Archive for December, 2013

Justice Alito’s slam at Vaughn Walker for Prop. 8 ruling

Tuesday, December 31st, 2013

Posted on December 30, 2013 | By begelko@sfchronicle.com (Bob Egelko)

Legal reporters with time on their hands sometimes leaf through U.S. Supreme Court rulings and see things they’ve never noticed before. Like Justice Samuel Alito’s putdown of San Francisco’s former chief federal judge, Vaughn Walker, for his ruling on same-sex marriage.

In 2010, Walker presided over the nation’s first trial on a state’s prohibition of gay and lesbian nuptials. He invited testimony from scholars on both sides of the debate over Proposition 8, the constitutional ban on same-sex marriage that voters had approved two years earlier.

Supporters of Prop. 8 withdrew most of their witnesses — claiming they’d been intimidated by Walker’s short-lived plan to post videos of the trial on YouTube — but the measure’s opponents presented a parade of researchers on the history and purposes of marriage, the laws that have governed it and its development over the centuries.

Vaughn Walker / Photo by Paul Chinn / The Chronicle
Vaughn Walker / Photo by Paul Chinn, The Chronicle

Walker cited their studies in a detailed set of post-trial findings of fact in August 2010, when he ruled that Prop. 8 was an unconstitutional act of discrimination based on sexual orientation and gender. He found, for example, that marriage had historically been based on assumptions about men’s and women’s roles and males’ inherent authority, that it had evolved into a state-recognized social and economic partnership based on a couple’s mutual commitment, and that there was no evidence that opposite-sex marriages would suffer if same-sex couples were allowed to wed.

When the Prop. 8 case reached the Supreme Court, the justices sidestepped the constitutional issues. Instead, they found in June that the measure’s sponsors, as private citizens with no personal stake in the marriage dispute, lacked legal standing to defend their initiative in federal court after state officials bowed out. That reinstated Walker’s ruling and legalized same-sex marriage in the state.

None of the justices’ opinions mentioned Walker’s factual findings or anything else in his decision. But Alito brought it up in his dissenting opinion from another ruling the same day, a 5-4 decision striking down a key provision of the Defense of Marriage Act, the 1996 law that denied federal benefits to married same-sex couples.

In arguing that the law was constitutional, Alito, joined by Justice Clarence Thomas, said the court was stepping outside the judicial sphere to resolve a debate between “two competing views of marriage.” Citing conservative scholars quoted in House Republicans’ briefs, Alito said the “traditional” view was that marriage was an inherently opposite-sex institution, crafted to produce and support each new generation, while the newer “consent-based” view was based on a couple’s mutual commitment.

Judges should stay out of that debate, Alito said, and leave it to lawmakers and the people. As an example of how the judicial process can go wrong, he cited the Prop. 8 trial.

“The trial judge, after receiving testimony from some expert witnesses, purported to make ‘findings of fact’ on such questions as why marriage came to be … what marriage is … and the effect legalizing same-sex marriage would have on opposite-sex couples,” Alito wrote, referring dismissively to Walker’s summaries of the evidence.

“At times, the trial reached the heights of parody,” the justice declared, when Walker “questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify.”

He was referring to the closing argument of Prop. 8 lawyer Charles Cooper, who cited the views of the late sociologist Kingsley Davis and William Blackstone, the 18th-century British jurist and legal writer, that the essence of marriage was the male-female relationship in conceiving and raising children.

“I don’t mean to be flip,” Walker responded, according to a transcript, “but Blackstone didn’t testify. Kingsley Davis didn’t testify. What testimony in this case supports the proposition?”

Alito went on to condemn a court filing by 11 constitutional law professors who urged the court in the Prop. 8 case to give the same deference to Walker’s findings on marriage that appellate courts normally grant to trial judges who have heard the evidence firsthand.

“Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously,” Alito said.

His comments haven’t gotten much public attention in six months, but they didn’t go unnoticed by the interested parties.

“It is just insulting to the District Court judge and to the trial,” said Erwin Chemerinsky, the law school dean at UC Irvine and one of the 11 law professors who signed the court filing supporting Walker’s findings.

It was also reminiscent of the Prop. 8 supporters’ denunciations of Walker for even holding a trial, said Therese Stewart, San Francisco’s chief deputy city attorney, who represented the city in its suit challenging Prop. 8. In legal motions and public statements, the sponsors of the 2008 ballot measure argued there was no need to gather evidence or hear from witnesses on the constitutionality of limiting marriage to opposite-sex couples, calling it a tradition that has been followed for centuries and repeatedly upheld by the courts.

“I would rather that a judge hear evidence than pull it out of the Internet,” Stewart said, referring to Alito’s reliance on the conservative scholars quoted by House Republicans.

Alito has his defenders. Rory Little, a UC Hastings law professor, said he doesn’t share the justice’s conservative views but praised him for thinking “outside the box” and for pointing out that trial judges sometimes frame their subjective opinions as “findings of fact.”

But Theodore Boutrous, a lawyer for two couples who challenged Prop. 8, said the history of marriage was central to the question of whether denying gays and lesbians the ability to wed violated their constitutional right to equality under the law.

All that Alito did was “summarize the position of Prop. 8′s proponents,” Boutrous said. “He turned the judicial function on its head.”

Alito’s opinion, including footnote 7 that criticizes Walker, can be found at the end of the Supreme Court ruling, linked here: www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf .

Categories: LGBT , Same Sex Marriage , Supreme Court of the United States

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More Than 400 Candidates Have Filed for Office Ahead of January 28, 2014, Deadline

Saturday, December 28th, 2013

Press Release Date: Friday, December 27, 2013
Contact Information: Bradford Queen
Deputy Director of Communications
Secretary of State Alison Lundergan Grimes
(502) 564-3490
Email: lynn.zellen@ky.gov

Secretary of State Alison Lundergan Grimes announced today that more than 400 candidates have already filed with her office to run in the 2014 elections. Candidates who wish to be placed on the ballot for the May 20 Primary Election must file their candidacy papers by 4 p.m. local time at the place of filing on Tuesday, January 28, 2014.

Candidates for the following public offices on the ballot next year must file with the Secretary of State’s office:
• U.S. Senator
• U.S. Representative
• State Senator (even-numbered districts)
• State Representative
• Justice of the Supreme Court (districts 1, 2, 4 and 6)
• Judge of the Court of Appeals
• Circuit Judge
• District Judge

“We anticipate many more candidates will file with my office leading up to the deadline next month,” said Grimes. “I recommend candidates file in advance of the deadline in case filing papers need to be corrected.” Kentucky law does not provide an opportunity to correct or re-file paperwork after 4 p.m. on January 28.

Candidates for county and city offices file with the county clerk in the county in which they reside. All county officers and city legislative body members and several mayors will be on the ballot next year.

Grimes also reminds prospective candidates who wish to attain ballot access in the 2014 regular elections that their party affiliation generally must be established no later than December 31, 2013.

Candidates may access the filing forms required to run for offices that file with the Secretary of State at http://app.sos.ky.gov/ElectionsDYC/.

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DISCUSSION OF ALLOWANCE OF FEE FOR WITNESSES INCLUDING EXPERTS

Thursday, December 26th, 2013

Dec. 26, 2013

By David Kramer | dkramer@dbllaw.com

In a recent decision by the Kentucky Court of Appeals that was designated for publication but is now pending on a petition for rehearing, the Kentucky Court of Appeals discussed a seldom used and infrequently cited statute that provides for an award to the prevailing party of an “allowance” for trial witnesses, including both parties and experts, as a recoverable cost.
In Bryan v. Correctcare-Integrated Health, Inc., http://opinions.kycourts.net/coa/2012-CA-001500.pdf (11/8/13), the Court reversed the trial court’s award of costs of $100 per day for expenses incurred by an individual defendant who testified at trial and by two defense expert witnesses. The statute in question, KRS 453.050, provides in pertinent part that the prevailing party in a civil action is entitled to “the allowance to witnesses, which the court may by order confine to not more than two (2) witnesses on any one (1) point.” Such expenses are not specified as an item of recoverable costs in CR 54.04.
The reversal was not based on the fact that the trial court awarded the prevailing defendants a per diem as a “subsistence allowance” for the witnesses’ “necessary meals, lodging, and travel,” but rather on the fact that the trial court awarded such costs without documentation in the record of the actual costs incurred. Therefore, the Court remanded for “recalculation with more specificity as to the computation of the award.” The Court stated there was “a remarkable absence” of authority on this issue and on the statute in question, but also noted that use of a per diem expense for trial witnesses was not inconsistent with prior case law, going back to Nix v. Caldwell, 5 Ky.L.Rptr. 324 (Ky. 1883).
Of course, the full expense of an expert’s travel, meals and lodging (particularly airfare costs if the expert travels from a distant location) can be considerable. Such expenses are not part of the expert’s “fee” for his or her service, which is not recoverable in Kentucky “unless specifically authorized by statute.” Strohschein v. Crager, 258 S.W.3d 25 (Ky. App. 2007). It was presumably noteworthy that the Court in Bryan used the phrase “subsistence allowance” to describe what it would view as an acceptable award of costs for expenses actually incurred by trial witnesses. Subsistence in this context typically means the bare minimum necessary for attendance.
If the Court grants rehearing, It will be interesting to see if the Court harmonizes Bryan with an unpublished 2009 opinion of the Court of Appeals that reversed a trial court’s award of expert witness travel expenses totalling $3,944.73 to a prevailing party as erroneous. In Test v. Expressbill, LLC, 2009 WL 3321009 (Ky. App.), the Court, while taking note of KRS 453.050, stated that in Kentucky “allowable costs are generally more circumscribed than that allowed in other jurisdictions” and held that the prevailing party must bear his or her own expert witness expenses for travel, meals and lodging. Though it was not designated for publication, the Test decision appears to meet the criteria for citation under CR 76.28(4)(c). Considering Bryan in light of Test, perhaps the Court of Appeals is authorizing an award of costs for a nominal (subsistence) amount for travel, meals, and lodging, but not full recovery of a significant amount of travel costs.
The decision in Bryan v. Correctcare-Integrated Health, Inc., is not yet final. Nonfinal decisions should not be cited as authority in Kentucky courts. Test v. Expressbill, LLC, was not published in the South Western Reporter. See CR 76.28(4)(c) concerning citation of unpublished opinions.
Note: The foregoing post includes commentary reprinted from the forthcoming 2014 supplement to 7 Phillips & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.
David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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Attorney General Conway Addresses Ocwen Mortgage Servicing Wrongs Through $2.1 Billion Joint Federal-state Settlement

Sunday, December 22nd, 2013

Office of the Attorney General

Press Release Date: Thursday, December 19, 2013
Contact Information: Allison Gardner Martin
Communications Director
502-696-5651 (office)

Ocwen Financial Corporation of Atlanta, Georgia, and its subsidiary, Ocwen Loan Servicing, have agreed to a $2.1 billion dollar joint state-federal settlement with Kentucky Attorney General Jack Conway 48 additional states and the District of Columbia, and the Consumer Financial Protection Bureau (CFPB).

The settlement terms address servicing misconduct by Ocwen, and two companies later acquired by Ocwen, Homeward Residential Inc. and Litton Home Servicing LP. Ocwen specializes in servicing high-risk mortgage loans.

According to a complaint filed in the U.S. District Court for the District of Columbia, the misconduct resulted in premature and unauthorized foreclosures, violations of homeowners’ rights and protections, and the use of false and deceptive documents and affidavits, including “robo-signing.”

The settlement with the nation’s fourth largest mortgage servicer is the result of a massive civil law enforcement investigation and initiative that includes state attorneys general, state mortgage regulators and the CFPB. Through a court order, the settlement holds Ocwen accountable for past mortgage servicing and foreclosure abuses, provides relief to homeowners, and protects consumers by preventing future fraud and abuse.

“What we found in the Ocwen case is similar to a lot of the problems we saw in our other mortgage servicer enforcement cases,” Attorney General Conway said. “This is part of our ongoing civil law enforcement effort to hold servicers, including Ocwen, accountable and ensure that they treat borrowers fairly.”

Under the settlement, Ocwen agreed to $2 billion in first-lien principal reduction, and $125 million in cash payments to borrowers on nearly 185,000 foreclosed loans.

In Kentucky, Ocwen will provide troubled borrowers with an estimated $7.8 million in first lien principal reductions, and 1,499 loans will be eligible to receive a cash payment. The payment amount, which is contingent on the number of consumers who submit valid claims, is projected to exceed $1,000.

Joseph A. Smith, Jr., Monitor of the National Mortgage Settlement, will also oversee the Ocwen agreement’s implementation and compliance through the Office of Mortgage Settlement Oversight (http://www.mortgageoversight.com/).

The National Mortgage Settlement (http://www.nationalmortgagesettlement.com/), a three-year agreement reached in 2012 with the attorneys general of 49 states and the District of Columbia, the federal government, and five mortgage servicers (Ally/GMAC, Bank of America, Citi, JPMorgan Chase and Wells Fargo), has so far provided more than $51 billion in relief to distressed homeowners and created significant new servicing standards. The U.S. District Court in Washington, D.C. entered the consent judgments on April 5, 2012.

The Ocwen settlement does not grant immunity from criminal offenses and would not affect criminal prosecutions. The agreement does not prevent homeowners or investors from pursuing individual, institutional or class action civil cases. The agreement also preserves the authority of state attorneys general and federal agencies to investigate and pursue other aspects of the mortgage crisis, including securities cases.

Ocwen Agreement Highlights

• Ocwen commits to $2 billion in first-lien principal reduction.

• Ocwen pays $125 million cash to borrowers associated with 183,984 foreclosed loans.

• Homeowners receive comprehensive new protections from new mortgage loan servicing and foreclosure standards.

• An independent monitor will oversee implementation of the settlement to ensure compliance.

• The government can pursue civil claims outside of the agreement, and any criminal case; borrowers and investors can pursue individual, institutional or class action cases regardless of the agreement.

• Ocwen pays $2.3 million for settlement administration costs.

The final agreement, through a consent judgment, will be filed in U.S. District Court in Washington, D.C. If approved by a judge, it will have the authority of a court order.

Because of the complexity of the mortgage market and this agreement, which will span a three-year period, in some cases Ocwen will contact borrowers directly regarding principal reductions. However, borrowers should contact Ocwen to obtain more information about principal reductions and whether they qualify under terms of this settlement.

A settlement administrator will contact qualified borrowers associated with foreclosed loans regarding cash payments.

More information will be made available as the settlement programs are implemented. For more information on the agreement visit: http://files.consumerfinance.gov/f/201312_cfpb_consent-order_ocwen.pdf or http://files.consumerfinance.gov/f/201312_cfpb_complaint_ocwen.pdf. Consumers with questions for Ocwen may dial 1-800-337-6695, and the email address is ConsumerRelief@Ocwen.com. For a list of frequently asked questions, please visit http://goo.gl/tDbUPw

Kentucky Judicial Branch launches eFiling with first electronic case filing in Franklin County

Thursday, December 19th, 2013

Press Release Date: Wednesday, December 18, 2013
Contact Information: Leigh Anne Hiatt, APR
Public Information Officer
502-573-2350, x50031
Cell 859-619-7916
lhiatt@kycourts.net

http://courts.ky.gov

The Administrative Office of the Courts introduced eFiling to Kentucky state courts this week by accepting the first electronic case filings at its test site in the office of Franklin County Circuit Court Clerk Sally Jump in Frankfort. The first case was filed Monday, Dec. 16, with a total of six cases filed as of today.

“This week’s electronic filings were the critical first step in providing eFiling to the legal community,” Chief Justice of Kentucky John D. Minton Jr. said. “Moving from a paper-based environment to one that is primarily electronic will transform the way Kentucky courts do business. The cost savings to the court system will be substantial and the state’s entire legal system will become more efficient when we process court cases electronically.”

Franklin County is a proof-of-concept site, which means that limited functions are being tested before the full eFiling program is rolled out in the pilot phase. The site will initially process only civil cases filed in Circuit Court. The Franklin County Office of Circuit Court Clerk is located in the new Franklin County Judicial Center at 222 St. Clair St. in Frankfort.

The AOC trained more than 10 attorneys from Franklin County to take part in this early testing.

“This launch begins a two-year process that should see eFiling in all 120 counties by the end of 2015,” AOC Director Laurie K. Dudgeon said. “I’m looking forward to Kentucky catching up with the federal courts and the other state courts that have been providing this valuable service for years.”

The proof-of-concept stage will prepare the AOC to set up pilot sites in a dozen or more Kentucky counties in 2014. The AOC will test all eFiling functions in the pilot counties for several months before beginning to implement the system statewide.

eFiling is part of the Judicial Branch’s comprehensive, multiyear eCourt program. The goal is to update Kentucky’s aging court technology to meet the demands on the court system and enable the courts to stay current with the mainstream of law and commerce.

The eCourt program will also upgrade the court system’s technology infrastructure (hardware and software), replace its case management systems for the trial and appellate courts, and acquire a document management system that will electronically store and index court documents.

The Judicial Branch cleared a major hurdle on its eCourt program in March 2013 when it received legislative approval to issue bonds to fund a new case management system. Resolving the funding issue jump-started the eFiling process and made it possible to begin the proof-of-concept testing in Franklin County by the end of 2013.

This week’s eFiling milestone followed quickly on the heels of another major court technology rollout. In March 2013, the AOC launched CourtNet 2.0, which replaced the outdated CourtNet application and provides real-time, online access to Kentucky court case information. CourtNet 2.0 was initially offered to members of the Kentucky Bar Association and will be made available to other groups in the coming months. For more about CourtNet 2.0, see the KBA’s Bench & Bar, May 2013, pages 54-55.

Kentucky Judicial Branch
The AOC is the operations arm of the state court system. The AOC executes the Judicial Branch budget and supports the activities of nearly 3,300 court system employees and 403 elected justices, judges and circuit court clerks. The chief justice of Kentucky is the administrative head of the court system and is responsible for its operation.

Gov. Beshear’s Top 10 Accomplishments of 2013

Wednesday, December 18th, 2013

Press Release Date: Tuesday, December 17, 2013

Kentucky earns national recognition for health care, job growth and education improvement
FRANKFORT, Ky. – Affordable, accessible health care coverage for every Kentuckian. A record-breaking year for auto manufacturing. More than 12,000 new and protected jobs in the Commonwealth. National recognition for education achievement. These are just a few of the accomplishments Gov. Steve Beshear highlighted in his “Top 10 Accomplishments of 2013” released today.
“Every day, we have an opportunity to strengthen Kentucky’s people, support Kentucky’s businesses, and create a better community for our families. I’m extremely proud of the work we have done this year – from providing access to affordable health coverage to 640,000 uninsured Kentuckians, to attracting thousands of new jobs and fostering meaningful conversation about the future of eastern Kentucky,” said Gov. Beshear. “Every day, we remain focused on the goals we brought into the administration – to create new jobs and keep them here, to manage taxpayers’ money wisely, and to champion initiatives to improve public health, education and workforce development. It’s the work we will carry on in 2014 and beyond.”
1. AFFORDABLE, ACCESSIBLE HEALTH CARE FOR EVERY KENTUCKIAN
“The ability for every Kentuckian to get affordable, accessible, and reliable health insurance is not just the biggest accomplishment of the year,” said Gov. Beshear. “It will be the most significant single improvement for Kentuckians’ lives for a generation.”
Gov. Beshear has guided Kentucky into the national spotlight as the state with a sterling track record for implementing the new federal Affordable Care Act and providing access to health care for the 640,000 uninsured Kentuckians.
Since its launch Oct. 1, Kentucky’s health benefits website, kynect, has been hailed as a national model for its reliability and ease of use. Approximately 85,000 Kentuckians have used the website or the kynect call center to enroll in affordable health insurance – and for many of them, it’s the first time they have had health coverage. Thousands more are expected to apply before the end of the open enrollment period on March 31.
“These people – the uninsured – are not strangers to us. They’re our friends and neighbors, even our own family members,” said Gov. Beshear. “And most of them work but can’t afford health coverage. So they roll the dice every day, hoping they won’t get sick or hurt, knowing that bankruptcy could be just one bad diagnosis away.”
In May, Gov. Beshear announced Kentucky would expand eligibility for Medicaid – allowing some 308,000 of Kentucky’s uninsured – mostly the working poor – to enroll in the program.
The other 332,000 uninsured Kentuckians can access affordable coverage through kynect, the state’s online insurance marketplace.
Kentucky’s successful rollout and implementation of the new health care law has garnered praise and press coverage from major media outlets both in the U.S. and abroad.
2. BILLIONS IN NEW BUSINESS INVESTMENT, THOUSANDS OF NEW JOBS
Kentucky’s flexible economic development incentives and friendly business climate continue to attract more new and expanding companies to our state. 2013 was an outstanding year for job growth with the announcement of 217 projects representing more than 12,000 projected new jobs. Those critical job creation projects represent a more than $3.1 billion investment across the Commonwealth.
Exports of Kentucky-made products and services are on pace to top last year’s record of $22.1 billion. Through the first 10 months of 2013, export totals for the Commonwealth reached a record $20.8 billion, a 13 percent increase. Kentucky’s percentage increase is second highest among the states.
To streamline and bolster business development in the Commonwealth, the Cabinet for Economic Development created the Office of Entrepreneurship within the Cabinet’s Department for Business Development. The office enhances existing efforts to help startup businesses every step of the way.
Multiple national organizations have recognized Kentucky’s prowess supporting and growing businesses, including:
• Site Selection magazine ranked Kentucky’s business climate ninth in the nation in 2013 – up two spots from 2012.
• Kentucky ranked 10th in this year’s Site Selection magazine’s Governor’s Cup Award for having the highest number of qualifying industry locations and expansions. Kentucky has the smallest population of any state in the top 10.
• Pollina Corporate Real Estate Inc. – a national leader in corporate site selection – named Kentucky one of America’s Most Improved States for Business in 2013. The report indicates Kentucky’s status reflects state political leadership that has come to grips with new international competition for jobs and business investment.
• Business Facilities ranks Kentucky’s Automotive Strength third best in the country.
Major jobs announcements in 2013 include:
• U.S. Bank Home Mortgage in Owensboro – $15.2 million investment, 332 jobs
• Custom Foods in Owingsville – $44 million investment, 200 jobs
• Bilstein in Bowling Green – $120 million investment, 90 jobs
• PTC Seamless Tube Corp. in Hopkinsville – $102 million investment, 283 jobs
• Kayser in Fulton – $17.5 million investment, 121 jobs
• Kobe Aluminum Automotive Products in Bowling Green – $66 million investment, 100 jobs
• Dr. Schneider Automotive Systems Inc. in Russell Springs – $30 million investment, 155 jobs
• American Stave Company in Morehead – $10 million investment, 70 jobs
• Groupon in Hebron – $12 million investment, 115 jobs
• L’Oreal USA in Florence – $40 million investment, 200 jobs
• Alpla in Bowling Green – $22 million investment, 72 jobs
• Mubea in Florence – $60 million investment, 150 jobs
• eBay in Louisville – $45 million investment, 150 jobs
• Vangent in Winchester and London – $30.5 million investment, 1,300 jobs
• Whitehall Industries in Paducah – $13 million investment, 150 jobs
• Bingham McCutchen in Lexington – $22.6 million investment, 250 jobs
• Precision Resource Inc. in Mt. Sterling – $4.8 million investment, 15 jobs
• Lubrizol in Louisville – $108 million investment, 24 jobs
• Gibbs Die Casting Corp. in Henderson – $26.8 million investment, 160 jobs
3. AUTO MANUFACTURING SMASHES RECORDS, LEXUS LANDS IN KENTUCKY
Kentucky motor vehicle exports witnessed a banner year – up 43.2 percent through the first three quarters. Kentucky exported more than $3 billion in motor vehicles, and is expected to exceed $4 billion, ensuring that 2013 will be a record for the industry.
This year, Kentucky is the third-highest auto-producing state in the country – surpassed only by Michigan and Ohio.
Toyota announced that the Toyota Motor Manufacturing Kentucky (TMMK) will be the first-ever U.S. production site for the Lexus ES 350 model, the top-selling Lexus sedan in the world. The Lexus project will include a $531 million investment in the Georgetown plant and will create 750 jobs. TMMK will produce about 50,000 Lexus vehicles a year starting in 2015.
The investment is the second-largest ever made by Toyota in its Georgetown plant and the largest since the $800 million addition of Plant 2 in 1991, more than 20 years ago.
Adding to that success, Ford announced plans to produce the all-new 2015 Lincoln MKC model at the Louisville Assembly Plant.
4. TOP 10 IN EDUCATION; LEADING NATION IN REFORM
Kentucky continues to earn national recognition for education reform and improvement efforts.
For the first time, Kentucky stormed the top 10 in an annual national education assessment. Kentucky’s position on key education indicators rose four places since last year, making it 10th in the nation for its efforts to improve teaching, raise student achievement and many other variables related to public education.
Each year, Education Week (a national publication that focuses on P-12 education) produces a special issue, “Quality Counts.” The report tracks key education indicators and grades states on their policy efforts and outcomes. Since 2010, Kentucky has risen 24 places in this annual report.
A recent Harvard study, Achievement Growth: International and U.S. State Trends in Student Performance, echoes the Commonwealth’s progress, with Kentucky ranking eighth in student performance improvement in the last two decades. Another study, The New State Achievement
Gap: How Federal Waivers Could Make It Worse – Or Better by Education Sector Reports, says Kentucky has recorded better-than-expected gains and is leading the way as a high-performing state among those receiving waivers from the Elementary and Secondary Education Act (ESEA).
In 2013, Kentucky was the second state to adopt Next-Generation Science Standards (NGSS). These new standards define what students should know and be able to do in science at each grade level. They are more rigorous than previous standards, are comparable with international standards, are research-based and aligned with expectations for college and careers.
For the first time, every Kentucky kindergartener is screened for school readiness – the results of which will provide a vast amount of valuable information to assist teachers, schools, families, child care providers and preschools in preparing Kentucky’s youngest students for success. The Brigance Kindergarten Screener is to assess students’ developmental readiness for kindergarten, based on the Kentucky Kindergarten Readiness definition approved in 2011.
For 2013, preliminary figures show Kentucky posted an 86 percent graduation rate. This year Kentucky is using a more accurate way to measure the number of students who graduate – the same way nearly every other state measures graduation rate. Compared with the most recent data available from other states (2011), even accounting for their improvement, Kentucky’s rate is among the highest.
5. GRADUATION BILL PASSES
Calling it “one of my most satisfying acts as Governor,” Gov. Beshear signed into law the Graduation Bill (Senate Bill 97), which will keep Kentucky students enrolled in school until they turn 18.
Gov. Beshear and First Lady Jane Beshear joined educators and child advocates to fight for this bill’s passage for the past five legislative sessions. A late-session compromise among legislators led to the approval of SB97, which allowed school districts to opt in to the higher dropout age immediately. Once 55 percent of school districts (96 districts) adopted the policy, all remaining districts must then adopt the standard within four years.
To encourage school districts to accept the new policy immediately, the Governor and First Lady launched the Blitz to 96, an effort to get the needed 96 districts to force statewide adoption. School districts responded quickly and enthusiastically – 96 districts approved the policy within two weeks. To date, 139 districts have adopted the new graduation age standard.
6. BUILDING BRIDGES: KENTUCKY’S CRITICAL INFRASTRUCTURE
Kentucky’s bridges are critical components of our state’s economic activity. That’s why Gov. Beshear and the Kentucky Transportation Cabinet have worked hard to build new bridges where needed and repair existing bridges quickly.
In June, Gov. Beshear and Federal Highway Administrator Victor Mendez and other dignitaries gathered on the Kentucky bank of the Ohio River to ceremonially break ground for the Downtown Crossing – the Kentucky half of the long-awaited Louisville-Southern Indiana Ohio River Bridges Project. At an estimated $1.3 billion, the Downtown Crossing is the single largest transportation construction project in the history of the Commonwealth.
Just this month, the financing of the Downtown Crossing of the Louisville-Southern Indiana Ohio River Bridges Project was completed with sale of $728 million of revenue bonds and notes. The low-cost loan from the Federal Highway Administration for the project, valued at $452.2 million, closed last week.
This summer, Gov. Beshear ceremonially opened the U.S. 60 Tennessee River bridge – better known as the Ledbetter Bridge – at the McCracken-Livingston county line. The project was completed nearly 11 months ahead of schedule.
7. SHAPING OUR APPALACHIAN REGION: SOAR
On Dec. 9, Gov. Beshear joined Congressman Hal Rogers to host a landmark summit – SOAR: Shaping Our Appalachian Region. More than 1,700 people gathered in Pikeville to share ideas and strategies to move Kentucky’s eastern and southern region forward.
“Eastern Kentucky is a brilliant, storied region that enriches the fabric of our Commonwealth,” said Gov. Beshear. “Yet for several decades, the region has seen a decline in growth and development, hampered by a lack of infrastructure and other resources that communities need to grow and thrive. We know that government alone cannot solve these issues, and that is why Congressman Rogers and I launched this summit – we believe that to make real progress in eastern Kentucky, we need the input, collaboration and involvement from the people who live and work hard there every day.”
Summit attendees listened to panelists discuss the importance of investment, entrepreneurship, and education, and then offered their own ideas for a successful region in multiple breakout sessions addressing topics such as tourism, public-private partnerships, leadership development and lifelong learning. Gov. Beshear and Congressman Rogers agreed that the SOAR summit is only the first step in a long process of planning and action that will heavily involve the people of eastern and southern Kentucky.
8. DAWKINS LINE OPENS TO ENTHUSIASTIC TOURISTS
In June, Gov. Beshear and First Lady Jane Beshear, along with trail enthusiasts and local officials, opened the first 18-mile section of the Dawkins Line Rail Trail. The former railroad line is the newest adventure tourism attraction in eastern Kentucky for hikers, horseback riders and cyclists.
The first 18-mile leg of the trail, from Hagerhill in Johnson County to Royalton in Magoffin County, features 24 trestles and 662-foot Gun Creek Tunnel. Another trailhead is located at Royalton in Magoffin County.
“The natural beauty and rolling hillsides are perfect for hiking, cycling and horseback riding,” said Mrs. Beshear. “There’s a great demand for new trails and I believe the Dawkins Line will become very popular very soon.”
9. SECURED PENSIONS, LEAN GOVERNMENT
This spring, Gov. Beshear led weeks of bipartisan negotiation which resulted in the passage of bills to stabilize and modernize the state’s pension system. The legislative package created funding to pay the state’s full recommended annual pension contribution without threatening key state services like education and public safety. The increased cost to fully fund the actuarially required contribution to the Kentucky Retirement Systems is estimated at $100 million per year from the General Fund.
“The looming pension liability threatened to gut funding for education and all other priorities. It demanded our immediate and bipartisan cooperation,” said Gov. Beshear. “No matter our political philosophies, none of us were willing to put our kids at risk of a stripped-down education.”
The Governor has achieved balanced budgets both by cutting spending and by demanding greater efficiency from all state agencies. In June, the Justice Cabinet announced it would not renew a contract with a private prison in Marion County when the current contract expired. The decision meant that for the first time in nearly 30 years, Kentucky would have no inmates housed in private prisons.
During his administration, Gov. Beshear shrank state government to its smallest size in a generation, and continues to find ways to improve government efficiency with fewer taxpayer dollars.
10. PREPARING TOMORROW’S WORKFORCE TODAY
A key component of attracting economic development to Kentucky is a skilled and ready workforce. Kentucky continues to strengthen its workforce, beginning even before students graduate high school.
The college-and career-readiness rate, a measure of whether students are prepared to be successful after high school graduation, is up 20 percent from 2010. While only about a third of high school graduates were considered ready three years ago, initial data now show more than half – 54 percent – are ready to take the next step into credit-bearing college courses or a postsecondary training program.
Setting the stage for new opportunities for Kentucky’s businesses and workforce, Gov. Beshear unveiled the Kentucky Career Center, the newly overhauled workforce development system in the Commonwealth.
The new Kentucky Career Center website features a new free-to-use, online job-matching portal called Focus Talent for employers and Focus Career for job seekers. It uses the latest technology to match skilled workers with employers in need of those skills. Focus Talent allows employers to post job advertisements and search for resumes and offers employers quick and easy access to a large repository of relevant talent. Focus Career provides job seekers both a professional resume builder and a path to job registration.
The Kentucky Work Ready Communities program momentum is growing as more communities learn about the certification and how it can help them achieve a higher level of competiveness among business and industry. In addition to the 30 counties that have achieved certification as a Work Ready Community or Work Ready Community in Progress, another 48 are working on applications.
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Justice Department Defends Law Banning Protests at U.S. Supreme Court

Tuesday, December 17th, 2013

December 17, 2013

The government has a “legitimate interest” in prohibiting demonstrations on Supreme Court grounds, the Justice Department asserted in a brief filed with the U.S. Court of Appeals for the D.C. Circuit on Monday.

In the case Hodge v. Talkin, the department is urging the circuit court to restore the law banning assemblages, processions and displays on court property, 40 U.S.C. 6135. Judge Beryl Howell of the U.S. District Court for the District of Columbia struck down the law in June, declaring it to be “unreasonable, substantially overbroad, and irreconcilable with the First Amendment.”

Soon after Howell’s decision, the marshal of the court Pamela Talkin issued a new “Regulation Seven” banning protests, this time invoking a different law, 40 U.S.C. 6012, which authorizes her to establish rules to maintain “suitable order and decorum.” The new rule has been challenged in separate lawsuit, Miska v. Talkin.

Even though the high court has moved on to a different statute, it is not unusual that the Justice Department would try to resurrect the old one, which has been upheld numerous times in the past by local courts. In the 1983 decision United States v. Grace, the Supreme Court ruled that banning protests on the public sidewalk in front of the court was improper, but it did not decide whether it was constitutional as applied to the court’s marble plaza.

In the case before the D.C. Circuit, Maryland resident Harold Hodge Jr. was arrested on the court plaza in 2011 for holding up a sign protesting police brutality against minorities.

The Justice Department brief relies heavily on its traditional argument that the ban is based on the government’s interest in preventing the public perception that the justices can be swayed by protests or public opinion.

“Unlike other parts of government, courts do not make decisions by reference to public opinion,” the brief states. “Congress may reasonably enact measures to protect both actual and apparent efforts to influence courts through means other than the orderly presentation of briefing and argument.”

Jeffrey Light, a D.C. lawyer representing Hodge, said Tuesday the government’s argument does not hold water. “Assuming that a protest somehow creates the false impression that the court can be swayed,” Light said, “the response in a democracy is more speech, not silencing speech.” The court has numerous ways, Light added, to “correct that false impression” through statements of its own.

Light said that, given other pending litigation involving protests at the Supreme Court, it may be years before the issue is finally resolved and protests are allowed on court property — as they are permitted across the street at the U.S. Capitol, and at other courthouses around the country.

Posted by Tony Mauro on December 17, 2013 at 11:39 AM in Crime and Punishment, Justice Department, Other Courts, Politics and Government , Supreme Court | Permalink

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Judge Allows Attorney General Conway’s Case Against MERS to Move Forward – FRAUDULENT MORTGAGE REGISTRATION

Tuesday, December 17th, 2013

Press Release Date: Wednesday, December 11, 2013
Attorney General Jack Conway today announced that a Franklin Circuit Court judge has ruled that the Office of the Attorney General properly alleged violations of Kentucky’s Consumer Protection Act against MERSCORP Holdings, Inc., and its wholly-owned subsidiary Mortgage Electronic Registration Systems, Inc. (MERS).
“I appreciate the court’s careful consideration on this matter, and I am pleased with the result,” General Conway said. “This ruling paves the way to allow my office to hold MERS accountable for its deceptive conduct, and we look forward to continuing our fight for Kentucky consumers.”
MERS was created in 1995 to enable the mortgage industry to avoid paying state recording fees, to facilitate the rapid sale and securitization of mortgages, and to shorten the time it takes to pursue foreclosure actions. Its corporate shareholders include, among others, Bank of America, Wells Fargo, Fannie Mae, Freddie Mac, and the Mortgage Bankers Association. Currently, more than 6,500 MERS members pay for access to the private system. More than 70 million mortgages have been registered on the system.
In January, as a result of General Conway’s investigation of mortgage foreclosure issues in Kentucky, the Attorney General’s office filed a lawsuit in Franklin Circuit Court alleging that MERS had violated Kentucky’s Consumer Protection Act by committing unfair or deceptive trade practices. The lawsuit alleged that since MERS’ creation in 1995, members have avoided paying more than $2 billion in recording fees nationwide. Hundreds of thousands of Kentucky loans are registered in the MERS system.
Additionally, the lawsuit alleged that MERS violated Kentucky’s statute requiring mandatory recording of mortgage assignments, and that MERS had generally committed fraud and unjustly enriched itself at the expense of consumers and the Commonwealth of Kentucky. MERS had moved to dismiss all of the claims on various grounds.
On Dec. 3, the court determined that Attorney General Conway had properly alleged violations of the Consumer Protection Act, as MERS engages in trade or commerce, and that the Attorney General had sufficiently alleged unfair, misleading, or deceptive practices. The court also found that the Attorney General had sufficiently alleged its claims that MERS had committed fraud and had unjustly enriched itself at the expense of the public. The only claim dismissed by the court was the Commonwealth’s allegation that MERS violated the statute requiring recording of mortgage assignments. The court did not determine whether or not MERS had violated the recording statute; the court simply found that the recording statute itself lacks an enforcement mechanism. In all, eight of the nine causes of action brought against MERS by General Conway survived MERS’ motion to dismiss.
Other states have filed similar lawsuits against MERS, including Massachusetts, Delaware and New York. The Kentucky Office of the Attorney General is the first state Attorney General’s office to move past the motion to dismiss stage against MERS.
The Franklin Circuit Court found that the Attorney General had sufficiently stated legal causes of action. It has not yet taken any evidence or ruled on whether MERS committed the alleged violations.
MORTGAGE FORECLOSURE SETTLEMENT
In addition to the MERS lawsuit, General Conway joined 48 other state Attorneys General in negotiating the historic $25 billion national mortgage foreclosure settlement. The Attorneys General uncovered that the nation’s five largest banks had been committing fraud during some foreclosures by filing “robo-signed” documents with the courts.
Kentucky’s share of the settlement totals more than $63.7 million. Thirty-eight million dollars is being allocated by the settlement administrator to consumers who qualify for refinancing, loan write downs, debt restructuring and/or cash payments of up to $2,000. To date, the banks report providing relief to 1,833 Kentucky homeowners. The average borrower received an average of $34,771 in assistance.
Kentucky also received $19.2 million in hard dollars from the banks. The money went to agencies that create affordable housing, provide relief or legal assistance to homeowners facing foreclosure, redevelop foreclosed properties and reduce blight created by vacant properties.
To learn more about the mortgage foreclosure settlement, visit http://ag.ky.gov/mortgagesettlement .

NEW ETHICAL CONCERNS FOR FILING JUDGMENT LIENS

Friday, December 13th, 2013

Andrew Vandiver Covington, Ky.
On March 21, 2013, Governor Beshear signed into law a House Bill which amends Ky. Rev. Stat. § 426.720. This statute sets forth the requirements for filing judgment liens on real property. The amendment reads as follows:
In any action involving real property which is subject to a judgment lien, service may be had upon the judgment creditor by serving the judgment creditor or the judgment creditor’s attorney as shown in the notice of judgment lien.
This new provision will often come into play during foreclosure lawsuits. Under Kentucky law, all parties holding an interest in real property must be named in a foreclosure complaint. Hence, any creditor holding an interest in real property pursuant to a judgment lien must be named as a party and served with a copy of the complaint. Rather than having to track down the judgment creditor, the lawyer filing the foreclosure complaint may now obtain valid service through the lawyer listed on the notice of judgment lien.
Under ordinary circumstances, this addition to KRS 426.720 should not create any problems for lawyers. If a lawyer who filed a judgment lien receives a foreclosure complaint, he can simply contact his client and advise him of the need to file an Answer and Cross-Claim. However, because judgment liens are valid for fifteen years after the last date of execution, it is not difficult to imagine situations arising where a lawyer is unable to locate his or her client in order to discuss the complaint.
A lawyer who finds himself in such a position faces a dilemma. If he is unable to locate the client, does the lawyer have an ethical obligation to file a responsive pleading on the client’s behalf? A resolution of this question is critical because a lawyer’s failure to file an Answer and Cross-Claim will bar the client from recovering from the proceeds of a foreclosure.
The Committee on Ethics and Unauthorized Practice of Law recently issued an opinion which is helpful in addressing this dilemma. First addressing the broader topic of the ethical obligations of a lawyer to continue to represent a client who cannot be located, the Committee set forth three ethical principles that must be considered: (1) the duty to keep the client reasonably informed; (2) the duty to confer with the client with regard to the purposes to be served by the legal representation, and (3) the duty to have a sufficient basis in law and fact before bringing or defending a proceeding. Based on these principles, the Committee concluded that “a lawyer has no duty to file a claim on behalf of a missing client and may be prohibited from doing so.”
However, the Committee also acknowledged that:
[T]here may, however, be rare situations in which, prior to disappearing, the client expressly or impliedly authorized the filing of a claim or an answer, and provided the lawyer with sufficient information to do so. In such a case the lawyer may file the appropriate pleading in order to protect the client’s interests. Although this may provide temporary protection for the client, additional problems will arise down the road if the client does not return, and the lawyer ultimately may have to notify the court of the client’s absence and seek permission to withdraw.
Hence, depending on the nature of the relationship, a lawyer facing the foreclosure dilemma described above may have limited authority to file an Answer and Cross-Claim on his client’s behalf to preserve the claim created by the judgment lien. Nevertheless, if the lawsuit proceeds and the client cannot be found, the lawyer will probably be obligated to withdraw from the case.
In light of the new amendment, Kentucky lawyers should carefully evaluate their practices relative to the filing of judgment liens. Such an evaluation should include assessing the lawyer’s practices with regard to defining and limiting the scope of representation at the beginning and the conclusion of a particular matter. Although the Ethics Opinion cited above suggests that a lawyer generally does not have an ethical obligation to file an Answer and Cross-Claim under circumstances in which his or her client cannot be found, the Opinion also noted that “[t]here is no simple answer to this question, as the lawyer’s obligations will depend on the stage of the representation and the facts of each matter.”

Andrew J. Vandiver
Adams, Stepner, Woltermann & Dusing, PLLC
40 West Pike Street
Covington, KY 41011
859-394-6204
859-392-7200
www.aswdlaw.com

Default Judgment Against an Insolvent Company may be Enforced Against its Owners

Friday, December 13th, 2013

Andrew J. Vandiver – Adams, Stepner, Woltermann & Dusing, PLLC Covington, KY
The Kentucky Supreme Court recently issued a groundbreaking opinion in Inter-Tel Techs., Inc. v. Linn Station Props., LLC with regard to the issue of piercing the corporate veil. While the opinion mostly focused on the elements of veil-piercing, including clarifying those enumerated in Kentucky’s leading veil-piercing case, White v. Winchester Land Development Corp., the Court also discussed the implications of a default judgment being entered against an insolvent company under circumstances in which veil-piercing is merited.
The Plaintiff in Inter-Tel Techs., Inc., after unsuccessfully attempting to collect from an insolvent company subject to a default judgment, filed a subsequent lawsuit to pierce the corporate veil as to the insolvent company’s grandparent and parent companies. After successfully piercing the corporate veil, the grandparent and parent companies were held liable for the default judgment entered against their subsidiary.
The grandparent and parent companies raised numerous objections to the trial court’s decision on appeal. Two of the objections pertained to procedural issues. First, the companies argued that it was inappropriate for the Plaintiff to proceed first to secure a judgment against the insolvent subsidiary company as opposed to naming the parent and grandparent companies in the original lawsuit. Second, the parent and grandparent companies argued that the default judgment could not be enforced against them because they were “not before the court” when the judgment was entered.
As to the first argument, the Court found that there was nothing inappropriate about proceeding first to secure judgment as to the actual debtor. In reaching this conclusion, the Court recognized that there are often cases in which a creditor will not know about the company’s insolvency and its owner’s fraudulent conduct until after the initial lawsuit has concluded.
As to the second argument, the Court likewise upheld the trial court’s judgment that the parent and grandparent companies were liable for the default judgment taken against the insolvent subsidiary. In doing so, the Court reasoned that for all intents and purposes, the parent and grandparent companies were before the court in the original debt collection case. They were simply there in the guise of the subsidiary which had been rendered insolvent by their fraudulent actions. In fact, the Court was rather dismissive of the argument, stating that it was “a bit like the defendant who, having killed his parents, throws himself on the court’s mercy because he is an orphan.”
The Court’s resolution of the second argument will have a major impact on a creditor’s strategy in a case involving an insolvent company. A practitioner who obtains a default judgment against a business debtor will almost certainly conduct post-judgment discovery. If discovery reveals that the company’s principal was engaging in conduct which merits piercing the corporate veil, such as the commingling of funds, it can file a subsequent lawsuit based on the issue of whether the debtor was simply a shell for the principal’s wrongful conduct. If the creditor succeeds in proving that veil-piercing is warranted, the principal will be held liable for the default judgment taken against the company without the need to litigate the merits of the underlying case.
A prudent attorney with business clients will advise them of the dangers of engaging in conduct which may lead to the piercing of the corporate veil. In a perfect world, clients would follow such advice. However, in reality, attorneys often find themselves in situations in which they are defending a client who has raided the assets of his or her company under the false assumption that nothing can be done about it. In fact, I once obtained a default judgment against a corporate debtor whose owner proudly stated that the judgment was worth nothing more than the paper it was printed on because all of the company’s assets had been moved. Fortunately, based on the precedent set forth in Inter-Tel, creditors in these types of cases will likely be the ones who have the last laugh.
Both creditors’ and debtors’ attorneys should review the Inter-Tel decision closely because it may affect their strategy when faced with similar circumstances. An attorney representing the owner of an insolvent company should advise his client that the proceeding against his or her company may be the one and only opportunity to defend the case on the merits in the event that a subsequent lawsuit is filed requesting that the corporate veil be pierced. On the other side, an attorney representing a creditor should not lose hope if a judgment debtor turns out to be insolvent because there is an opportunity to hold the company’s principal liable if post-judgment discovery reveals wrongful conduct with regard to the company’s assets.

Andrew J. Vandiver
Adams, Stepner, Woltermann & Dusing, PLLC
40 West Pike Street
Covington, KY 41011
859-394-6204
859-392-7200
www.aswdlaw.com

The Supreme Court of Kentucky will convene Dec. 11-12 in Frankfort to hear oral arguments

Thursday, December 12th, 2013

FRANKFORT, Ky. — The Supreme Court of Kentucky will convene Dec. 11-12 in Frankfort to hear oral arguments in cases that originated in Bell, Clark, Lincoln and Trigg counties, and a workers’ compensation case. Proceedings are open to the public and will take place in the Supreme Court Courtroom on the second floor of the state Capitol at 700 Capitol Ave. in Frankfort.

The public may also observe oral arguments via the Supreme Court live stream on the Kentucky Court of Justice website. Oral arguments are available online as they occur in real time and are not available as archives.

The Supreme Court is the state court of last resort and the final interpreter of Kentucky law. Seven justices (bios) sit on the Supreme Court and all seven justices rule on appeals that come before the court. The justices are elected from seven appellate districts and serve eight-year terms. A chief justice, chosen for a four-year term by fellow justices, is the administrative head of the state’s court system and is responsible for its operation. The Supreme Court may order a ruling or opinion to be published, which means that the ruling becomes the case law governing all similar cases in the future in Kentucky.

WEDNESDAY, DEC. 11, 2013

9 AM EST
2012-SC-731-DG
KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY V. HOSKINS

View Case Briefs (PDF – 107.27KB)

Summary: “Insurance. MVRA. UIM. Motorcycle Exclusion. Loss of Consortium. The issue is whether, when both spouses are named insureds, a motorcycle exclusion also bars an injured motorcyclist’s spouse’s loss of consortium claim arising from the same accident.”

Discretionary Review granted 6-12-2013
Lincoln Circuit Court, Judge Jeffrey Thomas Burdette

Attorneys for Appellant: Michael D. Risley, Bethany A. Breetz, and John Boster Adams
Attorneys for Appellee: Richard Wayne Hay, James Paul Long, Jr., and Sarah Hay Knight

Note: Justice Venters is recused.

10 AM EST
2011-SC-737-DG
COMMONWEALTH OF KENTUCKY V. TIGUE

(CROSS-MOTION) 2012-SC-599-DG
TIGUE V. COMMONWEALTH OF KENTUCKY

View Case Briefs (PDF – 107.27KB)

Summary: “Criminal Law. Issues include whether the withdrawal of a defendant’s guilty plea is a “critical stage” of trial which entitles a defendant to legal counsel.”

Discretionary Review granted 9-12-2012 and 11-14-2012
Bell Circuit Court, Judge James L. Bowling, Jr.

Attorney for Appellant: William Bryan Jones
Attorney for Appellee: Meggan Elizabeth Smith

Note: Rescheduled from October 16, 2013

11 AM EST
2012-SC-665-WC
US BANK HOME MORTGAGE V. SCHRECKER, ET AL.

View Case Briefs (PDF – 107.27KB)

Summary: “Workers’ Compensation. Personal Comfort Doctrine. Is a worker’s injury which occurred off of the premises of her employer compensable if it happened during a paid break, even though the worker was not acting at the bequest of the employer?”

Attorney for Appellant: Sherri Lynn Keller
Attorneys for Appellees: Thomas M. Rhoads, James Landon Overfield, and Dwight Taylor Lovan

THURSDAY, DEC. 12, 2013

9:30 AM EST
2013-SC-430-I
KINDRED NURSING CENTERS LIMITED PARTNERSHIP, ETC., ET AL. V. CLARK, ETC.
KINDRED NURSING CENTERS LIMITED PARTNERSHIP, ETC., ET AL. V. WELLNER, ETC.

View Motions and Responses (PDF – 107.27KB)

Summary: “Motion for Interlocutory Relief. CR 65.09. Power of Attorney. Enforcement of an Arbitration Agreement.”

Clark Circuit Court, Judge Jean Chenault Logue

Attorneys for Movants: Donald Lee Miller II, Kristin M. Lomond, and James Peter Cassidy III
Attorneys for Respondent: James T. Gilbert, Richard Eric Circeo, and Robert Earl Salyer

11 AM EST
2013-SC-426-I
EXTENDICARE HOMES, INC., ETC, ET AL. V. WHISMAN, ETC., ET AL.

View Motion and Response (PDF – 107.27KB)

Summary: “Motion for Interlocutory Relief. CR 65.09. Power of Attorney. Enforcement of an Arbitration Agreement.”

Trigg Circuit Court, Judge Clarence A. Woodall III

Attorneys for Movants: Edmund John Benson, Jason Patrick Renzelmann, William James George, and Kathryn Todd Martin
Attorneys for Respondents: Cameron C. Jehl, Carey Lynn Acerra, and Robert Earl Salyer

Kenton County, Kentucky, Circuit Court, Division II, Family has an opening for a full-time staff attorney

Thursday, December 12th, 2013

The Kenton County, Kentucky, Circuit Court, Division II, Family has an opening for a full-time staff attorney effective January 2, 2014. The annual salary is $26,220.00. Resumes should be sent c/o Kathy Summe at kathleensumme@kycourts.net. Look for the posting of the position in the near future on the Kentucky Court of Justice website.

CHRISTOPHER J. MEHLING cid:601364115@10062010-2BB2

Judge, Kenton Circuit Court

Second Division, Family

Kenton County Justice Center

230 Madison Avenue, 5th floor

Covington, Kentucky 41011

Phone : (859) 292-6533

Fax: (859) 292-6617

E-mail: christophermehling@kycourts.net

KENTUCKY CORRECTIONAL OFFICIALS TAKING STEPS TO ENSURE DNA SAMPLES TAKEN FROM EVERY FELON…

Wednesday, December 11th, 2013

LOUISVILLE, Ky. — Kentucky corrections officials are taking steps to ensure DNA samples are taken from every felon in the state, following new revelations that the failure to collect the samples was more widespread than initially thought.The corrections department said Wednesday that a deeper review found samples weren’t taken from about 16,000 offenders, more than twice the number of missing samples disclosed in July.Corrections officials announced plans meant to guarantee DNA samples are collected from every felon, as required by law.Those steps include a multi-level review to ensure a sample has been taken from every offender prior to release from custody or supervision. Also, every probation and parole supervisor receives a daily list with names of offenders who haven’t given samples.The department says it has collected more than 5,000 missing samples.

Read more here: http://www.kentucky.com/2013/12/11/2982728/ky-announces-plan-to-ensure-dna.html#emlnl=PM_update#storylink=cpy

WILL JUDICIAL REDISTRICTING BE CONSIDERED IN 2014 by Legislature?

Wednesday, December 11th, 2013

We have no answer to this question, but we have heard speculation that this issue is being talked about by legislators.
It is easy for anyone to access the Supreme Court statistics site to determine and compare caseloads of all 120 Kentucky counties. These statistics are for 2012.
Copy and paste this link to your browser:

http://courts.ky.gov/aoc/statisticalreports/Documents/CaseloadbyCounty_Circuit.pdf

We have found for example that the Judicial Circuit for Carroll / Owen / Grant counties show that the Circuit Court case load is:
Carroll 399 Owen 297 Grant 750 – total 1,446
There is some talk in favor of making Grant County its own judicial district, and combining Carroll /Owen/Gallatin/ and Trimble counties. If this was done it would ease the case loads of Oldham County and Boone County.
The combined case load for Carroll /Owen/Gallatin/ and Trimble counties would be 1,144 cases.
Grant County would have 750 cases if left by itself.
Boone County currently has a case load of 2,527
Oldham County has a case load of 853

HOW TO FIGHT HOME FORECLOSURE FRAUD – ROBO SIGNING OF NOTES AND MORTGAGE – DEFENSES

Monday, December 9th, 2013

What is Robo Signing and How Can You Use it to Stop Your Foreclosure http://www.youtube.com/watch?v=UjOWb5zv_-0
Check to see how mortgage is signed….interview their employees for forging of names….

Foreclosure Law News: Terminate with Extreme Prejudice

By: Cynthia Kouril Saturday May 15, 2010

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I have been telling you about the document mills which “create” paperwork to support foreclosures.
Sometimes the paperwork is created by an employee of the loan servicer, signing on behalf of the “assignor” of the loan, even though the employee doesn’t actually work for the assignor, it works for the assignee or for a servicer employed be the assignee. Sometimes the paperwork is created by an employee of the law firm hired by the assignee, but signed as if by an employee of the assignor.
Apparently, the person signing and claiming to be an employee of the assignor doesn’t actually see the loan documents she is purporting to assign, or even have personal knowledge of whether the entity she is purporting to assign from ever had the loan in the first place.
In fact, that led to two different banks trying to foreclose on the same mortgage in Florida.
Now, a judge in Brooklyn, who has previously questioned this practice, has dismissed a foreclosure action “with prejudice” because the assignment was signed by an attorney from the law firm hired by the bank to do the foreclosure.
New York Judge Arthur Schack has dismissed another foreclosure case, this time with prejudice, as a result of an illegal MERS assignment which was “executed” by an attorney in the office of counsel for the Plaintiff, finding that the alleged assignment violated the New York Rules of Professional Conduct as doing so was a conflict of interest.
The Plaintiff was US Bank, N.A. as Trustee for the SG Mortgage Securities Asset-Backed Certificates, Series 2006-FRE2. The original lender was Fremont Investment and Loan. The purported Assigment of Mortgage (which did not assign the Note at all) was executed by a New York attorney as “Assistant Secretary and Vice-President” of MERS. As this attorney, signing for the assignor, listed her business address as that of the law office of the Plaintiff’s counsel (Steven J. Baum P.C.), which represented the assignee US Bank as Trustee, the Court found this to be a conflict of interest in violation of 22 NYCRR sec. 1200.0 Rules of Professional Conduct. Judge Schack dismissed US Bank’s foreclosure action with prejudice and cancelled the Lis Pendens.
[emphasis added].
In law, a case can be dismissed two ways: one is without prejudice, which means that the plaintiff can bring a new case on the same matter up until the statute of limitations runs out; the other way, “with prejudice” means that the plaintiff can never bring that case again (unless an appeals court overturns the with prejudice designation). It’s like those spy thriller movies when assassins are told to terminate a target with extreme prejudice, a/k/a kill the target. To dismiss a case with prejudice kills the case.
This is bad news for banks and securitized mortgage trusts with sloppy paperwork, which I’m told pretty much describes most of those mortgage backed security trusts.
So, judges in Florida are getting clued in. Judges in Massachusetts are getting clued in. Judges in the great state of New York (OK, I’m a bit biased) are doing the heavy lifting on figuring this out. How about the rest of you? Got any cases in your home state that we should know about? Are judges in your home state starting to understand that foreclosures should be carefully scrutinized and not rubber stamped?
Let us know in the comments.
[Earlier posts in this series and related links at FDL's Foreclosure Fraud Resources]

http://www.youtube.com/watch?v=mLnOXrjGd74 Foreclosures Mills on YouTube

Fight Mortgage Fraud and MERS with Quiet Title, Securitization

Using Quiet Title, RICO, FDCPA and more to Stop Bank Fraud.

Making The Bank Wait ! Quiet Title Actions This video clip covers Quiet Title Actions as a foreclosure defense mechanism by making all creditors prove their interest in the property or be extinguished forever through a court proceeding.

What to do to fight your foreclosure at court
Published on May 11, 2013

http://www.fraudstoppers.org/

If you have questions about what to do at court, what to do with a foreclosure notice or lawsuit notice, what, how, when, where, and why to file documents, this video can answer some of your questions.

This video contains several short introduction explanatory videos that will show you what to do at court, how the court system works, when, what, and where to file documents to fight your foreclosure, and more.

Clouded Titles exposes the mortgage scandal created by banker endorsed deregulation and MERS

MERS Mortgage Foreclosure Loophole You Can Use to STOP Foreclosure (Half the time they don’t have the mortgage on your home) Banks lose the mortgage note …half the time….banks fail to attach the promissory note…in 40% of the cases…banks can’t prove mortgage

Dorche Bank stopped by federal court ruling…..make them produce the note! Excessive and unnecessary fees are a national trend. See: www. Fraudstoppers.org
How to Fight Foreclosure Fraud and Save Your House with Fraud Stoppers
• by Fraud Stoppers
• 7 months ago
• 258 views
http://www.fraudstoppers.org/ Imagine if your mortgage was legally unenforceable and you were entitled to financial …
Real Estate Appraiser and Mortgage Fraud
• by Fraud Stoppers
• 9 months ago
• 676 views
http://www.fraudstoppers.org/ Video explains how lenders are using over inflated home appraisals to defraud homeowners.
Clouded Titles exposes the mortgage scandal created by banker endorsed deregulation and MERS
• by Fraud Stoppers
• 8 months ago
• 915 views
http://www.fraudstoppers.org/ Alex Jones interviews Dave Krieger on his revealing book Clouded Titles. You can purchase a copy …

Federal judge criticized by Supreme Court Justice fires back

Saturday, December 7th, 2013

NEW YORK Fri Dec 6, 2013 5:36pm EST

NEW YORK Dec 6 (Reuters) – A federal judge this week defended his custom of urging lead law firms in class actions to staff the lawsuits with women and minority lawyers, two weeks after U.S. Supreme Court Justice Samuel Alito took the unusual step of criticizing the practice.

The judicial dustup stems from the Supreme Court’s decision on Nov. 18 not to review a challenge to a class action settlement that resolved antitrust claims against Sirius XM Radio Inc.

Though it declined to hear the case, Alito wrote a six-page statement criticizing the practice of Judge Harold Baer, of U.S. District Court for the Southern District of New York, of encouraging firms that represent plaintiffs in class actions to assign lawyers that reflect the gender and racial makeup of the class.

Alito likened the practice to “court-approved discrimination” and said it might warrant further review by the high court.

In an interview with Reuters on Wednesday, Baer, 80, said that Alito lacked “either understanding or interest” in the discrimination faced by blacks, Latinos and women.

“So for him to talk about it as if this is something we shouldn’t look at is unfortunate,” Baer said.

Alito declined to comment through a Supreme Court spokeswoman.

In court orders, Baer has written that the practice is warranted under a federal rule governing the certification of class action lawsuits. The rule says a judge may, among other things, “consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.”

In the interview, Baer said that he does not require the firms to assign minority and women lawyers to cases. Instead, he said he notes the value of taking race and gender into account, and only in cases where the plaintiffs are mainly minorities and women.

If plaintiffs were “all white Anglo-Saxon Protestants,” Baer said, “I would not likely be making these comments.”

Baer, whom President Bill Clinton nominated to the bench in 1994, said Alito’s salvo did not surprise him.

“I think the tongue-in-cheek answer would be that I was surprised because of how much he’s done in the way of supporting anti-discrimination laws over the years,” Baer said. “But that would be just a facetious comment.”

He said he was undeterred by Alito’s criticism and welcomed a Supreme Court challenge.

“That would be a wonderful thing,” he said. “They ought to do that.”

Secretary Grimes Reminds Voters of “Do’s and Don’ts” for Special Elections

Saturday, December 7th, 2013

Secretary of State

Press Release Date: Friday, December 06, 2013
Contact Information: Lynn Sowards Zellen
Director of Communications
Secretary of State Alison Lundergan Grimes
(502) 330-9839
Email: lynn.zellen@ky.gov

Secretary of State Alison Lundergan Grimes is reminding voters of Election Day “Do’s and Don’ts” in advance of two special elections on December 10, 2013. The special elections are in the 13th Senate District (Fayette County) and 7th House District (Daviess, Henderson and Union Counties).

“Every election matters, and every vote counts,” said Grimes. “I hope this information will help avoid surprises on Election Day and make sure voters have their voices heard.”

• DO verify your voter registration status before you head to the polls. Registration status is available through the Voter Information Center (VIC).
• DO know where you vote. You can find the address of and driving directions to your polling location through VIC.
• DO know the most convenient times to vote. Polls tend to be busiest during the morning and evening rush hours and at lunchtime.
• DO bring appropriate identification to your polling location. You must either be known by a precinct officer or produce a driver’s license, social security card, credit card, or other form of identification that contains both a picture and signature in order to cast a ballot.
• DON’T wait until the last minute to head to the polls or be discouraged by long lines. Remember, as long as you are in line by 6 p.m. local time on December 10th, you will be allowed to cast your ballot.
• DON’T campaign or solicit votes within 300 feet of a polling place. Electioneering in the immediate area around a polling place is illegal in Kentucky.
• DON’T record the identity of voters in the voting room, including through the use of cameras and cell phones.
• DO ask a poll worker for instructions on how to use the voting machine or other procedural questions if you are confused about the voting process.
• DO let officials know immediately if you encounter any problems at the polls. You can address issues with your precinct election officers, the county clerk, the State Board of Elections at 502-573-7100, or the Attorney General’s Election Fraud Hotline at 1-800-328-VOTE.
• DON’T forget to thank your poll workers. This election would not be possible without them, and they deserve our appreciation.
• DO remind your friends and family to vote. Our democratic society is at its best when all eligible voters’ voices are heard at the polls.
• DON’T forget that you can obtain election results by visiting www.elect.ky.gov.

For additional election information, visit the Secretary of State’s website at www.sos.ky.gov, follow @kysecofstate on Twitter, and like Kentucky Office of the Secretary of State on Facebook.
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Supreme Court birth control ruling could ripple widely

Saturday, December 7th, 2013

Religious rights at heart of Supreme Court review
Bob Egelko Updated 10:31 pm, Friday, December 6, 2013
If a corporate employer can refuse on religious grounds to provide workplace insurance for contraception, what about employers with religious objections to blood transfusions or vaccinations? Or those who believe in healing by prayer?
Those questions lurk below the surface of the challenge the U.S. Supreme Court has agreed to review to regulations in the new federal health care law requiring employers to make contraceptive coverage available to their employees. That mandate, two groups of corporate owners argue, violates their freedom of religion.
If the court agrees, some legal analysts say, other employers would have an equal right to veto any type of health coverage that conflicts with their spiritual beliefs – insurance that covers transfusions, for example, and perhaps any type of conventional medical care, if the employer believes solely in spiritual healing.
The objections are based on a federal law forbidding government actions that burden the free exercise of religion, unless those restrictions are necessary to protect some vital public interest. If an employer can invoke that law to withhold contraceptive coverage, other categories of health insurance may also be vulnerable.
“You can’t really pick and choose among kinds of health care,” because the question before the court is inevitably the same: whether the decision is up to the individual or her employer, said Dawn Johnsen, a law professor at Indiana University and a former Justice Department official in the Clinton administration.
The Supreme Court case has implications far beyond health coverage, said Elizabeth Sepper, an associate law professor at Washington University in St. Louis specializing in health care law. As several lower-court judges have observed, she said, it would be hard for courts to draw a line between one religion’s opposition to contraception and others’ faith-based objections to antidiscrimination or labor laws.
“The entire regulatory state hangs in the balance here,” she said.
Differing opinions
Other scholars disagreed. They noted that the Supreme Court will be looking at a 1993 federal law, the Religious Freedom Restoration Act, as the basis for an employer’s objections to subsidizing insurance coverage that includes contraceptives. That law protects religious liberty but allows restrictions if necessary to protect a “compelling governmental interest.”
“A court might say that contraception is relatively inexpensive and that failure to provide coverage for it is not sufficiently compelling to justify burdening an employer’s religious liberty, while at the same time holding that failure to provide coverage for blood transfusions or vaccinations goes too far” because of the costs of getting those treatments and the potential health consequences of not having them, said Micah Schwartzman, a University of Virginia law professor.
Religious objections to specific health-care laws inevitably prompt unfounded warnings that they would lead to dangerous exemptions from a slew of government regulations, said Michael McConnell, a Stanford University law professor and former federal appeals court judge.
One source of such predictions, he said, was Supreme Court Justice Antonin Scalia, in a 1990 ruling that upheld state-law penalties against two American Indians for using peyote.
The defendants said the drug was part of their religious rituals, but Scalia said the government can enforce narcotics laws as long as they don’t selectively target religious practices. Otherwise, he said, religious adherents will claim “exemptions from civic obligations of almost every conceivable kind,” ranging from drug and vaccination laws to bans on child labor and animal cruelty.
1993 federal law
In response to the ruling, Congress passed the 1993 law that required the government to show compelling reasons for restricting religious liberty. None of the dire consequences forecast by Scalia has occurred since then, McConnell said.

FEDERAL APPEALS COURT WILL REVISIT A LEGAL CHALLENGE TO CALIFORNIA’S LAW ALLOWING COLLECTION OF DNA SAMPLES FROM ANYONE ARRESTED FOR A FELONY.

Friday, December 6th, 2013

Dec. 6, 2013 San Jose Mercury News
Armed with a recent U.S. Supreme Court ruling, a federal appeals court on Monday will revisit a controversial legal challenge to California’s law allowing collection of DNA samples from anyone arrested for a felony.
Whether the Supreme Court’s ruling on Maryland’s similar — though narrower — DNA collection law shoots down an ongoing legal attack on California’s four-year-old statute will be the question before a special 11-judge 9th U.S. Circuit Court of Appeals panel.
In a 5-4 ruling, the Supreme Court upheld the constitutionality of Maryland’s law, likening collection of DNA samples to fingerprinting suspects booked into police custody.
Civil liberties advocates argue that California’s law is a much greater threat to privacy rights because it permits DNA sample collection and preservation from arrested suspects even if they are never charged with a crime. Maryland’s law permits DNA collection only from those charged with a serious felony, and after a judge finds probable cause they’ve committed the crime.
California Attorney General Kamala Harris says the differences between the California and Maryland laws are “not constitutionally significant” and has urged the 9th Circuit to uphold the law. The Obama administration has backed California’s defense of the law in the appeal, stressing the national importance of DNA collection laws that 28 states have enacted.
Before the Supreme Court ruling, the 9th Circuit last year appeared inclined to invalidate California’s law, expressing concerns about DNA being collected from individuals who may never be charged in court with a crime. But legal experts say the Supreme Court’s ruling in the Maryland case could make it tough for the 9th Circuit to overturn the California law.
“The fact they decided to reargue it is a good sign for (groups challenging the law),” said Hank Greely, a Stanford University law professor. “But I still think it’s an uphill climb for the plaintiffs.”
The American Civil Liberties Union in 2009 sued to block enforcement of California’s DNA collection law on behalf of an Oakland woman, Elizabeth Haskell, who was arrested during a San Francisco rally against the Iraq War. Haskell was arrested and required to submit to DNA testing but never charged.
A divided three-judge 9th Circuit panel upheld the law voters had approved in 2004 to go into effect in 2009, but the court agreed to rehear the case with an 11-judge panel. That panel heard arguments last year, then put the case on hold when the Supreme Court decided to review Maryland’s law.
Law enforcement officials consider DNA collection a crucial tool in solving crimes. In a recent brief urging the 9th Circuit to uphold the law, the California District Attorneys Association noted that 20,000 hits have led to solving crimes since law enforcement began gathering DNA from arrestees in 2009.
But civil liberties advocates say the law comes with a high price and needs to be scaled back to bar DNA collection without a warrant. “Personal privacy interests outweigh California’s interests in DNA collection,” the Electronic Frontier Foundation wrote in its brief.
While the 9th Circuit case raises federal legal questions, a similar challenge is unfolding in the California state courts, where the state Supreme Court has also ordered a further look at the issue in light of the U.S. Supreme Court’s Maryland decision.
In both cases, the issue boils down to whether there is enough difference between the California and Maryland laws to skirt the U.S. Supreme Court’s findings that DNA collection can be constitutional.
“The question is are there enough distinctions to make a difference,” Greely said. “If I had to bet, I’d say the U.S. Supreme Court would say there aren’t.”

THE FUTURE OF INTERNET SALES TAX: WHAT’S NEXT AFTER THE SUPREME COURT’S DENIAL OF AMAZON, OVERSTOCK APPEALS?

Wednesday, December 4th, 2013

Dec 4, 2013 by Ginny Marvin
This week, the Supreme Court declined to hear appeals filed by Amazon and Overstock.com that challenged the ability of states to collect sales tax on items sold online by out-of-state retailers.
The appeals stem from New York’s passing of what has become known as the “Amazon Tax,” which expands the definition of nexus to include in-state affiliate marketers. Amazon and Overstock.com claimed the expanded interpretation of nexus violates Constitutional interstate commerce law and due process.
The retail giants point to the US Supreme Court’s 1992 ruling in favor of mail-order business Quill Corp and against the state of North Dakota, which tried to collect sales tax from the company for goods used in state. Nexus was then interpreted to encompass physical outposts such as distribution centers, manufacturing plants, employees and stores.
Then, e-commerce came into its own. States have increasingly sought to generate tax revenues from online retailers. In addition to New York, states with Amazon Tax laws include Kansas, Kentucky, North Dakota, Texas and Washington.
Why Was The Issue Sent Back To The Lawmakers?
The Supreme Court justices, as is customary, did not comment why they refused to hear the appeals. There are several probably reasons, though. Sylvia Dion, a CPA with PrietoDion Consulting Partners who writes frequently about sales tax issues, says she was not surprised by the court’s decision.
Most importantly, she speculates, “Even though the Quill decision was decided more than twenty years ago, the Quill court made it clear that Congress has the power to change the laws. As a matter, the Supreme Court in Quill essentially said, not only does Congress have the power to change the law, they may be better equipped to do so.”
Many had also wondered if the October decision by the Illinois Supreme Court, which rendered that state’s affiliate “click-through” nexus void and unenforceable, would impact the justices’ decision to hear the Amazon and Overstock.com appeals.
Dion believes the Illinois decision had little to no bearing on the Supreme Court decision. “Even though the click-through laws of both states are essentially the same, the two state courts came to their conclusions based on different principles. New York’s high court addressed the constitutionality of the law, while Illinois’s high court did not address the constitutionality of the Illinois law because it was found it to be pre-empted by the Internet Tax Freedom Act,” says Dion. The ITFA prohibits states from imposing discriminatory tax burdens on online businesses. The Performance Marketing Association was the plaintiff in the Illinois case.
Future Of The Marketplace Fairness Act
The justice’s decision not to hear the Amazon and Overstock.com petitions puts some focus back on the Marketplace Fairness Act (MFA). The MFA was passed by the US Senate earlier this year and currently under consideration in the House, where it has languished. The bill’s supporters say it will put large online retailers on equal footing with brick and mortar businesses by requiring them to collect and pay state sales taxes. Opponents say it would put undue burden on online businesses, subjecting them to various laws of some 9,000 tax jurisdictions.
The lobbying efforts on both sides are powerful, and somewhat unexpected. Amazon has come down strongly on the side of the MFA in large part due to arrangements it’s already made with several states and because it continues to expand it physical presence with distribution centers around the country. Overstock.com and eBay are among those who vehemently oppose the MFA as being too burdensome.
While noting that nothing has happened with the MFA in months, Dion adds, “I do think that the Supreme Court’s decision is going to ‘light the fire’ under the proposal’s supporters. The pro-MFA side will likely realize that they MUST see the MFA or similar legislation enacted since the Supreme Court has washed it’s hands of the issue.