Friday, June 27, 2014

Kentucky voter Address Confidentiality Program

"No eligible voter should be discouraged from voting out of fear for his or her safety, or the safety of his or her children. But because voter records are generally available to the public, many victims [of domestic violence] do not register to vote because they fear the perpetrators of the crimes against them would be able to determine their addresses, compromising their security."

Kentucky voter Address Confidentiality Program
"To become a participant, the eligible individual (or someone authorized on his or her behalf) must complete the ACP Application. Hard copies are available from the Secretary of State and county clerks' offices, as well as through authorized assistance agencies. Applications must be submitted to the Secretary of State's office.

"If you are certified, you will be allowed to vote via mail-in absentee ballot, and your name and address will not be included on any publicly available voter records.
Certification lasts for two years, unless it is cancelled or the participant withdraws before the expiration date. Certification can be renewed before the expiration date."

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Tuesday, June 24, 2014

What is a nuncupative will?

A nuncupative will is an oral expression, as opposed to one in writing, of a testamentary intent, especially by a mortally wounded soldier or by anyone facing immanent death for any reason. Not all states recognize these types of oral wills under any circumstances. Kentucky does not.

Indiana, however, allows nuncupative wills by statute under very limited circumstances.

Indiana Code 29-1-5-4
Nuncupative will; requisites; limitations

(a) A nuncupative will may be made only by a person inimminent peril of death, whether from illness or otherwise, and shallbe valid only if the testator died as a result of the impending peril,and must be
(1) Declared to be his will by the testator before two (2)disinterested witnesses;
(2) Reduced to writing by or under the direction of one (1) of the witnesses within thirty (30) days after such declaration; and
(3) Submitted for probate within six (6) months after the death of the testator.

(b) The nuncupative will may dispose of personal property only and to an aggregate value not exceeding one thousand ($1,000)dollars, except that in the case of persons in active military, air or naval service in time of war the aggregate amount may be ten thousand ($10,000) dollars.

(c) A nuncupative will does not revoke an existing written will.Such written will is changed only to the extent necessary to give effect to the nuncupative will.

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Friday, June 20, 2014

Who gets my stuff when I croak?

Yes. My interests have shifted to death and the necessity to dispose of stuff.

There are three primary consideration that determine who gets my stuff when I croak.

1. The state of my residence at the time of death and the location of any real property. Laws are different in different states;
2. If I have a valid will at the time of my death, and;
3. If I am married at the time of my death.

Kentucky's laws of inheritance focus upon kinship, family and marriage. Spouses have special statutory rights called "dower and curtesy". Divorce prior to death ends those rights.

  • If I die without a will in Kentucky, my children or their descendants inherit everything, subject to spouse's rights if I am married.
  • If I do not have any children, then my parents inherit my stuff, subject to spouse's rights if I am married. 
  • To brothers and sisters or their descendants, subject to spouse's rights if I am married. 
  • If my parents are dead, I have no children, descendants of children, siblings or descendants of siblings when I die, then my spouse inherits everything if I am married.
  • If these first four slots, children or their descendants, parents, siblings  or their descendants and spouse, are empty, then my stuff goes to more distant relatives.
  • If there is no family, then my stuff goes to the state. This is called "escheat."

If I am married at the time of my death, my spouse has a statutory right to a spousal allowance of $15,000 plus one-half of the remaining stuff, whether or not I die with a will. My spouse has the option to opt-out of my will and to claim the statutory spousal dower.

So, if I am married with children and die without a will, this is what happens:

1. All my debts, expenses and taxes are paid;
2. My spouse gets the $15,000 allowance;
3. What's left over is split evenly between my spouse and my children.

With a will, I can give more to my spouse, but I cannot give less without her consent.

Of course, it can be a lot more complicated than this hypothetical example.

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Thursday, June 19, 2014

Don't avoid probate . . . .totally

Some people believe that planning one's estate to avoid probate by the use of various methods is a universal blessing, but it has its weak spots. One clear benefit from probate is the shorter time limit allowed under Kentucky law for claims to be asserted against a decedent's estate.

KRS 395.011(1) provides:
"All claims against a decedent's estate which arose before the death of the decedent, excluding claims of the United States, the State of Kentucky and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented within six (6) months after the appointment of the personal representative, or where no personal representative has been appointed, within two (2) years after the decedent's death." [emphasis added]
Probate and probate-avoidance strategies are not mutually exclusive. The advantage of limiting claims against the estate to six months after the appointment of a personal representative may very well outweigh any advantage of avoiding probate totally and living with a two year period of limitation after the date of death.  

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Wednesday, June 18, 2014

Washington Redskins' trademark tossed

The decision by the PTO's Trademark Trial and Appeal Board in the case of Blackhorse v. Pro-Football Inc. was made on the basis that the name is “disparaging to Native Americans” and, as such, cannot be trademarked because federal law prohibits the protection of offensive or disparaging language. The board stated:
The recognition that this racial designation based on skin color is disparaging to Native Americans is also demonstrated by the near complete drop-off in usage of "redskins" as a reference to Native Americans beginning in the 1960's.
The record establishes that, at a minimum, approximately thirty percent of Native Americans found the term REDSKINS used in connection with respondent's services to be disparaging at all times including 1967, 1972, 1974, 1978 and 1990. Section 2(a) prohibits registration of matter that disparages a substantial composite, which need not be a majority, of the referenced group. Thirty percent is without doubt a substantial composite. To determine otherwise means it is acceptable to subject to disparagement 1 out of every 3 individuals, or as in this case approximately 626,095 out of 1,878,285 in 1990. There is nothing in the Trademark Act, which expressly prohibits registration of disparaging terms, or in its legislative history, to permit that level of disparagement of a group and, therefore, we find this showing of thirty percent to be more than substantial.
Respondent has introduced evidence that some in the Native American community do not find the term "Redskin" disparaging when it is used in connection with professional football. While this may reveal differing opinions within the community, it does not negate the opinions of those who find it disparaging.
Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Wednesday, May 28, 2014

You can't see the houses for the trees

I'm guessing that everyone living in Louisville has driven on 2nd Street and 3rd Street between Broadway and the University of Louisville main campus, too fast.

All you have seen of Old Louisville is a blur of ground floor red bricks and limestone. If you want to actually see Old Louisville, you need to get out of your car and look up. Or, know somebody with a camera.

In Summer, Old Louisville is green. In Autumn, is is burnt orange and yellow. It is at its most beautiful in Spring.

You can see the houses only in Winter.

Old Louisville, January, 2011 - 34 pages
Old Louisville, February, 2011 - 38 pages
Old Louisville, March - April, 2011 - 72 pages

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Sunday, May 25, 2014

Notes: Kentucky right to privacy

1. Impetus: Revenge porn. In a verdict published on Tuesday, a German court ruled a local man should have deleted erotic photos of his now-former girlfriend as soon as she asked him to, according to The Guardian.

2. McCall v. Courier-Journal & Louisville Times, 623 SW 2d 882 (Ky. 1981)

The invasion of privacy as an actionable tort has been part of Kentucky law since 1909.[f.n.7 - Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S.W. 364 (1909).] Subsequently, the development of this theory of law has grown at a modest pace.[f.n.8 - For an excellent discussion of invasion of privacy, see Bunch, Kentucky's Invasion of Privacy Tort — A Reappraisal, 56 Kentucky Law Journal 261 (1967-68).] The basis of the tort, while not subject to precise definition, may be best described as the right of every citizen to be "let" alone. Private individuals have the right to live their lives without unwarranted interference by the public about matters with which the public is not necessarily concerned. Brents v. Morgan, 221 Ky. 765, 299 S.W. 967 (1927). There are exceptions to this rather sweeping principle of law. The right of privacy does not prohibit: (1) any publication of a matter which is of public or general interest; (2) the publication of a matter which is a privileged communication according to libel and slander law; (3) statements which are oral; and (4) a publication which is true. Id. Kentucky has not specifically adopted the "false light" aspect of the tort. 

We believe that the principles enumerated in Foster Milburn Co. v. Chinn, supra at note 7, and Brents v. Morgan, supra, which set forth the bases and nature of the tort of invasion of privacy, would best be furthered by our adoption of the principles of that tort as enunciated in the Restatement (Second) of Torts (1976). The pertinent section reads:
 "Sec. 652A. General Principle 
(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.
(2) The right of privacy is invaded by
(a) unreasonable intrusion upon the seclusion of another. . . ; or
(b) appropriation of the other's name or likeness . . .; or
(c) unreasonable publicity given to the other's private life . . ., or
(d) publicity that unreasonably places the other in a false light before the public . . . ." 
3. A privacy right is distinguished from publicity rights (KRS 391.170) against unauthorized commercial exploitation. A privacy right is also distinguished from defamation.

4. Valentins Abasins - My Image is My Property - Personal Image Protection on the Internet

5.Montgomery v. Montgomery, 60 SW 3d 524 - (Ky.2001)

6. Except for "newsworthy" images, photographers are generally very careful about obtaining written permission, or releases, from subjects. Why?

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Legal history trivia

The Justices of the U. S. Supreme Court did not start issuing written opinions until 1834. Prior to that, decisions were announced orally from the bench. Unofficial and unpaid reporters in the courtroom took notes of what they heard and wrote the opinions as best they could. They were compensated by selling printed volumes of the opinions.

See: Draft article: The (Non)Finality of Supreme Court Opinions 
128 HARV. L. REV. ___ (forthcoming 2014)

Professor  Lazarus has a sense of humor.
"NOTICE: The final version of this article, here only in draft form as of May 21, 2014, is scheduled for publication by the Harvard Law Review in December 2014. The editors of the Harvard Law Review have not yet subject the current draft to their normal process of technical review, including cite-checking, editing, and proofing, to which all their articles, essays, and notes are subject prior to final publication. The editing and review process will occur over the summer. Fully aware of the inevitable irony, given this article’s topic, readers of this draft who identify any “typographical or other formal errors” in the manuscript are encouraged to notify my assistant . . . . "
Neither Kentucky Court of Appeals nor Supreme Court opinions are final upon initial public release.

See: Quirks of Researching Kentucky Appellate Decisions

WARNING: Everything I think, say or write is subject to revision at any time without notice.
Why? Because I screw up frequently and sometimes I realize it. 

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Friday, May 23, 2014

Punked by the Court of Appeals

In Smith (now Milby) v. Smith, 2011-CA-002306-MR, May 23, 2014, there was no video recording included with the record on appeal. Appellant argued, quite reasonably in my estimation, that Civil Rule 98 requires a copy of the video recording automatically to be included in the record on appeal..
 "Upon the filing of a notice of appeal, one of the two video recordings, or a court-certified copy of that portion thereof recording the court proceeding being appealed shall be filed with the clerk and certified by the clerk as part of the record on appeal. " CR 98(2)(a)
Kentucky's Circuit Court Clerk's Manual provides, "The “B” tape of any court trial or jury trial held in the case being appealed shall be included in the original record on appeal."

The Court of Appeals disagreed and held that the Appellant was required to specifically designate the video recording to be included in the record on appeal.


The trick is the entire proceeding being appealed from was a post-dissolution proceeding. The divorce was finalized in 2003. The court relied on Civil Rule 98(3)(c), which reads in part:
"To facilitate the timely preparation and certification of the record as set out in this rule, appellant or counsel for appellant, if any, shall provide the clerk with a list setting out the dates on which video recordings were made for all pre-trial and post-trial proceedings necessary for inclusion in the record on appeal. "  
Again, from the Kentucky's Circuit Court Clerk's Manual:
"Pre-Trial/Post-Trial Hearing Tapes. CR 98(3). The “B” Tape of any pre-trial or post-trial hearing, or any portion thereof, should not be sent to the appellate court unless:(a) listed and identified by date on the designation of record filed by a party; or * * * * "
Let's just say that the Court of Appeals did not make the distinction clear enough to suit me, and it took me a while to get up to speed.

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Thursday, May 22, 2014

Law is like cooking but not at all like baking

I once had a girlfriend who was studying to become a chef at Sullivan. One semester it was bread and pastry and the next semester it was soup and sauces. I remained, throughout, a willing taste tester.

Other than gaining a few extra pounds in the process, my big take away was that baking is a science, but cooking is an art. This means that baking recipes are rigorous and once you have a baking recipe you like, you stick to it exactly, every time. And, every time you follow the recipe exactly, of time, temperature, proportions and process, you will produce exactly the same results.

Cooking, on the other hand, is not so exact. It is more of an art. A little of this plus a little of that, add what you happen to have on hand and season to taste. The results are never exactly the same, but a good chef always produces good results.

So it is with the law. I learned this today from legal greenhorns. The issue was the transfer of continuing child support jurisdiction from one California county to another after everyone had moved away from the original county where the divorce and child support order had originally been adjudicated. It's dirt simple, but it's not foolproof.

Here are the California statutes on change of venue that contain the allowable grounds, read these few opinions from the California appellate courts, mix in your facts and draft a motion. Easy.

But, it's not quite easy for someone who insists that court proceedings work like baking bread. No, I'm sorry, that's not the way it works. There is no recipe that guarantees results every time, in every situation and with every judge.Your ability to say the right things at the right time and in the right way plays an important part.

Litigation, clearly, is an art. It is not a science. It is cooking but not baking.

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Evaluating client's problems

I don't have any actual clients, but after a few weeks of reading various online legal discussion boards, I have arrived at a rough esitmate.

30% of the issues presented exist only because there is a lack of enough money. Yeah, there are real legal issues involved, but solving the legal issues do not solve the problem.

5% WANT it to be a legal issue so as to buy a ticket in the great legal lottery game with a cash payout.

10% got caught but really don't want to go to jail and they are looking for some fail-safe legal technicality  that will make their guilt go away.

5% are, for lack of a better way to express it, mentally ill and are delusional.

5% never contemplate the possibility that a judge might not believe their story, so there is no corroborating evidence presented, so what to do now that it's too late?

5% are lawyers, law students or paralegals looking for free research assistance.

5% are incapable of getting along with others and they derive an unhealthy satisfaction from pointless turmoil. This typically involves next door neighbors who hate each other, restraining orders and calls to the police.

5% are pretty sure their boss is screwing them, and they might be right.

10% involve landlord-tenant issues. Many of these are included in the first items above involving money issues.

10% are child support or child custody issues that could easily be resolved if they didn't hate each other so much that causing problems was more appealing than resolving problems.

10% have genuine legal issues that can be helped by providing a link to a statute or a local ordinance.

2% involve bullies with badges, guns and arrest authority.

I think that add up to 100%, more or less.

This is an informal proof of Sturgeon's Law

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Wednesday, May 21, 2014

Copyright status of original Commonwealth works

I'll be brief. Citations omitted.

Federal copyright law preempts any common law or state statutory provisions that may linger around. Under the most recent comprehensive revision of federal copyright law, that went into effect on January 1, 1978, copyright exists from the moment an original work is reduced to tangible form. Registration of a copyright with the U.S. Copyright Office is optional.

Ownership of a copyright belongs to the author of the original work unless the work was produced by an employee in the course of his or her employment (work for hire), in which case ownership is with the employer. This, is subject to modification by mutual agreement, and copyright ownership is subject to alienation or transfer.

By statute, original works created by the federal government are public domain, with exceptions (?).

Original works created by state or local governments are not, by way of federal law, public domain. The states are free to do with their own copyrighted works for hire as they see fit.

Justices of Kentucky appellate courts are employees of the Commonwealth and appellate decisions produced by those Justices in the normal course of their state employment are automatically protected by federal copyright law when written. Actual publication is not a prerequisite for copyright protection. Notice of copyright is not a prerequisite for copyright protection. Registration with the U.S. copyright Office is not a prerequisite for copyright protection. Copyright protections just happen as a matter of law.

The Commonwealth of Kentucky has not, by statute, waived or relinquished copyright in any original works to which it is entitled to copyright protection. The Kentucky Supreme Court has not adopted any rule to relinquish copyright in any original works to which it is entitled to copyright protection.  For the most part, the Commonwealth has not registered many copyrights with the U.S. Copyright Office, although in some instances the Commonwealth has registered a copyrighted work. No Kentucky court opinions have been registered.

Registration of a copyrighted work is a necessary prerequisite to maintain a copyright enforcement proceeding under federal law.  Registration of a copyrighted work can happen at any time, but civil penalties for infringement are available only for infringement after the date of registration.

Kentucky Supreme Court opinions, for example, are copyrighted and owned by the Commonwealth of Kentucky, but the copyright is not enforceable in court until such time, if any, that those opinions may be registered with the U.S. Copyright office.

There is no reason to suppose that the defense of 'fair use' does not apply to original works owned by the Commonwealth.

Whew! The end.


Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Sunday, May 18, 2014

Is there a statutory right to counsel in civil cases?

Interesting question. To my amazement, there is a website for that.

The National Coalition for a Civil Right to Counsel

, . . and they have a nifty chart showing all the state statutes providing for a civil right to counsel.

Quite a few states have statutes that allow for court appointed counsel in a number of different civil proceedings. Who knew?

Kentucky makes one brief appearance on the list.

Kentucky: KY. REV. STAT. ANN. § 620.100(1) (West):

 In dependency, neglect, and abuse proceedings,
 “(a) The court shall appoint counsel for the child….
(b) The court shall appoint separate counsel for the parent who exercises custodial control or supervision if the parent is unable to afford counsel….
(c) The court may, in the interest of justice, appoint separate counsel for a nonparent who exercises custodial control or supervision of the child, if the person is unable to afford counsel….”

In each instance, the Finance and Administration Cabinet pays the counsel, and the fee may not exceed $500 dollars, unless there is a final disposition in the district court, in which case the fee may not exceed $250. Id.

§ 625.080(3): “The parents have the right to legal representation in involuntary termination actions. The Circuit Court shall determine if the parent is indigent and, therefore, entitled to counsel…. If the Circuit Court so finds, the Circuit Court shall inform the parent; and, upon request, if it appears reasonably necessary in the interest of justice, the Circuit Court shall appoint an attorney to represent the parent … to be provided or paid for by the Finance and Administration Cabinet a fee to be set by the court and not to exceed five hundred dollars ($500).”

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Sunday, May 11, 2014

Texas Garnishment Law

God bless Kentucky, but it's a small state and Southern Specialty Law Publishing Company is bigger than one state.

There is no down side to premature publication. The world of digital publishing benefits from a capacity for infinite revision and updates, and there is no such thing as too much exposure.

This is a work in progress, and an incomplete document. Now it is a collection of Texas statutes and Texas rules of civil procedure relating to Texas garnishment law, with the beginning of Texas appellate case opinions on the subject. I've been working on it for a while and it is slow going, since there are hundreds and hundreds of Texas appellate decisions deciding a wide assortment of issues about garnishment, and I have to read every last one of them.

Pre-publication version 0.2 - May 11, 2014

Anyway, I got impatient, and I decided that the work I have done so far could be useful to someone, as is. I will update this document periodically as my work progresses. Ultimately, it will a book covering every aspect of Texas garnishment law. I think I will call my company Southern Specialty Law Publishing Company. The statutes and rules of civil procedure are public domain, but my editing, notes and comments are copyrighted. The document, as a whole is copyrighted based upon my original contributions

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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Saturday, May 10, 2014

Pro se appellants win appeal

Acuff v. Wells Fargo Bank, 2012-CA-001221-MR, May 9, 2014

This is an appeal from summary judgment in favor of Wells Fargo Bank in a foreclosure action. The pro se debtor defendants questioned Wells Fargo's standing to sue as an assignee of the mortgage using the Mortgage Electronic Registration System (MERS). An assignment from MERS to Wells Fargo had been recorded with the Kenton County Clerk, about a month after the foreclosure action was commenced.

The complaint for foreclosure was filed October 2, 2010;
The mortgage assignment was executed on October 26, 2010, and;
The assignment was recorded on November 4, 2010.

The main factual issue, however, revolved around Wells Fargo's ownership of the promissory note. It was determined that the original promissory note had been endorsed in blank, it was a bearer instrument and as such, Wells Fargo's possession of the original note was sufficient to establish ownership and standing to sue.

However, the only evidence offered by Wells Fargo was a 'photocopy' (more likely a scanned image) of the original promissory note, and not the note itself. The court held this to be insufficient to conclusively resolve the issue of fact and to meet the high standards for summary judgment.

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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How boring am I, exactly?

How boring am I, exactly? Here is a clue.

I'm disappointed that the Kentucky Court of Appeals Clerk did not publish the court's minutes yesterday.

Oh. It's a trick. No court minutes for May 9, 2014, but by going to the court opinion page and searching for "May 9, 2014" the opinions are there.

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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The ghosts of legal history and the Louisville connection

One hundred years ago, Louisville was a center for the law book publishing industry. I've seen a half dozen legal treatises, available on Google Books, from before World War I that were published by the Baldwin Law Book Company . The American Book Trade Directory of 1919 lists the Baldwin Law Book Company at 523 Court Place, next to Louisville Metro Hall.

Following the war to end all wars, Baldwin moved his company to Cleveland. In 1926 Mr. Baldwin purchased  Banks Law Publishing. In 1933 he consolidated the two companies  to form Banks-Baldwan Law Publishing Co. Banks-Baldwan later was purchased by the Thompson Corporation and then it was consolidated with West Publishing, also owned by Thompson, in 1996.  After Thompson's acquisition of the Reuter's Group in 2008,  Banks-Baldwan's Cleveland operation was phased out of existence by the end of 2010. The work done in Cleveland was shifted to New York, Minnesota, the Phillipines and India.

But, it began in Louisville.

Clearly, one hundred years later, it is time to start a new law publishing company. It's possible. Zero overhead. no printing costs, no distribution costs and near universal reach. Southern Specialty Law Publishing Company, Louisville, Kentucky.   The intersection of tradition and 21st Century technology.

Tom Fox, J. D.
Southern Specialty Law Publishing Company
Louisville, Kentucky

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The Times They Are A-Changin'

The line it is drawn 
The curse it is cast 
The slow one now 
Will later be fast 
As the present now 
Will later be past 
The order is rapidly fadin'. 
And the first one now 
Will later be last 
For the times they are a-changin'. 
Bob Dylan

What do you get when you cross LegalZoom with Walmart? Meet Axess Law, a low-cost, high-volume Toronto, Canada law firm with three of its four offices located in Walmart stores and open for business seven days a week until 8 PM.

The South Carolina Supreme Court has recently approved LegalZoom's business practices, after a challenge for unauthorized practice of law. With a legal system that prices services out of the reach of middle and low income individuals and tens of thousands of unemployed lawyers, the result is an attractive business opportunity. Welcome Big Box Law.

California Supreme Court Justice Goodwin Liu summed up the problem in a speech last month:
"If you were to fill AT&T Park up with indigent people who qualify for legal aid, there would be just five people in the park who are legal aid lawyers to serve the entire ballpark," he stated. "Even for people at the median income, most people cannot afford a lawyer."
There is just one legal aid lawyer for every 8,000 indigent people in California.

Another avenue being explored is the Modest Means Incubator Project.
The first incubator, according to the Cal Bar Journal, was established at City University of New York in 2007. There are now an estimated two dozen incubators nationwide, including three in California.
"The Modest Means/Incubator Project is part of a national movement intended to explore the practical training of new lawyers and couple it with partial solutions for the struggles of the underserved middle class in discrete legal matters such as labor code violations, family law conflicts, consumer debt complaints and more. The Commission’s promotion of this project includes regional meetings and subsequent grants to applicants that best propose projects which incorporate the best practices of existing and proposed incubator collaboratives."
State Bar of California
 I'm still a fan of self-help law for those with more brains than money.

Tom Fox, J. D.
Louisville, Kentucky

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Friday, May 9, 2014

Nothing good comes from Calfornia

 I was taught that there is no federal common law, but there is. There is a federal common law of unconscionable contracts which preempts California state law on the subject.

About a hundred years ago, judges were hostile to the idea of arbitration. In 1925, Congress enacted the Federal Arbitration Act (FAA), 9 U.S.C. § 1, et seq., which preempted any state laws that attempted to torpedo arbitration, per se. The FAA states that arbitration agreements "shall be valid, irrevocable, and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract." [emphasis added] 9 U.S.C. § 2.

A problem arises when the nature of a specific claim is amenable to class action certification. The is no provision for any group action in the FAA that is similar to a class action. Given a choice between a class action and arbitration, in a 5 / 4 decision authored by Justice Scalia the Supreme Court of the United States  held in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 563 US 4, 179 L. Ed. 2d 742 (2011) that the agreement to arbitrate prevails, especially when the agreement specifically waived, or prohibited, proceeding with a class action.

The general rule in California, it seems, is that agreements which prevent a party from proceeding with a class action, while not per se unconscionable, are at least suspect and subject to revocation. The California principles relating to unconscionable bars of class actions are stated thus:
"[Th]e doctrine has both a procedural and a substantive element, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results. The procedural element of an unconscionable contract generally takes the form of a contract of adhesion, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it. Substantively unconscionable terms may take various forms, but may generally be described as unfairly one-sided."

 Discover Bank v. Superior Court, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100 (2005)
This California rule was not specifically aimed at arbitration agreements.

I have personally believed that having your cake and eating it too is a noble goal in life. Why not have it both ways? The court could certify the class, then stay further proceedings under 9 U.S.C. §3, await the results of arbitration for the class representative's claims and then apply the results of the arbitration to the class as a whole.

For what it's worth, there is a fascinating discussion about the common law history of group actions on Wikipedia.- Class actions.

Tom Fox, J. D.
Louisville, Kentucky

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Thursday, May 8, 2014

Americans lack confidence in SCOTUS

A newly released public opinion survey (PDF) from Greenberg Quinlan Rosner indicates general discontent with the Robert's court. Wide majorities disagree with the recent 5-4 party-line rulings that have upended a century of campaign finance law and tilted the rules in favor of the extremely wealthy and major corporations. The landmark Citizens United ruling was opposed by a whopping 80-18 margin.

By a 60-36 spread, those surveyed said that Supreme Court justices were more likely to be carrying out a personal or political agenda than working to render a fair and impartial judgment, an opinion that cut across party lines.

Overall approval of the Supreme Court has been falling since its 5-4 Bush v. Gore decision handed the presidency to George W. Bush in 2000, according to Gallup.

Frankly, it came as a big surprise to me when I learned that U. S. Supreme Court Justices are not bound by the same rules of judicial ethics that apply to other, lesser, judges. Yesterday, just for fun, I was reading the Kentucky Constitution, Bill of Rights, Section 2, "Absolute and arbitrary power denied." Stop.

I does not have much to do with anything, but I found it to be a happy thought.

The consensus in the Greenberg survey seems to have called for the elimination of life appointments for Supreme Court appointments.
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Wednesday, May 7, 2014

Most legal marketing is crap

I visit a lot of lawyer's web sites and the vast majority give me the creeps. Please re-read the memo which told nearly everyone else that folks hate pop-up windows. If your legal marketing strategy is based upon some ancient cartoon image of a cat patiently crouched down by a mouse hole waiting for the mouse to come out to be pounced upon, here's a clue for you: Nobody likes to be made to feel like a damn mouse.

On average, consumers need ten data points before making a purchase decision, and that is related to which toaster oven to buy. Handing your ass and your fortune to some lawyer is a tougher sell. This is why repetition in advertising is necessary over and over again, redundantly, and that is why it is so expensive to cast a wide net.

I understand the fascination with new clients. It is the times we live in, or the times hitherto we have been living in, that 'more is better' is an article of faith. It isn't true. Your best client is not your next client, it is your last client. A bird in the hand & blah, blah, blah. You've heard it before.

Surprise and delight the clients you have. Communication is cheap and easy, and it doesn't take much, as long as it is relevant and personal. "Hi. I hope you enjoyed Derby. I wanted you to know that nothing happened this week in your life-and-death legal situation, but we remain ever vigilant protecting your interests. Have a nice day."

It's just a thirty second email.

Tom Fox, J. D.
Louisville, Kentucky

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Tuesday, May 6, 2014

Wage & hour class action waivers

It's old news, but it is news to me.

From the  Bingham Greenbaum Doll LLP blog, April 16, 2013

" . . . . Many wage and hour claims pose little risk when they are brought individually by a single employee. This is because most employees proceeding alone will have relatively small damages and, thus, it might not be cost-effective for them to pursue legal action. These same claims, however, can give rise to major litigation when many similarly situated employees join together as a group. For this reason, many wage and hour claims never get filed unless they can proceed as class or collective action lawsuits. Employers now may be able to block these group lawsuits.

"Approximately two years ago, the U.S. Supreme Court held that states could not prohibit parties from waiving their rights to pursue class and collective actions. This left the question of whether federal labor law could prohibit these ‘class and collective-action waivers;’ however, over the last year, many courts have held that it does not. (Kentucky courts have not addressed this topic, but there is a good chance they will find these employer-friendly decisions persuasive.) These courts effectively opened the door for employers to require class and collective waivers as a condition of employment, and thus bar employees from pursuing large-scale wage and hour claims, and also prevent many smaller claims from being filed in the first place.. . . "
The Supreme Court reference is likely to AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 563 US 4, 179 L. Ed. 2d 742 (2011).

Also, on June 20, 2013, the Court ruled in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 1236 (2013) that class action waivers contained in mandatory arbitration clauses were valid even if plaintiffs prove that it would not be economically practicable to maintain these actions individually.

Neither of these cases involved wage and hour disputes. Neither case involved employment agreements. Each of the Supreme Court cases arose in the context of binding arbitration agreements. In AT&T Mobility LLC v. Concepcion the court praised not only the benefits of arbitration in general, but also the ease and efficiency of the alternate dispute resolution procedures actually in place under the circumstances of the case.

The Amreican Express case discounted the relevance of economical and practical alternatives.

There seems to be a big difference between waiving the right to pursue a class action in the context of an arbitration agreement, and the use to class action waivers as a condition of hourly employment, outside a collective bargaining agreement.

I never though about it before today, but  I am not as optimistic as Bingham Greenbaum Doll with the use of class action waivers for wage & hour claims in employment agreements. I have doubts.

Note to self: Look deeper.

Monday, May 5, 2014

Please take the poll

Please take the poll at the top of the right sidebar.

Are you a legal professional? Yes or No.

I can tell there are at least two or three folks reading this blog, from time to time, but I have no idea if you are in the legal business or not. Generally, I write what I want to write, but so far I don't have a clue who may be reading it.

Saturday, May 3, 2014

Everyday law and common legal needs in America

Some twenty years ago the American Bar Association undertook a general survey of everyday legal needs in the United States. Legal Needs and Civil Justice: Major Findings from the Comprehensive Legal Needs Study. One of the interesting findings was that many problems in life were not properly recognized as being legal problems or as having a significant legal component.

Major Findings and Conclusions

  1. Most people facing situations that have a legal dimension do not turn to the civil justice system for help.
  2. Even counting the efforts many people make to handle problems on their own or to get help from outside the legal system, substantial proportions of low- and moderate-income households still may need legal help.
  3. The kinds of legal problems reported by low- and moderate-income households are more alike than different. They are about bread and butter issues that come up in everyday life.
  4. Especially disadvantaged when it comes to needed legal help are households just above and just below the line that determines eligibility for publicly-funded legal services.
  5. Even with their combined efforts, the private bar and publicly-funded legal services programs now serve only a small portion of legal needs reported by low-income households.

The Challenge

"Taken together, these findings and conclusions sound an alarm that the civil justice system of the United States is fundamentally disconnected from the lives of millions of Americans. It must do more to address the personal legal needs of the American people if the nation is to make good on its commitment to equal justice."

More recently, the World Justice Project Rule of Law Index 2013 ranked the United States in eight areas compared to 96 other countries in the world (97 total, including the U.S.). The comparison did not look at the laws on the books so much as it looked at how laws were enforced and how well the legal system functioned. It wasn't horrible, but it wasn't great either.

U.S. world rankings:
  • Limited government powers: 17th out of 97
  • Absence of corruption: 18th out of 97
  • Order and security: 22nd out of 97
  • Fundamental rights: 25th out of 97
  • Open government : 13th out of 97
  • Regulatory enforcement: 19th out of 97
  • Civil justice: 22nd out of 97
  • Criminal justice: 26th out of 97
According to the the World Justice Project, millions of Americans can’t use our fine legal system because they can’t afford it. They have legal rights — to child support, Medicare benefits or protection against an improper home foreclosure — but they find these rights meaningless because they can’t enforce them. has an open forum for individuals to anonymously ask legal question, arranged by topic. Relying upon the number of questions asked in each category, here are the top ten civil legal concerns. If all criminal law categories were combined and included in this list, criminal law would rank number one in volume. But, criminal law issues generally have an urgency that many civil law matter lack.

  1. Child Custody & Support
  2. Wills, Trusts, and Estates
  3. Landlord & Tenant
  4. Bankruptcy, Debt, and Taxes
  5. Hiring, Firing, and Discrimination
  6. Marriage & Divorce
  7. Wages & Hours
  8. Immigration
  9. Adverse possession, mineral rights, water rights..
  10. Guardianship & Adoption
The Rule of Law is the bedrock of civil society. Success depends upon how well it works in actual day-to-day practice. When people encounter problems in life, it has a tendency to focus attention on ways to resolve those problems. This is what the legal system is for and if it fails, civil society fails. When I hear a state Governor channel the ghost of Andrew Jackson and tell a state Supreme Court to take its opinion and shove it, I cringe.

In April, when the Oklahoma State Supreme Court issued a temporary stay on the execution of Clayton Lockett, citing concerns about the constitutionality of that law, Oklahoma Governor Mary Fallin decided to ignore the court.

It was just another brick in the wall.

Friday, May 2, 2014

Designing book covers

Writing law books for no apparent reason is fun, but designing book covers for law books is even more fun. My natural inclination is to go with Ben & Jerry's maxim, "Is it weird enough?" I think I'll sleep on this one.

Oaks day at the Kentucky Court of Appeals

The Court of Appeals rendered two published opinions today.

Hinchey v. Commonwealth, 2012-CA-000561-MR, May 2, 2014

Trial court's denial of a motion to suppress evidence seized during a vehicle search following the defendant's arrest was affirmed.

The defendant's multiple conviction for unlawful possession of a handgun by a convicted felon held to be in violation of Double Jeopardy prohibition and KRS 505.020(1)(c), and reversed in part.

Illegally possessing two guns is not twice as bad as is illegally possessing one gun.

Spalding v. Marion County Board of Education, 2013-CA-000632, May 2, 2014

The grant of defendant's motion for summary judgment on issue of equitable estoppel applied to government agency was error. Equitable estoppel can be applied to government agencies in appropriate circumstances and the evidence on the issue was not without conflict.Reversed in part.

Court of Appeals' Minutes for May2, 2014

The problem

With a jointly owned deposit checking or savings account, one of the named account holders may be a judgment debtor while another is not. When the judgment creditor seeks to garnish the account to collect the judgment debt, the ownership share of the non-debtor joint owner is at risk of seizure.
Kentucky law regarding the ownership rights of joint account holders is the substantive context within which the practical procedural mechanisms connected to bank garnishments are discussed. The substantive law of joint account ownership may change, while the application of Kentucky’s Rules of Civil Procedure in garnishment proceedings remains the same. This is to say that the main focus of this book (How to Intervene in a Kentucky Bank Garnishment to Protect a Joint Account) is upon the practical procedural aspects of intervention in a bank garnishment proceeding, but the problem of joint ownership is what makes the discussion relevant and interesting.

There are two interrelated issues which represent the intersection between procedure and substance. How can a non-judgment debtor account holder protect his or her ownership interest in a joint account? And, how can a non-judgment debtor account holder establish that he or she is entitled to an ownership interest in a joint account?

There is a third problem much too vexing to contemplate. Kentucky law and standard bank procedures do not seem to provide for notice of an account garnishment to all joint owners.  What happens when a co-owner learns of an account garnishment only after the fact?

Legal research and writing for no apparent reason is a lot like science fiction.

Monday, April 28, 2014

The cost of inaction

Thinking about self-representation in civil actions and the cost of professional representation by a lawyer, a quick cost-benefit analysis suggests that self-representation is always recommended when the cost of professional legal representation is greater than the cost of doing nothing, but the cost of doing nothing is greater than the cost of doing something on your own, without a lawyer, even if it is wrong.

Is it ever a good idea for a defendant to allow a default judgment to be entered? I cannot think of one. There is a risk involved with asserting frivolous defenses for improper purposes, but there is usually always some legitimate defense to be offered at the cost of a few pieces of paper and a postage stamp. Even if the only defense available is to take issue with the rate of post-judgment interest imposed, it is better than doing nothing. It is better than a default judgment.

Appearing and defending an action keeps open the door to negotiation and settlement. It provides a certain extra amount of breathing room to review, research, verify and maybe even talk to a lawyer about the case. By appearing and defending, a defendant continues to receive pleadings and notices in the action, which are not required for a party in default.

This is not legal advice. This is practical advice. Never allow a default judgment.

Sunday, April 27, 2014

Saturday, April 26, 2014

Waffling on punitive damages

Every time I begin to think that punitive damages are a bad idea, something comes along to give me pause. Such is the situation with General Motor's ignition switch redesign in 2006. The redesign was a cost-cutting move at the expense of consumer safety, but that's not the part that irks me. GM's apparent internal conspiracy to conceal and deny the redesign for half a dozen years, or more, is what makes me think a smack down is well deserved. The best explanation I've seen is by attorney Steve Moskos, General Motor's Ignition Switch Nightmare.

Friday, April 25, 2014

Quis custodiet ipsos custodes?

The Center for Public Integrity reported today that the Koch brothers and major corporations are sponsoring a pension reform seminar for judges, with all expenses paid.
 "As state courts across the nation prepare to referee numerous public pension reform disputes, a gaggle of interested parties — from major corporations to the Koch brothers — will next week sponsor an expenses-paid conference on public pension reform for judges who may decide the cases’ fates. . . The “Judicial Symposium on the Economics and Law of Public Pension Reform,” according to a George Mason event description, is intended to “comprehensively outline the underlying structure of pension systems, address the differences between public and private pensions and detail the unfunded liabilities and potential bankruptcy issues arising from this crisis.” (Read more)
Surely, the code of judicial ethics has something to say about this. Yes? I imagine the list of attendees will be made public, one way or another.

University Medical Center v. Beglin, 2012-CA-001208-MR, April 25, 2014

University Medical Center v. Beglin, 2012-CA-001208-MR, April 25, 2014

Law of the case - Post-judgment interest

A medical malpractice judgment for liquidated damages, punitive damages and post-judgment interest at the statutory rate of 12% was reversed, in part, on appeal with respect to the issue of punitive damages. Although the defendant medical center had previously moved to reduce the post-judgment interest rate, the denial of that motion was not part of the first appeal.

When the judgment was amended on remand to satisfy the holding in the first appeal regarding punitive damages, defendant medical center again moved to reduce the post-judgment interest rate, which was again denied. The Court of Appeals held that the law-of-the-case doctrine precluded the consideration of the question in a subsequent appeal. 

The law-of-the-case doctrine is “an iron rule, universally recognized, that an opinion or decision of an appellate court in the same cause is the law of the case for a subsequent trial or appeal however erroneous the opinion or decision may have been.". . . It is the mechanism by which matters once litigated and finally determined remain final. Its proper application is a question of law to be reviewed de novo. . . the doctrine perceives as settled “all errors lurking in the record on the first appeal which might have been, but were not expressly relied upon as error.”

The court distinguished this case from the unpublished opinion in Louisville-Jefferson County Metro Government v. Brooks, 2013 WL 645955 (2013).

NOTE TO KENTUCKY COURTS: Exclusive WestLaw cites are a big pain in the ass.

In Louisville-Jefferson County Metro Government v. Brooks, the interest rate issue had not been raised during any earlier phase of the proceedings. In this case, the issue had been ruled upon previously. I guess that's right. The same case was in the Court of Appeals four times, and it's a little hard to find. Bah!

After holding the rule-of-the-case doctrine precluded the consideration of the interest rate issue, the court considered it and opined/held/strongly suggested a trial court's prerogative to modify post-judgment interest under KRS 360.040 was within the realm of the court's sound discretion, and it was a pretty good enough decision to pass an abuse of discretion test.

Basically, the Court of Appeals said, it's a judgment and not a damn loan to be paid when they get around to it.

"Finally, University Hospital contends that the trial court miscalculated the interest due under the terms of its judgment. It contends that the trial court erroneously computed interest for the day on which the judgment was originally entered rather than concluding that interest began to accrue the following day and that it erroneously awarded additional interest in leap years contrary to the provisions of KRS 360.040. We disagree."

They were arguing about three days' worth of interest, or about $5225, or maybe one lawyer for three days.

The judgment, as amended, was affirmed.

SCOKY speaks - April - Last part

Staples v. Commonwealth, 2011-SC-000788-MR, April 17, 2014

"[T]he Commonwealth's theory that Staples had actual custody of the child and thus committed criminal abuse by allowing the child's mother to abuse the child is legally unsupported. Similarly, the Commonwealth's theory that Staples had a legal duty arising from his actual custody to prevent the child's mother from killing her and thus was complicit to manslaughter is legally unsound. Because the jury instructions included these theories, the convictions should be reversed."
Commonwealth v. Pollini, 2012-SC-000312-DG, April  17, 2014

Discretionary review of opinion reversing conviction. Appellee's failure to prove the prejudice component, "requires us to reinstate the trial court's denial of RCr 11.42 relief . . . a successful IAAC claim requires a showing of both deficient performance and prejudice[.]"

Young v. Commonwealth, 2012-SC-000491-MR, April 17, 2014

Conviction reversed because the omission of the mental-state element from a complicity instruction was palpable error.

Commonwealth v. Dulin, 2012-SC-000668-DG, April 17, 2014

A discretionary review of the Court of Appeals, reversing an opinion, "holding that KRS 533.040(2) did not extend the original expiration date of Appellee's, Derick Dulin, term of probation and, therefore, the Jefferson Circuit Court lost jurisdiction to revoke Dulin's probation when it purported to do so by an order entered in September 2008. The Court of Appeals concluded that the circuit court erred by denying Dulin's motion for post-judgment relief from the revocation order pursuant to CR 60.02 and RCr 10.26."

Thursday, April 24, 2014

The Form of a Kentucky Pleading: Basic [Kindle Edition] $0.99

The Form of a Kentucky Pleading: Basic
Amazon Kindle Edition - $0.99

Legal information how-to booklet for Kentucky civil pleadings. This covers the basics of formatting for the essential parts of Kentucky pleadings, motions and other court papers. From the type and size of paper required by the Kentucky Rules of Civil Procedure, to necessary margins, case captions, signatures and proof of service, this show you what a Kentucky civil pleading should look like and how the different parts are arranged.

Or, as in PDF file format for $1.99 from

Civil self-representation in Kentucky

There appears to be no serious doubt that civil litigants have a right to represent themselves in Kentucky courts without the assistance of an attorney.
" A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law."
Rules of the Supreme Court, SCR 4.300(B)(7), Kentucky Code of Judicial Conduct, Canon 3(B)(7)

"We are unaware of any U.S. Constitutional decision that declares citizens to have a right to self-representation in civil proceedings. Yet, arguing against such a right is nearly frivolous . . . In light of the historically "high standing" accorded to a party's right to plead and conduct one's own case, we agree that the trial judge abused his discretion in ordering Lattanzio to proceed with his litigation only under the supervision of an attorney. Such an extreme remedy was simply not reasonable, especially in light of the fact that no alternative sanctions were attempted prior to the entry of the trial court's February 27, 2009, order that barred Lattanzio from self-representation."
Lattanzio v. Joyce, 308 SW 3d 723 (Ky. App. 2010)

Pro se litigants must follow the Kentucky Rules of Civil Procedure. McBrearty v.Community and Technical College System, 262 S.W.3d 205, 210 (Ky.App.2008)

Encouraged against the sua sponte dismissal of complaints, in part, because such a practice is "particularly prejudicial to pro se plaintiffs, who are generally unskilled in the art of pleading." Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App.1987)

Federal cases

Prisoner's pro se civil complaint was held to a less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)

"We start with the proposition that the right to self-representation in civil cases conferred by § 35 of the Judiciary Act of 1789, although not enjoying the constitutional protection subsequently afforded to the right of self-representation in criminal cases, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), is a right of high standing, not simply a practice to be honored or dishonored by a court depending on its assessment of the desiderata of a particular case. As the Court said in Faretta, supra, 422 U.S. at 830 n. 39, 95 S.Ct. at 2538 n. 39: 'The Founders believed that self-representation was a basic right of a free people.' "
O'Reilly v. New York Times Co., 692 F.2d 863, 867 (2nd Cir.1982)  However, the right to self-representation is a qualified right. It must be timely asserted.


Wednesday, April 23, 2014

SCOKY speaks - April - part III

Kirby v. Lexington Theological Seminary, 2012-SC-000519-DG, April 17, 2014
Court of Appeals: 2010-CA-001798-MR

Kant v. Lexington Theological Seminary, 2012-SC-000502-DG, April 17, 2014
Court of Appeals: 2011-CA-000004-MR

There are two similar cases decided in tandem, because of their timing and common issues. Both plaintiffs were tenured professors at the Lexington Theological Seminary and both were terminated from employment during a cost-cutting restructuring of the seminary made necessary by external economic conditions. Each of the plaintiffs sued separately. Both plaintiff-appellants Kant and Kirby claimed breach of contract. One difference between the two cases is that Kirby also claimed race-based discrimination in his action (KRS 344.040). The Circuit Court in each action granted summary judgment for defendant seminary. The Court of Appeals affirmed the dismissal of each action based upon the  the ecclesiastical abstention doctrine and the ministerial exception.

On discretionary review, the Kentucky Supreme Court reversed the two cases and remanded each to the Circuit Court for further proceedings. Relying upon Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012), the court explicitly adopted the ministerial exception as applicable to employment claims, "especially discrimination claims . . . asserted against a religious institutional employer by an employee who is directly involved in promulgating and espousing the tenets of the employer's faith." The court distinguished between the purely internal disputes that sometimes erupt in religious organizations and those more secular disputes that may arise as a religious organization does business in the world.

"Secular courts do not have jurisdiction to hear disputes over church doctrine. But courts do have jurisdiction to hear and resolve employment disputes, contract claims, tort claims, or similar. And that authority is not lost as a result of the ministerial exception."

Ministerial employees do have a special status as the public face of a religious institution's internal religious beliefs and organizational purpose. The court stated, "the ministeria1 exception is a judicially created 'principle whereby the secular courts have no competence to review the employment related claims of ministers against their employing faith communities.' . . . The Constitution demands recognition of the ministerial exception, so we now incorporate the ministerial exception into our jurisprudence."

The ministerial exception is an affirmative defense that must be pleaded and proved. it is not a jurisdictional bar to the action. This means, of course, that the exception may be waived through intention or inaction.

"We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is 'whether the allegations the plaintiff makes entitle him to relief,' not whether the court has power to hear [the] case."
"Our case law has long held that 'whether a particular defendant is protected by official immunity is a question of law[.]' Accordingly, we hold the determination of whether an employee of a religious institution is a ministerial employee is a question of law for the trial court, to be handled as a threshold matter. Certainly, it is important "that these questions be framed as legal questions and resolved expeditiously at the beginning of litigation to minimize the possibility of constitutional injury" and provide the litigants with a clear understanding of the litigation's track. The religious institution asserting the ministerial exception must bear the burden of proof to show the employee was, indeed, a minister."

The application of the ministerial exception requires two main inquiries:

1) is the employer a religious institution, and
2) is the employee a minister.

Clearly, each of these involve factual determinations. Although framed as legal questions, any substantial conflict in the evidence on the issues of the institution being "religious" or the employee being a "minister" may seriously impair the court's ability to expeditiously resolve the matter short of trial.

"[T]he scope of 'religious institution' is not so narrow that only traditional faith communities qualify. Across the federal circuits, the ministerial exception has been applied to religiously affiliated hospitals, schools, and corporations because they were sufficiently within the understanding of "religious institution." An entity, allegedly religiously affiliated, will be considered a 'religious institution" for purposes of the ministerial exception "whenever that entity's mission is marked by clear or obvious religious characteristics.' "

There are numerous factors to be considered in determining the religious status of the institution, including its funding sources, its bylaws and governing structure, if officers and directors are personally affiliated with a particular religious movement and the primary activity or organizational purpose of the institution, just to name a few.

Also, regarding the ministerial status of an employee, the court stated, "We are loath to adopt a categorical rule regarding Seminary professors or any other class of individuals who may be considered ministers under the ministerial exception. And, like the United States Supreme Court, we do not adopt a 'rigid formula' for deciding if an employee is a minister."

In Hosanna-Tabor, supra, the U. S. Supreme Court offered four generic factors to consider when determining a ministerial employee:

(1) the formal title given by the religious institution,
(2) the substance reflected in that title,
(3) her own use of the title, and
(4) the important religious functions performed for the religious institution.

The Kentucky Supreme Court elaborated upon this.

"When considering 'the formal title given,' a trial court should weigh whether the title is inherently, exclusively, or primarily religious. The consideration of the 'substance reflected in the title' should include the duties and responsibilities associated with the title. The trial court, in looking to the associated duties and responsibilities, may look at whether they carried substantial religious significance, involved supervision or participation in religious ritual and worship, or spread the tenets or doctrine of the faith.'[The employee's] own use of the title' should include consideration of whether the position involved, expected, or required proselytizing on behalf of the religious institution. Or did the employee use the title in a manner that would indicate to the members of the particular faith community or to the public that he was a representative of the religious institution authorized to speak on church doctrine? Finally, consideration of 'the important functions performed for the religious institution' should involve a review of whether those functions were essentially liturgical, closely related to the doctrine of the religious institution, resulted in a personification of the religious institution's beliefs, or were performed in the presence of the faith community."

"According to the court in McClure v. Salvation Army,[460 F.2d 553 (5th Cir. 1972).] the 'relationship between an organized church and its ministers is its lifeblood' because the minister 'is the chief instrument by which the church seeks to fulfill its purpose.' And 'law should not be construed to govern the relationship of a church and its ministers.' . . . Although ministerial it is in name, the exception, as McClure illustrates,has been applied to lay employees, seminary professors, hospital workers, musicians, and many others."

"[B]oth the Free Exercise and Establishment Clauses of the First Amendment. . . bar the government from interfering with the decision of a religious group to fire one of its ministers. . . the reasoning behind the church's decision is essentially irrelevant under the ministerial exception."

"The existence of the ministerial exception is not purposed on the protection of a 'church's decision to fire a minister only when it is made for a religious reason' but,  instead, to 'ensure[] that the authority to select and control who will minister to the faithful . . . is the church's alone.' "

"we do not hold the ministerial exception to operate as a bar to Kirby's contract claims against the Seminary. The contract claims involve solely the Seminary's willing participation, within a religious context, in a contractual transaction between the two parties."

Standard of review

"Summary judgment is only to be granted 'to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.' "

"Sumary judgment is not intended as a substitute for trial and should be cautiously applied. Instead of deciding an issue of fact, the trial court reviews the evidence to determine whether a real issue of fact exists. And in performing this review, the trial court must view the evidence through a lens colored in favor of the party opposing summary judgment."

"Appellate review of a summary judgment involves only legal questions and a determination of whether a disputed material issue of fact exists.  Consequently, we ned not defer to determinations by the lower courts and we are free to operate under a de novo standard of review."

Tuesday, April 22, 2014

Politicization of criminal defense

One of the downsides for a criminal defense practice is that a lot of your clients are . . . well . . . criminals. It's not an easy job, being a criminal defense lawyer, but it is a noble and necessary  undertaking deserving of public respect.

It annoys the hell  out of me when politicians demean criminal defense for purely partisan political purposes. That is exactly what the Republican Governors Association did in this video ad excoriating the Democratic governor candidate in South Carolina, Vincent Sheheen, for being a criminal defense lawyer. I don't know anything about Sheheen and I don't give a damn about South Carolina politics, but this annoys me. 

Sheheen is "trial lawyer" who "made money off criminals" and "got a sex offender out of jail time."

The public is not well served by these tactics, and the RGA should be ashamed.

Monday, April 21, 2014

Kentucky inmate starves to death

Associated Press has reported today that the death of James Kenneth Embry, 57, while an inmate at the Kentucky State Penitentiary in Eddyville in January, 2014, resulted from self-starvation.
LOUISVILLE, Ky. (AP) — A prison doctor has been fired and two other staffers are in the midst of being dismissed after an inmate at the Kentucky State Penitentiary starved himself to death, a case that has exposed lapses in medical treatment and in how hunger strikes are handled at the facility. Prison officials have asked prosecutors to investigate after The Associated Press began asking questions about the inmate's death. (read more)

SCOKY speaks - April - Part II

 Three civil appeals rendered April 17, 2014

Linden v. Griffen, 2011-SC-000422-DG, April 17, 2014

Court of Appeals     2009-CA-000970-MR Unpublished

Arbitration and appeal

Business members of a LLC had a falling out over management and various symptoms of mutual back-stabbing erupted, resulting in litigation alleging fraud, defamation, abuse of process, breach of fiduciary duties, Blue Sky violations, mutual mistake, and/or unilateral mistake coupled with fraud in the inducement. A written agreement provided for arbitration and the Circuit Court stayed the proceeding, except for the claims of defamation and abuse of process, and compelled arbitration on the other issues. Defendants appealed the portion of the stay order that denied arbitration to some issues, under KRS 417.220(1)(a). After the Defendant's notice of appeal was filed, the Circuit Court amend the arbitration order by adding a CR 54.02 certificate of finality, whereupon Plaintiff appealed the grant of arbitration.

Although the arbitration agreement itself was inserted in an amended member agreement the validity of which Plaintiff contested, it was not an issue on appeal. Kentucky law makes if fairly clear that contesting the validity of an arbitration agreement is not a sure-fire way to avoid arbitration. The trial court is authorized to make short work of the issue. Presumably, and I'm just guessing, the validity of the arbitration agreement can be contested in the arbitration itself.
"If the party disputes the existence of said arbitration agreement, the Court may render summary findings on that issue. If an agreement is found to exist, the Court then shall order the parties to arbitrate." Fayette County Farm Bureau v. Martin, 758 S.W.2d 713, 713-14 (Ky.App. 1988)

KRS 417.220(1)(a) allows immediate appeal only for the denial of a motion to compel arbitration, but not for an order that grants compelling arbitration. The Supreme Court held that the Circuit Court lacked jurisdiction to am mend the arbitration order after a notice of appeal had been filed and, anyway, in Commonwealth ex rel. Stumbo v. Philip Morris, USA, 244 S.W.3d 116, 120 (Ky. App. 2007), the Court of Appeals ruled that an interlocutory order compelling arbitration is not certifiable under Civil Rule 54.02.

The court then carefully examine the parties' written agreement to see if it contained any indication the defamation and abuse of process claims should also have been subject to arbitration.

Held: "[W]e agree with the trial court and the Court of Appeals that [Plaintiff's] defamation and abuse of process claims fall outside the scope of the parties' agreement to arbitrate."

"Arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration."

"Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration."

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Marson v. Thompson, 438 SW 3d 292 (Ky. 2014)

Court of Appeals 2010-CA-002319-MR Unpublished

Qualified immunity for government employees - ministerial duty vs. discretionary duty

This case involved a accidental personal injury to a twelve year-old middle school student. The student fell off of an improperly extended bleacher in the school gym during normal school hours and routine daily activity. The defendants were sued individually for negligence. The defendants claimed a qualified immunity, which was denied by the Circuit Court and affirmed by the Court of Appeals.

Although the task of extending the bleachers properly was routine and ministerial, and thus as such not a task qualifying for individual immunity, the question remained which of the school's employees had been assigned this ministerial duty. The Supreme Court's analysis of the facts indicated that none of the named defendants had the primary duty of properly extending the bleachers. That job routinely had been assigned to the school's custodial staff, who were not named as defendants. The court determined that two of the three defendants had general supervisory discretionary duties regarding the bleachers and this brought them within the qualified immunity. The remaining defendant had a more direct supervisory duty, of actually entering the gym for a safety inspection, which was ministerial in nature. For this defendant,the qualified immunity did not apply,

Justice Noble's scholarly opinion is quite well written and I will not attempt to summarize her excellent analysis. It is worth reading in its entirety.

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Fraser v. Miller, 2012-SC-000829-DG, April 17, 2014

COA     2011-CA-000884-MR Published
Google Scholar Link to COA opinion

Medical ma;practice - Rebuttal and Informed consent

A jury trial for medical negligence ended with a verdict in favor of the defendant. On appeal, Plaintiff argued that the trial court abused its discretion by not allowing him to present expert testimony in rebuttal to respond to a juror's question, and that the trial court committed reversible error by ruling that Plaintiff was not entitled to present to the jury his claim for failure to obtain informed consent on the basis that such claims only arise out of surgical procedures.

The sixteen year-old plaintiff was diagnosed by Defendant as suffering with gastritis. Plaintiff's symptoms of nausea, vomiting and headache were treated by, among other things, an injection of a non-steroidal anti-inflammatory. Plaintiff's symptoms had not abated by the next day when he returned to the same immediate care clinic where he was seen by a different doctor who referred Plaintiff to the emergency room. Ultimately Plaintiff was diagnosed with pancreatitis and cortical necrosis, an irreversible form of kidney failure. Plaintiff claimed that the cortical necrosis was caused by the injected anti-inflammatory prescribed by Defendant. It is not clear if Defendant personally administered the injection.

A day after Plaintiff's medical expert testified during Plaintiffs case in chief and then left town, a juror approached the bench with a question. Plaintiff proposed to depose the medical expert by telephone and present the deposition as rebuttal evidence. The Circuit Court rejected the suggestion and Plaintiff presented the issue on appeal. The court placed the decision within the realm of the trial court's discretion, finding no abuse thereof.

"It is within the sound discretion of the trial court to regulate the order of presentation of proof during a trial."

"The test to determine if the trial court abused its discretion is to ask whether its decision was 'arbitrary, unreasonable, unfair, or unsupported by sound legal principles.' "

"Rebuttal evidence is evidence that 'tends to counteract or overcome the legal effect of the evidence for the other side.' "

"Furthermore, '[r]ebuttal testimony offered by the plaintiff should rebut the testimony brought out by the defendant and should consist of nothing which could have been offered in chief.' "

"To seek answers to questions posed by jurors after a witness has been discharged invites confusion and chaos. Also, while we see value in jurors being allowed to ask questions at trial, such inquiries must be timely. Trial courts allowing such a practice should admonish the jury at the beginning of the trial that any questions for a witness must be posed while the witness is still on the stand."

Plaintiff had made the claim Defendant negligently failed to obtain his informed consent for the use of the non-steroidal anti-inflammatory injection.

"The trial court agreed with Dr. Fraser that Kentucky law does not allow for a separate informed consent claim based on the administration of a therapeutic drug. The trial court also found that Miller had failed to present expert testimony that Dr. Fraser deviated from the standard of care by not obtaining Miller's informed consent. For those reasons, the trial court ruled that Miller could not present to the jury his informed consent claim." The Circuit Court overruled Defendant's motion for a directed verdict on the informed consent claim (?), but Plaintiff failed to tender a proposed jury instruction on the issue.

The Supreme Court stated, "Whether an informed consent claim can be based on the administration of a therapeutic drug is a novel question," but ruled that the issue had not been properly preserved for appeal.

Comment: The standard rubric requiring consent, in general, for medical procedures such as surgery is that any harmful or offensive bodily contact in the absence of consent amounts to a common law battery. KRS 304.40-320 defines what satisfies the giving of informed consent, or, " the claimant's informed consent shall be deemed to have been given," in the enumerated conditions, but it does not inform as to when "informed consent," as opposed to mere consent, is required. The distinction between surgical procedures and therapeutic treatments does not make a lot of sense. Some therapeutic treatments are extremely high risk, and should be undertaken only with a high level of "informed consent." Removing a splinter or lancing a boil involve "touching," with the remote possibility of horrible complications with enough bad luck. The question is not whether the doctor satisfied accepted medical standards for obtaining informed consent, the question is if  the doctor satisfied accepted medical standards for the treatment of gastritis made in ignorance of other underlying complications. If the doctor's ignorance of the other underlying complications was not negligent, then a failure to warn of risks connected to the treatment, or surgery, and the unknown conditions cannot be negligence.

In short, there is a duty to obtain "informed consent" for known risks only if there is a duty to warn of known risks, which can happen only if the risks are known. In my opinion, the focus should shift away from discussing a duty to obtain informed consent as a primary consideration, and to focus instead upon a more meaningful duty to warn. A duty to obtain informed  consent flows from a duty to warn.