Archive for March, 2009

Court of appeals releases 21 decision March 20, 2009

Friday, March 20th, 2009


  

The Ky. Court of Appeals released 21 decisions today.   Cases dealt with arbitration agreements sought by nursing homes, waive of arbitration agreements, application of Miranda for students questioned at school, assignibility of legal malpractice claims, contracts, cemeteries, annexation, change in visitation by joint custody parents, Batson challenges, 11.42 and 60.02 appeals, and a seatbelt focused traffic roadblock.
LawReader subscribers can read the synopis and access the full text of each of these cases by going to COURT OF APPEALS DECISIONS FOR MARCH 20, 2009 
Non-subscribers can sign on at: SIGN UP – PRICING for lawreader
 


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Ky. Supreme Court issues important rulings this week.

Thursday, March 19th, 2009

If you are a LawReader subscriber you can log on to KY. SUPREME COURT DECISIONS FOR MARCH 2009 to access 32 important decisions handed down on March 19, 2009.
 

If you aren’t a subscriber you can sign up at: SIGN UP – PRICING for Lawreader
 

Selected rulings for March:
 

Supreme Court disciplines six attorneys this week. 
A worker’s compensation statute KRS 342.(3)(b)(4)  is ruled unconstitutional as applied in Black Lung cases. If you practice in this area you should read this case.
One decision holds that a technical violation of KRS 610.200(l) does not automatically render a minor’s confession inadmissible.
Several important rulings regarding discovery from the Commonwealth and Defendant in criminal cases were handed down.
The Butts Rule is overturned in Double Jeopardy case.
In an important DUI ruling, the court outlawed an attempt by the Commonwealth to amend down a DUI charge in order to enhance chance of convicting defendant of a PFO offense.  No amendment rule in Chapter 189A applies to the Commonwealth and the Defendant.

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Can Congress Legally Enact a Retroactive Tax Bill to recover AIG bonuses?

Thursday, March 19th, 2009

By LawReader Senior Editor Stan Billngsley March 19, 2009

The media is throwing around the theory that a retroactive tax bill is a Bill of Attainder which is prohibited by the U.S. Constitution.

There is a large body of law which holds that retroactive tax laws, and tax breaks are not ex post facto laws, and are constitutional.
See:
Nationsbank of TX v. U.S., 269 F.3d 1332 (Fed. Cir., 2001)            October 30, 2001
“Although the tax code does contain many provisions eventually subjecting recalcitrant taxpayers to criminal liability for refusing to pay taxes, the entire tax code was criminal in nature. If the entire tax code was criminal, every retroactive tax law would become an unconstitutional ex post facto enactment. To the contrary, the Supreme Court has acknowledge Congress’ constitutional authority to enact retroactive tax laws. See, e.g., United States v. Carlton, 512 U.S. 26,114 S.Ct. 2018,129…”
Rocanova v. U.S., 955 F.Supp. 27 (S.D.N.Y., 1996)
   “When faced with due process challenges to retroactive tax legislation, the Supreme Court “repeatedly has upheld” the legislation. United States v. Carlton, 512 U.S. 26, 30, 114 S.Ct. 2018, 2021, 129 L.Ed.2d 22 (1994) (citing United States v. Hemme, 476 U.S. 558, 106 S.Ct. 2071, 90 L.Ed.2d 538 (1986); United States v. Darusmont, 449 U.S. 292, 101 S.Ct. 549, 66 L.Ed.2d 513 (1981); Welch v. Henry, 305 U.S. 134, 59 S.Ct. 121, 83 L.Ed. 87 (1938); United States v. Hudson, 299 U.S. 498, 57 S.Ct. 309, 81 L.Ed. 370 (1937); Milliken v. United States, 283 U.S. 15, 51 S.Ct. 324, 75 L.Ed. 809 (1931); Cooper v. United States, 280 U.S. 409, 50 S.Ct. 164, 74 L.Ed. 516 (1930)).
The standard applied in determining the validity of retroactive tax legislation under the Due Process Clause is whether “`retroactive application is so harsh and oppressive as to transgress the constitutional limitation.’” Carlton, 512 U.S. at 30, 114 S.Ct. at 2022 (quoting Welch, 305 U.S. at 147, 59 S.Ct. at 126). Under the “harsh and oppressive” standard, retroactive tax legislation will be upheld if the government can show that “the retroactive application of the legislation is itself justified by a rational legislative purpose.” Id. (quoting Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 730, 104 S.Ct. 2709, 2718, 81 L.Ed.2d 601 (1984)).”
***

 The Ex Post Facto provision of the U.S. Constitution is in the same phrase as Ex Post Facto laws.  Most definitions we have found suggest that a Bill of Attainder applies to crimes and not to taxes.  A tax (unless it is a punishment) is not a criminal offense.
The proposed legislation being considered, and which passed the House today, applies to all companies which have accepted bailout money and is limited only to bonuses above $200,000.  Plus the tax is not 100% but only 90%.  Up until the Kennedy Presidency, the top income tax rate in the U.S. was 90%.
Definition: Bill of Attainder
A legislative act that singles out an individual or group for punishment without a trial.
The Constitution of the United States, Article I, Section 9, paragraph 3 provides that:

“No Bill of Attainder or ex post facto Law will be passed.”
“The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply – trial by legislature.”  U.S. v. Brown, 381 U.S. 437, 440 (1965).
“These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted.  A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial.  Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment.”  William H. Rehnquist, The Supreme Court, page 166.
“Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. … The sober people of America are weary of the fluctuating policy which has directed the public councils.  They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.”  James Madison, Federalist Number 44, 1788.
Supreme Court cases construing the Bill of Attainder clause include:

  • Ex Parte Garland, 4 Wallace 333 (1866).
  • Cummings v. Missouri, 4 Wallace 277 (1866).
  • U.S. v. Brown, 381 U.S. 437 (1965).
  • Nixon v. Administrator of General Services, 433 U.S.425 (1977).
  • Selective Service Administration v. Minnesota PIRG, 468 U.S. 841 (1984).

 

A Senior Status Judge, Cletus Miracle, and four other Clay County Officials indicted for racketeering and vote buying in Federal Indictments

Thursday, March 19th, 2009

The Federal indictments allege that officials in Clay County conspired to buy votes in the May 2004 primary election. 

Those charged include school superintendent Doug Adams; county clerk Freddy Thompson; Cletus Maricle, a retired circuit judge who is now on senior status; William E. Stivers, an election officer; and Wayne Jones, chair of the county Democratic Party

They are charged with racketeering and other crimes relating to the election. 

FBI agents and other officers made arrests on the officials on Thursday. 

The five allegedly used the county election board to buy votes and try to control the 2004 primary.. 

The indictment alleges that Judge Maricle and Doug Adams “were considered political bosses in the county” and used their influence to appoint corrupt people to the election board and cause election officers to commit mail fraud, extortion and bribery, the indictment said. 

Some of the charges carry maximum sentences of 20 years. 

chief justice Minton in favor of opening judiciary to open records rules

Wednesday, March 18th, 2009

 

March 18, 2009
Since 1978, the Kentucky Supreme Court has maintained that the state open-records law doesn’t apply to judicial branch agencies.
Katie Quitter. Minton’s chief of staff, announced that Chief Justice John Minton Jr. is expected to propose new open-records rules for the judiciary later this year.
The state’s Judicial Council, a group of judges, lawyers and state legislators, is expected to help draft the new policy.
Some court records are already open to public access, but it is believed the new policy discussed  by Justice Minton may include the Kentucky Bar Association, the Board of Bar Examiners and the Judicial Conduct Commission.
The Courier Journal reports that  the attorney general’s office, which has jurisdiction of appeals of open-records rulings, has denied 60 appeals of requests for judicial records since 1980.
Those requests, the newspaper said, range from a copy of the policy for using a metal detector at the Warren County judicial center to a list of civil cases in Jefferson County that ended in jury trials.


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Jefferson County Fairness commission calls for leaders to appoint qualified minorities to Kentucky judgeships

Wednesday, March 18th, 2009

 


      Jefferson County Commission on Racial Fairness Resolution
Racial Fairness Commission Resolution
FRANKFORT, Ky. – The Jefferson County Commission on Racial Fairness has unanimously passed a resolution that calls for the Judicial Nominating Commission, Chief Justice of Kentucky John D. Minton Jr. and Gov. Steve Beshear to seek out, nominate and appoint qualified African-Americans and other minorities to the Kentucky judiciary. 
“The commission calls for a judiciary that represents the racial diversity of our population,” the resolution says in part. 
The resolution covers all Kentucky courts. It does not endorse or support a particular candidate for judicial office or call for a racial quota.
The commission voted for the resolution Jan. 23 after discussing the racial composition of the Jefferson County judiciary at its December and January meetings. Jefferson County, where approximately 20 percent of residents are African-American, has no elected African-American judges among its 40 judges in Circuit, District and Family Court. 
The racial makeup of the Jefferson County judiciary is “an essential component of the larger question of whether the courtroom environment alienates or detrimentally impacts African-Americans and other racial minorities,” according to the resolution.
District Court Judges Janice R. Martin and Joan A. “Toni” Stringer, the only African-American trial court judges in Jefferson County, retired in January to join the Senior Judges Program. Chief Justice Minton has appointed Judges Martin and Stringer to continue in their Jefferson County District Court posts as senior judges until judges are appointed to fill the vacancies created by their retirements.
“The Commission on Racial Fairness believes that the Kentucky Court of Justice recognizes the importance of a judiciary that is statistically representative of all racial groups within the commonwealth,” the resolution reads. “Mistrust of public institutions is fostered by stark statistical disparities with regard to the representation of African-Americans and other minorities in public offices and positions of authority, including the judiciary.”
This resolution is an important and timely call for action in light of the racial composition of the trial bench in Jefferson County, the number of judicial vacancies to be filled statewide and the recent celebration of Black History Month, said Court of Appeals Judge Denise G. Clayton, who chairs the fairness commission.
There are 27 judicial vacancies statewide. Twenty-three circuit and district judges recently retired to join the Senior Judges Program before it expired by operation of law on Jan. 31, 2009, and four circuit and district judgeships are vacant due to elections. The judgeships will be filled later this year through the Judicial Nominating Commission process.
The Jefferson County Commission on Racial Fairness was appointed in 2001 to examine study claims of racial bias in Jefferson Circuit Court. The commission is composed of a diverse group of judges, lawyers, civil rights proponents and other leaders in the African-American community. In its nearly eight years of work, the commission has found evidence of disparities or systemic bias regarding bail determinations, sentencing and jury selection. Some of the measures it has recommended to address the problems have been implemented through immediate policy changes and training initiatives, while others are the subject of pending or proposed legislation.
Judicial Nominating Commission
The Judicial Nominating Commission helps fill judicial vacancies by appointment when a vacancy occurs outside of the election cycle. Members of the JNC meet to select three qualified individuals and submit their names to the governor for consideration. The governor must appoint a judge within 60 days of receiving the list of nominees or the appointment is made by the chief justice from the list of nominees.
When a judicial vacancy occurs, the executive secretary of the JNC notifies the attorneys and the public in the affected circuit or district that a vacancy exists. Attorneys can recommend someone or nominate themselves. Interested attorneys must complete a questionnaire and return it to the executive secretary of the JNC at the Administrative Office of the Courts. The chief justice then meets with the JNC to choose the three nominees and submits those names to the governor in alphabetical order.
The Judicial Branch issues a news release announcing the three nominees once their credentials are sent to the governor for review. When the governor appoints the replacement, his or her office makes the announcement. The completed questionnaires and the number of applicants and their names are not released.
Composition of the Judicial Nominating Commissions
There are currently 61 Judicial Nominating Commissions in Kentucky, one for the Supreme Court and Court of Appeals, one for each judicial circuit and one for each judicial district. If the circuit and district have the same boundaries, then one commission serves both.
The seven members of the nominating commission are the chief justice (who serves as chairman), two attorneys elected by the attorneys in the jurisdiction of the vacancy and four non-attorney Kentucky citizens who are appointed by the governor. The four non-attorneys must equally represent the two major political parties, so two must be Democrats and two must be Republicans. A JNC member must be a resident of the circuit or district he or she represents and may not hold any other public office or office in a political party or organization.
JNC members serve four-year terms. Members are not compensated for their services, but are reimbursed for expenses for the days they perform their duties. The Administrative Office of the Courts provides administrative support for and maintains the records of the nominating commissions.
Senior Judges Program
The 2000 General Assembly created the Senior Judges Program, which allows judicial vacancies to be filled in a timely manner by retired judges who serve 600 days over five years. Senior judges receive no extra pay and are compensated through an enhanced retirement benefit. Under the guidelines, sitting judges are called upon to handle routine situations, such as disqualifications, recusals, vacations and short illnesses, while senior judges are reserved for vacancies due to death or retirement and extraordinary circumstances leading to unusually congested dockets. There are currently 69 senior judges.

Why you should add a favorites link in your browser toolbar for LawReader.

Tuesday, March 17th, 2009

 

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Fen Phen retrial delayed due to lawyers illness

Tuesday, March 17th, 2009

The Fen Phen retrial of William Gallion and Shirley Cunningham who are accused of taking millions of dollars from their clients has been postponed until Thursday morning because a defense attorney is ill.
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Chief Justice Minton, Gov. Beshear announce plans to delay filling judicial vacancies

Tuesday, March 17th, 2009

Plan expected to save state more than $1 million
FRANKFORT, Ky., March 17, 2009 Chief Justice John D. Minton Jr. and Gov. Steve Beshear agreed in February to delay the nominating process for 27 vacant judgeships. The decision has the effect of allowing 23 new senior judges to remain in their current seats for several months, a move that is expected to save the Commonwealth more than $1 million. Twenty-three circuit and district judges retired in recent months to enter the Senior Judges Program before it expired by operation of law on Jan. 31, 2009. An additional four circuit and district judgeships are vacant due to elections.
 

The counties affected by a current judicial vacancy are Bath, Bell, Boone, Boyd, Breckinridge, Campbell, Clark, Cumberland, Daviess, Estill, Floyd, Franklin, Gallatin, Grayson, Green, Harrison, Hopkins, Jefferson, Knox, Laurel, Lee, Letcher, Madison, Marion, McCracken, McLean, Meade, Menifee, Monroe, Montgomery, Muhlenberg, Nicholas, Owsley, Pendleton, Rowan, Robertson, Taylor and Washington.
Under sections 118 and 152 of the Kentucky Constitution, the governor is the appointing authority for all judicial vacancies. It is the responsibility of the chief justice to convene the Judicial Nominating Commissions.
The pay for senior judges comes from a judicial retirement account instead of the state general fund, which accounts for the savings. Chief Justice Minton said he will begin convening Judicial Nominating Commissions in July 2009. The Judicial Branch will save approximately $277,000 for each month these 27 judgeships are filled by senior judges.
Gov. Beshear and I believe this is a fiscally responsible move that will keep experienced judges on the bench while providing a substantial savings to the Judicial Branch,” Chief Justice Minton said.
 

“We are confronting unprecedented economic challenges in Kentucky,” Gov. Beshear said. “By allowing senior judges to stay in their current roles, we are not only ensuring upwards of a million dollars in savings, but the continued integrity and longstanding experience of veteran judicial leaders in courts across the Commonwealth.”
There are currently 69 senior judges. The 2000 General Assembly created the Senior Judges Program, which allows judicial vacancies to be filled in a timely manner by retired judges who serve 600 days over five years. Senior judges receive no extra pay and are compensated through an enhanced retirement benefit. Under the guidelines, sitting judges are called upon to handle routine situations, such as disqualifications, recusals, vacations and short illnesses, while senior judges are reserved for vacancies due to death or retirement and extraordinary circumstances leading to unusually congested dockets.
The next election for district judges is in 2010 while circuit judges are up for election in 2014. Circuit judges serve eight-year terms and district judges serve four-year terms.

Judicial Nominating Commission
The Judicial Nominating Commission helps fill judicial vacancies by appointment when a vacancy occurs outside of the election cycle. Members of the JNC meet to select three qualified individuals and submit their names to the governor for consideration. The governor must appoint a judge within 60 days of receiving the list of nominees or the appointment is made by the chief justice from the list of nominees.

When a judicial vacancy occurs, the executive secretary of the JNC notifies the attorneys and the public in the affected circuit or district that a vacancy exists. Attorneys can recommend someone or nominate themselves. Interested attorneys must complete a questionnaire and return it to the executive secretary of the JNC at the Administrative Office of the Courts. The chief justice then meets with the JNC to choose the three nominees and submits those names to the governor in alphabetical order.

The Judicial Branch issues a news release announcing the three nominees once their credentials are sent to the governor for review. When the governor appoints the replacement, his or her office makes the announcement. The completed questionnaires and the number of applicants and their names are not released.

Composition of the Judicial Nominating Commissions
There are currently 61 Judicial Nominating Commissions in Kentucky, one for the Supreme Court and Court of Appeals, one for each judicial circuit and one for each judicial district. If the circuit and district have the same boundaries, then one commission serves both.

The seven members of the nominating commission are the chief justice (who serves as chairman), two attorneys elected by the attorneys in the jurisdiction of the vacancy and four non-attorney Kentucky citizens who are appointed by the governor. The four non-attorneys must equally represent the two major political parties, so two must be Democrats and two must be Republicans. A JNC member must be a resident of the circuit or district he or she represents and may not hold any other public office or office in a political party or organization.

JNC members serve four-year terms. Members are not compensated for their services, but are reimbursed for expenses for the days they perform their duties. The Administrative Office of the Courts provides administrative support for and maintains the records of the nominating commissions.
 

VACANCIES:
 

The four names in blue are vacancies due to election; the 23 other vacancies are due to retiring judges who took senior status. The vacancies are listed, from top to bottom, in the order in which they will be filled. The determination on which vacancies to fill first was based on several factors, including the jurisdiction’s caseload, the number of other judges in that jurisdiction and the level of coverage by senior judges for that jurisdiction
 

Judicial Vacancies March 2009
Order Vacancies to be Filled

 Judge Title
Circuit/
District Division Counties
1
Bartholomew,
Judith
District Judge
30 17 Jefferson
2 Eckert, Matt District Judge 30 11 Jefferson
3 McDonald, Martin Circuit Judge 30 6 Jefferson
4 Clouse, William* District Judge 25 1 Clark, Madison
5 Logue, Jean* Circuit, Family Court Judge 25 3 Clark, Madison
6 Rosen, Marc Circuit Judge 32 1 Boyd
7
Mains, William Circuit Judge
21 1
Bath, Menifee,
Montgomery, Rowan
8 Bowling, James Circuit Judge 44 1 Bell
9 Mills, John Knox* District Judge 27 1 Knox, Laurel
10 Hines, Robert Circuit Judge 2 1 McCracken
11
McClanahan, Ralph District Judge
23 1 Estill, Lee, Owsley
12
Rhorer, Reed Circuit, Family Court Judge
48 3 Franklin
13 Martin, Janice District Judge 30 9 Jefferson
14 Ryan, William District Judge 30 7 Jefferson
15 Morris, Geoffrey Circuit Judge 30 11 Jefferson
16 Collins, Michael District Judge 54 1 Boone, Gallatin
17
Foellger, Michael Circuit, Family Court Judge
17 3 Campbell
18 Hurt, Stephen District Judge 60 1 Cumberland, Monroe
19 Soder, Robert District Judge 4 2 Hopkins
20 Jernigan, David Circuit Judge 45 1 McLean, Muhlenberg
21 Castlen, Joseph* District Judge 6 3 Daviess
22
Lively, Tom District Judge
46 1
Breckinridge, Grayson,
Meade
23 Wood, James District Judge 47 1 Letcher
24 Caudill, Danny Circuit Judge 31 1 Floyd
25
McGinnis, Robert Circuit Judge
18 1
Harrison, Nicholas,
Pendleton, Robertson
26
George, Doughlas Circuit Judge
11 1
Green, Marion, Taylor,
Washington
27 Stringer, Joan District Judge 30 13 Jefferson


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Ky. Supreme Court hears oral arguments on spousal claims for loss of consortium upon death of spouse as allowed in 40 other states

Monday, March 16th, 2009

 

Under Kentucky case law a spouse may not claim loss of consortium if the spouse dies.  Some 40 other states hold otherwise and allow such claims.

 

Strangely the Ky. Sup. Ct. has ignored KRS 411.145 which allows a loss of consortium claim and does not contain language limiting such claims to cases where the spouse survives.

 

KRS 411.145 Damages for loss of consortium.

(1) As used in this section “consortium” means the right to the services, assistance, aid, society, companionship and conjugal relationship between husband and wife, or wife and husband.

 

(2) Either a wife or husband may recover damages against a third person for loss of consortium, resulting from a negligent or wrongful act of such third person.

History: Created 1970 Ky. Acts ch. 200, sec. 1.

 

The prohibition against such loss of consortium claims in cases where the spouse is killed is found in:

Brooks v. Burkeen, 549 S.W.2d 91 (Ky., 1977)

 

“This claim fails because it is well settled law that her recovery would be limited to damages which she sustained before her husband’s death. Prosser on Torts, 4th Ed., 899. His death occurred instantaneously while at work. Consequently, she lost no services, society, fellowship or affectionate relations prior to death. Rogers v. Fancy Farm Telephone Co., 160 Ky. 841, 170 S.W. 178 (1914); Loew v. Allen, Ky., 419 S.W.2d 734 (1967)” (and Johnson v. Lohre, 508 S.W.2d 785 (Ky., 1974))

 

While the courts have not allowed such claims for a spouse, the Ky. Supreme Court has allowed such claims for children. Giuliani v. Guiler, 951 S.W.2d 318 (Ky., 1997).

Giuliana may be a predictor of a change of philosophy by the Supreme Court when viewed along with the questions asked by Justices Schroder, Venters, Abramson, Noble and Scott during the oral arguments.

 

The court heard oral arguments Wednesday in a case involving the death of an Ohio County woman in which post-death loss of consortium is a prominent issue.

 

The Herald-Leader KyKrumudgeon blog reported that:

 

Justice Will T. Scott, for instance, noted the “clear trend” in this country toward allowing post-death claims for loss of consortium. Surviving spouses can seek post-death damages in more than 40 states now.

 

Justice Lisabeth Hughes Abramson to said the state’s courts have “grafted a common law restriction” on a statue that has no such restriction.

 

Justice Wil Schroder noted that an oft-cited 1969 court decision that adhered to the common law restriction on post-death claims may have been the impetus for lawmakers enacting the 1970 law that contained no such restrictions.

Justice Daniel T. Venters suggesed Kentucky courts just haven’t paid attention to what the legislature did in 1970.

 

Venters noted, it would be in the financial interest of a spouse whose partner had been comatose for 20 years to keep that person alive as long as possible so the damages for loss of consortium continue.

These comments may indicate that the Kentucky Supreme Court is about to make a change in the “common law” on this issue.

 

 


 

HB 315 passes. This bill toughens up laws relating to use of sexual predators who use the internet

Monday, March 16th, 2009

 

 See HB 315 – 

This bill affects numerous chapters and adds some new laws: 


     Amend KRS 510.155 to allow certain acts to constitute prima facie evidence under that section and to include communications that may originate or terminate outside of the Commonwealth; 

amend KRS 508.130 to include the use of communication devices as means by which stalking may be done; 

amend KRS 531.010 and 531.300 to include live images transmitted over the Internet within the coverage of the obscenity statutes; 

create a new section of KRS chapter 17 to prohibit sex offenders from using social networking websites; 

amend KRS 17.510 to require sex offenders to disclose their Internet communications identities; 

amend KRS 17.580 to allow the state’s sex offender registration website to be accessed to ascertain if an Internet communications identity is associated with a registered sex offender; 

create a new section of KRS chapter 500 to provide a forfeiture scheme for personal property used in connection with various sexual and exploitative offenses; 

amend KRS 16.210 and 500.090 to conform to the new forfeiture provision; 

create a new section of KRS Chapter 500 to allow the Attorney General to issue a subpoena to obtain delineated Internet information related to internet accounts for which there is reasonable cause to believe that the account has been used in the exploitation of children; 

create a new section of KRS Chapter 434 to criminalize the offense of phising, where one uses the internet to induce another to divulge personal information by impersonating a third party. 

HB 315 – AMENDMENTS 


     HCS/LM/CI – Amend to expand administrative subpoena authority to stalking offenses and to insert a knowing or intentional mens rea into the phising offense.

     HCA (1, J. Tilley) – Amend to expand administrative subpoena authority to stalking offenses and to insert a knowing or intentional mens rea into the phising offense.

     SFA (1, R. Jones II) – Attach provisions of SB 5/GA relating to driving under the influence, except omit coverage of non-impairing controlled substances. 

      

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Courier-Journal Series Blows Whistle on Jefferson Police Officers Failing to Honor Subpoenas. This type of in depth reporting is why newspapers exist.

Monday, March 16th, 2009

March 16, 2008 

In a five-month investigation, The Courier Journal found that hundreds of felony cases were dismissed in 2007 because officers failed to appear in court. This report may be found at: www.courier-journal.com

We could not find a link to the Day One report on the Courier Journal site but hopefully it will be posted shortly.

This series focuses on the casual way in which Louisville some police officers ignore court subpoenas.   The courts point a finger at the prosecutors, the prosecutors point a finger at the police, and the police seem totally unable to explain what is going on here.

There are several issues which the Courier-Journal study had not discussed and this is the failure of the courts and the prosecutors to do anything about this troubling neglect of duty. They are not as powerless as they may suggest.

We point out that the following statutes allow a subpoenaed witness to be arrested, held in contempt, fined and even prosecuted and jailed:

KRS 421.110 Punishment of witness for contempt.
Disobedience of a subpoena; intentional evasion of a service of it, by concealment, or otherwise; concealment or removal of a minor to prevent service of a subpoena upon him, or preventing his attendance as a witness, by a person having control of him; or a refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully ordered, may be punished as a contempt of the court or officer by whom the attendance or testimony of the witness is required.
Effective: July 1, 1953
History: Transferred 1952 Ky. Acts ch. 84, sec. 1, effective July 1, 1953, from C.C. sec. 535.
 

KRS 421.120 Liability of disobedient witness for costs and damages.
When a witness is brought before a court for contempt by disobedience of a subpoena, and it is shown that the legal fees for travel and one (1) day’s attendance were paid or tendered to him when the subpoena was served, and that he failed to attend without reasonable cause, the court may summarily order him to pay the party, on whose behalf he was summoned, the costs occasioned to him by the disobedience of the subpoena, not exceeding twenty dollars ($20); and he shall also be liable for any damages occasioned by the failure to attend.
Effective: July 1, 1953
History: Transferred 1952 Ky. Acts ch. 84, sec. 1, effective July 1, 1953, from C.C. sec. 536.
 

KRS 421.130 Warrant of arrest of disobedient witness — Bond.
If a witness fail to attend in obedience to a subpoena, the court or officer before whom his attendance was required may issue a warrant for arresting and bringing him before the court or officer, at a time and place to be fixed in the warrant, to give his testimony, and answer for the contempt. If the warrant be not for immediately bringing the witness before the court or officer, a sum shall be fixed in which the witness may give bond, with surety, for his appearance; and if no sum be fixed by the court or officer, it shall be one hundred dollars ($100).
Effective: July 1, 1953
History: Transferred 1952 Ky. Acts ch. 84, sec. 1, effective July 1, 1953, from C.C. sec. 537.
 

KRS 522.020 Official misconduct in the first degree.
(1) A public servant is guilty of official misconduct in the first degree when, with intent to obtain or confer a benefit or to injure another person or to deprive another person of a benefit, he knowingly:
(a) Commits an act relating to his office which constitutes an unauthorized exercise of his official functions; or
(b) Refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office; or
(c) Violates any statute or lawfully adopted rule or regulation relating to his office.
(2) Official misconduct in the first degree is a Class A misdemeanor.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 187, effective January 1, 1975.
 

KRS 522.030 Official misconduct in the second degree.
(1) A public servant is guilty of official misconduct in the second degree when he knowingly:
(a) Commits an act relating to his office which constitutes an unauthorized exercise of his official functions; or
(b) Refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office; or
(c) Violates any statute or lawfully adopted rule or regulation relating to his office.
(2) Official misconduct in the second degree is a Class B misdemeanor.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 188, effective January 1, 1975

   The court can subpoena any witness who fails to appear and subject them to a contempt of court sanction if they are found to have ignored a legitimate subpoena.  The prosecutor can seek this relief by filing a motion with the court. 

The County Attorney and the Commonwealth Attorney each is authorized by law to seek prosecution of any witness who is formally subpoenaed and fails to appear at trial.

The series fails to mention the great political power that the Metro Police union has over judges and prosecutors.   They are very active in making endorsements in elections, and in a large county these endorsements carry great weight with the public.   No judge or prosecutor (Commonwealth Attorney and County Attorney) wants to anger the police union and face a negative endorsement in the next election.  When all judges run at large, this is a significant factor that they surely consider in exercising their contempt powers.

A few judges and Deputy Prosecutors have written letters to the police officials, but this series show they have been largely ignored. 

This problem is pretty much unique to Jefferson County.  We believe from our experience that other jurisdictions don’t have to deal with a powerful police union.

The “system” works well in other jurisdictions, but is being ignored in Jefferson County.

Nevertheless, we salute the Courier-Journal for this detailed report.  This type of in depth reporting is why newspapers exist. 

Hopefully, this report will alert the public to a real problem and perhaps Chief White (who has often felt the wrath of the police union) will spine up and fix this problem.

THE COURIER-JOURNAL SERIES:

Day One  (published March 15)
The first day of a three-day series with a look at the problem and its impact on the criminal-justice system.

Day Two (published March 16)
Officers rarely disciplined for missing court
Few Louisville police officers are disciplined for failing to make court appearances.

Day Three  (to be published March 17, 2009)
A cumbersome subpoena-delivery system and a lack of communication are part of the problem.

Selected topics:
 Alfred Ceralde
Often absent officer suspended – 2 days
Before Louisville Metro Police Officer Alfred Ceralde was punished last October for missing multiple court hearings in 2007 and 2008, he had been the object of at least two earlier complaints from prosecutors. But neither was acted on by police. (3/16/09) More
 

OFFICER ABSENT | CASE DISMISSED

Hundreds of cases dismissed because police officers don’t come to court
More than 600 defendants facing such felony charges as drug dealing, robbery, burglary and assault were set free in 2007 because the Louisville Metro Police officers who arrested them failed to appear for hearings in Jefferson District Court. (3/15/09) More
 

Kenneth Whobrey Jr.

Man has had several cases dismissed
Louisville Metro Police had a seemingly solid case against Kenneth Whobrey Jr. when they arrested him at his Crittenden Drive home Oct. 2, 2006. Having entered the house after smelling marijuana, Officer Kenneth Wynne confiscated a bag of cocaine and marijuana. (3/15/09) More
 

Demetrius Wadlington

20-year criminal aided by absences
For someone with three felony convictions and an eight-page criminal record spanning nearly 20 years, Demetrius Wadlington has led a relatively charmed life in the criminal-justice system.
 

GRAND-JURY OPTION

Indictments seldom obtained after dismissals
When Louisville Metro Police Officer Christopher Hagan failed to appear in Jefferson District Court last May 15, Michael Holt — already a convicted felon for possessing cocaine — escaped prosecution on a weapons charge that could have sent him to prison. (3/15/09) More
 

The Reporters:
 

R.G. Dunlop, 63, is a general-assignment reporter for The Courier-Journal. Since joining the newspaper in 1977, he has held several reporting and editing positions, including Hazard bureau chief, special-projects reporter and city editor. Over the years, he has worked on projects dealing with coal-mineing safety, political corruption and campaign finance, and flaws in the court system.
 

Jason Riley, 34, is a courts reporter for The Courier-Journal. Riley joined the newspaper in March 2000 as the Bullitt County reporter. He has worked on projects dealing with issues of racial composition of juries and of delays in the court system, resulting in case dismissals.

Other team members:
Jean Porter, First Amendment editor; Michael J. Upsall, assistant Metro editor; Glenn Nesmith, senior copy editor; Steve Reed, graphics designer; Michael Stollhaus, page designer; David Harrison, Photo editor; Scott Utterback, videographer and photographer; Arza Barnett, Michael Clevenger, Chris Hall, Bill Luster and Matt Stone, photographers;, John Mura, Multimedia manager; Kim Kolarik, New Media editor; Ric Manning, online production manager; Tom Heiser, Web developer; Jason Graff; designer and Web producer; Rob Gates, video editing and production.

NKBA announces Mediation CLE this Thursday, March

Monday, March 16th, 2009

The NKBA Mediation Section will host a (1) one hour CLE this Thursday, March
19th, 12:00 noon at the NKBA office. 

The Honorable James Kruer will present “Stop Yelling at Me! – Mediating With
Difficult People”.  How to better communicate with bad communicators. 

Brown bag lunch is from 11:30 to noon.          COST:      $15 Young Lawyers
$25 Members
$50 Future Members

NKBA Executive Director
juliejones.director@nkybar.com
859-781-4116
859-781-1277 (fax)
 

State will not reopen Beverly Hills Supper Club investigation

Saturday, March 14th, 2009

 

Extensive review finds no basis, evidence to reopen 30-year-old case 

FRANKFORT, Ky. – Following a more than three-month review, Gov. Steve Beshear today announced that there is no basis to reopen the investigation into the Beverly Hills Supper Club fire. 

“Three of our state’s leading attorneys, who have extensive knowledge of this case, along with a state Inspector General, have spent hours interviewing people and reviewing thousands of pages of documents,” Gov. Beshear said. “Their finding is clear that there is no substantive evidence to support reopening this investigation.” 

Gov. Beshear said he sympathizes with members of an organization—the Beverly Hills Survivors of Justice—who have asked for a new investigation, but “the facts simply don’t warrant such a move.” 

“These men and women have been through a great deal and this tragedy has impacted an untold number of lives. I believe we owed them the time it took to look with fresh eyes at this case,” the governor said. “But all the facts and all the materials point to the conclusion that a horrible accident—not a crime of arson—occurred in Northern Kentucky more than 30 years ago.” 

In October 2008, after members of the organization met with senior administration officials, Gov. Beshear ordered the review of the original investigation. The 1977 tragedy was one of the nation’s worst fire disasters, resulting in the deaths of 165 people. 

The attorneys — Cecil Dunn of Lexington, former University of Kentucky (UK) College of Law Dean Bob Lawson, and UK law professor William Fortune — volunteered to lead the review. Dunn was the special prosecutor in the Beverly Hills case. He reviewed the actions of a Campbell County grand jury that was impaneled. 

Lawson wrote what is considered the definitive legal account of the tragedy. Lawson and Fortune—both of whom assisted Mr. Dunn in his review of the Beverly Hills case—are considered two of the leading criminal law professors in the state and the nation. In addition, the attorneys were assisted in their review by Inspector General Deedra Benthall and investigators Scott Hatfield and Cristi Violet of the Office of Inspector General for Kentucky’s Public Protection, Labor and Energy and Environment cabinets. 

Their report was formally submitted to Gov. Beshear this week. Representatives of the review team also discussed their findings with the governor. 

Specifically, over the last few months, the review team met with the members of the Survivors Group, reviewed documents the organization had gathered in support of their case, conducted interviews, examined depositions from extensive civil lawsuits that occurred in the aftermath of the tragedy, as well as the Kentucky State Police’s investigatory files. 

The review cited the fact that three extensive investigations were conducted into the fire—by the Kentucky State Police and investigators from the National Fire Protection Association, a grand jury in Campbell County and a special prosecutor for the state—and none of those found “a single shred of evidence indicating that the fire resulted from acts of arson.” 

In fact, the review team’s report states that the “tragedy entered the court system to be subjected to unbelievable scrutiny” all centered around one question: what caused the fire? Every piece of evidence, the review team concluded, pointed then and now to an accident. 

“With full conviction and no hesitation,” the report concludes, “the Review Team and the Office of the Inspector General have concluded that the information (from the Survivors Group) falls many miles short of the kind of proof that would be needed to justify … a reinvestigation of a tragedy that was carefully and competently investigated and reinvestigated three decades ago.” 

 


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Ct. of Appeals topics discussed this week

Friday, March 13th, 2009


Read the topics discussed by the Ky. Court of Appeals.  Subscribers can access the full keywords, synopsis and access the full text of all 39 decisions issued on Feb. 20th.
LawReader subscribers can read the synopsis and full text of each case by going to:
 COURT OF APPEALS DECISIONS FOR MARCH 13, 2009  

 Subscribers can read the most current Ky. Supreme Court rulings at:                                      KY. SUPREME COURT DECISIONS FOR FEBRUARY 2009
Non subscribers can sign up for lawreader  at:  SIGN UP – PRICING 
 
TOPICS:
 

governmental immunity of school board –pleading-governmental vs. proprietary function-qualified immunity-slip and fall
 

statute of frauds- pleading-summary judgment-creation of partnership without writing
 

termination hearing of school teacher-jurisdiction of hearing officer-hearing officer not party to appeal
 

obstruction of stop sign –summary judgment-inferences-causation vs. duty
 

marital property distribution –jurisdiction of court to modify final order or enforce final order 
DRC denial of continuance did not deny due process
boundary line dispute-court may find facts if supported by substantial evidence
 

employment disability discrimination-american disabilities act-burden of proof-permanent disability
 

imputation of income for child support-findings of fact- pendent elite orders
 

child custody-family court cannot intervene in Cabinet decision regarding placement of child -      
worker’s compensation-beginning date of benefits
 

worker’s compensation-going and coming rule –exceptions
 

60.02 motion not timely-
 

attorney client privilege does not extend to non-communicative acts-send a message argument by commonwealth
 

It is not possible for one to attempt a reckless act-
11.42 motion- defense counsel failed to investigate

Jason Nemes to leave AOC post for Dinsmore & Shohl

Friday, March 13th, 2009

 

FRANKFORT, Ky., March 12, 2009 — Jason M. Nemes announced today that he is leaving his post as director of the Kentucky Administrative Office of the Courts to practice law with Dinsmore & Shohl in Louisville. His resignation is effective April 3, 2009. As head of the AOC, Nemes oversees the agency that provides administrative support to the Kentucky court system, including a $300 million budget. 

  

Nemes began service as acting director of the AOC in January 2007 and was selected by then-Chief Justice Joseph E. Lambert to serve as permanent director in April of that year. Prior to overseeing the AOC, Nemes had served as chief of staff and counsel for Chief Justice Lambert since June 2005. 

  

“I consider it an unparalleled honor to have had the opportunity to serve the justices, judges and circuit court clerks of the Kentucky Court of Justice,” said Nemes. “Although it will be difficult for me to leave that service, I have long aspired to practice law in my hometown of Louisville.” 

  

“Jason Nemes has a fine legal mind and he is ideally suited for private law practice,” said former Chief Justice Lambert. “Since graduating from law school, he has had the experience of working for the chief justice at the highest level and also managing a branch of government with 3,500 employees. His work has been outstanding in every respect and judges and clerks throughout Kentucky respect him greatly.” 

  

“Jason and I discussed that he would stay as the AOC director for the first year of my tenure to provide the needed continuity,” said Chief Justice John D. Minton Jr., who became Kentucky’s fifth chief justice in June 2008. “Jason said that he ultimately wanted to practice law in Louisville and now, with the recent addition of a second child to his family, he believes it is the right time to take the next step in his career. 

  

“Jason has ably fulfilled his obligation to me,” said Chief Justice Minton. “He has been full of innovative ideas.. Even though our time together has been short, he has had great long-term vision for the organization. Under his leadership, the AOC has completed a three-year strategic plan. He also restructured the AOC to streamline its operations and to focus on serving the elected officials of the judiciary. From the very beginning he talked about enhancing the transparency of the Judicial Branch and has worked hard to achieve that on several fronts.” 

  

Nemes began his tenure at the Administrative Office of the Courts with a well-developed plan for agency-wide reorganization.Utilizing firsthand observations in the field, small focus groups, surveys and numerous conversations with elected officials and court staff, Nemes assembled a restructure team. After 12 months of intensive planning, the team unveiled the most significant reorganization of the AOC in its 30-year history. The reorganization refocused business on AOC’s core function, which is to serve the elected justices, judges and circuit court clerks, which allows their greater service to the public. The new reorganization streamlined the AOC from 16 departments to 10 for greater efficiency and improved communication, both internally and externally. 

  

Concurrently, Nemes mandated development of an agency-wide strategic plan. The carefully crafted plan involved employees from all sectors of the agency, both in the development and implementation phases. It provides clear direction on core business practices and agency priorities. Perhaps most important to current circumstances, the plan led by Nemes is focused on how the agency uses scarce resources. The plan, endorsed by Chief Justice Minton, is designed to serve the agency from 2008-2011. 

  

The reorganization and the strategic plan served as a foundation to numerous other major initiatives pilot-tested and implemented by Nemes including:  

-modernization of Court Interpreting Services, including expansion of American Sign Language Services; 

-scientific judicial caseload analyses designed to assist trial court judges with daily docket management; 

-a fully automated criminal background check system; 

-refinement and expansion of felony mediation; 

-effective use of senior judges for purposes of improving access to justice and reducing delays in case processing; 

-development of a Judicial Training Academy, which brought state-of-the-art research, interactive instructional methodology and cutting-edge content to Judicial Colleges; 

-monitored conditional release; 

-pilot Mental Health Courts; 

-an automated jury management system; 

-racial and ethnic fairness initiatives, including the acclaimed Summit on Diversity; 

-the Kentucky Summit on Children; 

-an improvement of system-wide electronic projects such as electronic fine payments, e-warrants and CourtNet. 

“Jason Nemes is one of the hardest working, most dedicated individuals I have ever met,” said Justice Lisabeth Hughes Abramson of the Supreme Court of Kentucky. “The Kentucky court system has benefited greatly from his leadership of the AOC and although we are very sorry to see him leave, I am happy that he is returning to practice law in Louisville where he will continue to serve our profession.”  

“Director Nemes was able to fully achieve diverse and multifaceted projects because he kept his fingers on the pulse in the field,” said Dr. Deborah Williamson, executive officer for the AOC Department of Court Services. “Judges and clerks know he cares deeply for justice, and that he pursued system improvements with unparalleled exuberance and visionary forethought. Staff members were never hesitant to take on an assignment because they knew they had his full support and confidence, and that he would literally roll up his sleeves and work side-by-side with them 24/7. Jason’s most frequent quote is, ‘How can I help you do your job better?’ We will sorely miss this young, bright, and vivacious leader who constantly challenged status quo thinking and resting on one’s laurels.” 

“Jason has served the Court of Justice well and faithfully during a major period of transition,” said Kentucky Court of Appeals Chief Judge Sara W. Combs. “We have experienced an unprecedented turnover in the judiciary during his tenure — coupled with critical budgetary constraints. He has provided a steady hand and wisdom beyond his years. We all wish him the very best in his new career.”  

“After serving 40 years in the Office of Circuirt Court Clerk, I can say Jason Nemes truly understands the complexities of our office,” said Nelson County Circuit Court Clerk Diane Thompson. “He has a vast amount of knowledge in all areas of the judicial system and is highly regarded across our great Commonwealth.  There is not a courthouse in Kentucky that Jason hasn’t impacted in his short tenure as director of the AOC. Jason’s leaving is a huge loss to our judicial system. I wish him every success.” 

Raoul Cunningham of the NAACP in Louisville said, “I deeply regret that Jason Nemes is leaving as director of the Kentucky Administrative Office of the Courts.  Although I served for six years as deputy commissioner of the the Kentucky Department of Personnel, I was quite unfamiliar with the mission of the AOC. Jason was  most helpful, courteous and professional in assisting me to understand the functions of the agency and very responsive to my many requests as a member of the Racial Fairness Commission and president of the Louisville Branch of the NAACP. I wish him well in all of his future endeavors.” 

Jefferson County Commonwealth‘s Attorney Dave Stengel and Chief Public Defender Dan Goyette said that Nemes has been an effective leader of the AOC. They said he has always been willing to acknowledge and confront problems within the criminal justice system head-on and that he has been cooperative with all players in the operation of the courts. 

In addition to his record as an administrator, Nemes also has recently co-authored United at Last: The Judicial Article and the Struggle to Reform Kentucky’s Courts. He is currently writing a book devoted to the Kentucky Constitution. Nemes, a Louisville native, ranked among the top in his class when he graduated from the University of Louisville Brandeis School of Law. He has served as an adjunct professor of constitutional law and appellate practice at U of L. He earned a bachelor’s degree from Western Kentucky University where he pursued a double major in government and sociology and a minor in criminology. In addition to his work with the Kentucky Court of Justice, Nemes has served as a legislative aide on the Washington, D.C., staffs of Congresswoman Anne Northup of Louisville and then Congressman Ernie Fletcher of Lexington. Nemes and his wife, Leslie, reside in their hometown of Louisville with their sons, Samuel, 3, and William, 3 months. 

Chief Justice Minton said that he will soon name an interim AOC director to serve while a national search is conducted for a permanent director. 

The AOC supports the activities of nearly 4,000 Kentucky Court of Justice employees, including the elected offices of justices, judges and circuit court clerks, and executes the Judicial Branch budget. 

Kentucky Banker Explains the Current Banking Crisis to LawReader-offers solutions

Thursday, March 12th, 2009

The Sub Prime Credit Crisis – How we got there and how to get out.
 

By Ben L. Lykins
 

Everyone I know has an idea as to what caused the “Sub-Prime Credit” problems and how to deal with the solutions and who is to blame. Almost everyone agrees that greed is the prime motivation that caused this mess. I think that all of this really started with the congressional authority and their ensuing laws that approved “mergers”.
 

Banks began buying out their competition and were allowed to write off the overstock purchase price over long periods of time.  Newspapers, radio, television etc. followed suit and the big got bigger.
 

A bank president was normally paid five or six times the entry cost of labor, however to attract better, more educated men and women, salaries were increased and large bonuses were borne with stock options. The difference between a top-notch CEO and a second rate CEO could translate into millions or billions of dollars in losses for a company.
 

As financial institutions got larger, the demand for profit increased and new ways were found to satisfy the stockholders with larger profits.  The reason I mentioned newspapers, radios and television is that editorial boards who once decided politics for small communities now write and report to hundreds of communities or to the entire nation because of the mergers.
 

The influence of the right and left was increased enormously depending on which side was in office. Congress increased its demand for revenue in the early nineties thus making banks become more efficient and that demand also increase the merger fever.
 

Laws changed to allow employees to change jobs and take their retirement fund with them.  Loyalties changed. The bond between employer and employee had been broken.  The “what’s in it for me” generation took on a whole new meaning.
 

When the Clinton administration took office, the homeownership rate was at 62 per cent and when he left office, it was at 67 percent.  Government regulators were ordered to push homeownership rates, especially for low income families and minorities.
 

Non-banks gained a foot hold in the real estate markets by over appraising real property in order to offer no down payment loans. Loan fee’s were included in the loan resulting in as much as 120 to 130 percent loan to value ratios. Traditionally a 10 to 20 percent down payment was required and the buyer paid the closing costs outside the loan.
 

Now, what do we have going on at this point of the discussion? We have employees and employers no longer loyal to each other. We have tax increases which have decreased profits and caused very unhappy and demanding stockholders.  We have a greed movement with large corporation Chief Executive Officers.  We have lenders that are lending over the value of the property and we have a fee structure where everyone gets a fee from the loan.  We have oversight committees asleep on the job. Finally we have a strong political influence from the left assuring us that the economy is good and all is well.
 

When the banks and the non-bank banks run out of money, they raise the interest rate and this slows down the lending and regulates the market. This did not happen because a Republican Representative of the House introduced a bill (which was adopted) that allowed the creation of derivative bonds to be carried off balance sheet and a prohibition against the federal regulators from auditing the holders of these bonds.  Investment houses packaged and repackaged these bonds and sold them back to large institutions not only in the United States but around the world. The real estate market was making money for everyone and it appeared that there was no end in sight. 
 

On four or more occasion, the Bush Administration weakly made attempts to bring attention to a growing problem of the toxic bonds but the insuring federal agencies insisted that these bonds were credit worthy. 
 

As Chicken Little said, “the sky is falling” and no one was listening. You remember the old saying, “You don’t fix what is not broken”. Here is another one.  Almost every problem the banks have had has come from a “government regulation of government interference.”
 

In the mid-nineties, the Federal Accounting Standards Board changed Mark-to-Market accounting.  Mark-to-Market is an accounting methodology of assigning a value to a position held in financial instrument based on the current market price for the instrument.  The values of these instruments are adjusted from a banks capital each month  to reflect the current market value. All banks that own these assets have large losses.  The major banks with huge positions face losses in excess of fifty percent that runs in the billions of dollars.
 

When capital is reduced the regulators come in because of insolvency. The “too big to fail” rule kicks in and the nationalization of banks has begun.
 

Former FDIC Chair William Isaac placed much of the blame for the subprime mortgage crisis on the Securities and Exchange Commission and its fair-value accounting rules, especially the requirements for banks to “Mark-to- Market” their assets, particularly the mortgage backed securities.
 

Completing the financial tsunami is the practice of “selling short” on Wall Street.
 

Solutions:
 

FASB will immediately change “Mark-to-Market” to a three year rolling average. This would in effect put 500 to 700 billion dollars back in the banking system and only requires a signature from FASB.  Wall Street would suspend the practice of “Selling Short” for one year and to be reviewed at the end of the one year period.  This also only requires a signature.  The Real Estate Appraisal License Board or the appropriate authority strengthens qualifications to be an appraiser with scheduled reviews for compliance if the asset is to be sold in the secondary market.
 

Footnote by LawReader Senior Editor Stan Billingsley:
 

Ben Lykins is one of the best businessmen I know.  He  was kind enough to write the following article for LawReader.  Over the years he has taught me a great deal about finance, banking and real estate.  Some ten years ago I brought him a real estate deal that was too big for me to handle, and which a number of other businessmen had turned down.  He saw the value of the plan, and made it happen.   That real estate acquisition was very successful, and without his keen business sense it would have just been another idea that was never realized.
 

Fortunately Lykins is an example of the type of bankers we have in Kentucky.  If the large national banks had been run as tightly as Ben ran his bank, we wouldn’t be in the current banking crisis.  Because of the common sense exercised by most Kentucky bankers we have avoided many of the problems experienced by the large national banks who minimized banking and became financial centers and insurance companies.
 

Resume:
 

Ben L. Lykins is a retired Bank President.  He served for 23 years as President of the First Farmers Bank of Owenton, Kentucky.  In 1981 he was selected as the Owen Countian of the Year.
 

He shares some history with Abraham Lincoln, as both were born in a log cabin in Kentucky. 
 

Lykins attended High School in Harrodsburg, Ky.  He graduated from the LSU Banking School of the South.
 

He is married to Diana K. Loveless of Somerset, KY. and currently resides in Danville, Ky.
 

He has two Children by Linda Crane Lykins (Deceased), Deana Lykins, a lawyer and lobbyist and Chance Lykins a Lobbyist, both in NJ
 

He was President and/or Director of the following civic organizations:
 

Owen County Ind Dev Corp
Kentucky River Authority
Owen County Park Committee
All Ky City Program
Rotary
Jaycees

MADD accepts $10,000 from County Attorney’s DUI diversion program. They look the other way and ignore Chapter 189A. Will other counties create DUI diversion programs?

Thursday, March 12th, 2009

 

This week the Jefferson County Attorneys office donated $10,000 to Mothers Against Drunk Driving (MADD).  The money was raised from payments made to persons charged with DUI offenses and who were allowed to avoid prosecution by attending the Jefferson County Attorney’s DUI diversion program.

 

In an article published in 2007 we noted they accepted $36,000 from the same program.

 

Our reading of KRS 189A.010 (5) thru (9). suggests that all diversion programs for DUI offenses are specifically outlawed and prohibited by the legislature.

 

Perhaps the Jefferson County Attorney’s office has found a loophole that we are missing.

This example has been in existence since 2005.   LawReader knows of no other county in Kentucky that interprets the law to allow diversion programs in DUI cases.

 

To justify a diversion of the charges would require one to believe that “when sentencing persons” applied only to Judges, but that prosecutors by avoiding presentation of the case to the court could bypass all court procedures.

 

See: Mothers Against Drunk Drivers used to oppose fixing DUI tickets, now they accept cash to look the other way.  Oct. 18, 2007

 

The Courier-Journal reported this week that over 500 people have been diverted in the Jefferson County program.  MADD uses the funds for its “outreach mission, including education programs in schools”.

 

The statute says:

 

KRS 189A.010 (9):
 (9) When sentencing persons under subsection (5)(a) of this section, at least one (1) of the penalties shall be assessed and that penalty shall not be suspended, probated, or subject to conditional discharge or other form of early release.

 

KRS 189A.120 Prosecutor’s duties with regard to amendment of charges – Amendment of blood alcohol concentration — Record of charges and amendments.
  (1) When an alcohol concentration for a person twenty-one (21) years of age or older in a prosecution for violation of KRS 189A.010 is 0.08 or above, is 0.02 or above for a person under the age of twenty-one (21), or when the defendant, regardless of age, has refused to take an alcohol concentration or substance test, a prosecuting attorney shall not agree to the amendment of the charge to a lesser offense and shall oppose the amendment of the charge at trial, unless all prosecution witnesses are, and it is expected they will continue to be, unavailable for trial.


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KBA seeks applications for Executive Director position

Thursday, March 12th, 2009

EXECUTIVE DIRECTOR – TREASURER POSITION
The Kentucky Bar Association (KBA), an agency of the Supreme Court of Kentucky, seeks
qualified applicants for the position of Executive Director – Treasurer. The KBA, with nearly
16,000 members, is a unified state bar association with offices in the state capital of Frankfort.
 

The KBA is governed by a 19 member Board of Governors with the volunteer President serving
as the CEO. The Executive Director is the chief paid staff person and the chief operating
officer. In addition to serving as Treasurer, the Executive Director serves as publisher of the
KBA’s Bench & Bar Magazine and as Executive Director of the Kentucky Bar Center Board of
Trustees, which is the entity that owns the Bar Center complex.
 

The current Executive Director also serves as Registrar, a position appointed by the Chief Justice of the Kentucky Supreme Court. The KBA has an annual budget of approximately $5,000,000 and is currently allocated a full time staff of 50 employees. Responsibilities/functions of the KBA include lawyer discipline, mandatory continuing legal education, lawyer’s assistance program, interest on lawyers’ trust accounts program, regulation of attorney advertising, clients’ assistance program, clients’ security fund, and arbitration programs. The KBA has 23 voluntary sections and approximately 20 commissions and committees.
 

Qualifications include license to practice law in Kentucky, management experience and skill in
building consensus. This is a full time position and no outside law practice is permitted. The
salary range is between $110,000 – $128,750. Benefit package includes retirement plan,
individual health insurance premium, paid vacation and paid sick leave. Interested qualified
persons may apply by mailing 12 hard copies of a cover letter outlining reasons for interest in
the position and salary requirements and 12 hard copies of a detailed resume stating duties of
all previous professional employment along with salary history and three references. Deadline
for receipt of all applications is Wednesday, April 15, 2009 . Send application materials to:
Melissa Blackwell, Director of Administration
Kentucky Bar Association
514 West Main Street
Frankfort, Kentucky 40601 – 1812
The Kentucky Bar Association is an equal opportunity employer.
 (502) 564-3795
FAX (502) 564-3225
www.kybar.org

KBA makes plans for 2009 State Convention- author Scott Turow to give Keynote address

Thursday, March 12th, 2009

KBA makes plans for 2009 State Convention- author Scott Turow to give Keynote address
Make your plans now to attend the 2009 KBA State Convention at the popular Northern Ky. Convention Center.   This is a great opportunity to get some CLE credits, learn what is happening from the Appellate Courts, get a legislative update on the current session of the General Assembly, catch some Cincinnati Reds baseball, and see the sights.
ABC announcer and attorney Tim O’Brien who for years reported on the U.S. Supreme Court will speak.
The dates are June 10 thru 12.

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