Archive for July, 2008

Fen Phen Prosecutor says Government may seek additional indictment against Cunningham and Gallion

Thursday, July 17th, 2008

July 17, 2008

Assistant U.S. Attorney Laura Voorhees told Federal Judge Danny Reeves that prosecutors may seek a new indictment — commonly called a superseding indictment — that could contain new charges against the two men.  After the hearing Wednesday, Voorhees declined to say what those charges may be or whether the federal government will offer new evidence at a second trial. 

Kentucky Commission on Human Rights July Rulings

Thursday, July 17th, 2008

July 17, 2008
LOUISVILLE – The Kentucky Commission on Human Rights Board of Commissioners at a quasi-judicial session today ordered Arnold and Sandy Baize d/b/a Bluegrass Café in Beaver Dam, Ky., to cease and desist from unlawful discrimination and to pay $5,000 in damages to a former employee for firing her in August 2005 because she was pregnant.  
Sunnye Arnold made a complaint against the Baizes, alleging discrimination in violation of the Kentucky Civil Rights Act [KRS 344], which makes it unlawful for an employer to discharge any individual because of that individual’s sex, including an individual’s pregnancy or any related medical condition.
Hearing Officer Deborah Kent said in her recommended order to the commission that the complainant proved the respondents discriminated against her based on her sex, causing her humiliation and embarrassment.
The board ruled to accept one conciliation agreement to settle a discrimination complaint. In the matter of the Lexington Fair Housing Council v. Ronnie Taylor in Glasgow, Ky., the complainant alleged the respondent placed an advertisement that said, “No Children.” The Kentucky Civil Rights Act and the U.S. Fair Housing Act prohibit real estate advertising that discriminates based on familial status against people who have children under the age of 18 living in the household. The respondent apologized for not knowing the law and agreed to donate $500 to Kosair Children’s Hospital in Louisville.
The commission dismissed 32 cases with findings of no probable cause, accepted 13 withdrawals with private, undisclosed settlements, and accepted five withdrawals without settlements but with the right to file private suits.
In other business, the commission passed a resolution to honor the recently deceased Rev. Louis Coleman Jr. of Louisville and his contributions to civil rights. “Reverend Coleman dedicated himself for over three decades in service of a higher vision of a Kentucky built on foundations of true equality,” said John J. Johnson, executive director of the commission.
The commission passed a resolution to support the 2010 U.S. Census and to encourage all people to participate in the survey. “Census data helps determine the placement of more than $300 billion a year in federal and state funding,” said Commission Chair Henry Curtis. “Census information also serves as a basis for determining legislative representation,” he said.  
The Kentucky Commission on Human Rights is the state government agency that enforces the Kentucky Civil Rights Act and the policies of federal civil rights laws. The Kentucky Civil Rights Act prohibits discrimination on the bases of race, color, religion, national origin, sex, age and disability in the jurisdictions of employment, public accommodations, housing and financial transactions. Tobacco-smoking status is an additional protected class in the jurisdiction of employment.

Ways to Protect Judges from Political Influence – Ky. could benefit from this study.

Thursday, July 17th, 2008

Bob Egelko,  San Francisco Chronicle , July 16, 2008
 

Two former California governors who once said judges who issue objectionable rulings should lose their jobs have offered suggestions to a state commission on how to protect the judiciary from politics.

 

Ex-Gov. Pete Wilson says the state Constitution should be amended to help judicial candidates fend off political questionnaires. His successor as governor, Gray Davis, suggested a law that would give voters more information about candidates for trial courts.

Both stressed the need for judicial independence – Wilson disparaged “those who would seek to make political hay (by) criticizing the judiciary,” while Davis said partisan forces pose an imminent danger to the courts.

 

Wilson, the state’s Republican governor from 1991 to 1999, and Davis, a Democrat who governed from 1999 until his recall in November 2003, both testified Monday at a Sacramento hearing of the Commission for Impartial Courts.

 

Both said in interviews afterward that they had little recollection of past comments that seemingly pulled in the opposite direction from their current endorsements of judicial independence – Wilson’s statement that then-Chief Justice Rose Bird should be recalled if her court overturned a 1982 crime initiative, and Davis’ observation that his judicial appointees should resign if they didn’t go along with his views on issues such as the death penalty.

 

Chief Justice Ronald George established the courts commission last year to recommend changes in state laws on judicial appointments and elections, saying he was concerned that recent multimillion-dollar campaigns for control of courts in other states would spread to California.

 

California’s judges have largely stayed out of the political spotlight since 1986, when Bird and two state Supreme Court colleagues were removed from office in a campaign that focused on their votes to overturn death sentences.

 

But the role of the judiciary will be an issue in this year’s battle over a Nov. 4 initiative, Proposition 8, that would amend the California Constitution to overturn the state Supreme Court’s May 15 ruling that legalized same-sex marriage. Jennifer Kerns, spokeswoman for the Prop. 8 campaign, said Tuesday that one of its themes will be that “activist judges … brazenly overruled the will of the people.”

 

George, who wrote the ruling, and Justice Carlos Moreno, who was part of the 4-3 majority, are scheduled to be on the 2010 ballot seeking new 12-year terms.

At Monday’s session, several witnesses said political pressure on courts around the nation has grown since the U.S. Supreme Court ruled in 2002 that states can’t prohibit judicial candidates from discussing issues that they might later consider as judges. Would-be judges now regularly receive questionnaires from interest groups seeking their views on such issues as abortion and same-sex marriage, Ohio Chief Justice Thomas Moyer told the California commission.

 

Saying such inquiries endanger the courts’ neutrality, Wilson suggested a state constitutional amendment that would urge judicial candidates in California not to answer political questions and that would require all questionnaires to include that advice.

Davis said one way politics creeps into the courts is in Superior Court elections, where voters typically “don’t have a clue” about the candidates. One remedy, he said, is for the State Bar commission that now does background checks of a governor’s potential court nominees, and presents confidential evaluations to the governor, to conduct the same review for all judicial candidates and make the assessments public.

 

Both ex-governors were interviewed afterward about their past statements on judges and politics. Wilson said he remembers criticizing Bird in 1982 – during his successful U.S. Senate campaign against Democratic Gov. Jerry Brown, who had appointed the chief justice – but doesn’t recollect urging her recall.

 

News accounts at the time, however, quoted Wilson, then the mayor of San Diego, as saying he would support a recall if Bird’s court struck down a prosecution-backed crime initiative that voters had approved earlier in the year. Such a ruling would be “flaunting the public will,” he said.

 

The State Bar’s Conference of Delegates passed a resolution in September 1982 condemning Wilson’s remarks as an attack on judicial independence. The court later upheld the initiative’s key provision, with Bird among the dissenters.

 

Davis was quoted in February 2000 as saying his judicial appointees should reflect the positions that helped him get elected, such as support for capital punishment and abortion rights. Judges he appointed “are not out there to be independent agents,” he said, and those who reached views that opposed his positions should leave the bench.

That wasn’t what he really meant, Davis said Monday. He said his point was that he tried to screen judicial candidates carefully and choose those who shared his positions.

 

“Every governor hopes his appointees are more or less in sync with his governing philosophy,” Davis said. “Once they’re appointed, they’re free agents, obliged to follow the Constitution and the law.”

BlueGrass Report is back. Launches Blustery Attack on Sen. David Williams.

Thursday, July 17th, 2008

It’s back!  BlueGrass Report  after a six month hiatus is back doing what it does, spreading the word for the Democratic Party.  Mark Nickolas has announced that:

“Hopkinsville’s own Walter Hawkins will be joining me on BGR and will become the lead voice on politics in the Commonwealth, while I take a back seat and focus on the federal races and national issues:

For those of you that don’t know Walter, he’s currently a practicing lawyer in Bowling Green, a graduate of UofL and NKU’s Chase School of Law. He’s also very active in Democratic Party politics, is a political consultant, and hosts his radio show on WKCT 930 AM in Bowling Green called Middle Ground.”

In their first lead story, they reported that the wife of Senate President David Williams is a registered agent for service of process for a company that benefits from road contracts issued by the state.  Robyn Williams is a District Court Judge.  There is nothing unethical or illegal about a District Judge serving as an Agent for Service of Process or in running a business, or in owning stock in a corporation that does business with the state.  Judges are permitted to have business interests as long as they don’t interfere with their work as a Judge.  We haven’t seen many highway contract cases being sent to District Court.

The story reports a premise that Sen. Williams is seeking to control highway contracts in order to benefit his wife and her family members who own stock in a company that benefits from road building, and thereby “line the pockets of Sen. Williams”.  Frankly, we do not see a smoking gun.

While the report presents a record that shows Ms. Williams is an agent for service of process for a company, which they say owns stock in another company which builds roads, does not present proof that Judge Williams owns any stock in either company, or that Sen. Williams profits financially from any contracts awarded to either company.  Further, we fail to see the “corruption” in a member of the Legislature actively supporting the building of roads.

Bluegrass Report has posted a list of topics that it will explore in the coming months.  It’s main targets will be Sen. Williams and Mitch McConnell.

Unbelievable!! Cell phone microwaves can pop popcorn – What are they doing to our brain cells?

Thursday, July 17th, 2008

This demonstration may scare you.  It also explains why people shouldn’t talk on their cell phone when driving.  When will the lawsuits begin?
 

http://www.koreus.com/video/telephone-portable-mais-popcorn.html

U.S. Justice Department Looking for Assistant Prosecutor to locate in London, Ky.

Thursday, July 17th, 2008

 

 

ASSISTANT UNITED STATES ATTORNEY
UNITED STATES ATTORNEY’S OFFICE
EASTERN DISTRICT OF KENTUCKY

ANNOUNCEMENT NO. 08-EDKY-AUSA-04

 

About the Office: The United States Attorney’s Office or the Eastern District of Kentucky is a very progressive District comprised of 39 attorneys located within our three staffed offices. Our main office is located in Lexington, Kentucky, with smaller staffed branch offices located in Fort Mitchell and London, Kentucky. The communities served by our District are filled with wonderful people and our office is committed to working with local, state and federal law enforcement to ensure their safety.
Responsibilities and Opportunity Offered: Being a part of the Department of Justice is a great honor and employment in the Criminal Division of the U.S. Attorney’s Office offers a unique and challenging experience for the highly motivated attorney by working on some of the most significant, complex and visible cases being litigated today. Assistant United States Attorneys assigned to the Criminal Division are part of a dedicated team helping to enforce Federal criminal laws that protect life, liberty and property of our citizens. Some of the assignments include the investigation and prosecution of violent offenses, gang crimes, drug trafficking, crimes against children, public corruption, terrorism, white collar, and organized crime. The AUSA will be primarily assigned cases involving the investigation and prosecution of criminal cases.
Qualifications: Applicants must possess a J.D. degree, be an active member of the bar, and have at least one year post-J.D. experience. If not a member of the Kentucky Bar, one must become a member of the Kentucky Bar within a reasonable period of time. Successful candidates should possess superior oral and written communication skills, as well as strong character and interpersonal skills, and have demonstrated the capacity to function with minimal guidance in a highly demanding environment. Successful candidates must also possess the knowledge and ability to use computers and computer applications in performing day-to-day work requirements, including the knowledge and ability to effectively use automated litigation support to acquire, organize, analyze and present evidence, create databases and manage documents.
Travel: The AUSA will be required to travel throughout the Eastern District of Kentucky to attend court proceedings, interview witnesses, take depositions and attend meetings. Travel is also required for training at the Department of Justice’s National Advocacy Center, Columbia, South Carolina. Travel to other domestic destinations is possible.
Salary Information: Assistant United States Attorneys’ pay is administratively determined based, in part, on the number of years of professional attorney experience. Based on budget constraints, the entry base salary range for this position (based on 0-7 years experience) is $42,684 to $66,230 plus locality pay (currently 13.18% for London).
Location: London, Kentucky
Relocation Expenses: Relocation expenses will not be authorized.
Application Process: Resumes may be transmitted using mail, email, or facsimile and must be received by July 22, 2008. Mail or deliver your application to:

James A. Zerhusen
Acting United States Attorney
260 W. Vine Street, Suite 300
Lexington, KY 40507-1612
Attn: Louanne Davis, Human Resources Officer
OR e-mail your application to usakye.staffing@usdoj.gov; OR fax your application to 859-233-2498.
Please reference announcement #08-EDKY-AUSA-04 on your resume and provide an email address if available. No telephone calls please.
Please visit the Eastern District of Kentucky website at http://www.usdoj.gov/usao/kye/ for information on when a selection has been made.
Internet Sites: Eastern District of Kentucky – http://www.usdoj.gov/usao/kye/
This and other attorney vacancy announcements can be found at: http://www.usdoj.gov/oarm/attvacancies.html
Department Policies: Assistant United States Attorneys generally must reside in the district to which he or she is appointed. See 28 U.S.C. § 545 for district-specific information.
The U.S. Department of Justice is an Equal Opportunity/Reasonable Accommodation Employer. Except where otherwise provided by law, there will be no discrimination based on sex, sexual orientation, color, race, religion, national origin, politics, marital status, disability, age, status as a parent, membership or nonmembership in an employee organization, or personal favoritism. The Department of Justice welcomes and encourages applications from persons with physical and mental disabilities. The Department is firmly committed to satisfying its affirmative obligations under the Rehabilitation Act of 1973 to ensure that persons with disabilities have every opportunity to be hired and advanced on the basis of merit within the Department of Justice. This agency provides reasonable accommodation to applicants with disabilities where appropriate. If you need a reasonable accommodation for any part of the application and hiring process, please notify the agency. Determinations on requests for reasonable accommodation will be made on a case-by-case basis.
It is the policy of the Department to achieve a drug-free workplace and persons selected for employment will be required to pass a drug test which screens for illegal drug use prior to final appointment. Employment is also contingent upon the completion and satisfactory adjudication of a background investigation. Only U.S. citizens are eligible for employment with the Executive Office for Immigration Review and the United States Attorneys’ Offices. Unless otherwise indicated in a particular job advertisement, non-U.S. citizens may apply for employment with other organizations, but should be advised that appointments of non-U.S. citizens are extremely rare; such appointments would be possible only if necessary to accomplish the Department’s mission and would be subject to strict security requirements. Applicants who hold dual citizenship in the U.S. and another country will be considered on a case-by-case basis.
There is no formal rating system for applying veterans’ preference to attorney appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in attorney hiring. Applicants eligible for veterans’ preference are encouraged to include that information in their cover letter or resume and attach supporting documentation (e.g., the DD 214 or other substantiating documents) to their submissions

Former Bush UN representative calls for U.S. assistance to Israel to take out Iran’s Nuclear Capability

Thursday, July 17th, 2008

 

Israel, Iran and the Bomb

 

By JOHN R. BOLTON   Wall Street Journal - July 15, 2008 
Iran’s test salvo of ballistic missiles last week together with recent threatening rhetoric by commanders of the Islamic Republic’s Revolutionary Guards emphasizes how close the Middle East is to a fundamental, in fact an irreversible, turning point.

Tehran’s efforts to intimidate the United States and Israel from using military force against its nuclear program, combined with yet another diplomatic charm offensive with the Europeans, are two sides of the same policy coin. The regime is buying the short additional period of time it needs to produce deliverable nuclear weapons, the strategic objective it has been pursuing clandestinely for 20 years.

Between Iran and its long-sought objective, however, a shadow may fall: targeted military action, either Israeli or American. Yes, Iran cannot deliver a nuclear weapon on target today, and perhaps not for several years. Estimates vary widely, and no one knows for sure when it will have a deliverable weapon except the mullahs, and they’re not telling. But that is not the key date. Rather, the crucial turning point is when Iran masters all the capabilities to weaponize without further external possibility of stopping it. Then the decision to weaponize, and its timing, is Tehran’s alone. We do not know if Iran is at this point, or very near to it. All we do know is that, after five years of failed diplomacy by the EU-3 (Britain, France and Germany), Iran is simply five years closer to nuclear weapons.

And yet, true to form, State Department comments to Congress last week – even as Iran’s missiles were ascending – downplayed Iran’s nuclear progress, ignoring the cost of failed diplomacy. But the confident assumption that we have years to deal with the problem is high-stakes gambling on a policy that cannot be reversed if it fails. If Iran reaches weaponization before State’s jaunty prediction, the Middle East, and indeed global, balance of power changes in potentially catastrophic ways.

And consider what comes next for the U.S.: the Bush administration’s last six months pursuing its limp diplomatic efforts, plus six months of a new president getting his national security team and policies together. In other words, one more year for Tehran to proceed unhindered to “the point of no return.”

We have almost certainly lost the race between giving “strong incentives” for Iran to abandon its pursuit of nuclear weapons, and its scientific and technological efforts to do just that. Swift, sweeping, effectively enforced sanctions might have made a difference five years ago. No longer. Existing sanctions have doubtless caused some pain, but Iran’s real economic woes stem from nearly 30 years of mismanagement by the Islamic Revolution.

More sanctions today (even assuming, heroically, support from Russia and China) will simply be too little, too late. While regime change in Tehran would be the preferable solution, there is almost no possibility of dislodging the mullahs in time. Had we done more in the past five years to support the discontented – the young, the non-Persian minorities and the economically disaffected – things might be different. Regime change, however, cannot be turned on and off like a light switch, although the difficulty of effecting it is no excuse not to do more now.

That is why Israel is now at an urgent decision point: whether to use targeted military force to break Iran’s indigenous control over the nuclear fuel cycle at one or more critical points. If successful, such highly risky and deeply unattractive air strikes or sabotage will not resolve the Iranian nuclear crisis. But they have the potential to buy considerable time, thereby putting that critical asset back on our side of the ledger rather than on Iran’s.

With whatever time is bought, we may be able to effect regime change in Tehran, or at least get the process underway. The alternative is Iran with nuclear weapons, the most deeply unattractive alternative of all.

But the urgency of the situation has not impressed Barack Obama or the EU-3. Remarkably, on July 9, Sen. Obama, as if stumbling on a new idea, said Iran “must suffer threats of economic sanctions” and that we needed “direct diplomacy . . . so we avoid provocation” and “give strong incentives . . . to change their behavior.” Javier Solana, chief EU negotiator, was at the time busy fixing a meeting with the Iranians to continue five years of doing exactly what Mr. Obama was proclaiming, without results.

John McCain responded to Iran’s missile salvo by stressing again the need for a workable missile defense system to defend the U.S. against attacks by rogue states like Iran and North Korea. He is undoubtedly correct, highlighting yet another reason why November’s election is so critical, given the unceasing complaints about missile defense from most Democrats.

Important as missile defense is, however, it is only a component of a postfailure policy on Iran’s nuclear-weapons capacity. In whatever limited amount of time before then, we must face a very hard issue: What will the U.S. do if Israel decides to initiate military action? There was a time when the Bush administration might itself have seriously considered using force, but all public signs are that such a moment has passed.

Israel sees clearly what the next 12 months will bring, which is why ongoing U.S.-Israeli consultations could be dispositive. Israel told the Bush administration it would destroy North Korea’s reactor in Syria in spring, 2007, and said it would not wait past summer’s end to take action. And take action it did, seeing a Syrian nuclear capability, for all practical purposes Iran’s agent on its northern border, as an existential threat. When the real source of the threat, not just a surrogate, nears the capacity for nuclear Holocaust, can anyone seriously doubt Israel’s propensities, whatever the impact on gasoline prices?

Thus, instead of debating how much longer to continue five years of failed diplomacy, we should be intensively considering what cooperation the U.S. will extend to Israel before, during and after a strike on Iran. We will be blamed for the strike anyway, and certainly feel whatever negative consequences result, so there is compelling logic to make it as successful as possible. At a minimum, we should place no obstacles in Israel’s path, and facilitate its efforts where we can.

These subjects are decidedly unpleasant. A nuclear Iran is more so.

Mr. Bolton, a senior fellow at the American Enterprise Institute, is the author of “Surrender Is Not an Option: Defending America at the United Nations” (Simon & Schuster, 2007).

Pro Bono Attorney in Divorce case can seek fee from opposing party.

Thursday, July 17th, 2008

“A lawyer’s duty to represent the interests and wishes of his client comes ahead of his entitlement to a fee.” This bell has a beautiful ring when tolled to announce the commencement of church services, but it is a clanging noise in the corridors of divorce court. – Justice Leibson
In this decision Justice Leibson in a concurring opinion opines that an attorney who takes a divorce case on a pro bono basis is entitled to seek payment for the opposing party if they have financial resources.   This ruling by Stephens, Gant, Lambert and Leibson overruled prior law.

Hale v. Hale, 772 S.W.2d 628 (Ky., 1989)
“In our view, K.R.S. 403.220, which authorizes the court in certain divorce cases to order one party to pay a reasonable amount for attorney’s fees of the other party, is broad enough to authorize the payment of a fee to an attorney who has accepted representation of an indigent client under an express agreement that he would not charge his client any fee for his services.   The decision of the Court of Appeals is reversed, and the judgment of the trial court is affirmed.
LEIBSON, J., concurs by a separate concurring opinion in which STEPHENS, C.J., and GANT and LAMBERT, JJ., join.  LEIBSON, Justice, concurring.
 To be internally consistent, this Opinion needs to address the problem created by Sullivan v. Levin, Ky., 555 S.W.2d 261 (1977). Sullivan holds that a lawyer retained by a financially disadvantaged spouse, who accepts representation in the expectation that his fee will be awarded under KRS 403.220, can no longer pursue this fee if the parties reconcile and drop the case.
 The fundamental premise in Sullivan was that a lawyer’s interest in obtaining a fee in a divorce action is only derivative, that it “does not exist for the protection of the attorney, but is strictly for the benefit of the client.” Id. at 263.
        It is this statement from Sullivan upon which the respondent/husband in the present case relied, and the Court of Appeals relied, when refusing a fee otherwise appropriate under KRS 403.220 to an attorney representing a wife “pro bono.”
        There is nothing in KRS 403.220 specifically addressing the status of a “pro bono” attorney. To the contrary, the statute is simply a statutory redefinement of the standard under which the trial court in a divorce case may address the imbalance in “the financial resources” of the parties. The range of cases to which it applies covers the destitute and the indigent, and it also covers the spouse who is neither, but simply proportionally worse off. The threshold consideration is not whether the attorney’s client can afford to pay any fee, but simply what equity requires “considering the financial resources of both parties.”

        The underlying problem is the same for the attorney representing the indigent pro bono and the attorney representing the spouse who is financially needy but not totally destitute. In both cases there is neither reason nor excuse for permitting the opposing spouse with the financial resources to pay to escape the liability which the statute imposes.
 Here we hold there is no reason to disregard KRS 403.220 simply because services will be for free if the court awards no attorney’s fee. Likewise, contrary to the holding in Sullivan, there is no reason for denying the attorney’s fee simply because the parties have reconciled and the formerly financially disadvantaged spouse, who still cannot afford to pay her attorney unless the court awards a fee, no longer wishes to see the attorney paid.
This creates a conflict of interest for the attorney between his duty to his client to promote a reconciliation and his own financial interest which will be destroyed by the reconciliation. This conflict of interest defeats both the purpose of the statute and the best interest of the public.
        The Opinion in the Sullivan case gives a second reason for denying the fee, a reason which bears no relation to the controlling statute and which will not withstand logical analysis: “A lawyer’s duty to represent the interests and wishes of his client comes ahead of his entitlement to a fee.” 555 S.W.2d at 263. This bell has a beautiful ring when tolled to announce the commencement of church services, but it is a clanging noise in the corridors of divorce court. It causes the financially disadvantaged spouse to be denied access to competent counsel who hesitate to accept employment knowing they will receive no fee in the event of reconciliation.   The decision in this case cuts the ground out from under Sullivan v. Levin. We overrule it.”

Judge Danny Reeves to Move Fen Phen Retrial to Frankfort

Thursday, July 17th, 2008

July 17, 2008

U.S. District Judge Reeves, whose office is in Frankfort, said he wants to move the retrial of Shirley Cunningham Jr. and William Gallion because the lack of pretrial publicity in Frankfort would make it easier to seat a jury. 

He also said Frankfort is closer to where many of the witnesses live, and will not be an added burden to the two lead defense lawyers because  they already are traveling from out of state.

The trial, which under the Speedy Trial Act, must begin within 70 days of the mistrial, could begin at any time before Oct. l4th.  However, if the Government seeks additional indictments the trial date could be pushed back to as late as February or later.

There is no indication that additional indictments will be sought, but the Government has the option to try to find more charges to supplement the one count upon which the defendants were tried in Covington.  Considering that the original jury was 10-2 for acquittal on the original charges, the new prosecution team may seek to enhance their options by throwing everything but the kitchen sink at the defendants.

Testimony at the original trial indicated that the attorneys were entitled to fees of about $60 million, but they placed $20 million in a charitable cy pres trust (a practice that is not unusual and in fact is recommended by several Federal decisions) and by paying consultants and court costs of approximately $45 million.

The original jury may have been influenced by the fact that the two defendants did not receive the $60 million that went into the charitable trust and to pay the consultants. 

The “victims” who received $75 million dollars in their settlement are seeking additional sums and if successful will establish the principal that plaintiffs are not liable for court costs and fees. 

The $60 million dollars actually retained by the defendants as attorney fees is about 30% of the total settlement. 

 

At $1500, Kentucky Small Claims Court has the lowest Dollar Jurisdictional Amount in the United States…its time for a change.

Wednesday, July 16th, 2008

Editorial by LawReader Senior Editor Stan Billingsley     July 16, 2008 

One of the best features of the l976 Judicial Amendment to the Kentucky Constitution was the creation of the Small Claims Court.  This court has proven very popular with businesses and consumers. 

At $1,500, Kentucky has the lowest dollar jurisdiction limit for Small Claims Court in the United States.  Delaware, Georgia and Tennessee have the highest dollar jurisdiction at $15,000.  (The Dollar limit in Tennessee is $15,000 except in Shelby and Anderson Counties where the limit is $25,000.) 

The national average dollar jurisdiction of Small Claims Courts is $5750.  Thirty-one states have a dollar limit of $5000 or more.  (See the statistics at the bottom of this article.)Since the $1,500 dollar jurisdiction limit was created in l976, the salary of the District Judge has increased 370%.   We believe it is time to likewise increase the Small Claims jurisdictional limit to $5000.  This would also require an increase in the District Court dollar jurisdictional limit (which is now only $4000) to a sum which should be closer to $10,000. 

Such a change would provide the public with faster and cheaper access to the courts. 

The Small Claims court is set up to allow small civil claims to be brought to court without the necessity of the party having to hire an attorney.   Before this court was created, most small claims were just forgotten and the consumer or the business just ate their loss, because the complexity of the court system meant that a party had to hire a lawyer.   By and large lawyers applauded the Small Claims Court because they couldn’t afford to take these cases for a reasonable fee. 

Under the Small Claims system a layman can go to the court house fill out a simple form, and file a civil lawsuit as long as it doesn’t exceed the dollar jurisdictional limit of $1500.  If it is more than that but less than $4000, then a claim can be filed in the District Court, but this subjects the plaintiff to civil court procedures that can be hard to navigate. 

In my many years on the District Court bench I saw inflation eat away the benefit of the Small Claims court.  This was and continues to be evidenced by many claimants who have claims in excess of $1500 to reduce the amount they seek to recover by filing in Small Claims Court but limiting their claim to the maximum of $1500.  I have seen claims of $3000 to $4000 reduced to $1500 so the plaintiff could file in Small Claims Court and avoid having to hire an attorney, and subject themselves to the Rules of Discovery and other procedures that can drive up court costs. 

The public has told us by their use of Small Claims court and by reducing their claims to fit within the jurisdictional limits that the Kentucky limit of $1500 is outdated, is too small, and no longer serves the public. 

Fifteen years ago or so, I wrote a Handbook for Small Claims Court.  In that book we called for an increase in the dollar jurisdiction to the Small Claims Court.  The biggest opponents of the increase at that time was my fellow judges on the District Bench.  They frankly told me they didn’t want the extra work. 

The dollar jurisdiction of the Small Claims Court is set by KRS 24A.230, and could easily be amended by the Legislature.  The $4000 limit for District Court is set by KRS 24A.120 

The dollar jurisdiction of the Circuit Court is set by KRS 23A.010 which says that all cases not assigned to other courts will be heard in Circuit Court.  So a change in the two statutes related to the District Court would automatically change the dollar jurisdiction of the Circuit Court. 

So only two statutes would have to be amended to accomplish this needed reform. 

We don’t believe the members of the Judiciary should stand in the way of a reform that will serve the public. 

If you have an opinion about this, please discuss it with your legislators.
 

                  DOLLAR JURISDICTION OF U.S. SMALL CLAIMS COURTS
[top]Alabama
Alabama – Small Claims Forms

How much can I sue for in small claims court? … Dollar limit Alabama $3,000


[top]Alaska
Alaska Small Claims Handbook (Forms Committee, Alaska Supreme Court, February 2004). See also small claims forms online.

How much can I sue for in small claims court? … Dollar limit Alaska $10,000


[top]Arizona
Arizona’s Small Claims Divisions – A Guide to the Operations of Small Claims Divisions in Justice of the Peace Courts

How much can I sue for in small claims court? … Dollar limit Arizona $2,500


[top]Arkansas
Small Claims Court in Arkansas – FAQ and sample forms.

How much can I sue for in small claims court? … Dollar limit Arkansas $5,000

District courts, formerly known as municipal courts before passage of
Amendment 80 to the Arkansas Constitution, exercise county-wide jurisdiction over misdemeanor cases, preliminary felony cases, and civil cases in matters of less than $5,000. A small claims division of district court provides a forum in which citizens represent themselves to resolve minor civil matters. The city courts operate in smaller communities where district courts do not exist and exercise city-wide jurisdiction.


[top]California
California courts offer extensive self-help resources, many of which are targeted at an audience of small claims litigants. Moreover, many counties have a small claims advisor, who provides consultation via telephone. Below is a listing of general statewide resources, as well as links to individual superior court small claims divisions by county. EZLegalFile is an interactive site that helps litigants fill out the necessary forms.

How much can I sue for in small claims court? … Dollar limit California $7,500

Self-Help Center: Small Claims. Guide to procedures, mediation, collection, links, forms, etc.

California Department of Consumer Affairs

Amador County Superior Court, Small Claims Division – introduction, how to file, jurisdiction, court clerk’s role, what to expect, links, and information for defendants.

Calaveras County Superior Court, Small Claims Information – click on “small claims” on the menu to the left. Contacts, self-help, forms.

Contra Costa Superior Court, Small Claims Court – general information, contacts, how to obtain forms.

Fresno Small Claims information – contacts, resources, lawyer and mediation referral, forms, etc. from the statewide Self-Help Center.

Glenn County Small Claims Information – overview, how to file a claim, monetary limits, small claims advisor, court clerk’s role, links to self-help sites, what to expect, information for defendants, FAQ.

Humboldt County Small Claims Advisory Services – contacts, lawyer referral, law library.

Inyo Superior Court, Small Claims Division – overview, filing a claim, hearings, information for defendants and plaintiffs, monetary limits, court clerk’s role, what to expect, contacts.

Kern County Superior Court, Small Claims – introduction, interpreter information, special accommodations, night court, filing a claim, fees, forms, legal advice, resources.

Lake County Small Claims Information – hours, contacts, links.

Los Angeles County Superior Court, Small Claims overview, filing, rules, contact for small claims court advisor.

Marin County Superior Court, Small Claims – link to EZFile, how to subpoena a witness, appeals, naming a defendant, changing a court date, changing or amending claims, FAQ about appeals, contacts, hours.

Mendocino County Superior Court, Small Claims – clerk information, forms and filing, fees, assistance, calendar, local rules, contacts, hours.

Modoc County Superior Court, Small Claims Court – basic information about case types, contacts, location, etc.

Mono County Superior Court, Small Claims – process, advisor, EZLegal File link.

Napa Small Claims Court – jurisdictional amounts; contact information; procedure; links; service of process.

Nevada County Superior Court Small Claims Information – requirements, fees, procedures, fictitious business name instructions, suing a business or corporation, suing government agencies, attorney-client fee disputes, methods of service, suing multiple defendants, how to request a continuance, list of things to consider before filing or defending a suit.

Orange County Superior Court Small Claims Information – jurisdiction, contacts, links to resources.

Placer County Superior Court, Civil and Small Claims – introduction, contacts, filing information, service of process, resources.

Plumas County Small Claims information – hours, advisor contact, mediation, law library, court website.

Riverside County Small Claims information – forms, contacts, overview, advisor contact.

Sacramento County Superior Court, Small Claims – process, location and hours, mediation, e-filing, Sacramento Small Claims Advisory Clinic, links, exhibits.

San Benito County Small Claims information – hours, contacts, website.

San Bernardino County Small Claims information – contacts, hours, advisors, law library.

San Diego Superior Court, Small Claims Court – overview, filing a claim, rules, service of process, enforcement, fees. Advisor, post-judgment proceedings, sheriffs fees.

San Francisco Superior Court, Small Claims Division – contacts, jurisdiction, forms, interpreter information, advisor contact, links.

San Joaquin County Superior Court, Small Claims – overview, filing, rules, fee waiver information, advisor, e-filing, resources, post-judgment information.

San Mateo County Superior Court, Small Claims – allows parties to complete forms online. Also includes local forms, information, mediation, how to prepare claim, how to file, how to serve, how to change a date, how to appeal, collection, advisory workshops, glossary, and other resources.

Santa Clara Superior Court, Small Claims – fees, self-service, case info, links to state resources.

Stanislaus County Superior Court, Small Claims – overview, statutes, basic procedure, fee schedule, state resources.

Yolo County Superior Court, Small Claims – contact, location, FAQ, handbook, fees, and forms.


[top]Colorado
State Small Claims Page – includes forms, FAQ, Handbook, and Small Claims Rules of Procedure

How much can I sue for in small claims court? … Dollar limit Colorado $7,500


[top]Connecticut
In Connecticut, small claims court is part of the Civil Division of the Superior Court.

How much can I sue for in small claims court? … Dollar limit Connecticut $5,000

Small Claims – FAQ


[top]Delaware
In Delaware, the jurisdiction of the Court of Common Pleas includes civil cases with amounts in controversy less than $50,000.

How much can I sue for in small claims court? … Dollar limit Delaware $15,000

COURT PROCEEDINGS IN THE JUSTICE OF THE PEACE COURT


[top]District of Columbia
DC Superior Court – contains location, hours, contacts, jurisdiction, FAQ.

How much can I sue for in small claims court? … Dollar limit District of Columbia $5,000


[top]Florida
Florida State Courts – Florida State Courts

How much can I sue for in small claims court? … Dollar limit Florida $5,000

Alachua County (Eighth Circuit): Small claims court information includes overview, definitions of legal terms, procedure, how to fill out forms, mediation information, collection, and help on how to use the pro se site.

Brevard County small claims forms.

Broward County: Civil Department (Circuit and County) FAQ includes small claims information.

Charlotte County: Summary Claims information includes jurisdiction, documents that litigants must bring to court, contacts.

Citrus County: forms. (Click on “courts” and “small claims.”)

Clay County: small claims overview, evaluating a claim; filing, procedures.

Collier County: small claims FAQ, online calculator.

Escambia County: Small claims commonly asked questions. (Use the “jump to” dropdown menu and select “Small claims?”)

Flagler County: Small claims procedures, jurisdiction, collections, filing, etc. (Mouse over “Department Info,” then select “Civil Court,” then select “Small Claims.”)

Gilchrist County: Information about small claims procedures (click on “County Civil Department.”)

Hernando County: County Civil Department. Includes jurisdiction, hours, contact, worksheet, statement of responsibility, statement of claim.

Hillsborough County: County Civil Department site offers overview, forms, contact information.

Lake County: Small claims FAQ, fees, office location and phone number, handbook, “how-to” for various steps in the procedure of a small claims case.

Lee County: Small claims forms.

Levy County: Small claims court information includes jurisdiction/overview, when and where to file, pretrial hearing, trial, how to collect a judgment, worksheet, and FAQ.

Manatee County: Small claims information includes forms, fees, overview, and contacts.

Marion County: Summary claims (small claims) page includes information about filing, service, pretrial, mediation, judgments, and settlement.

Martin County: Small claims page includes information about filing fees, court costs, how to file, FAQ about procedures, and links to forms.

Miami-Dade: Small claims court information includes overview/jurisdiction, telephone numbers, and procedure.

Monroe County: Small claims FAQ, contacts.

Okaloosa County: Small claims FAQ includes schedule of service charges and information about mediation, as well as basic procedure in a small claims case.

Osceola County: Small claims information includes FAQ (click on “Small/Summary Claims”).

Palm Beach County: Small claims information includes filing fees, overview, locations, hours, etc. (click on “Small Claims” under “Other Pages” in the left-hand menu).

Pasco County: Small claims information includes overview/jurisdiction, the role of the clerk, requirements to file, all necessary forms and documents, filing fees, costs, how to pay fees and costs, how to collect a judgment, contacts, and directions.

Pinellas County: Small claims information includes FAQ on procedure, how to collect a judgment, schedule of fees, and contacts.

Polk County: Small Claims Court FAQ. (Click on “Common Questions” and “Small Claims Court.”)

St. John’s County: Small claims information includes downloadable guide, forms, instructions, and affidavits.

Seminole County: FAQ about civil cases includes information about small claims (scroll down to reach section).

Volusia County: Small claims page includes overview, procedure, definitions, role of the clerk, contacts, collections, forms, filing requirements, schedule of service charges, and other information. (Click on “Clerk’s Departments” and then “Small Claims” to view the page.)

Walton County: Small claims page includes jurisdiction, filing fees, location, instructions for filing, procedure, suggestions for collecting money judgments, and satisfaction of judgment. (Click on “Small Claims” in the left-hand menu.)


[top]Georgia
Small claims cases are heard in Magistrate Courts. Magistrate Court forms (although these are not all small claims) are available by county.

How much can I sue for in small claims court? … Dollar limit Georgia $15,000

Chatham County Magistrate Court: Handy guide to small claims court, including how to collect judgment, settlement, and “important things to remember.” (Click on “Small Claims Court” in the green section of the left-hand menu.)


[top]Hawaii
Hawaii District Court: Small Claims Court information includes brochure, forms, and overview.

How much can I sue for in small claims court? … Dollar limit Hawaii $3,500


[top]Idaho
Small Claims in Idaho providing information, referral and standard forms for persons who are representing themselves in court.

Sixth Judicial District Court offers forms and instructions for small claims.

How much can I sue for in small claims court? … Dollar limit Idaho $4,000

Idaho State Judiciary


[top]Illinois
Gives general information about the small claims process.

How much can I sue for in small claims court? … Dollar limit Illinois $10,000

Offers forms and general information.


[top]Indiana
Gives rules on small claims court.

How much can I sue for in small claims court? … Dollar limit Indiana $6,000

Small claims manual (2005) .pdf

Offers explanation of the process.

Explanation of how small claims court works.


[top]Iowa
Explaining rules and procedures of representing yourself in small claims cases.

How much can I sue for in small claims court? … Dollar limit Iowa $5,000

Gives forms.

About Small Claims in Iowa


[top]Kansas
Explains what the small claims court does and gives forms.

How much can I sue for in small claims court? … Dollar limit Kansas $4,000

Kansas Small Claims Information


[top]Kentucky
Small claims forms. Scroll to the bottom of the web page.

How much can I sue for in small claims court? … Dollar limit Kentucky $1,500


[top]Louisiana
Explaining how to use the Baton Rouge Small Claims Court and answering frequently asked questions.

How much can I sue for in small claims court? … Dollar limit Louisiana $3,000

Louisiana.gov – The offical web site of the State of Louisiana


[top]Maine
This site explains what the small claims court does, as well as provides online forms, as well as a guide to small claims court proceedings.

How much can I sue for in small claims court? … Dollar limit Maine $4,500


[top]Maryland
District Court of Maryland’s site shows how to file a claim and answers FAQs.

How much can I sue for in small claims court? … Dollar limit Maine $4,500

Guide to Small Claims Proceedings in the District Court


[top]Massachusetts
Explains the small claims court process and gives listing of all small claims courts in the state.

How much can I sue for in small claims court? … Dollar limit Massachusetts $2,000

District Court Department – SMALL CLAIMS INFORMATION – The small claims court is not a separate court, but a special session of the District Court, the Boston Municipal Court or the Housing Court. It is designed to provide a simple, informal and inexpensive procedure for the resolution of smaller cases ($2,000 or less). The information below is provided to assist those persons wishing to proceed in District Court.


[top]Michigan
Gives self-help explanations of small claims court process.

How much can I sue for in small claims court? … Dollar limit Michigan $3,000

Michigan – Small Claims Court

Explains procedure and offers additional resources on the topic.


[top]Minnesota
Gives basic information about conciliation court (small claims).

How much can I sue for in small claims court? … Dollar limit Minnesota $7,500

Minnesota Judicial Branch, a fully unified system of trial and appellate courts administered by the Minnesota Judicial Council.

Explains what Conciliation Court is and the fees paid in Stearns County.

Attorney General Consumer Protection Division’s users’ guide to Conciliation Courts.


[top]Mississippi
Gives basic information on the state’s small claims courts.

How much can I sue for in small claims court? … Dollar limit Mississippi $2,500

Justice Court handles all civil jurisdiction up to $2,500.

Briefly explains small claims court process in Hinds County.

The Official State Web Site of MississippiState Judiciary & Local Judiciary


[top]Missouri
The Missouri Bar Young Lawyers’ Section publishes the Missouri Small Claims Handbook.

How much can I sue for in small claims court? … Dollar limit Missouri $3,000

Missouri – Small Claims Forms


[top]Montana
Montana State Bar Association gives general information about small claims courts in the state and gives the phone number to the lawyer referral service.

How much can I sue for in small claims court? … Dollar limit Montana $3,000

Montana -Guide to Small Claims Court – Small claims court is a quick, inexpensive and informal way to resolve disputes over small amounts of personal property or money. Juries and lawyers are not necessary. Small claims cases are handled in justice courts, in accordance with Title 25, Chapter 35 of the Montana Code Annotated.


[top]Nebraska
Web page providing general information on small claims courts by the Nebraska Judicial Branch.

How much can I sue for in small claims court? … Dollar limit Nebraska $2,700

Self-help website by the Nebraska Judicial Branch providing instructions and an “on-line assistant” guiding through the process. It is not designated to provide specific advice, and may not be totally applicable in any particular case. If you have additional questions about small claims court or your legal rights, you should seek the professional advice of a lawyer.


[top]Nevada
Clark County’s (including Las Vegas) website giving general information on the courts as well as FAQs and providing forms.

How much can I sue for in small claims court? … Dollar limit Nevada $5,000

This site provides detailed information on the small claims courts in Clark County, discussing filing forms and fees.


[top]New Hampshire
Gives basic information on small claims courts: why to file, where to go, what to do. This site also provides forms for consumer complaints.

How much can I sue for in small claims court? … Dollar limit New Hampshire $5,000

New Hampshire: How to File a Small Claim/Court Procedures


[top]New Jersey
Explains what small claims can typically be filed as well as other FAQs.

How much can I sue for in small claims court? … Dollar limit New Jersey $3,000

This is a real property tax small claims handbook providing general information both in English and Spanish.


[top]New Mexico
Bernalillo County Metropolitan Court provides a brochure, “Collection of a Judgment.”

How much can I sue for in small claims court? … Dollar limit New Mexico $10,000

New Mexico: How to file a private lawsuit in Metro or Magistrate small claims court


[top]New York
Gives general information on small claim courts, including small and commercial claims, court fees and community outreach.

How much can I sue for in small claims court? … Dollar limit New York $5,000 ($3,000 in town and village courts)

New York City Civil Court – Small Claims Forms

Instructions for Filing a Small Claims/Commercial Claims Action (only for non-New York City residents suing New York City residents) (CIV-SC-66)(pdf)

Statement of Claim (CIV-SC-50)(pdf)

Instructions For Filing Actions Against the City of New York, the State of New York, the United States of America
(CIV-SC-25)(pdf)

New York State – CONSUMER PROTECTION BOARD


[top]North Carolina
About Small Claims Court – Small claims court is part of the District Court Division. It handles civil cases where a plaintiff requests assignment to a magistrate and the amount in controversy is $5,000 or less. The principal relief sought in small claims court is money, the recovery of specific personal property, or summary ejectment (eviction). A magistrate presides over small claims court. There is no jury and usually no lawyers. A person who loses in small claims court may appeal for a trial by jury before a judge in District Court.

For additional information see the Guide to Small Claims Court maintained under the Publications area of the Legal Aid of North Carolina Web Site

How much can I sue for in small claims court? … Dollar limit North Carolina $5,000

Providing basic information, including fees, amount in dispute must be $4,000 or less, as well as how to file a claim.

Gives general information on the court as well as a link to the state’s Legal Aid for more information.


[top]North Dakota
The amount in dispute must be $5,000 or less, also provides general information.

How much can I sue for in small claims court? … Dollar limit North Dakota $5,000

This website has the forms needed to file a claim.


[top]Ohio
Brochure from the consumer protection section of the state attorney general’s office.

How much can I sue for in small claims court? … Dollar limit Ohio $3,000

Ohio Judicial Conference. “Small Claims Court: A Citizens Guide.” Columbus, OH: Ohio Judicial Conference and Ohio State Bar Foundation, 2006.

Types of cases heard in small claims court.


[top]Oklahoma
General information from the Oklahoma State Bar Association.

How much can I sue for in small claims court? … Dollar limit Oklahoma $6,000

Lists fees.


[top]Oregon
Explains the procedures in small claims court.

How much can I sue for in small claims court? … Dollar limit Oregon $5,000

Comprehensive site of the small claim court process in the state.


[top]Pennsylvania
Informational pamphlet on small claims court in Philadelphia.

How much can I sue for in small claims court? … Dollar limit Pennsylvania $8,000


[top]Rhode Island
Sharing information on small claims court like the rights of plaintiff and defendant.

How much can I sue for in small claims court? … Dollar limit Rhode Island $2,500


[top]South Carolina
General information on Charleston County’s magistrate’s court.

How much can I sue for in small claims court? … Dollar limit South Carolina $7,500

Magistrates Small Claims Court – The magistrate court in many instances functions as a Small Claims Court. In order for this court to have jurisdiction, your claim cannot exceed $7,500.00, except in disputes between landlords and tenants. Employees of the magistrate court will help you file your claim in writing and will explain to you how your case will proceed through trial. You are not required to hire an attorney unless you so desire.


[top]South Dakota
Provides basic information.

How much can I sue for in small claims court? … Dollar limit South Dakota $8,000


[top]Tennessee
Tennessee Bar Association’s general information on small claims procedure.

How much can I sue for in small claims court? … Dollar limit Tennessee $15,000 ($25,000 in Shelby and Anderson Counties)


[top]Texas
Comprehensive FAQ of small claims court in Williamson County.

How much can I sue for in small claims court? … Dollar limit Texas $5,000

State of Texas – Justice of the Peace Courts


[top]Utah
A small claims department of the District Court is designated to settle legal issues and problems arising from contractual or service disputes or other claims which do not exceed the sum of $7,500. A small claims court allows an individual or business to be compensated by a party who has not performed according to an agreement or who had committed some wrongdoing.

Background information and answers some questions on small claims court procedure.

How much can I sue for in small claims court? … Dollar limit Utah $7,500

Utah codes on small claims court.


[top]Vermont
Explains to the public what the small claims court does as well as giving FAQs.

How much can I sue for in small claims court? … Dollar limit Vermont $3,500


[top]Virginia
Comprehensive site on small claims court procedure.

How much can I sue for in small claims court? … Dollar limit Virginia $2,000


[top]Washington
FAQs and brochure.

How much can I sue for in small claims court? … Dollar limit Washington $4,000

Self-help information.


[top]West Virginia
There are 158 magistrates statewide, with at least two in every county and 10 in the largest county. Magistrates issue arrest and search warrants, hear misdemeanor cases, conduct preliminary examinations in felony cases, and hear civil cases with $5,000 or less in dispute. Magistrates also issue emergency protective orders in cases involving domestic violence. The circuit courts hear appeals of magistrate court cases.

How much can I sue for in small claims court? …
Dollar limit West Virginia $5,000

West Virginia – Magistrate Courts – Trial Courts of Limited Jurisdiction

Provides general information on Magistrate Courts (Small Claims Courts).

Gives some background on Magistrate Courts.

Some self-help information.


[top]Wisconsin
Basic information on small claims courts.

How much can I sue for in small claims court? … Dollar limit Wisconsin $5,000

Small Claims court guide in Dane County.

Shares the types of cases brought to small claims courts.

Basic information as well as what can be done in the event the defendant does not pay what is awarded to the plaintiff by the judgment.


[top]Wyoming
Rules governing small claims cases.

How much can I sue for in small claims court? … Dollar limit Wyoming $5,000

Wyoming Circuit Courts – The Circuit Court is a limited jurisdiction court, which operates in all 23 counties. It hears all misdemeanor criminal cases and smaller civil cases. Judges are full time and they must be lawyers.

Wyoming: Circuit Courts Directory
 

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Popular Carrollton Attorney Tobi Shartzer has stroke, condition is encouraging- Bourne and Wells pitch in to help carry on his practice

Wednesday, July 16th, 2008

Last week Carrollton Attorney Tobi Shartzer who is about 35, had a stroke while eating lunch at a local restaurant.  We are happy to report that he is recovering nicely, is sitting up, had a Strawberry milkshake yesterday, and will be headed to the Drake Center for some rehab.  He has some problems with movement on his left side, but his condition is “encouraging”. 

Ed Bourne of Owenton, and Joe Wells of Carrollton and Bedford have pitched in to help carry Tobi’s law practice until he can return.  We all admire their willingness to help a fellow lawyer through a tough time. 

Tobi is in the University of Cincinnati hospital.  Everyone at LawReader wishes him a speedy recovery

New laws passed in 2008 become eff. July 15th. – See listing

Monday, July 14th, 2008

The 2008 Session of the Ky. General Assembly adopted 150 new laws.  Except for a few bills which became effective shortly after their passage, by emergency provision, these new laws will become effective July 15, 2008.  Listed below is a topic index of legislation adopted in the 2008 session.  This will give you a head’s up of reguarding new legislation.

An index showing which statutes were affected is found at:

LRC INDEX SHOWING WHICH STATUTES WERE AFFECTED BY 2008 SESSION OF THE GENERAL ASSEMBLY
The actual wording of most statutes will not be posted online or released by legal publishers until the Ky. Revisor of Statutes finishes his work and releases these.  That usually comes within four to six weeks after the effective date.  LawReader will post these new statutes as soon as they are released in their final form.  Until then you should review the list of bills adopted by the legislature via use of the link posted above in this article.

iNDEX TO TOPIC HEADINGS OF 2008 LEGISLATION- you can search by topic, then open the bill, but disregard any bill that does not indicate it was passed and signed by the Governor.

LRC INDEX FOR NEW LAWS PASSED IN 2008 SESSION
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z


Accountants
Actuarial Analysis
Administrative Regulations and Proceedings
Advertising
Aeronautics and Aviation
Aged Persons and Aging
Agriculture
Alcoholic Beverages
Alcoholism
Amusements and Recreation
Animals, Livestock, and Poultry
Annexation
Appropriations
Arbitration
Architects
Archives and Records
Area Development Districts
Arts and Crafts
Associations
Athletics
Attorney General
Attorney, Commonwealth’s
Attorney, County
Attorneys
Auctioneers
Auditor of Public Accounts
Audits and Auditors
Bail and Pretrial Release
Banks and Financial Institutions
Barbers and Cosmetologists
Blind or Deaf Persons
Boats and Boating
Bonds of Surety
Bonds, Public
Boundaries
Budget and Financial Administration
Campaign Finance
Capital Construction
Cemeteries and Burials
Chambers of Commerce
Charitable Organizations and Institutions
Children and Minors
Circuit Clerks
Cities
Cities, Classification
Cities, First Class
Cities, Fourth-Sixth Class
Cities, Second Class
Cities, Third Class
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Who will attend the Fancy Farm Debate and Picnic on Saturday Aug. 2nd.

Monday, July 14th, 2008

The following politicos have so far said they would appear at Fancy Farm on August 2nd.:

House Majority Floor Leader Rocky Adkins (master of ceremonies), Gov. Steve Beshear, Lt. Gov. Daniel Mongiardo, U.S. Sen. Jim Bunning (who previously said he might never attend again because of safety issues), U.S. Senate candidate Bruce Lunsford, U.S. Rep. Ed Whitfield, 1st District U.S. House candidate Heather Ryan, Auditor Crit Luallen, state Sen. Kenneth Winters, state Senate candidate Carroll Hubbard and state Rep. Fred Nesler.
U.S. Sen. Mitch McConnell has been invited but has not indicated if he will attend, likewise state Treasurer Todd Hollenbach, state Rep. Steven Rudy and state House candidate Mike Lawrence have not indicated if they will appear. Secretary of State Trey Grayson’s spokesman Les Fugate said the secretary of state will be there.)
Wilson said two presidential candidates, Sen. John McCain and Sen. Barack Obama, have been invited and that Obama’s camp had called to ask for the demographics and history of the picnic and area.  If either of the two Presidential candidates appear, then other uncommitted politicians may change their mind and appear.

One problem that confronts Presidential candidates is the difficulty in providing security and running everyone through the necessary metal detectors.
Attorney General Jack Conway and Agriculture Commissioner Richie Farmer have said they would not be attending the political “debate” and picnic.

Fayette Judges meet to seek solution to Public Advocates withdrawal from cases

Monday, July 14th, 2008

Update Tuesday July 15th.

 The first legal test of service reductions by public defenders occurred at a closed-door hearing Monday in Fayette Circuit Court, but it’s not clear what rulings, if any, were made. 

After a 31/2- hour hearing in a Lexington juvenile case, public advocate Ernie Lewis said that state public defenders will continue refusing cases for juvenile status offenders. Status offenses are acts that would not be criminal for an adult, such as truancy or running away from home. 

Lewis and other attorneys declined to say what happened in the hearing. Lewis said lawyers were under strict orders from Judge John Schrader not to discuss any details of the case

The Department for Public Advocacy recently indicated that it would not be able to accept appointments in involuntary mental commitment cases, due to the state budget cuts.

Fayette District Judge Joe Bouvier sharply criticized Public Advocates in an order issued June 3rd.  He has ordered the Department of Public Advocacy to take the cases after public defenders in Fayette County withdrew from pending cases.

A meeting of all six Fayette District Judges was scheduled for July 14th. to determine a better way to handle this situation.  Public Defenders will be invited to present evidence to justify their decision to also withdraw from juvenile status offense cases.

County Attorney Larry Roberts indicated he would be at the hearing to oppose the withdrawal by the Department.

On June 30th. the Department filed a lawsuit against the State seeking payment for these services.

Fmr. Bush Aide Karl Rove Ignores Congressional Subpoena, Conyers Threatens to Prosecute for Contempt

Saturday, July 12th, 2008

 

By Café Sentido.com              July  12, 2008

 

Karl Rove has chosen to ignore a subpoena to testify before the House Judiciary Committee in relation to allegations he was part of an administration campaign against officials who did carry out a partisan agenda. By not appearing to testify under subpoena, he has opened himself up to charges of contempt of Congress, and the committee’s chairman, Rep. John Conyers (D-MI) has threatened to prosecute Rove if he does not comply, as has Rep. Linda Sanchez (D-CA), chairwoman of the subcommittee on commercial and administrative law.

 

Rove’s attorney, Robert Luskin, claims the former Bush political adviser is “immune” from the subpoena because the accusations relate to a position he held which Luskin argues is covered entirely by “executive privilege”. House Democrats have said this argument not only flies in the face of law and judicial precedent, but is perilously close to arguing that all executive activities are immune from oversight or prosecution (despite Constitutional provisions for both) as a result of executive privilege.

 

Rep. Conyers said of Rove’s failure to testify: “A refusal to appear in violation of the subpoena could subject Mr. Rove to contempt proceedings, including statutory contempt under federal law and proceedings under the inherent contempt authority of the House of Representatives.” Rep. Sanchez noted that “The courts have made clear that no one —not even the president— is immune from compulsory process. That is what the Supreme Court rules in U.S. v. Nixon and Clinton v. Jones.”
The chairman of the Judiciary Committee has also noted that Rove has repeatedly made appearances on cable news broadcasts, including as a paid consultant, and commented on the very issues he refuses to speak about under oath. The fact that he had commented on the issues would, under legal provisions covering actual privilege —such as that between patient and analyst, client and lawyer or among spouses—, negate any claim to privilege on the issue in question.

 

This fact could work against Mr. Rove if legal proceedings are initiated in an attempt to force him to testify, despite unprecedented efforts by the Bush administration, at times with success, to establish precedent cordoning off nearly all executive consultations from Congressional oversight under the guise of executive privilege or state secrets (itself a principle of British law designed to protect the monarchy).

 

It remains unclear, however, what action may be taken to force Mr. Rove to testify. If he were to appear before the Congressional committee, he could claim recourse the 5th Amendment to the US Constitution, which guarantees the individual the right not to testify against himself, i.e. not to be forced into admitting wrongdoing. The Judiciary Committee may gather evidence from other witnesses and through document subpoenas, and may also request the Justice Department turn over evidence from related investigations, in order to establish a case against Mr. Rove, then call for his prosecution on evidentiary grounds.

 

CNN reports that:

 

Rove’s lawyer cited a letter from the Justice Department saying Rove is “constitutionally immune from compelled congressional testimony.” He said Rove is willing to submit to an “informal interview” or to answer written questions about the prosecution of former Alabama Gov. Don Siegelman, whose ouster Rove is accused of orchestrating.

“Threatening Mr. Rove with sanctions will not in any way expedite the resolution of the issue,” Luskin wrote in a letter to the panel on Wednesday.

 

Luskin argues that Congress cannot force Rove to testify and that courts will uphold his recourse to executive privilege as a form of blanket immunity from such subpoenas. Rep. Conyers has noted that in the past, acting and former White House officials have testified about activities related to their work in the executive branch, dealing with privilege issue by issue, as questions are put to them; Mr. Rove could follow this course, give testimony and in isolated matters, claim either privilege or 5th Amendment protection, as advised by counsel.

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California to review Jessica’s Law which allows indefinite jailing of sex offenders who can’t prove they are safe…

Thursday, July 10th, 2008

Metropolitan News-Enterprise July 10, 2008

  

By a MetNews Staff Writer

The California Supreme Court agreed yesterday to decide whether a popular law that allows sexually violent predators to be confined indefinitely is constitutional.

At their weekly conference in San Francisco, the justices voted 5-2, with Justices Ming Chin and Marvin Baxter in the minority, to grant the defendant’s petition for review in People v. Mckee,160 Cal.App.4th 1517. The Fourth District Court of Appeal’s Div. One ruled March 20 that the statute does not violate the Due Process, Equal Protection, or Ex Post Facto clauses.

 

Affirming the decision of San Diego Superior Court Judge Peter L. Gallagher, Div. One upheld the constitutionality of “Jessica’s Law,” enacted by an overwhelming majority of the voters as Proposition 83. The 2006 measure provides in part that an individual committed under the Sexually Violent Predator Act will remain in custody until he can prove that he no longer suffers from a mental illness that predisposes him to commit sex crimes.

 

Under prior law, a sexually violent predator who had completed his sentence could only be recommitted for two years at a time.

 

The defendant in the case considered by the justices yesterday, Richard McKee, was involuntarily committed to the custody of the State Department of Mental Health for an indeterminate term in March 2007.

 

Jessica’s Law is named after Jessica Lunsford, a 9-year old Florida girl who was raped and murdered in February 2005 by John Couey, a previously convicted sex offender. In addition to providing for indefinite commitments, it changed the definition of a sexually violent predator by permitting an offender to be so designated on the basis of a single conviction of a violent sex crime.

 

Proposition 83 did not change the requirement that the prerequisites for commitment be  proved at trial beyond a reasonable doubt, or the act’s requirement that the offender bear the burden of proving by a preponderance of the evidence that he is entitled to conditional release for one year and subsequent unconditional discharge after that one-year conditional release.

McKee claimed the act’s release provisions were inadequate to ensure that only those persons with a current mental illness that makes them dangerous to the public continue to be confined.

Court of Appeals rules that though it may be” bad judgment”, a voter is entitled to vote “the straight Republican ticket”.

Thursday, July 10th, 2008

We’re not making this up.  In our ongoing annotation of the KRS, an effort than never ends, one of our gifted para legals found this comment in a case regarding a contested election.
 See:   Everman v. Thomas, 303 Ky. 156 (KY, 1946)
 
“(a) Patsy Marcum. The only evidence as to this person is that she voted the straight Republican ticket. Some folks may think that was bad judgment. But that alone does not disqualify the voter.” 

Our continuous review of the appellate decisions of the Commonwealth often provide nuggets like this one.  Not all the writing by appellate judges is boring.  Sometimes they slip in something that is amusing….and perhaps this is done just to see if anyone is paying attention.   You can be sure, that our talented staff at LawReader are indeed paying attention.

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Judicial Nominating Commission sends names of Irv Maze,Margaret Keane, Ted Shouse to Gov. to fill Montano Circuit Court vacancy in Jefferson County.

Wednesday, July 9th, 2008

FRANKFORT, Ky. – The Judicial Nominating Commission, led by Chief Justice John D. Minton Jr., met today at the Jefferson County Judicial Center in Louisville to chose nominees to replace the late Judge Kathleen Voor Montano, who passed away April 21, 2008. The vacant circuit judgeship serves the 30th Judicial Circuit, Division 10, consisting of Jefferson County. Three Louisville attorneys were named as nominees to fill this vacancy: Margaret E. Keane, Jefferson County Attorney Irvin G. Maze and Theodore S. (Ted) Shouse.

Judicial Nominating Commission: Process for Filling a Judicial Vacancy
When a judicial vacancy occurs, the executive secretary of the Judicial Nominating Commission sends a notice of vacancy to all attorneys in the judicial circuit or the judicial district affected. Attorneys can recommend someone or nominate themselves.

Once that occurs, the individuals interested in the position return a questionnaire to the Office of Chief Justice. The Chief Justice of Kentucky then meets with the Judicial Nominating Commission to choose three nominees. Because the Kentucky Constitution requires that three names be submitted to the governor, in some cases the commission submits an attorney’s name even though the attorney did not apply. This ensures that there are always three nominees.

The names of the applicants are not released. However, once the Judicial Nominating Commission has determined the names of the three finalists to be sent to the governor for selection, the Judicial Branch makes the names available to the public and the media. The credentials of these three nominees are sent to the governor for review. When the governor appoints the replacement, his office makes the announcement.

Makeup of the Judicial Nominating Commission
The Judicial Nominating Commission is established in the Kentucky Constitution. Ky. Const. § 118; SCR 6.000, et. Seq. The commission has seven members, which are comprised of the chief justice of Kentucky (who also serves as chair), two lawyers elected by all the lawyers in their circuit and four Kentucky citizens who are appointed by the governor. The four citizens appointed by the governor must equally represent the two major political parties, so two must be Democrats and two must be Republicans. It is the responsibility of the commission to submit a list of three names to the governor and the governor must appoint a judge from this list of three.

Circuit Court
Circuit Court is the court of general jurisdiction which hears civil matters involving more than $4,000, capital offenses and felonies, divorces, adoptions, termination of parental rights, land dispute title cases and contested probate cases.

Note: Per the Office of Secretary of State, if a judicial vacancy is accepted prior to Aug. 4, 2008, then the race will go on the ballot for the November 2008 general election. The filing deadline for the general election is Aug. 12. The elected judge would immediately be eligible to be sworn into office upon certification of the election results by the State Board of Elections. If a judicial vacancy is accepted on Aug. 4, 2008 or thereafter, the race will appear on the 2010 ballot. Again, the elected judge would immediately be eligible to be sworn into office upon certification of the election results by the State Board of Elections. Any appointments made by the governor will serve until the certification of the election results by the State Board of Elections.

All candidate filing procedures and the election calendar can be found on the Office of Secretary of State Web site at www.sos.ky.gov/elections/procedures.htm.

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Governor Beshear Appoints Jo Ann Phillips and James F. Sullivan to Board of Claims and Crime Victims Compensation Board

Wednesday, July 9th, 2008

FRANKFORT, Ky. – Governor Steve Beshear has appointed James F. Sullivan to serve as a member of the Board of Claims and Crime Victims Compensation Board.

Sullivan, of Frankfort, is the vice president of the Flint Group. He shall serve as chair of the Board of Claims. The appointment replaces William D. Goodman, whose term has expired. Sullivan shall serve for a term expiring July 1, 2012.

 

The governor has reappointed Jo Ann Phillips to serve as a member of the boards.

 

Phillips, of Louisville, is an account executive for Douglas Expositions and the University of Louisville. She shall serve as chair of the Crime Victims Compensation Board. Phillips shall serve for a term expiring July 1, 2012.

 

The Board of Claims is responsible for deciding claims filed against the state by citizens who believe their person or property has been damaged through negligent acts on the part of the state. The board is made up of the members of the Crime Victims Compensation Board.

 

The Crime Victims Compensation Board determines the eligibility and amount of reimbursement to innocent, needy crime victims. The board is composed of five members appointed by the governor.

 

The two appointees will each serve on both boards.  They handle the different functions of each board thru the same five members.

 

Read the Complaint of Sen. President David Williams against Gov. Beshear and read the Gov’s Answer and Counterclaim

Wednesday, July 9th, 2008

LawReader members can read the Civil Complaint of Sen. President David Williams filed against Gov. Steve Beshear re: separation of powers , Governor’s veto of Transportation bill, and Legislatures attempt to override the veto.

The legal pleadings set out the arguments that will test the power of the legislature to “turn back the clock” at the end of a legislative session, and the powers of the Gov. to spend state funds outside of a Legislative mandate.

The Legislature argues that the Governor’s veto of the Transportation Budget was issued a day late.  The Governor argues the Legislature by sending him the veto after the expiration of the Constitutionally mandated end of the 50 day session of the General Assembly did not provide him the necessary ten days unless you start counting the ten day period on the day after the veto was actually overriden and delivered to the Clerk.

LawReader subscribers can go to: SEPARATION OF POWERS LAWSUIT – WILLIAMS VS. BESHEAR

Also see LawReader analysis:

SEPARATION OF POWERS – POWERS OF CONFIRMATION  These issues are soon to be in a court near you!  by LawReader Senior Editor Stan Billingsley -Discussion of issues relating to the Separation of Powers, Powers of Appointment, Maximum Terms of Office, Power of Senate and General Assembly to confirm executive and judicial officers, and members of boards and commission.