounts of customers who had purchased them. The New York Times retailed the anecdote with a cheeky and predictable headline, highlighting the irony of invading privacy in the name of the master literary chronicler of totalitarianism.

As lead respondent in a writers’ rights dispute now before the U.S. Supreme Court, I have a dog in this fight. Some of the issues of Reed Elsevier v. Muchnick dovetail with questions about a proposed settlement in federal district court of a class action sparked by Google’s project to scan and market books online.

The first step in untangling all this legalese is to filter out the privacy alarms raised by the Amazon story. Without dismissing this element, I think other worthies, like San Francisco’s Electronic Frontier Foundation, can more competently address it.

What I ask you to focus on here is a different question, one that established for-profit media companies have spent more than a decade co-opting and manipulating: how to harness the marvelous tools of digital technology for the benefit of everyone.

One such entity, Thomson Gale (a division of the giant Thomson Corporation out of Toronto), once went by the very name “Information Access Company.” Like Lexis Nexis and others, it markets databases of articles originally published in newspapers and magazines. Apparently, the former IAC never cared that it was distributing and selling a significant subset of the database articles – those written by freelance writers, who by law retained copyright in them – without our permission and without compensation.

It was we writers who were the enemies of access. Not Thomson. They, after all, were Information Access Company.

A lot of librarians and consumer advocates fell for this legerdemain. For example, Stanford law professor Lawrence Lessig spearheaded the Copyright Commons, which I recognize as a positive innovation; the Commons concept makes it easier for reusers of copyrighted works to get permission and for rights holders to grant it. But so far as I know, Lessig didn’t lift a finger explaining to the public the difference between the Disney Corporation and independent writers, photographers, graphic artists, and videographers. In his gospel (spread by that well-known tribune of the people, Wired magazine), we are all greedy and short-sighted Mickey Mouses seeking to gouge good-faith reusers for “every bit and byte.”

Documentary filmmakers, whose stock-in-trade is cutting and pasting snippets, which involves permissions red tape, were especially susceptible to corporate info-speak. Going beyond Lessig, the celebrity PBS director Ken Burns even supported publishers and opposed writers in the landmark 2001 Supreme Court case, Tasini v. New York Times, brought by National Writers Union President Jonathan Tasini.

The Tasini plaintiffs won their point of law in a slam dunk. But the publishers didn’t care about no stinkin’ law. Encouraged by cyberspace gurus who failed to grasp the role of new tech in correcting the power imbalance between writers and publishers, the losers shrugged off their defeat like a flea. Their lawyers simply drafted new freelance contract language to trump copyright law, forcing non-staff contributors to sign over all rights in perpetuity to publishers as a condition of getting assignments.

Meanwhile, the infringements of the past became the subject of class action lawsuits. Reed Elsevier v. Muchnick is the Supreme Court’s handle for the federal courts’ consolidation of those cases. In October the Court will be hearing oral arguments on a technical sideshow, the jurisdiction of the federal courts over settlements involving works not registered with the Copyright Office. (By then, the justices likely will include Sonia Sotomayor, who as a district court judge ruled in favor of the publishers in Tasini v. Times and got resoundingly reversed on appeal.)

I lead a slate of objectors to the terms of the freelance settlement, which was engineered by three writers’ organizations. Playing point for the settlement plaintiffs was the Authors Guild, also one of the driving forces behind the Google Books settlement. The Google case is currently being held up by a combination of multi-faceted objections and a Justice Department antitrust investigation.

Is there is a better way? I believe there is, and I think Amazon’s difficulties with Orwell illustrate it. At this moment in American information history, what we need is a comprehensive and one-stop solution to these thorny rights problems. The solution would include the two features of music industry licensing that evolved more than half a century ago after the advent of recording equipment and radio: a “compulsory license” and a fair and equitable standard royalty system.

A compulsory license means that anyone reusing a copyrighted work – whether Amazon or you or I – is assumed to have permission without having to negotiate with the rights holder, who might be difficult to find, or even dead.

A fair and equitable royalty system means that, in gaining automatic permission, a licensee also automatically pays a fee to a central registry. These admittedly complex, but eminently doable, arrangements require comprehensive negotiations, bringing inside the tent all the stakeholders in the contemporary information revolution: creators, publishers, and consumers.

Of the two writers’ class action settlements now being litigated, one – Google Books – provides for a royalty system. But both settlements bungle the compulsory license part. Even the royalty system in Google is privately – not publicly – conceived, advantaging only the particular parties in that case.

In lieu of compulsory licenses, both settlements seek to ratify “licenses by default”; that is, unless members of the plaintiff class affirmatively step forward to block access to their works, they are assumed to be granting permission for the defendants to use them in perpetuity. But a class action lawsuit is about redressing damages. It is not about turning the settlement into the product-development and marketing arms of the same defendants who inflicted the damage in the first place.

The right setting for codifying compulsory licenses and royalty systems is not the courts. It is the United States Congress. The last copyright overhaul by legislators was in 1976, when the Internet wasn’t even a gleam in Al Gore’s eye.

On October 7, the Supreme Court will hear oral arguments in Reed Elsevier v. Muchnick. Coincidentally, the Google Books settlement fairness hearing will be held in U.S. District Court the same day. The judicial stars are aligning.

Now Congress needs to step up and do its job by ensuring that the information superhighway gets paved with a donkey trail of rights and dignity. Whenever good law does get written and followed, every stakeholder will have to give up something. Publishers will lose their stranglehold over freelancers. Consumers will have to trade a little bit of privacy for a lot of convenience and empowerment.

Some of my writer friends also will have to get their heads out of the 19th century and into the 21st. Compulsory licenses – real ones, transparent ones, derived fairly and openly rather than by fine-print lawyer tricks – will be good for all of us in an age when a photo, an article, or a book is just a mouse-click away.

Irvin Muchnick blogs at http://freelancerights.blogspot.com and tweets at http://twitter.com/irvmuch, and is author of the forthcoming CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death.

 

U.S. Supreme Court Ruling Allows Federal Trial Judges to Dismiss Civil Claims They Find “Not Plausible” – Ruling May Supersede Traditional Summary Judgment Standards

Tuesday, July 21st, 2009

 

“This is a blank check for federal judges to get rid of cases they disfavor.”  …“..federal judges will now decide at the very start of a litigation whether the plaintiff’s accusations ring true, and they will close the courthouse door if they do not.”  “Determining whether a complaint states a plausible claim for relief requires the reviewing court to draw on its judicial experience and common sense.” –

 

The most consequential decision of the Supreme Court’s last term got only a little attention when it landed in May. And what attention it got was for the wrong reason.

But the lower courts have certainly understood the significance of the decision, Ashcroft v. Iqbal, which makes it much easier for judges to dismiss civil lawsuits right after they are filed. They have cited it more than 500 times in just the last two months.

“Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.

On its face, the Iqbal decision concerned the aftermath of the Sept. 11 attacks. The court ruled that a Muslim man swept up on immigration charges could not sue two Bush administration officials for what he said was the terrible abuse he suffered in detention.

But something much deeper and broader was going on in the decision, something that may unsettle how civil litigation is conducted in the United States. Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges last month that the ruling was both important and dangerous. “In my view,” Justice Ginsburg said, “the court’s majority messed up the federal rules” governing civil litigation.

For more than half a century, it has been clear that all a plaintiff had to do to start a lawsuit was to file what the rules call “a short and plain statement of the claim” in a document called a complaint. Having filed such a bare-bones complaint, plaintiffs were entitled to force defendants to open their files and submit to questioning under oath.

This approach, particularly when coupled with the American requirement that each side pay its own lawyers no matter who wins, gave plaintiffs settlement leverage. Just by filing a lawsuit, a plaintiff could subject a defendant to great cost and inconvenience in the pre-trial fact-finding process called discovery.

Mark Herrmann, a corporate defense lawyer with Jones Day in Chicago, said the Iqbal decision will allow for the dismissal of cases that would otherwise have subjected defendants to millions of dollars in discovery costs. On the other hand, information about wrongdoing is often secret. Plaintiffs claiming they were the victims of employment discrimination, a defective product, an antitrust conspiracy or a policy of harsh treatment in detention may not know exactly who harmed them and how before filing suit. But plaintiffs can learn valuable information during discovery.

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

Note those words: Plausible. Common sense.

The old world was mechanical. A lawsuit that mouthed the required words was off and running. As the Supreme Court said in 1957 in Conley v. Gibson, a lawsuit should be allowed to go forward “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Things started to change two years ago, when the Supreme Court found a complaint in an antitrust suit implausible.

In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper.

“It obviously licenses highly subjective judgments,” said Stephen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. “This is a blank check for federal judges to get rid of cases they disfavor.”

Courts applying Iqbal have been busy. A federal judge in Connecticut dismissed a disability discrimination suit this month, saying that Iqbal required her to treat the plaintiff’s assertions as implausible. A few days later, the federal appeals court in New York dismissed a breach of contract and securities fraud suit after concluding that its account of the defendants’ asserted wrongdoing was too speculative.

The judge hearing the claims of the falsely accused Duke lacrosse players has asked for briefing on whether their lawsuit against Durham, N.C., can pass muster under Iqbal. But the judge considering a case against John C. Yoo, the former Bush administration lawyer, said it could move forward despite Iqbal because the suit contained specific allegations about Mr. Yoo’s conduct in justifying the use of harsh interrogation methods.

In the Iqbal case itself, Javaid Iqbal, a Pakistani Muslim who was working as a cable television installer on Long Island, said he was subjected to intrusive searches and vicious beatings after being arrested on identity fraud charges two months after the Sept. 11 attacks.

Justice Kennedy said Mr. Iqbal’s suit against two officials had not cleared the plausibility bar. All Mr. Iqbal’s complaint plausibly suggested, Justice Kennedy wrote, “is that the nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available.”

Justice David H. Souter, said the majority had adopted a crabbed view of plausibility and had in the process upended the civil litigation system.

In his dissent in Iqbal, Justice Souter wrote that judges should accept the accusations in a complaint as true “no matter how skeptical the court may be.”

“The sole exception to this rule,” Justice Souter continued, “lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel.”

But that is no longer the law. Under the Iqbal decision, federal judges will now decide at the very start of a litigation whether the plaintiff’s accusations ring true, and they will close the courthouse door if they do not.

More:

 

Javaid Iqbal, a cable television installer on Long Island, was among thousands of Muslim men rounded up after the Sept. 11 attacks. He later filed suit against John Ashcroft, the former United States attorney general, and Robert S. Mueller III, the head of the F.B.I., charging that they were responsible for policies that resulted in the abuse that he suffered in a Brooklyn detention center. His suit was rejected by the Supreme Court on May 18, 2009.

Mr. Iqbal, like others of the Muslim men rounded up, was considered to be “of high interest.” Such suspects were held in a special housing unit of the Metropolitan Detention Center in Brooklyn.

Mr. Iqbal said he was kept in solitary confinement at the center, denied medical care and subjected to daily body-cavity searches, beatings and extreme temperatures. He said that he was called a terrorist and a “Muslim killer,” and that he lost 40 pounds during six months in the special unit.

He eventually pleaded guilty to identity fraud and was deported to Pakistan.

Mr. Iqbal sued more than 30 officials for mistreatment based on his religion and national background. The  Supreme Court decision, Ashcroft v. Iqbal, No. 07-1015, concerned only Mr. Ashcroft and Mr. Mueller.

Writing for a 5-4 majority, Justice Anthony Kennedy wrote that the lawsuit filed by Mr. Iqbal must be dismissed at a preliminary stage because he failed to allege a plausible link between the officials’ conduct and the abuses he said he had suffered.

Mr. Iqbal, Justice Kennedy wrote, failed to describe adequately how the actions of the two officials were connected to the mistreatment and discrimination he said he had suffered. Justice David H. Souter, writing for the dissenters, said the allegations against the two officials in Mr. Iqbal’s lawsuit were specific enough to satisfy the requirements for initiating a lawsuit.

Justice Souter added that the majority had engaged in a sort of legal sleight of hand, ignoring a concession from the government that Mr. Ashcroft and Mr. Mueller would be liable were Mr. Iqbal able to prove they actually knew of unconstitutional discrimination by their subordinates and were deliberately indifferent to it.

Instead of accepting that concession, Justice Souter continued, the majority decided that even proof of such knowledge was insufficient.

SUPREME COURT OF THE UNITED STATES

ASHCROFT, FORMER ATTORNEY GENERAL, et al. v. IQBAL et al.

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


Argued December 10, 2008—Decided May 18,No. 07–1015. 2009


Following the September 11, 2001, terrorist attacks, respondent Iqbal, a Pakistani Muslim, was arrested on criminal charges and detained by federal officials under restrictive conditions. Iqbal filed a Bivens action against numerous federal officials, including petitioner Ashcroft, the former Attorney General, and petitioner Mueller, the Director of the Federal Bureau of Investigation (FBI). See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 . The complaint alleged, inter alia, that petitioners designated Iqbal a person “of high interest” on account of his race, religion, or national origin, in contravention of the First and Fifth Amendment s; that the FBI, under Mueller’s direction, arrested and detained thousands of Arab Muslim men as part of its September-11th investigation; that petitioners knew of, condoned, and willfully and maliciously agreed to subject Iqbal to harsh conditions of confinement as a matter of policy, solely on account of the prohibited factors and for no legitimate penological interest; and that Ashcroft was the policy’s “principal architect” and Mueller was “instrumental” in its adoption and execution. After the District Court denied petitioners’ motion to dismiss on qualified-immunity grounds, they invoked the collateral order doctrine to file an interlocutory appeal in the Second Circuit. Affirming, that court assumed without discussion that it had jurisdiction and focused on the standard set forth in Bell Atlantic Corp. v. Twombly, 550 U. S. 544 , for evaluating whether a complaint is sufficient to survive a motion to dismiss. Concluding that Twombly’s “flexible plausibility standard” obliging a pleader to amplify a claim with factual allegations where necessary to render it plausible was inapplicable in the context of petitioners’ appeal, the court held that Iqbal’s complaint was adequate to allege petitioners’ personal involvement in discriminatory decisions which, if true, violated clearly established constitutional law.

Held:

    1. The Second Circuit had subject-matter jurisdiction to affirm the District Court’s order denying petitioners’ motion to dismiss. Pp. 6–10.

        (a) Denial of a qualified-immunity claim can fall within the narrow class of prejudgment orders reviewable under the collateral-order doctrine so long as the order “turns on an issue of law.” Mitchell v. Forsyth, 472 U. S. 511 . The doctrine’s applicability in this context is well established; an order rejecting qualified immunity at the motion-to-dismiss stage is a “final decision” under 28 U. S. C. §1291, which vests courts of appeals with “jurisdiction of appeals from all final decisions of the district courts.” Behrens v. Pelletier, 516 U. S. 299 . Pp. 7–8.

        (b) Under these principles, the Court of Appeals had, and this Court has, jurisdiction over the District Court’s order. Because the order turned on an issue of law and rejected the qualified-immunity defense, it was a final decision “subject to immediate appeal.” Behrens, supra, at 307. Pp. 8–10.

    2. Iqbal’s complaint fails to plead sufficient facts to state a claim for purposeful and unlawful discrimination. Pp. 11–23.

        (a) This Court assumes, without deciding, that Iqbal’s First Amendment claim is actionable in a Bivens action, see Hartman v. Moore, 547 U. S. 250 , n. 2. Because vicarious liability is inapplicable to Bivens and §1983 suits, see, e.g., Monell v. New York City Dept. of Social Servs., 436 U. S. 658 , the plaintiff in a suit such as the present one must plead that each Government-official defendant, through his own individual actions, has violated the Constitution. Purposeful discrimination requires more than “intent as volition or intent as awareness of consequences”; it involves a decisionmaker’s undertaking a course of action “ ‘because of,’ not merely ‘in spite of,’ [the action’s] adverse effects upon an identifiable group.” Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 . Iqbal must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason, but for the purpose of discriminating on account of race, religion, or national origin. Pp. 11–13.

        (b) Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” “[D]etailed factual allegations” are not required, Twombly, 550 U. S., at 555, but the Rule does call for sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face,” id., at 570. A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556. Two working principles underlie Twombly. First, the tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory statements. Id., at 555. Second, determining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense. Id., at 556. A court considering a motion to dismiss may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Pp. 13–16.

        (c) Iqbal’s pleadings do not comply with Rule 8 under Twombly. Several of his allegations—that petitioners agreed to subject him to harsh conditions as a matter of policy, solely on account of discriminatory factors and for no legitimate penological interest; that Ashcroft was that policy’s “principal architect”; and that Mueller was “instrumental” in its adoption and execution—are conclusory and not entitled to be assumed true. Moreover, the factual allegations that the FBI, under Mueller, arrested and detained thousands of Arab Muslim men, and that he and Ashcroft approved the detention policy, do not plausibly suggest that petitioners purposefully discriminated on prohibited grounds. Given that the September 11 attacks were perpetrated by Arab Muslims, it is not surprising that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the policy’s purpose was to target neither Arabs nor Muslims. Even if the complaint’s well-pleaded facts gave rise to a plausible inference that Iqbal’s arrest was the result of unconstitutional discrimination, that inference alone would not entitle him to relief: His claims against petitioners rest solely on their ostensible policy of holding detainees categorized as “of high interest,” but the complaint does not contain facts plausibly showing that their policy was based on discriminatory factors. Pp. 16–20.

        (d) Three of Iqbal’s arguments are rejected. Pp. 20–23.

            (i) His claim that Twombly should be limited to its antitrust context is not supported by that case or the Federal Rules. Because Twombly interpreted and applied Rule 8, which in turn governs the pleading standard “in all civil actions,” Rule 1, the case applies to antitrust and discrimination suits alike, see 550 U. S., at 555–556, and n. 14. P. 20.

            (ii) Rule 8’s pleading requirements need not be relaxed based on the Second Circuit’s instruction that the District Court cabin discovery to preserve petitioners’ qualified-immunity defense in anticipation of a summary judgment motion. The question presented by a motion to dismiss for insufficient pleadings does not turn on the controls placed on the discovery process. Twombly, supra, at 559. And because Iqbal’s complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise. Pp. 20–22.

            (iii) Rule 9(b)—which requires particularity when pleading “fraud or mistake” but allows “other conditions of a person’s mind [to] be alleged generally”—does not require courts to credit a complaint’s conclusory statements without reference to its factual context. Rule 9 merely excuses a party from pleading discriminatory intent under an elevated pleading standard. It does not give him license to evade Rule 8’s less rigid, though still operative, strictures. Pp. 22–23.

        (e) The Second Circuit should decide in the first instance whether to remand to the District Court to allow Iqbal to seek leave to amend his deficient complaint. P. 23.

490 F. 3d 143, reversed and remanded.

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


Attorney Speaks on Civility among Lawyers – Essay by Kurt K. Mohnsam

Thursday, July 16th, 2009

 

AN OBSERVATION ON CIVILITY

 

By Hon. Kurt K. Mohnsam, Esq

 

Lawyers have a reputation for being involved in some of the less admirable deeds that a person can commit.  Sometimes, they develop a habit of cultivating, even enjoying, this reputation.  I’ve had the opportunity to observe two lawyers at random, and to see just how they responded to me, when I had nothing to offer them, and when I was in need of help.  I was surprised to find that, contrary to popular belief, civility among lawyers is not dead.

 

“Why not try collections,” one lawyer, a judge, asked, as I sat in his home office where I had been invited to lunch.  “Chances are, many places will be glad to give you some of that business.”  I have been trying to get back into the practice of law after a setback as a result of illness, then a divorce, and was literally grasping at anything and anyone who might be able to help me turn my life around.

 

People want to help.  Judges, lawyers, business executives, most anyone who has gotten to a comfortable spot in his or her own life wants to help someone who has stumbled a bit along the road.  People will say it’s because they want to feel good about themselves, and helping the less fortunate, in this case, me, makes people who have “made it” feel better about themselves.  My experience indicates that this is actually a pretty sad, and incorrect, observation.  I have, over the years, made a few friends in positions of what could be considered “power,” and they have been more than willing to sit down to lunch with me and go to some pretty great lengths to help me get back on my feet.  They aren’t doing it to make themselves feel better about some ancient wrong, committed in a deal with the devil that got them where they are today.  That makes for a good movie moment, but it’s not the real world.  They see me as a person who is in need of a little help, and they, being human themselves, want to do something to potentially help me out of my present situation.  I have never once promised to return the favor, to send business someone’s way once I got back on my feet, and I certainly was never charged a dime for any of the help I received.  Lawyers, and those in the legal community, are in general, very good people.  Not all of them, of course.  I’ll be the first to admit that the fellow who jumped line to get himself a quick beer at a restaurant during a Kentucky Bar Convention in Louisville was a lawyer.  When confronted, he replied with a smarmy “So what?” but I think, and I hope, that he was in a very distinct minority.  Every profession has a certain number of jerks, and maybe the jerks in our profession tend to be more visible to outsiders than the jerks in other professions.  Jump to the head of a long line waiting to get a drink during a bar convention, and everyone in the place will immediately presume that you are one of the lawyers in town for the convention.  Some of us just have to prove that stereotypes are not all wrong, I suppose.

 

Still, it has been my overall experience that lawyers tend to want to help others, at least other lawyers, because we have all been through some common hard times.  Yes, some of us came from money, and some of us had brains and sailed through law school, but along the way, we all had our difficult moments.  Some of us saw a client lose everything he had built up over his lifetime in a disastrous divorce, or saw someone who was clearly innocent lose his freedom simply because the evidence looked bad, and he was in the wrong place at the wrong time.  Some of us saw the family of a murdered child sitting in the courtroom, as if something could ever be done to bring back the young person who had brought light into their lives, and was now forever silenced.  Sometimes, we watch, helplessly, as one lawyer does something terrible to another lawyer, simply because he can.  But then, that goes back to the fact that there are bad people in all situations.  I sometimes feel that the practice of law can be described as a study in just how many ways human beings can hurt each other, and if anything good is to come of any of this, maybe it is that these shared observations make us better people. That is, if we permit ourselves to be touched by them. Even if we are powerless to correct the things that we see go wrong all around us in our daily lives, we can at least recognize the fact that these things go on, and in some small effort to balance things out in the world, we sometimes reach out to help someone who has also seen these things, and who may have fallen into some difficulty of his own. 

 

Sometimes, especially in my present situation, I begin to feel helpless, and at just such a time, I reached out to a member of the legal community whom I had met at this year’s bar convention.  This “reaching out” connected me to a retired judge before whom I had scarcely practiced, and who probably scarcely recognized my face.  Nevertheless, this man was willing to help. “There aren’t going to be that many Court appearances in the collections business, since most people never even file and Answer.”  He went on.  “You have to learn the federal Rule as to notifying people that you’re collecting a debt, but other than that, it isn’t something that you can’t teach yourself—it’s not overly complicated.”  He then got out a double-sided page of suggestions he had printed up for me in preparation for out meeting.  “Here are some things I jotted down to get you started back into practice,” he continued, and we began to go down the list.  Inevitably, the issue of health insurance came up.  I have coverage for a while longer under my ex-wife’s plan, but once my COBRA continuation of benefits runs out, I had either better have a job that provides equally good coverage, or I had better find someone who will marry me and also has some excellent health insurance benefits.  It sounds funny, and somewhat like I’m making too much of an issue out of it, but in actuality, I need health insurance, or I’m a dead man.  “Just one of my medications, of which there are many, runs over $1,600 a month, and I have no choice but to take it.  Much like my insulin.”  “Whoa,” the judge paused, “now that’s a real issue.  Maybe you’d be better off looking at working for the state in order to get the insurance coverage.  That’s about the best thing you can do if you need the type of coverage you require.  Even if it’s a job counting the number of blocks in a concrete wall, the job isn’t the important thing, it’s the health benefits.”  I knew this fact all too well, but how to get that elusive, yet not-too-fulfilling job of counting those concrete blocks?  That remains a tough question. 

 

In addition to the judge who generously invited me into his home to help me in my quest for a way to continue my life without the need to file for disability, an old acquaintance of mine had recently spoken briefly at the Bar Convention in Covington.  I didn’t have a chance to say hello to him at the time, so I simply shot him a quick email saying “good to see you” and “You’ll have to fill me in on what you’re doing at the ABA sometime.” To my surprise, this gentleman returned my email, and also invited me to have lunch with him.  We had done this in the past, but never while he was quite so busy with all sorts of matters involving his position with the ABA, so as busy as he is, I never expected him to have the time to talk to me about life, health, medical insurance, and how to survive in my present situation.  Nevertheless, we met for an hour over lunch, and he took time from his unbelievably hectic schedule to contact a few other lawyers and to pass my resume along to them.  Quite honestly, I was stunned.  My friend not only took the time to listen to my problems, but took an active role in trying to help me out in the best way that he could.  I suppose the best way I can describe the quality that I had now observed first-hand in two very prominent Kentucky lawyers would be to call it “Civility.”  I came to these men with nothing to offer either of them.  They both lead extremely busy lives, and have little time for matters that are unimportant to them.  In spite of everything that each of these men is involved with in his own life, however, each made an extra effort to be civil toward me, and each went well out of his way in reaching out to someone who was in need of help.  I am asking to have this posted on LawReader not so much as a way of saying “Thank You” to the two men who took time out of their busy schedules to try to help me out, but rather, as a way of showing some of you who may read this narrative that there are still lawyers out there who are willing, if not seeking, to be civil, helpful, and generous to others in the profession.  I will admit that there have been times when I have felt that civility was dead in the practice of law.  Perhaps it required me to reach the lowest point in my career in order to clearly see that some of us still actively work at being decent human beings in spite of the fact that we are lawyers, or perhaps, because of the fact that we are lawyers.  Hopefully, it is the latter.  I am also hoping that the actions of these two lawyers will serve as a reminder to the rest of us that no matter how busy or successful we become, we still have a duty to ourselves and to the profession to put ourselves second to the needs of another, from time to time. 

 

I suspect that, at least for the two lawyers who are the subject of this narrative, civility is simply a way of life.  It is not something that either of them thinks about as so many “poker chips” or “points” that one must accumulate on the “good side” of civility, or a way to stay within the ethical rules regarding the same, but rather, they have become practiced at being decent people, after decades of being leaders in a profession that has unfortunately become known for those members who refuse to behave in a civil manner, either toward fellow members of the bar, or toward the public in general.

 

My problems are not resolved, but at least I feel that there are still some members of the bar out there who will make a genuine attempt to do the right thing, regardless of how busy or important they have become.  I hope that we can all learn from the actions of these two lawyers, and if we all learn to keep civility a high priority in our own lives and practices, life will be better for all of us in the legal profession.  Maybe we can even convince a few people on the outside that, among lawyers, there are a great many truly good people.

 

Kurt K. Mohnsam, Esq.

kmohnsam@gmail.com

Gov. Chips Away At State Senate Majority -Appoints Sen. Borders to PSC

Thursday, July 16th, 2009

FRANKFORT, Ky.—Gov. Steve Beshear announced today the appointment of State Senator Charlie Borders as a commissioner of the Kentucky Public Service Commission (PSC). As one of three commissioners, Sen. Borders will join Chairman David Armstrong and Vice-Chairman James Gardener in rendering decisions on the rates and services of utilities serving nearly every Kentucky resident.

Sen. Borders is resigning his seat a Senator for the 18th Senate District, effective immediately. He begins his tenure on the PSC this week.

“Sen. Borders’ long history of leadership and deep commitment to public service are unmatched,” said Gov. Beshear. “I welcome his knowledge and experience to one of Kentucky’s largest and most wide-reaching commissions.”

Representing the 18th Senate District since his election in 1990, Sen. Borders currently serves as Chairman of the important Appropriations and Revenue Committee, which plays an integral role in state budgetary matters.

He has served on numerous additional committees during his 19-year career, including Education, Health & Welfare, Transportation, Energy and Program Review. As a former member of the Council on Post Secondary Education and Workforce Investment Board, Sen. Borders proved to be a dedicated advocate for implementing best practices and forward-thinking initiatives.

Currently employed as Executive Director of King’s Daughters Health Foundation and Director of Administrative Services for King’s Daughters Medical Center, Sen. Borders received his B.S. Degree in Business Administration and MBA from Morehead State University. A 22-year employee of Ashland, Inc., Sen. Borders also is an unwavering community leader, having served as President of Russell Rotary Club and as an active member of the Oak Grove Church of Christ.

“I am honored to have the opportunity to continue serving the people of Kentucky as a commissioner of the PSC,” said Sen. Borders. “I look forward to bringing my skills and familiarity in business, administration and beyond to the commission as we work together to ensure the proper regulation of important rates and services.”

“I am pleased that Sen. Borders has accepted this challenging new role and welcome him to the PSC,” Chairman Armstrong said. “His extensive experience in government and the private sector will be invaluable as we address the many complex issues before us.”

Armstrong also thanked outgoing Commissioner John Clay for his years of service.

“Commissioner Clay’s wise counsel was extremely helpful to Vice Chairman Gardner and myself when we joined the PSC,” Armstrong said. “It has been a pleasure to serve with him.”

The Kentucky Public Service Commission is a three-member administrative body with quasi-legislative and quasi-judicial duties and powers regulating more than 1,500 utilities. The commission’s primary responsibility is to foster the provision of safe and reliable service at a reasonable price while providing for the financial stability of utilities by setting fair and just rates and supporting their operational competence by overseeing regulated activities.

Currently, the Commission regulates the intrastate rates and services of investor-owned electric, natural gas, telephone, water and sewage utilities, customer-owned electric and telephone cooperatives, water districts and associations, and certain aspects of gas pipelines. For more information about the PSC, visit: http://psc.ky.gov.

 

FRANKFORT, Ky.—Gov. Steve Beshear today set the date for a special election to fill a vacant seat in Senate District 18.

The vacancy is the result of the resignation of Sen. Charlie Borders, whom Gov. Beshear named a commissioner for the Kentucky Public Service Commission (PSC). Borders resignation is immediate. His appointment to the PSC is effective this week.

The special election will be held on Tuesday, Aug. 25, 2009 for the district that encompasses Bracken, Carter, Greenup, Lewis, Mason and Robertson counties. KRS 118.730 dictates that governor must issue the writ for a special election for a member of the General Assembly, if the vacancy occurs when the legislature is not in session.

In accordance with KRS 118.760, nominations to fill vacancies at special elections are made pursuant to the governing authority of the party in the territory which the election is to be held. Petitions and certificates of nomination may be filed 28 days before the day of election, and if filed with the Secretary of State, shall be immediately certified by the Secretary of State to the proper county clerks per KRS 118.770.

Ohio Appellate Judge Mark P. Painter has been elected to a seven year term on the new “United Nations Appeals Tribunal” – Leaves Ohio Appellate Bench

Tuesday, July 14th, 2009

Judge Mark P. Painter after 27 years on the Ohio bench has been elected to serve on the United Nations Appeals Tribunal. 

 

General Assembly appoints 12 judges to United Nations dispute tribunals

 

in key step to improve organization’s internal justice system

 

The General Assembly today appointed five judges to serve on the United Nations Dispute Tribunal, and seven for the United Nations Appeals Tribunal ‑‑ key bodies created in 2007 to help bolster the world body’s system of dealing with internal grievances and disciplinary cases.

 

Today’s action followed up the Assembly’s resolution 62/228 on “administration of justice at the United Nations”, which established the basic framework for a new independent, transparent, professionalized, and decentralized system of administration of justice.  That text also emphasized the importance of an efficient and effective system of internal justice to ensure that individuals and the Organization were held accountable for their actions, in accordance with relevant resolutions and regulations.

 

Among other things, the resolution established a two-tier formal system for the administration of justice, comprising a first instance United Nations Dispute Tribunal ‑‑ with registries established in New York, Geneva and Nairobi, three of the world body’s main headquarters ‑‑ and an appellate Tribunal, to be based in New York.

 

The Assembly also decided that the judges would serve only one non-renewable term of seven years on either Tribunal, with the exception of two of the initial judges of the Dispute Tribunal and three of the initial judges of the Appeals Tribunal ‑‑ to be determined by the drawing of lots ‑‑ who would serve three years and may consequently apply to the same Tribunal for a non-renewable term of seven years.

 

Another body created under resolution 62/228, the Internal Justice Council, reviewed applications in July 2008 and interviewed shortlisted candidates in September 2008.  The Assembly adopted the statutes of the respective Tribunals in resolution 63/253, and the two bodies will be operational as of 1 July 2009.

 

According to article 4(2) of the Dispute Tribunal’s statute, no two judges should be of the same nationality, and due regard should be given to geographical distribution and gender balance.  Article 4(3) requires that, for an appointment, “a person shall be of high moral character and possess at least 10 years of judicial experience in the field of administrative law, or the equivalent, within one or more national jurisdictions”.

 

Having received the required majority of votes in the Assembly today, the following were appointed full-time judges to the United Nations Dispute Tribunal, for seven-year terms beginning 1 July 2009:  Mr. Thomas Laker (Germany) to Geneva, Mr. Vinod Boolell (Mauritius) to Nairobi and Ms. Memooda Ebrahim-Carstens (Botswana) to New York.

 

Elected to the Dispute Tribunal as half-time judges, whose terms would also begin on 1 July, were Ms. Coral Shaw ( New Zealand) and Mr. Goolam Hoosen Kader Meeran ( United Kingdom).  As a transitional measure, the Assembly drew lots, selecting Ms. Ebrahim-Carstens ( Botswana) and Mr. Meeran ( United Kingdom).

 

The Assembly next elected the judges of the Appeals Tribunal.  To be eligible for appointment as a judge, article 3(3) of the Appeals Tribunal’s statute requires that “a person shall be of high moral character and possess at least 15 years of judicial experience in the field of administrative law, or the equivalent within one or more national jurisdictions”.

 

Elected to seven-year terms on the Appeals Tribunal, to begin on 1 July 2009, were:  Mr. Kamaljit Singh Garewal ( India); Ms. Sophia Adinyira ( Ghana); Mr. Mark P. Painter ( United States); Ms. Inés Weinberg de Roca ( Argentina); Mr. Jean Courtial ( France); Ms. Rose Boyko ( Canada); and Mr. Luis Maria Simón ( Uruguay).

 

Drawing lots, the Assembly then appointed Mr. Painter (United States), Mr. Courtial (France) and Mr. Garewal to serve three-year terms on the Appeals Tribunal, beginning 1 July 2009.

 

Just ahead of the elections, the representative of France, speaking on behalf of the French-speaking ambassadors, said that the members of the Organisation internationale de la Francophonie fully supported the reforms to the United Nations internal justice system.

 

At the same time, he asked why, with two or three candidates being considered for each post on the Dispute Tribunal, there was such a dearth of French-speaking candidates for full-time judges in the New York registry.  French was one of the working languages of the United Nations, and considering the applications of so few French-speaking candidates risked impeding the ability of some civil servants in their appearance before the Tribunal.

 

Agreeing, Senegal’s representative reaffirmed his country’s attachment to the creation of the Tribunal, but said the lack of candidates who spoke or understood French was regrettable as it could impose serious constraints on civil servants wishing to make their case before the body.

 

Later in the meeting, the representative of Canada said today’s elections marked an important step towards the realization of the long-overdue reform of the United Nations system of internal justice.  Still, the New York-based registry for the Dispute Tribunal might be unable to respond adequately to the needs of French-speaking individuals.  Canada would add its voice to those that had called on the Internal Justice Council to give due consideration to that matter in the future.

 

At the outset of the meeting, the Assembly Vice-President announced that Paraguay had made the necessary payments to reduce its arrears below the amount required under Article 19 of the United Nations Charter.

 

[Under Article 19, a Member State in arrears in the payment of its dues in an amount that equals or exceeds the contributions due for two preceding years can lose its vote in the General Assembly.]

 

The General Assembly will meet again at a time and date to be announced.

 

Boyd County to dedicate new judicial center July 17 –Public Invited

Monday, July 13th, 2009

FRANKFORT, Ky. — The public is invited to a dedication ceremony for the Boyd County Judicial Center on Friday, July 17, at 11 a.m. EDT at 2805 Louisa St. in Catlettsburg. 

“This beautiful, modern and secure facility is a very welcome addition to Boyd County and the city of Catlettsburg,” Boyd County Judge-Executive William “Bud” Stevens said. “It will serve the needs of our judicial system for several generations.”  

Kentucky courthouses have held a special place as the center of our communities since the early days of the commonwealth, Chief Justice of Kentucky John D. Minton Jr. said. 

“The new Boyd County Judicial Center will provide an efficient facility where citizens can carry out court business and seek access to justice,” he said. “I appreciate the county leaders and state legislators who joined the Judicial Branch in making this project a reality.”

The judicial center consists of approximately 64,000 square feet and includes space for Circuit Court, District Court, the Office of Circuit Court Clerk and ancillary services.

The new court facility increases efficiency of services and public flow. It is equipped with the latest computer, video and networking technology. The design also provides the highest level of Kentucky court security through a single-point entry with magnetometers and security personnel. In addition, prisoners will be segregated from the public by separate entrances and corridors.

The Boyd County Judicial Center was designed to meet the standards required by the Administrative Office of the Courts. Louis & Henry Group of Louisville served as the architect, Codell Construction of Winchester was the construction manager and Ross, Sinclaire & Associates was the financial agent.

Chief Justice Minton and Judge-Executive Stevens will be among the speakers at the dedication ceremony. State legislators, circuit and district judges, the Boyd County circuit court clerk, county magistrates, AOC staff and local officials are also expected to attend. For more information, contact Judge-Executive Stevens at 606-739-4134.

As the administrative and fiscal agent for the Kentucky Court of Justice, the AOC oversees the construction and maintenance of court facilities statewide. The AOC also supports the activities of 3,800 court system employees, including the elected justices, judges and circuit court clerks.

California Supreme Court allows challenges to Breathalyzer results

Thursday, July 9th, 2009

 

L.A. Times, July 9, 2009

 

The court permits drunk-driving defendants in some cases to question blood-alcohol findings, which are sometimes inaccurate depending on factors such as gender and medical conditions.

 

Accused drunk drivers now have more ammunition for challenging Breathalyzer findings as a result of a unanimous ruling Thursday by the California Supreme Court.

The ruling is expected to make drunk-driving cases more complicated and possibly more difficult to prosecute, lawyers said. Courts in two other states, Arizona and Vermont, have reached similar conclusions.

Under the law, a suspected drunk driver can submit to either a blood test, which measures the amount of alcohol in the blood, or a breath test. Alcohol levels in a breath sample are converted mathematically to derive a blood-alcohol percentage. In California, a person is legally drunk when his or her blood-alcohol level is 0.08% or higher.

The standard formula for converting breath results to blood-alcohol levels is not accurate for everyone, however, and can vary depending on an individual’s medical condition, gender, temperature, the atmospheric pressure and the precision of the measuring device, the court said.

“The question is whether a defendant who has a blood-alcohol concentration of 0.08% or more measured by breath is entitled to rebut that presumption that he was under the influence” in certain cases, Justice Carol A. Corrigan wrote. The court’s answer was yes.

Even though experts say the standard ratio used to derive a blood-alcohol concentration from breath generally approximates or even underestimates the amount of alcohol the driver consumed, they also agree that Breathalyzer results may sometimes overestimate the amount of alcohol in the blood.

Thursday’s ruling permits defendants in some cases to challenge those results based on mathematical ratios.

“Evidence casting doubt on the accuracy of the breath-to-blood conversion ratio is just as relevant as other evidence rebutting the presumption of intoxication from a breath test result, such as evidence that the defendant had a high tolerance for alcohol or performed well in field sobriety testing,” Corrigan wrote.

San Bernardino County Deputy Dist. Atty. Mark A. Vos, who prosecuted the case before the court, said the ruling was “going to make DUI trials a little more difficult to put on” because more technical evidence will be permitted.

“The numbers are going to be flying back and forth in DUI trials, so prosecutors are going to have to adapt,” Vos said.

Jamie L. Popper, the appellate defense lawyer in the case, said the ruling will ensure that juries have the information they need to judge a case.

“The situation currently is that juries are led to believe that when a person blows into the breath test, the blood-alcohol measure that breath test gives is a fact, when all a breath test is is a measure,” Popper said.

The ruling came in an appeal brought by Timmie Lance McNeal, who will not benefit from the decision because the court concluded that the jury would still have convicted him even if he had been permitted to challenge the conversion formula.

McNeal, like most drunk-driving defendants, was charged under two separate laws. One of them says a person is presumed to be intoxicated if his or her blood-alcohol level is 0.08% or higher, regardless of how it was measured.

The jury failed to convict McNeal under that law after evidence was presented that the Breathalyzer may not have been working properly. Of five breaths, the device was able to produce only two samples suitable for testing. Both registered a blood-alcohol level of 0.10%.

But the jury still convicted him of driving under the influence under a law that does not depend on blood-alcohol levels.

That law requires only proof that a defendant’s ability to drive safely was impaired by alcohol consumption. The blood-alcohol measure is evidence, but not proof, of intoxication.



California Prosecutor May Lose Law License for Prosecutorial Misconduct

Thursday, July 9th, 2009

July 7, 2009

A California a state bar judge recommended that Santa Clara County prosecutor Ben Field be suspended from the practice of law for four years.

Field, 44, once a star prosecutor had harbored ambitions of becoming district attorney or a county judge, said Tuesday he has no intention of dropping his fight against the bar discipline.

The court found that he abused his prosecutorial powers and committed misconduct in four criminal cases that resulted in the violation of the constitutional rights of defendants.

In a scathing 67-page ruling, Judge Pat McElroy described Field as an “overzealous” prosecutor who violated a host of ethical rules in the four criminal cases, ranging from disobeying judges’ orders to hiding crucial evidence from defense lawyers that could have helped their clients.

Allen Ruby, Field’s lawyer, said he plans to file Field’s brief appealing the bar court ruling on Aug. 10. Bar prosecutors say they plan to file their response to Field’s brief, in the bar court’s appellate division, in September.

Field also faces a civil suit, which stems from his actions in a case central to the disciplinary matter. Donna Auguste, the aunt of a suspect whom Field had prosecuted, contends that Field improperly authorized a raid of her house looking for evidence against her nephew during post-verdict proceedings.

California prosecutors like Field, with 15 years’ experience, are paid more than $180,000 a year

NKBA sponsors Evening of Baseball at Florence Freedom- Aug. 6, 2009

Tuesday, July 7th, 2009

Join us for an evening of baseball, networking and fun at the NKBA Thirsty Thursday Night at the Florence Freedom

                                                  August 6, 2009 ~ Game Time:  7:05 P.M.

                                                  Cost$22 per person includes

·                 Game ticket in the Gold Nest ~ sheltered area behind home plate

·                 VIP BBQ Buffet: Shredded BBQ pork, hamburgers, hot dogs, chicken tenders, mixed salad, cole slaw, potato salad, baked beans, mac and cheese, dessert and soft drinks.

·                 Miller Lite draft beer for an addition $1 each

·                 Waitress Service

·                 All night pass to the Kids Zone

Reserve your seat by contacting Julie Jones at 859-781-1277, Extension 104 or juliejones.director@nkybar.com

 

Have a great day,

Julie L. Jones

NKBA Executive Director

529 Centre View Boulevard

Crestview Hills, Kentucky 41017
juliejones.director@nkybar.com
859-781-4116
859-781-1277 (fax)

 

LAWREADER USER DICK LAWRENCE and Co-Counsel KEN SIGLEMAN SCORE $30 MILLION DOLLAR MEDICAL MALPRACTICE VERDICT IN OHIO –

Monday, July 6th, 2009

   

July 6, 2009

 

LawReader user Richard “Dick” Lawrence of the Lawrence Firm in Covington, Ky. and Co-counsel Ken Sigelman of San Diego, tried the case which took four weeks, in Dayton, Ohio.  The plaintiff’s verdict is the largest malpractice award in Ohio history.

 

Lawrence credits Co-counsel Patrick Beirne of the Lawrence Firm with an essential role in the success of the litigation.

 

Ken Sigelman besides being a national known attorney who has successfully tried many brain injury cases, is a medical doctor.

 

 The Jury in the Dayton Court of Common Pleas was given the case on Wednesday June 24th. in the afternoon.  On Thursday afternoon the jury reached a verdict and awarded the Plaintiff (now 8 1/2 years old) a total of $30,953,181.00

 

The plaintiff was brain damaged at birth due to a failure of the nursing staff to properly monitor the birth and their malpractice caused a uterine rupture which severally injured the child.  The jury awarded the entire sum against the hospital and found no malpractice by the attending physician.

 

The largest Kentucky malpractice award is believed to have been in the Bailey case.  That award was for $23.5 million.

 

We believe this is the largest verdict Lawrence has participated in during his long and successful career as a medical malpractice lawyer.  Lawrence, a nationally recognized malpractice lawyer, is no stranger to large awards but this verdict shows that as he advances towards the retirement age for most people, he is still going strong.

 

 

The presiding Judge was Judge O’Connell

 

 

 

KY. SUPREME COURT INVITES CASE TO EXPAND EXPUNGEMENT LAW

Monday, July 6th, 2009

 

Every once in awhile the Supreme Court sends a message that if an enterprising litigant will submit the right case that the court may be amenable to consider relief that they have not previously granted.   They can only work with the material sent them on appeal.

 

The efficient LawReader staff found such a message in a concurring opinion by Justice Cunningham issued in June of 2009.  So if you seek an expungement that is not otherwise authorized by statute, then you might consider sending this issue to the Supreme Court.

 

In Gibson v. Commonwealth, No. 007-SC-000481-DG (Ky. 6/25/2009) (Ky., 2009)

Justice Cunningham said:

 

 CUNNINGHAM, JUSTICE, CONCURRING:

        I concur with the excellent opinion of Justice Venters. Furthermore, it is my opinion that the trial court’s characterization of dismissing a criminal charge “with prejudice” is an unconstitutional invasion by the judiciary into an executive function, and is without any legal effect pursuant to Sections 27 and 28 of the Kentucky Constitution. The trial court has no constitutional authority to instruct the prosecution as to what crimes it can prosecute.

 

        I would also point out for the benefit of the hapless Appellant — with whom I am sympathetic — that upon a showing of “extraordinary circumstances” there appears to be some wiggle room for expungement, in spite of KRS 431.076. Commonwealth v. Holloway, 225 S.W. 3d 404 (Ky. App. 2007). While the issue is not before us in this case, I would be in favor of adopting the balancing test when it comes to expungement as mentioned in Holloway, and as set down in Diamond v. U.S., 649 F.2d 496 (7th Cir. 1981).

 

 

In Commonwealth v. Holloway, 225 S.W. 3d 404 (Ky. App. 2007).  The court suggested that the court has the right to grant expungements which are not otherwise authorized by KRS 431.076 under “its inherent powers to expunge a record in instances of extraordinary circumstances, such as illegal prosecutions, arrests under unconstitutional statutes, or where necessary to vindicate constitutional or statutory rights.”

The Court in Holloway said:

“The Commonwealth argues that the trial court ignored the language of the statute and failed to give it its plain meaning, that the court was without inherent power to order expungement absent legislative authorization, and that, by ordering expungement, the court violated the separation of powers. This Court agrees with the Commonwealth’s first argument, but disagrees with its other two. Regardless, this Court finds that there was no justification for expungement under the law and hereby reverses the order of the Fayette Circuit Court.

        ”Where the words used in a statute are clear and unambiguous and express the legislative intent, there is no room for construction and the statute must be accepted as it is written.” Griffin v. City of Bowling Green, 458 S.W.2d 456, 457 (Ky.1970). Here, the words of KRS 431.076 are clear and unambiguous. They plainly state that records can be expunged when there is a verdict of not guilty or when a case is dismissed with prejudice. The Legislature intentionally put the words “with prejudice” in the statute. Reading the statute to also include instances where a case was dismissed without prejudice would disregard the plain language of the statute. “[A] court may not insert language to arrive at a meaning different from that created by the stated language in a statute.” Peter Garrett Gunsmith, Inc. v. City of Dayton, 98 S.W.3d 517, 520 (Ky.App.2002).

        As for the Commonwealth’s other two arguments, case law says that a court can expunge judicial and executive records in instances that do not have statutory authority. U.S. v. Doe, 556 F.2d 391, 393 (6th Cir.Ohio 1977), the court states that “[i]t is within the inherent equitable powers of a [court] to order the expungement of a record in an appropriate case.” Kentucky case law is scarce when dealing with inherent powers to expunge records. The issue, however, has been heavily litigated in federal courts. Most federal courts hold that a court can use its inherent powers to expunge a record in instances of extraordinary circumstances, such as illegal prosecutions, arrests under unconstitutional statutes, or where necessary to vindicate constitutional or statutory rights. U.S. v. Gillock, 771 F.Supp. 904, 908 (W.D.Tenn.1991).

        The courts’ power to expunge matters from records is one of `exceedingly narrow

[225 S.W.3d 407]

scope’ to be reserved for extreme cases and is not to be used routinely. The mere fact that an individual is not convicted on the charges on which he was arrested does not entitle him to expungement of the arrest record. Rather, expungement is ordinarily reserved for remedying the denial of an individual’s constitutional rights.

        Coles v. Levine, 561 F.Supp. 146, 153 (D.Md.1983) (citations omitted). In the case at bar, there were no constitutional infractions alleged that required a remedy; nor were there extraordinary circumstances found to take into account. “To permit law enforcement officials to retain arrest records, photographs or fingerprints promotes more effective law enforcement. Allowing the police broad discretion in retaining arrest records enables them to utilize more efficiently their facilities for combating crime. Moreover, arrest records may be vital in curbing the growth of crime.” U.S. v. Rosen, 343 F.Supp. 804, 809 (S.D.N.Y.1972). Since there is a public interest in keeping criminal records, absent some showing of extraordinary circumstances, records cannot be expunged.

 

There is a string of cases from the United States Court of Appeals for the Seventh Circuit that use a balancing test to determine whether or not a court can expunge records. In Diamond v. U.S., 649 F.2d 496 (7th Cir.1981), that court approved a “case-by-case approach” in which “`the court must weigh the reasons advanced for and against expunging arrest records.’ If the dangers of unwarranted adverse consequences to the individual outweigh the public interest in maintenance of the records, then expunction is appropriate.” Id. at 499 (citation omitted); U.S. v. Bohr, 406 F.Supp. 1218 (D.C.Wisc.1976); U.S. v. Janik, 10 F.3d 470 (7th Cir.1993). In this case, however, there have been no factual findings that Holloway’s reasons for receiving an expungement outweigh the need of the Commonwealth to retain those records.

        We note that Holloway does have another remedy that is provided by statutory authority. KRS 17.142 permits application for the segregation of records when all charges have been dismissed, without the requirement of a dismissal with prejudice. KRS 17.142 reads:

        (1) Each law enforcement or other public agency in possession of arrest records, fingerprints, photographs, or other data whether in documentary or electronic form shall upon written request of the arrestee as provided herein segregate all records relating to the arrestee in its files in a file separate and apart from those of convicted persons, if the person who is the subject of the records:

        (a) Is found innocent of the offense for which the records were made; or

(b) Has had all charges relating to the offense dismissed; or

        (c) Has had all charges relating to the offense withdrawn.

        (2) A person who has been arrested and then has come within the purview of subsection (1) of this section may apply to the court in which the case was tried, or in which it would have been tried in the event of a dismissal or withdrawal of charges, for segregation of the records in the case. Upon receipt of such application the court shall forthwith issue an order to all law enforcement agencies in possession of such records to segregate the records in accordance with the provisions of this section.

[225 S.W.3d 408]

        (3) Each law enforcement agency receiving an order to segregate records shall forthwith:

        (a) Segregate the records in its possession in a file separate and apart from records of convicted persons;

b) Notify all agencies with which it has shared the records or to which it has provided copies of the records to segregate records; and

        (c) All records segregated pursuant to this section shall show disposition of the case.

        (4) Records subject to the provisions of KRS 431.076 or 431.078 shall be sealed as provided in those statutes.

        This statute would allow Holloway to have the records held by any public agency segregated and removed from the public record. This statute does not however apply to judicial records. Commonwealth v. Shouse, 183 S.W.3d 204 (Ky.App.2006). While this remedy does not rise to the level of an expungement, it does provide for some relief.

        The order of the Fayette Circuit Court is reversed.

        KNOPF, Senior Judge, concurs

 

 

New Law Increases Dollar Amount of Felony and Misdemeanor

Monday, July 6th, 2009

 

Under a new law which went into effect on June 25, 2009, the dollar amount for felony offenses has been increased.

 

A class D felony now requires theft , extortion or damage to property of a minimum of $500, A class C felony now requires $10,000.

 

The following statutes have been amended.

 

KRS 514.030 Theft by unlawful taking or disposition — Penalties.

 

 (1) Except as otherwise provided in KRS 217.181 or 218A.1418, a person is guilty of theft by unlawful taking or disposition when he unlawfully:

(a) Takes or exercises control over movable property of another with intent to deprive him thereof; or

(b) Obtains immovable property of another or any interest therein with intent to benefit himself or another not entitled thereto.

(2) Theft by unlawful taking or disposition is a Class A misdemeanor unless the value of the property is five hundred dollars ($500) or more, in which case it is a Class D felony; or unless:

(a) The property is a firearm (regardless of the value of the firearm), in which case it is a Class D felony;

(b) The property is anhydrous ammonia (regardless of the value of the ammonia), in which case it is a Class D felony unless it is proven that the person violated this section with the intent to manufacture methamphetamine in violation of KRS 218A.1432, in which case it is a Class B felony for the first offense and a Class A felony for each subsequent offense; or

(c) The value of the property is ten thousand dollars ($10,000) or more, in which case it is a Class C felony.

Effective: June 25, 2009

History: Amended 2009 Ky. Acts ch. 106, sec. 6, effective June 25, 2009. — Amended 2000 Ky. Acts ch. 233, sec. 8, effective July 14, 2000. — Amended 1998 Ky. Acts ch. 301, sec. 9, effective July 15, 1998. — Amended 1994 Ky. Acts ch. 314, sec. 2, effective July 15, 1994. – Amended 1992 Ky. Acts ch. 451, sec. 1, effective July 14, 1992. — Created 1974 Ky. Acts ch. 406, sec. 119, effective January 1, 1975.

 

KRS 514.040 Theft by deception.

(1) A person is guilty of theft by deception when the person obtains property or services of another by deception with intent to deprive the person thereof. A person deceives when the person intentionally:

(a) Creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind;

(b) Prevents another from acquiring information which would affect judgment of a transaction;

(c) Fails to correct a false impression which the deceiver previously created or reinforced or which the deceiver knows to be influencing another to whom the person stands in a fiduciary or confidential relationship;

(d) Fails to disclose a known lien, adverse claim, or other legal impediment to the enjoyment of property which the person transfers or encumbers in consideration for the property obtained, whether the impediment is or is not valid or is or is not a matter of official record; or

(e) Issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee.

(2) The term “deceive” does not, however, include falsity as to matters having no pecuniary significance or puffing by statements unlikely to deceive ordinary persons in the group addressed.

(3) Deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise.

(4) For purposes of subsection (1) of this section, a maker of a check or similar sight order for the payment of money is presumed to know that the check or order, other than a postdated check or order, would not be paid, if:

(a) The maker had no account with the drawee at the time the check or order was issued; or

(b) Payment was refused by the drawee for lack of funds, upon presentation within thirty (30) days after issue, and the maker failed to make good within ten (10) days after receiving notice of that refusal. Notice of the refusal may include a citation to this section and a description of this section’s criminal penalties and shall be deemed properly addressed when mailed to the address printed or written on the check or sight order or provided by the drawer or maker upon issuance of the check or sight order. The notice, if mailed, shall be deemed received by the addressee seven (7) days after it is placed in the United States mail. The notice may be sent by first-class mail if supported by an affidavit of service setting out the contents of the notice, the address to which the notice was mailed, that correct postage was applied, and the date the notice was placed in the United States mail. A maker makes good on a check or similar sight order for the payment of money by paying to the holder the face amount of the instrument, together with any merchant’s posted reasonable bad check handling fee not to exceed fifty dollars ($50) and any fee imposed pursuant to subsection (5) of this section.

(5) If a county attorney issues notice to a maker that a drawee has refused to honor an instrument due to a lack of funds as described in subsection (4)(b) of this section, the county attorney may charge a fee to the maker of fifty dollars ($50), if the instrument is paid. Money paid to the county attorney pursuant to this section shall be used only for payment of county attorney office operating expenses. Excess fees held by the county attorney on June 30 of each year shall be turned over to the county treasurer before the end of the next fiscal year for use by the fiscal court of the county.

(6) A person is guilty of theft by deception when the person issues a check or similar sight order in payment of all or any part of any tax payable to the Commonwealth knowing that it will not be honored by the drawee.

(7) A person is guilty of theft by deception when the person issues a check or similar sight order in payment of all or any part of a child support obligation knowing that it will not be honored by the drawee.

(8) Theft by deception is a Class A misdemeanor unless the value of the property, service, or the amount of the check or sight order referred to in subsection (6) or (7) of this section is:

(a) Five hundred dollars ($500) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony; or

(b) Ten thousand dollars ($10,000) or more, in which case it is a Class C felony.

Effective: June 25, 2009

History: Amended 2009 Ky. Acts ch. 106, sec. 7, effective June 25, 2009. — Amended 2008 Ky. Acts ch. 84, sec. 1, effective July 15, 2008. — Amended 2005 Ky. Acts ch. 180, sec. 1, effective June 20, 2005. — Amended 2000 Ky. Acts ch. 410, sec. 1, effective July 14, 2000. — Amended 1994 Ky. Acts ch. 330, sec. 21, effective July 15, 1994; and ch. 465, sec. 1, effective July 15, 1994. – Amended 1992 Ky. Acts ch. 434, sec. 5, effective July 14, 1992; and ch. 451, sec. 2, effective July 14, 1992. — Amended 1986 Ky. Acts ch. 207, sec. 1, effective July 15, 1986. — Amended 1982 Ky. Acts ch. 238, sec. 8, effective July 15, 1982; and ch. 305, sec. 1, effective July 15, 1982. — Created 1974 Ky. Acts ch. 406, sec. 120, effective January 1, 1975.

 

 

KRS 514.050 Theft of property lost, mislaid, or delivered by mistake.

 

(1) Except as provided in KRS 365.710, a person is guilty of theft of property lost, mislaid, or delivered by mistake when:

(a) He comes into control of the property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient; and

(b) With intent to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.

(2) Theft of property lost, mislaid, or delivered by mistake is a Class A misdemeanor unless the value of the property is:

(a) Five hundred dollars ($500) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony; or

(b) Ten thousand dollars ($10,000) or more, in which case it is a Class C felony.

Effective: June 25, 2009

History: Amended 2009 Ky. Acts ch. 106, sec. 8, effective June 25, 2009. — Amended 1992 Ky. Acts ch. 451, sec. 3, effective July 14, 1992. — Created 1974 Ky. Acts ch. 406, sec. 121, effective January 1, 1975.

 

KRS 514.060 Theft of services.

 

(1) A person is guilty of theft of services when:

(a) The person intentionally obtains services by deception or threat or by false token or other means to avoid payment for the services which he knows are available only for compensation;

(b) The person intentionally obtains wireless communications services or access to services by any of the following means:

1. Unauthorized interception of any electronic serial number, mobile identification number, personal identification number, or like identifying number;

2. Unauthorized interception of any cellular service or personal communications service as terms may be defined in 47 C.F.R. parts 22 and 24 respectively;

3. Unauthorized interception of any similar telephone service; or

4. Use of deception, threat, or other means to avoid payment for the services which the person knows are available only for charge or compensation; or

(c) Having control over or unauthorized access to the use of the services of others to which the person is not entitled, the person intentionally diverts the services to the person’s own benefit or the benefit of another not entitled thereto.

(2) Where compensation for services is ordinarily paid immediately upon the rendering of the services, as in the case of hotels and restaurants, refusal to pay or absconding without payment or offer to pay shall be prima facie evidence that the services were obtained by deception as to intention to pay.

(3) In any prosecution for theft of gas, water, electricity, or other public service, where the utility supplying the service had installed a meter or other device to record the amount of service supplied, proof that:

(a) The meter or other device has been altered, tampered with, or bypassed in a manner so as to prevent or reduce the recording thereof; or

(b) Service has been, after having been disconnected by the utility supplying service, reconnected without authorization of the utility shall be prima facie evidence of the intent to commit theft of service by the person or persons obligated to pay for service supplied through the meter or other device.

(4) Theft of services is a Class A misdemeanor unless the value of the service is:

(a) Five hundred dollars ($500) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony; or

(b) Ten thousand dollars ($10,000) or more, in which case it is a Class C felony.

Effective: June 25, 2009

History: Amended 2009 Ky. Acts ch. 106, sec. 9, effective June 25, 2009. — Amended 1998 Ky. Acts ch. 568, sec. 1, effective July 15, 1998. — Amended 1992 Ky. Acts ch. 451, sec. 4, effective July 14, 1992. — Amended 1980 Ky. Acts ch. 99, sec. 1,

effective July 15, 1980, –Created 1974 Ky. Acts ch. 406, sec. 122, effective January 1, 1975.

 

KRS 514.070 Theft by failure to make required disposition of property.

(1) A person is guilty of theft by failure to make required disposition of property received when:

(a) He obtains property upon agreement or subject to a known legal obligation to make specified payment or other disposition whether from such property or its proceeds or from his own property to be reserved in equivalent amount; and

(b) He intentionally deals with the property as his own and fails to make the required payment or disposition.

(2) The provisions of subsection (1) apply notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the actor’s failure to make the required payment or disposition.

(3) An officer or employee of the government or of a financial institution is presumed:

(a) To know any legal obligation relevant to his criminal liability under this section; and

(b) To have dealt with the property as his own when:

1. He fails to account or pay upon lawful demand; or

2. An audit reveals a shortage or falsification of accounts.

(4) Theft by failure to make required disposition of property received is a Class A misdemeanor unless the value of the property is:

(a) Five hundred dollars ($500) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony; or

(b) Ten thousand dollars ($10,000) or more, in which case it is a Class C felony.

(5) No person shall be convicted of theft by failure to make required disposition of property received when he or she has also been convicted of a violation of KRS 522.050 arising out of the same incident.

Effective: June 25, 2009

History: Amended 2009 Ky. Acts ch. 106, sec. 10, effective June 25, 2009. — Amended 2003 Ky. Acts ch. 76, sec. 2, effective June 24, 2003. — Amended 1992 Ky. Acts ch. 451, sec. 5, effective July 14, 1992. — Created 1974 Ky. Acts ch. 406, sec. 123, effective January 1, 1975.

 

 

KRS 514.080 Theft by extortion.

 

(1) A person is guilty of theft by extortion when he intentionally obtains property of another by threatening to:

(a) Inflict bodily injury on anyone or commit any other criminal offense; or

(b) Accuse anyone of a criminal offense; or

(c) Expose any secret tending to subject any person to hatred, contempt, or ridicule, or to impair his credit or business repute; or

(d) Use wrongfully his position as a public officer or servant or employee by performing some act within or related to his official duties, either expressed or implied, or by refusing or omitting to perform an official duty, either expressed or implied, in a manner affecting some person adversely; or

(e) Bring about or continue a strike, boycott, or other collective unofficial action, if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act; or

(f) Testify or provide information or withhold testimony or information with respect to another’s legal claim or defense.

(2) It is a defense to prosecution based on subsection (1)(b), (c), or (d) that the property obtained by threat of accusation, exposure, lawsuit, or other invocation of official action was claimed as restitution or indemnification for harm done in the circumstances to which accusation, exposure, lawsuit, or other official action relates, or as compensation for property or lawful services.

(3) Theft by extortion is a Class A misdemeanor unless the value of the property obtained is:

(a) Five hundred dollars ($500) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony; or

(b) Ten thousand dollars ($10,000) or more, in which case it is a Class C felony.

Effective: June 25, 2009

History: Amended 2009 Ky. Acts ch. 106, sec. 11, effective June 25, 2009. — Amended 1992 Ky. Acts ch. 451, sec. 6, effective July 14, 1992. — Created 1974 Ky. Acts ch. 406, sec. 124, effective January 1, 1975.

 

 

KRS 514.090 Theft of labor already rendered.

 

(1) A person is guilty of theft of labor already rendered when, in payment of labor already rendered by another, he intentionally issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee.

(2) For purposes of subsection (1) of this section, an issuer of a check or similar sight order for the payment of money is presumed to know that the check or order, other than a postdated check or order, would not be paid, if:

(a) The issuer had no account with the drawee at the time the check or order was issued; or

(b) Payment was refused by the drawee for lack of funds, upon presentation within thirty days (30) after issue, and the issuer failed to make good within ten (10) days after receiving notice of that refusal.

(3) Theft of labor already rendered is a Class A misdemeanor unless the value of the labor rendered is:

(a) Five hundred dollars ($500) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony; or

(b) Ten thousand dollars ($10,000) or more, in which case it is a Class C felony.

Effective: June 25, 2009

History: Amended 2009 Ky. Acts ch. 106, sec. 12, effective June 25, 2009. — Amended 1992 Ky. Acts ch. 451, sec. 7, effective July 14, 1992. — Created 1974 Ky. Acts ch. 406, sec. 125, effective January 1, 1975.

 

 

KRS 514.110 Receiving stolen property.

(1) A person is guilty of receiving stolen property when he receives, retains, or disposes of movable property of another knowing that it has been stolen, or having reason to believe that it has been stolen, unless the property is received, retained, or disposed of with intent to restore it to the owner.

(2) The possession by any person of any recently stolen movable property shall be prima facie evidence that such person knew such property was stolen.

(3) Receiving stolen property is a Class A misdemeanor unless:

(a) The value of the property is five hundred dollars ($500) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony;

(b) The value of the property is ten thousand dollars ($10,000) or more, in which case it is a Class C felony;

(c) The property is a firearm, regardless of the value of the firearm, in which case it is a Class D felony; or

(d) The property is anhydrous ammonia, regardless of the value of the ammonia, in which case it is a Class D felony unless it is proven that the person violated this section with the intent to manufacture methamphetamine in violation of KRS 218A.1432, in which case it is a Class B felony for the first offense and a Class A felony for each subsequent offense.

Effective: June 25, 2009

History: Amended 2009 Ky. Acts ch. 106, sec. 13, effective June 25, 2009. — Amended 2000 Ky. Acts ch. 233, sec. 9, effective July 14, 2000; and ch. 490, sec. 2, effective July 14, 2000. — Amended 1994 Ky. Acts ch. 314, sec. 1, effective July 15, 1994; and ch. 396, sec. 9, effective July 15, 1994. — Created 1974 Ky. Acts ch. 406, sec. 127, effective January 1, 1975.

 

KRS 514.120 Obscuring identity of machine or other property.

(1) A person is guilty of obscuring the identity of a machine or other property when he or she:

(a) Removes, defaces, covers, alters, destroys, or otherwise obscures the manufacturer’s serial number or any other distinguishing identification number or mark, including property marked with a Social Security number or motor vehicle operator’s license number for identification purposes, upon any automobile or other propelled vehicle, machine, or electrical or mechanical device, or other property, including any part thereof, with intent to render it or other property unidentifiable; or

(b) Possesses any automobile or other propelled vehicle, machine, or electrical or mechanical device, or other property, including any part thereof, knowing that the serial number or other identification number or mark, including property marked with a Social Security number for identification purposes, has been removed, defaced, covered, altered, destroyed, or otherwise obscured.

(2) Possession of any automobile or other propelled vehicle, machine, or electrical or mechanical device, or other property, including any part thereof, on which the serial number or any other distinguishing identification number or mark, including property marked with a Social Security number or motor vehicle operator’s license number for identification purposes, has been removed, defaced, covered, altered, destroyed, or otherwise obscured is prima facie evidence of knowledge of that fact.

(3) A person in possession of any property which is otherwise in violation of this section may apply in writing to the Department of Kentucky State Police, through any law enforcement agency in the county of his or her residence, for assignment of a number for the property providing he or she can show that he or she is the lawful owner of the property pursuant to the provisions of this section and KRS 16.200 and 500.090. If a number is issued in conformity with the provisions of this section and KRS 16.200 and 500.090, then the person to whom it was issued and any person to whom the property is lawfully disposed of shall not be in violation of these sections. A person lawfully holding a certification issued pursuant to KRS 500.090 shall also be deemed in compliance with this section. This section shall apply only when the application has been filed by the defendant prior to arrest or authorization of a warrant of arrest for the defendant by a court.

(4) Obscuring the identity of a machine or other property is a Class A misdemeanor unless the value of the property is:

(a) Five hundred dollars ($500) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony; or

(b) Ten thousand dollars ($10,000) or more, in which case it is a Class C felony.

Effective: June 25, 2009

History: Amended 2009 Ky. Acts ch. 106, sec. 14, effective June 25, 2009. — Amended 2007 Ky. Acts ch. 85, sec. 327, effective June 26, 2007. — Amended 1992 Ky. Acts ch. 451, sec. 8, effective July 14, 1992. — Amended 1980 Ky. Acts ch. 267, sec. 5, effective July 15, 1980. — Amended 1978 Ky. Acts ch. 78, sec. 4, effective June 17, 1978. — Created 1974 Ky. Acts ch. 406, sec. 128, effective January 1, 1975.

 

 

KRS 434.650 Fraudulent use — Presumption as to knowledge of revocation.

 

(1) A person who, with intent to defraud the issuer, a participating party, a person, or organization providing money, goods, services, or anything else of value, or any other person:

(a) Uses for the purpose of obtaining money, goods, services, or anything else of value a credit or debit card obtained or retained in violation of KRS 434.570 to 434.650, or any of such sections, or a credit or debit card which he knows is forged, expired, or revoked; or

(b) Obtains money, goods, services, or anything else of value by representing without consent of the cardholder that he is the holder of a specified card or by representing that he is the holder of a card and such card has not in fact been issued; or

(c) Uses a credit or debit card obtained or retained in violation of KRS 434.570 to 434.650, or any of such sections, or a credit or debit card which he knows is forged, expired, or revoked, as authority or identification to cash or attempts to cash or otherwise negotiate or transfer a check or other order for payment of money, whether or not negotiable, if said negotiation or transfer or attempt to negotiate or transfer would constitute a crime under KRS 514.040 or 516.030; or

(d) Deposits into his account or any account, via an automated banking device, a false, fictitious, forged, altered, or counterfeit check, draft, money order, or any other such document not his lawful or legal property, is guilty of a Class A misdemeanor, if the value of all money, goods, services, or other things of value obtained in violation of this section over a six (6) month period is less than five hundred dollars ($500), a Class D felony if such value is five hundred dollars ($500) or more but is less than ten thousand dollars ($10,000), or a Class C felony if such value is ten thousand dollars ($10,000) or more.

(2) A person who receives money, goods, services, or anything else of value as a result of a false, fictitious, forged, altered, or counterfeit check, draft, money order, or any other such document having been deposited into an account via an automated banking device, knowing at the time of receipt of the money, goods, services, or item of value that the document so deposited was false, fictitious, forged, altered, or counterfeit or that the above described deposited item was not his lawful or legal property, violates this subsection and is subject to the penalties set forth in subsection (1) of this section.

(3) Knowledge of revocation shall be presumed to have been received by a cardholder four (4) days after it has been mailed to him at the address set forth on the credit or debit card or at his last known address by registered or certified mail, return receipt requested, and, if the address is more than five hundred (500) miles from the place of mailing, by air mail. If the address is located outside the United States, Puerto Rico, the Virgin Islands, the Canal Zone, and Canada, notice shall be presumed to have been received ten (10) days after mailing by registered or certified mail.

Effective: June 25, 2009

History: Amended 2009 Ky. Acts ch. 106, sec. 1, effective June 25, 2009. — Amended 1992 Ky. Acts ch. 463, sec. 55, effective July 14, 1992. — Amended 1978 Ky. Acts ch. 67, sec. 11, effective June 17, 1978. — Amended 1974 Ky. Acts ch. 406, sec. 326. — Created 1970 Ky. Acts ch. 83, sec. 11.

 

KRS 434.655 Fraudulent use of credit or debit card after reporting it lost, as stolen, or not received.

(1) A cardholder who fraudulently uses a credit or debit card to obtain money, goods, services, or anything else of value after said cardholder has reported to the issuer said credit or debit card lost, as stolen, or not received is deemed to have used said credit or debit card in order to defraud the issuer; and said cardholder shall be guilty of a Class A misdemeanor if the value of all money, goods, services, or other things of value furnished in violation of this section over a six (6) month period is less than five hundred dollars ($500), a Class D felony if such value is five hundred dollars ($500) or more but is less than ten thousand dollars ($10,000), or a Class C felony if such value is ten thousand dollars ($10,000) or more.

(2) A cardholder who, after using a credit or debit card, fraudulently reports to the issuer that such usage or transaction was not made by said cardholder, or that said credit or debit card was lost, stolen, or not received at the time of such usage or transaction, in order to defraud the issuer, the cardholder, or any other person in connection with said usage, shall be guilty of a Class A misdemeanor if the value of all money, goods, services, or other things of value furnished in violation of this section over a six (6) month period is less than five hundred dollars ($500), a Class D felony if such value is five hundred dollars ($500) or more but is less than ten thousand dollars ($10,000), or a Class C felony if such value is ten thousand dollars ($10,000) or more.

Effective: June 25, 2009

History: Amended 2009 Ky. Acts ch. 106, sec. 2, effective June 25, 2009. — Amended 1986 Ky. Acts ch. 377, sec. 1, effective July 15, 1986. — Created 1978 Ky. Acts ch. 67, sec. 17, effective June 17, 1978.

 

 

KRS 434.660 Fraud by authorized persons, business organization, or financial

 

institution.

A person, business organization, or financial institution who is authorized by an issuer to furnish money, goods, services, or anything else of value upon presentation of a credit or debit card by a cardholder, or any agent or employee of such person, business organization, or financial institution, who, with intent to defraud the issuer, a participating party, the cardholder, or any other person, furnishes money, goods, or services or anything else of value upon presentation of a credit or debit card obtained or retained in violation of KRS 434.570 to 434.650, or any of such sections, or a credit or debit card which he knows is forged, expired, or revoked is guilty of a Class A misdemeanor, if the value of all money, goods, services, or other things of value furnished in violation of this section over a six (6) month period is less than five hundred dollars ($500), a Class D felony if such value is five hundred dollars ($500) or more but is less than ten thousand dollars ($10,000), or a Class C felony if such value is ten thousand dollars ($10,000) or more.

Effective: June 25, 2009

History: Amended 2009 Ky. Acts ch. 106, sec. 3, effective June 25, 2009. — Amended 1992 Ky. Acts ch. 463, sec. 56, effective July 14, 1992. — Amended 1978 Ky. Acts ch. 67, sec. 15, effective June 17, 1978. — Created 1970 Ky. Acts ch. 83, sec. 12.

 

 

KRS 434.670 Failure to furnish goods, services, etc., represented in writing as furnished.

A person, business organization, or financial institution who is authorized by an issuer to furnish money, goods, services, or anything else of value upon presentation of a credit or debit card by a cardholder, or any agent or employee of such person, business organization, or financial institution, who, with intent to defraud the issuer, a participating party, the cardholder, or any other person, fails to furnish money, goods, services, or anything else of value which he represents in writing to the issuer that he has furnished over a six (6) month period is guilty of a Class A misdemeanor if the difference between the value of all money, goods, services, or anything else of value actually furnished and the value represented to the issuer to have been furnished is less than five hundred dollars ($500), a Class D felony if such value is five hundred dollars ($500) or more but is less than ten thousand dollars ($10,000), or a Class C felony if such value is ten thousand dollars ($10,000) or more.

Effective: June 25, 2009

History: Amended 2009 Ky. Acts ch. 106, sec. 4, effective June 25, 2009. — Amended 1992 Ky. Acts ch. 463, sec. 57, effective July 14, 1992. — Amended 1978 Ky. Acts ch. 67, sec. 16, effective June 17, 1978. — Created 1970 Ky. Acts ch. 83, sec. 13.

 

KRS 434.690 Receiving goods, services, etc., obtained by fraud — Presumption as to possession of transportation tickets fraudulently obtained.

(1) A person who receives money, goods, services, or anything else of value obtained in violation of KRS 434.650, knowing or believing that it was so obtained is guilty of a Class A misdemeanor, if the value of all money, goods, services, and other things of value received in violation of this section over a six (6) month period is less than five hundred dollars ($500), a Class D felony if such value is five hundred dollars ($500) or more but is less than ten thousand dollars ($10,000), or a Class C felony if such value is ten thousand dollars ($10,000) or more.

(2) A person who possesses three (3) or more tickets for airline, railroad, steamship, or other transportation service, which tickets were obtained by the use of a stolen or forged credit or debit card is presumed to know that such tickets were so obtained.

Effective: June 25, 2009

History: Amended 2009 Ky. Acts ch. 106, sec. 5, effective June 25, 2009. — Amended 1992 Ky. Acts ch. 463, sec. 59, effective July 14, 1992. — Amended 1978 Ky. Acts ch. 67, sec. 14, effective June 17, 1978. — Created 1970 Ky. Acts ch. 83, sec. 15.