Archive for November, 2010

Domestic Violence Law Does Not Apply to Dating Couples – Courts lack jurisdiction to issue DV orders if couple doesn’t live together.

Tuesday, November 23rd, 2010

By LawReader Senior Editor Stan Billingsley  – Nov. 23, 2010

    We have learned that trial courts are still struggling with the definition of “living together” which is the jurisdictional requirement of the Domestic Violence act.   The appellate courts have settled this issue and standards for determining if a couple is “living together” are discussed in a 2007 case.

If a couple are merely dating, even having sex, this does not permit the court to issue a DV restraining order.  See the following case to review the six point standard for a court to determine if a couple are subject to the DV act.

Of course, if a party seeks a Restraining order on traditional grounds, they can apply to the Circuit Court for relief.

KRS 403.720 (3)

Randall v. Stewart, 223 S.W.3d 121 (Ky. App., 2007)

  According to KRS 403.725(1), any “member of an unmarried couple” may file a petition for a domestic violence order. For the purposes of KRS Chapter 403, the phrase “member of an unmarried couple” has been defined as “each member of an unmarried couple which allegedly has a child in common, any children of that couple, or a member of an unmarried couple who are living together or have formerly lived together.” KRS 403.720(3). Obviously, in the present case, we are concerned only with the last clause of this definition, “a member of an unmarried couple who are living together or have formerly lived together.” KRS Chapter 403 does not provide a definition for the phrase “living together”.

        As appellant points out, the Supreme Court of Kentucky addressed this issue in Barnett v. Wiley, supra. In Barnett, the petitioner alleged, in a petition to obtain a DVO, that the respondent approached her car, hit the window, threatened to kill her, and followed her vehicle as she drove away. Id. at 18. At a subsequent hearing, the petitioner testified that she and the respondent were not related, had no children in common, and had never lived together. Id. Despite this evidence, or lack thereof, the trial court granted the petition. Id. The respondent moved to dismiss the petition arguing that the petitioner lacked standing to seek a DVO since they did not qualify as an “unmarried couple”

[223 S.W.3d 124]

as defined by KRS 403.720(3). Id. The trial court denied the respondent’s motion, and he appealed to this Court, which affirmed the trial court’s order. Id.

        The Supreme Court granted discretionary review and acknowledged that Kentucky case law had yet to define the phrase “living together”. However, noting that Black’s Law Dictionary (7th ed.1999) had defined “cohabitation” as the “fact or state of living together, especially as partners in life, usually with the suggestion of sexual relations[,]” the Supreme Court opined that “living together” implied “some sort of cohabitation.” Id. at 19. Turning to the case law of other states for guidance, the Supreme Court relied on State v. Kellogg, 542 N.W.2d 514 (Iowa 1996) in which the Iowa Supreme Court set forth a non-exclusive list of six factors that a trial court should consider in determining whether a couple are cohabiting:

        1. Sexual relations between the parties while sharing the same living quarters.

        2. Sharing of income or expenses.

        3. Joint use or ownership of property.

        4. Whether the parties hold themselves out as husband and wife.

        5. The continuity of the relationship.

        6. The length of the relationship.

        Id. Regarding these factors, our Supreme Court stated:

        [W]e believe that the six factors discussed in Kellogg are relevant in determining whether two people are “living together” within the meaning of KRS 403.720. But under the plain language of the statute, there must be, at a minimum, proof that the petitioner seeking a DVO shares or has shared living quarters with the respondent before a finding can be made that the two are an “unmarried couple” under KRS 403.725.

        Id. The Supreme Court then concluded that the trial court had erred in issuing the DVO since the record lacked any evidence that the petitioner and the respondent had ever shared living quarters, either permanently, temporarily, or on a part-time basis. Id. at 21.

        Finding the holding in Barnett v. Wiley to be controlling, we turn to the factors set forth in that case. Although the record contains no evidence regarding the continuity of Randall’s and Stewart’s relationship, Stewart testified that she and Randall had dated for approximately eighteen months. Regarding whether the parties were having sexual relations while sharing the same living quarters, there is no evidence that Randall and Stewart had ever shared living quarters. Furthermore, Stewart testified that Randall would spend one or two nights per week at her residence, and, while this testimony may imply that the parties had sexual relations, the evidence in the record simply did not address this factor. There is no evidence that the parties shared income or expenses. The record indicates that the parties neither jointly owned nor jointly used any property. There is absolutely no evidence that the parties presented themselves as husband and wife. Considering the factors set forth in Barnett v. Wiley, the family court’s finding that the parties’ relationship qualified as an “unmarried couple” as defined by KRS 403.720 was not supported by substantial evidence. Thus, the family court clearly erred when it granted the DVO against Randall since, under these facts, Stewart lacked the standing to seek such a protective order.

        While we are compelled to reverse the family court’s decision, we sympathize with its desire to issue a DVO in this case. Given the explosive and vicious nature of Randall’s attack, it was only by happenstance or providence that Stewart managed to escape Randall’s apartment with

[223 S.W.3d 125]

only minor physical injuries. Moreover, while we lack the authority to expand the scope of KRS 403.725 to cover dating relationships, this case illustrates the compelling need for the General Assembly to consider such an expansion.2

        The domestic violence order entered against Randall is reversed, and this matter is remanded to the family court with instructions to dismiss Stewart’s petition with prejudice.

        ALL CONCUR.



Sunday, November 21st, 2010

By LawReader Senior Editor Stan Billingsley

    Some years ago I received a phone call from a Federal Judge in Louisville.  He asked if I could arrange a  visit of the Carroll County Hall of Justice and Detention Center from members of the Russian Supreme Court who were touring the United States.   The Soviet breakup had just occurred and the Court system was hoping to become more independent of the state.   We were told that they were checking out our  system of justice with plans to implement some of our practices into the Russian court system.

At the time I was the Carroll District Judge.  We gladly accommodated the Russians and their interpreters.   They pulled off Interstate I-71 and I met them to serve as guide.  As I entered the large bus that was carrying them, I greeted them with a Russian greeting that I had researched.   “Dorst ve chay” is what I remember the phrase sounded like.   It roughly meant Hello, or so I was told by our Court Designated Worker, Kim Lawrence who had studied Russian in college.

The Russians all had a somber look on their faces, but smiles crossed their faces when they heard someone at least attempt to communicate with them in their native language.

At the Judicial Center the group was taken on a tour of the new Carroll County Detention Center which was less than two years old at the time.   The jailer Mike Humphrey had the jail cooks serve them a large sheet cake that was baked for our guests.  Our guests seemed impressed that a rural city like Carrollton could afford such a spotless jail, that could provide good food.

My impressions of Russian prisons (learned from movies) certainly aren’t as nice as the Carroll County Detention Center.

The Russians were brought into my courtroom and were seated in the jury box, as I and other officials greeted them.   U.S. State Department  representatives translated our greetings and the response of the Russian officials.

We provided them with UofL and UK ball caps, and T-shirts.  They were delighted to received these gifts.  When they left they were all proudly wearing our gifts.

Before they left, one of their members went to the bus and returned with a hand carved Russian Bear which he gave me.  That gift remains a prized possession.

In our discussion with them, I learned that they were curious about our jury system.  One of them asked me, “Why would you want to have a jury decide cases?”     I was admittedly stunned by the question, as the answer seemed obvious to me.  I tried to respond.   I told them that allowing the citizens to decide guilt or innocence served to protect the public from the government.       My response did not inspire a smile or a cheer from the Russian Supreme Court members.

I called on the Russian judges to become “Stankanivites of Justice” by exerting their independence from the state and to assume the power to void bad laws, and by allowing expansion of the jury system.  I told them that their efforts would be celebrated for hundreds of years if they were successful  in freeing their courts from control by the central government.

 In Russian mythology, a worker named Stankanivite was a coal miner.  In order to help the war effort of the Russian state, he mined 100 tons of coal by hand in one day.  Russian propaganda for many years called on all Russians to be Stankanivites in their work to support the war effort.  

This week I ran across an editorial in the New York Times which suggests that my call for independence of the Russian judicial system has been less  successful than I had hoped might occur.

The Russian judges did not respond verbally to my call for them to establish their independence, but several of them did shake my hand. 

The New York Times Editorial:

Russia’s newly outrageous legal treatment of Mikhail Khodorkovsky, the former owner of the country’s largest oil company, is a reminder that Russia has yet to grasp the idea of equal justice under law — especially when the Kremlin decides someone is in the way.

Mr. Khodorkovsky was convicted in 2005 on trumped-up charges of fraud and disobeying a court order and lost his company to Kremlin loyalists. Russians call his sort of case “telephone law,” imposed by the politically powerful through a call to the courthouse. With his sentence almost up, he was just tried again on suspect charges of embezzling and money-laundering. The judge is expected to reach a decision in December.

Two decades ago, the United States State Department urged the new Russia to resurrect the jury system, as The Times described this week, to put the law in the hands of the Russian people. Juries had been abolished after the Soviet revolution, along with anything recognizable as courts and lawyers. They were reborn in 1993.

Defendants have a right to a jury trial in a small fraction of crimes like murder and kidnapping. Compared with non-jury trials in the Soviet era, when the acquittal rate was likely less than 1 percent, the rate with juries has climbed to between 15 and 20 percent. Because of this apparent success, it is tempting to look for the growth of a familiar sense of justice. That search ends in disillusionment.

The Soviet system relied on prosecutors to find what passed for the truth in criminal cases, so the foundation for reform is at odds with the new system that juries are part of, with truth supposedly emerging from the competing accounts of the prosecution and the defense.

More to the point, the old system is not dead. Russia, the scholar Jeffrey Kahn said, has “a lot of bad legal habits.” One is the prosecutor’s “case file,” which sealed the guilt of countless Soviet citizens and retains its terrifying force. Of the 791,802 criminal cases disposed of this year through September, only 465 were decided by a jury. Mr. Khodorkovsky wasn’t allowed a jury in either of his trials. Deliberately, the prosecution charged him only with crimes that didn’t give that right. A jury couldn’t be trusted, apparently, to look out for the state’s interests.

When Vladimir Putin heralded the start of the era of law and democracy, he repeatedly described it as “the dictatorship of law.” As the Khodorkovsky case dramatizes, that is a chillingly accurate description.

Senior Status Judge Roger Elliott Reprimanded over Bad Check Charge, resigns

Friday, November 19th, 2010

The Judicial Conduct Commission has publicly reprimanded former Senior Judge Roger P. Elliott, who was indicted last year in Pulaski County on a felony charge of writing a bad check.

Elliott, who had been suspended as senior judge pending the outcome of the case, agreed to accept the reprimand and to resign. The Judicial Conduct Commission issued the public reprimand in an order released Thursday.

Elliott wrote a check for $8,194 to an attorney who had represented him in a civil lawsuit, knowing the bank wouldn’t honor it, according to the charge.
Read more:

The Lexington Herald Leader reports that Family Court Judge Tamra Gormley is accused again of judicial misconduct

Friday, November 19th, 2010

“A family court judge who was reprimanded and suspended about a year ago has been accused again of judicial misconduct, according to a notice by the state’s Judicial Conduct Commission.

A hearing on charges against Judge Tamra Gormley, whose district covers Scott, Woodford and Bourbon counties, is scheduled for Jan. 12 in Fayette Circuit Court.

The commission, the state’s judicial oversight body, charged Gormley with keeping parents with drug problems from their children without having appropriate hearings. And the commission charged Gormley with failing to recuse herself from a custody case after the state’s Court of Appeals ruled Rowan County was the appropriate venue. ”

The article says Judge Gormley has not yet served a 45 day suspension granted her by the Supreme Court for a prior violation.


Wednesday, November 17th, 2010

By LawReader Senior Editor Stan Billingsley

National Transportation Safety Board officials urged Kentucky lawmakers this week to adopt new laws to curb drivers with high blood-alcohol levels and those who are repeat drinking-and-driving offenders.

We certainly believe that drunk drivers are a problem, but there are legitimate questions as to whether the Federal Government is justified in seeking these particular changes in our law.

The NTSB calls for new laws in four basic areas:

1. Revoking licenses immediately upon arrest for DUI;

Question:  Isn’t this punishment before trial?  Sounds a lot like Sharia law to us.

2. Implementing programs to identify individuals who drive on a suspended or revoked license;

Question:  Isn’t this already being done?  The legislature has already made it a crime to drive on a suspended license.  Why is this on the NTSB list?

3. Implementing vehicle sanctions such as vehicle impoundment and forfeiture;

Question:  Does this not punish the entire family, and what compensation would be provided to parties who are later found to not having been DUI?  What keeps the driver from getting another car?   

4. Requiring DUI offenders to maintain a zero blood-alcohol content level.

Question:  Does this mean they can’t drink a beer while sitting in their house watching a basketball game?  

     We question the necessity of these recommendations, and we question the factual basis for the statistics used by the NTSB regarding the mixture of alcohol and fatalities.

Our legislature has looked at immediate revocation of driver’s license upon arrest. So far they have refused to punish people who have not been convicted of DUI.  We suggest that driver’s charged with DUI are not guilty until proven guilty.  Anyone who practices DUI law is aware of many cases in which the police officer is not able to factually support the DUI arrest.  Some driver’s are later found not to be under the influence of alcohol or drugs, and their cases are dismissed.  The trial of such drivers might take weeks or months, before the court could restore a license to a driver who had been improperly charged.   This proposal for immediate loss of driving privileges makes the police officer the judge and jury.  The NTSB and other Temperance advocates are callling for the repeal of our constituional rights on the conclusion of an arresting officer that somehow alcohol was involved.  We should understand that all driver’s arrested for DUI are immediately taken to jail, and are not released until they are sober, or some responsible person picks them up after posting a bond.

The reality of  the existence of unfounded  charges also influences the fairness of vehicle impoundment and forfeiture.   Will the NTSB compensate a family for the taking of their vehicle when the driver is later found not to have been guilty of DUI?   Again this is a suggestion for punishment before guilt is established.  

We note that in the statistics cited by the NTSB there is an asterisk on their web site concerning Kentucky DUI statistics in fatal wrecks.  Kentucky allows a police officer to unilaterally create a alcohol statistic by merely noting that alcohol was” involved”.  If the officer finds one empty beer can in the back seat of a car, they will likely report a wreck as having had  being “alcohol related”.  This creates higher claims of impaired driving than actually exists. The statistics compiled by Kentucky does not provide proof that the alcohol evidence was in anyway related to impaired driving.  It is possible under the statistic collection protocol used in Kentucky for a passenger to have been under the influence and the designated driver might have been completely sober, but the statistic would imply the wreck and fatality was “alcohol related”.  Before we determine the size of the problem, we are entitled to correct statistics and the NTSB’s own web site distinquishes Kentucky statistics.

The number of all highway fatalities are down substantially.  We should be careful in balancing the regulation of driver’s with constitutional rights.   If every arrest was supported by the facts, as determined by a court of law, then there would be no need for our concern, but in fact some DUI arrests are totally unsupported by the facts. 

Until Kentucky can come up with a scientifically supported basis to statistically identify the actual number of wrecks caused by impaired driving, the efforts to toughen the laws and to start punishing people before their trial is merely a campaign more akin to fundamentalist Sharia Like Law than American Law.

Let’s be honest, there is strong Temperance movement in the U.S. seeking to ban use of all alcohol.  This didn’t work in the 1930′s and it is not likely to work now.  Drunk driver’s should be punished severely, but only after they are found guilty.  Our Legislature has done a good job in writing really tough DUI laws.   The focus should be on repeat offenders, and a distinction should be made between the first offender (most never offend again ever!) and real repeat offenders.

Our system is working far better than alarmists and Temperance proponents claim.

The proposed new advertising rule as published by the KBA in Bench & Bar says..

Friday, November 12th, 2010

 Proponents suggest that the proposed rule only applies to solicitations of employment.  But the language is interperted by some to say that any legal discussion on Facebook or other social media may be a violation.  Or does it?   The history of the Bar Counsel office is to interpert rules in an inclusive manner and not in a restrictive manner.   You should form your own conclusion from the following language.

AAC Regulation No. 17: (proposed new regulation)


 SCR 3.130-7.02(1)(j) states:

 “ ‘Advertise’ means to furnish any information or communication containing

a lawyer’s name or other identifying information, and

 an ‘advertisement’ is any information containing a lawyer’s name or other

identifying information, except the following . . .

 Information and communication by a lawyer to members of the public in the format of web log journals on the internet that permit real time communication and exchanges on topics of general interest in legal issues, provided there is no reference to an offer by the lawyer to render legal services.”

 Communications made by a lawyer using a social media website, such as

MySpace and Facebook, that are of a non-legal nature are not considered

advertisements; however, those that are of a legal nature are governed by SCR



Friday, November 12th, 2010


Hon. Jason Nemes of Dinsmore and Shohl, calls for a reduction in the number of cases the Ky. Supreme Court is required to hear each year.  His plan would reduce the automatic right to appeal to the Supreme Court in certain criminal cases and worker’s compensation cases, but still allow the court to have discretionary to grant such appeals.   He makes a novel suggestion on how to allow Family Court cases to be heard by the Supreme Court without the filing of additional briefs past the Ct. of Appeals level.

Nemes column and full article can be located on the front page of LawReader.

Nemes served as Legal Counsel for the Chief Justice, and was Director of the Administrative Office of the Courts before moving into private practice with Dinsmore and Shohl at their Louisville office.   His father was recently elected to the Ky. House of Representatives.