Friday, March 28, 2014

Civil Litigtion Basics - Tendering Proposed Orders

The Federal Rules of Civil Procedure, Rule 7(b)(1)(C), requires every motion to "state the relief sought."

The Kentucky Rules of Civil Procedure, Rule 7(1), requires every motion to, "set forth the relief or order sought."

Do we stop there? NO!

There are local rules of court to consult.

The Joint Local Rules For the United States District Courts for the Eastern District and Western District of Kentucky, or whatever the hell it's named, Local Rule 7.1(e), states,
"With each motion and response, you must submit a separate proposed order granting the relief requested or denying the motion. Any proposed order imposing sanctions must be provided separately from a proposed order pertaining to any other matter."
Likewise, the Rules of Practice and Procedure Of the Thirtieth Judicial Circuit, Jefferson Circuit Court, Rule 1405 Proposed Order Required, "A draft of the proposed judgment or order shall be filed along with a motion for its entry."

What better way is there to inform the court what order is being requested if not by tendering an actual order?

There are just countless pesky details.

Thursday, March 27, 2014

Effective Dates of Kentucky Acts

Section 55 of the Kentucky Constitution provides that "No act, except general appropriation bills, shall become a law until ninety days after the adjournment of the session at which it was passed, except in cases of emergency ... ."

The effective dates for each regular and extraordinary legislative session from 1970 can be found here.

Wednesday, March 26, 2014

Parsing CR 5.02 - Obsessive If Not Compulsive

Doing this helps me understand all the possible variations and it allows me to be grateful that life is usually not as complicated as it could be. Civil Rule 5.02 provides:

Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, which shall not include a warning order attorney, the service shall be made upon the attorney unless service upon the party is ordered by the court. Except as provided in paragraph (2) of this rule [email or fax service], service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party or by mailing it to the attorney or party at the last known address of such person; or, if no address is known, by leaving it with the clerk of the court. Service is complete upon mailing unless the serving party learns or has reason to know that it did not reach the person to be served. Delivery of a copy within this rule means handing it to the attorney or to a party; or leaving it at the office of the attorney or party with the person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.
Spread out, it looks like this:

To whom served:

  • Service upon the attorney representing a party. The rule.

  • Service upon a party even though represented by an attorney. The exception, only by court order.

  • Service upon a party not represented by an attorney.

Method of service:

  • Service by mail to party or attorney's last known address is, "complete upon mailing unless the serving party learns or has reason to know that it did not reach the person to be served."

  • By "leaving it with the clerk of the court" if no address is known.

  • Service by hand delivery to party or attorney personally.

  • Delivery to the office of the attorney or party by leaving it with "the person in charge thereof."

  • Delivery to the office of the attorney or party by leaving it "in a conspicuous place therein" if there is no person in charge of the office.

  • Delivery to the person's residence (dwelling house or usual place of abode) and leaving it with "some person of suitable age and discretion then residing therein."

Kentucky Local Rules of Practice

Just a friendly reminder.

In addition to Kentucky's Family Court Rules of Procedure and Practice, Administrative Procedures of the Court of Justice, Rules of Civil Procedure, Rules of Criminal ProcedureRules of Evidence and Rules of the Supreme Court, (These can be found online here) The Commonwealth's one hundred seventeen Circuit and District Court judicial districts also have two hundred eighty-four sets of local rules that include Circuit Court rules, District Court rules, pretrial diversion protocols, domestic violence protocols, Family Court rules and  Mental Health Court rules.

The only rule about these rules is that you never know what lurks within until you look.

These local rules can be found online.

United  States District Courts have local rules too.
Joint Local Rules Project between the Eastern and Western Districts (PDF)

Tuesday, March 25, 2014

Morning law reading - March 25, 2014

Employment law - Accommodations for pregnant employees
By Mario R. Bordogna

The federal Pregnancy Discrimination Act (PDA), Title VII of the Civil Rights Act of 1964, the  Family Medical Leave Act (FMLA) and 'various state laws'. They say a little bit of knowledge can be a dangerous thing. I say a total lack of knowledge can result in a horrible and expensive mess.

Medical malpractice - Patients May Develop Lung Problems or Fatal Pneumonia After Anesthesia
By Matthew L. White

Hospitals and medical procedures can be bad for your health.

Federal business tax law - The Tax Benefits of an Accessible Business
By H. Trigg Mitchell

Doing the right thing might not be as expensive as you think.

Partnership and LLC law / Debt collection law - North Carolina Court of Appeals Addresses Rights Under a Charging Order
by Thomas Rutledge

If you though a judgment creditor could garnish a partner's or member's distributable share of business earnings, you're wrong.

Monday, March 24, 2014

Kentucky wage garnishment order: Pity the employer

The official Kentucky form for a wage garnishment order (AOC-150) is a multi-part carbon-less form with important employer instructions printed on the reverse side, on colored paper. Unfortunately, it is nearly impossible to read. So, I did a high resolution scan and boosted the contrast to make it more legible. Here it is.

Kentucky wage garnishment order employer instructions

Sunday, March 23, 2014

Local Rules of Court - Obey or Die

It's an unpublished opinion from the Kentucky Court of Appeals, but there is no other case quite like it that I have found, so maybe it qualifies as a hint or suggestion how a similar case might be decided down the road. Gaines v. Nichols, No. 2011-CA-000413-MR.(Ky. App. December 6, 2011) involved the granting of a motion to dismiss for failure to prosecute in disregard of the procedures contained in a local rule of court. Specifically, the local rules of court for the Jefferson County Circuit Court (30th Judicial Circuit), Rule 401,  gave the defendant 20 days to respond to a motion to dismiss and called for the submission of a form AOC-280, Notice of Submission of Case for Final Adjudication. The AOC-280 was not submitted and the court did not wait the 20 days before granting the dismissal.
The primary issues before us are whether JRP 401 may be enforced in the same manner as a Kentucky Rule of Civil Procedure and, if so, whether Gaines and Parker were availed of the rule's protection. First, our determination is that the Jefferson Rules of Practice are enforceable in the same manner as the Kentucky Rules of Civil Procedure. The Jefferson Rules of Practice were approved by way of an order of the Chief Justice of the Kentucky Supreme Court on July 11, 2006. Once local rules are duly approved, they have binding effect. SCR 1.040(3)(a).
 The Circuit Court's dismissal was reversed.

Kentucky has fifty-seven circuit court judicial districts and sixty district court judicial districts. Each of these one hundred seventeen judicial districts adopt their own respective local rules of procedure on a wide variety of matters.You don't need each and every one of them. You need the ones governing your favorite judicial playgrounds.

Social Security and Child Support: Credit vs. Reimbursement

The Kentucky Court of Appeals opinion in N.J.S. v. C.D.G., No. 2013-CA-001110-MR, March 21, 2014, involved the non-custodial parent's request for a child support credit under KRS 403.211(15) and reimbursement for past child support payment because of the child's award of Social Security dependent retirement benefits with a back payment of some $23,000. The Court of Appeals strictly construed the language of KRS 403.211(15), which speaks only of "money received by a child as a result of parental disability," and did not extend that provision to money received by the child as a result of parental retirement.

Be that as it may, the most interesting part the case was not addressed by the Court of Appeals. Granting a child support credit because of a child's receipt of Social Security benefits, whether by reason of retirement or disability, is one thing, but granting a reimbursement from the child's Social Security benefits is something else indeed. The idea runs face-first into the long standing federal exemption for Social Security benefits and the fiduciary duties imposed by federal regulations for alternate payees appointed to receive a minor child's benefits. See: Brief: Federal Exemptions for Veteran’s and Social Security Benefit.

Thursday, March 20, 2014

General advice for litigating without lawyers

 "I'm not very good at thinking things through. That's why this plan is such crap."
from a movie trailer for Bad Words

If you insist upon representing yourself in court without a lawyer, I can think of five important pieces of general advice:
  1. Except when actually present in the court room, all communications to the court must be in writing with a copy 'served' (generally mailed) to every party to the action or their lawyers.
  2. Give the court what it wants, when it wants it and in a form that is easily recognizable by real lawyers and judges. If your piece of paper causes a judge to scratch his or her head, you're in trouble. In Kentucky courts, the Kentucky Rules of Civil Procedure is your friend. At least look at it.There is a rule for everything,
  3. Neatness counts. This is the 21st Century and there is no excuse for handwritten motions or pleadings. Nobody wants to struggle with reading your penmanship, so use a word processor. Again, there is a rule for everything. See: Rules for Legal Greenhorns – A Kentucky Case Caption
  4. Electronic court filing is for professional attorneys only. Non-lawyers have to do it the old fashioned way on printed pieces of paper.
  5. Understand the essential legal points and stick to them. No story telling. Being sued and called into court is not anything like being called into the school principal's office. I'm sure you have a really good excuse for doing what you did, but it is generally not important. If you didn't pay your credit card debt, for example, the fact that you needed the money to buy insulin for your diabetic mother doesn't matter much in a courtroom.If you say, "I did not pay because . . . . ", the only message that matters is the "I did not pay" part.

Wednesday, March 19, 2014

Certificate, affidavit or something else?

No doubt the point of this post is technical, but it illustrates how the Kentucky Rules of Civil Procedure are somewhat different for lawyers and for litigants proceeding to represent themselves in court without a lawyer. Virtually every motion filed in court must be served upon every other party named in an action. Under Civil Rule 5.03, proof of this service upon the other parties or their attorneys must be filed with the court. This rule specifies that attorneys may make this proof to the court by a certificate of service, but non-lawyers must file an affidavit of service. The difference between a certificate of service and an affidavit of service is not insignificant.  An affidavit requires appearing in person before a notary or a clerk of the court, and being sworn to an oath. 

Although CR 43.11 and KRS 454.170 allow a solemn affirmation to be substituted for an oath, CR 43.13 is quite specific that an affidavit, as required by CR 5.03, "shall be a written statement or declaration sworn to or affirmed before an officer authorized to take depositions by Rule 28. .  . "

Normally I would suggest a written affirmation made under the penalties of perjury, as defined in KRS 523.01(2)(a) ("The statement was made on or pursuant to a form bearing notice, authorized by law, that false statements made therein are punishable"), but I simply cannot connect the authoritative dots to reach the conclusion it is specifically allowed by the written rules and statutes.

If a sworn or affirmed affidavit of service by a non-lawyer pro se litigant is an actual requirement of the Kentucky Rules of Civil Procedure, it would represent a significant and pointless burden upon those who represent themselves in court.

However, CR Rule 5.03 provides in relevant part
* * * * Proof may be by certificate of a member of the bar of the court or by affidavit of the person who served the papers, or by any other proof satisfactory to the court.:* * * * [emphasis added]
With this element of flexibility and judicial discretion injected into the mix, I feel confident that I could use the following as an Affirmation of Service when the time comes for me to sue somebody without a lawyer.

Affirmation of Service 

I affirm, under the penalties of perjury, that on __________ I deposited an accurate and complete copy of this (pleading) with the United States Postal Service in an envelope with sufficient First Class postage prepaid and properly addressed to:

(signed) _______________________________

Tuesday, March 18, 2014

A Brief Survey of Kentucky Law Blogs

The results of my survey of Kentucky legal blogs are brief. The work of gathering the information took me the better part of a day. Here is my list of Kentucky Law Blogs. A few that I found were excluded from the list if the content of the blog was devoted exclusively to self-promotion. I was looking for law blogs that discussed  . . . the law, or at least news items that related directly to legal issues or the practice of law.

I found thirty-six blogs that qualified for my list. I know there are more out there that I have not seen. That's just the way it works with this type of online searching.

Exactly two-thirds of the blogs on this list allow comments and each blog  that I attempted to comment upon (3 or 4) held my comment for moderation. This is smart. How long it will take the respective blog's web master to issue a ruling remains to be seen. So far, 24 hours is not quite long enough in most instances.

Fifty-six percent (20) of the blogs are fairly current and active, having been updated with new material sometime in March, 2014. Another nineteen percent (7) had new posts added sometime in January or February, 2014. Twenty-five percent (9)  have not seen activity since 2013 or before. One blog in this last group was expressly discontinued in 2009 but remains online as an archive.  

Sunday, March 16, 2014

Pretending to be a Lawyer by the Light of a Full Moon

There's a full moon today in a few hours, and if you doubt that a full moon has psychological effects, hold that thought and try to follow this logic.
  1. Credit card lenders commonly charge interest in excess of 30% per year.
  2. Kentucky law, KRS §286.3-740, authorizes banks to charge no more than 21% interest per year (1.75% per month x 12) on revolving credit plans.
  3. Most National Banks are organized in states without interest rate limits (Nevada, Delaware, etc.).
  4. Federal law preempts state law and federal law allows National Banks to operate nationally under the rules of the bank's home state.
  5. Therefore, National Banks doing business in Kentucky are not limited by Kentucky laws limiting the amount of interest that can be charged for credit card debt.
  6. When a credit card debtor defaults, the unpaid balance is accelerated and the debt is sold to a third party, it stops being a revolving credit plan, by definition, and it stops being a debt owned by a National Bank enjoying the supremacy of federal law.
  7. In the hands of a junk debt collector, the debt is just an ordinary unsecured debt.
  8. In Kentucky, ordinary unsecured debts which are not owned by banks or National banks are subject to Kentucky's general usury statute, KRS §360.010, which limits interest to 8% per year.
  9. If the junk debt collector attempts "taking, receiving, reserving, or charging a rate of interest greater than is allowed by KRS 360.010," (8%) for any period after assignment of the debt from the National Bank, the debt collector runs afoul KRS §360.020 and the civil forfeiture provisions therein.
I've gone down this road before, See: Washington Mutual (WaMu) credit cards


An Error on Kentucky Wage Garnishment Form AOC-150

15 USC § 1673 places limits on the amount that can be withheld from a debtor's paycheck by way of a wage garnishment. See: What's the maximum amount of wage garnishment? There are different percentage limits depending upon the type of debt being collected, but in every case the statutory limits are applied to disposable earnings and not gross earnings. 15 U.S. Code § 1672(b) provides the following definition:
The term “disposable earnings” means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.  
Examples of legally required deductions are federal, state and local income or occupational taxes, the Medicare tax and Social Security contributions. Each of these are "required by law to be withheld." and ought to be excluded from the calculation. The Affidavit and Answer of Garnishee (Employer) portion of Kentucky's AOC form 150, Order of Wage Garnishment, includes instructions how the debtor's employer is to compute disposable earnings.

As you can see from this image scan of AOC-150, all the proper exclusions are provided for except the Medicare tax. 

Although I'm reluctant to say that this is wrong, it is clearly a mistake and it ought to be corrected.

The current tax rate for Medicare is 1.45% for the employer and 1.45% for the employee, or 2.9% total. By not excluding the Medicare tax from a debtor's disposable earnings calculation, the amount of a wage garnishment is about 0.36% more than it would otherwise be. It's not a crippling amount.

Tuesday, March 11, 2014

Quirks of Researching Kentucky Appellate Decisions

Folks with access to Westlaw or Lexis don't have these problems, but those of us who insist upon free access to basic legal authorities have to be adaptable. All Kentucky Court of Appeals opinions since 1996 and all Kentucky Supreme Court opinions since 1999 are available online, and are searchable, through  the Kentucky Court of Justice web site. The web search function is very powerful and useful.

To search for a specific case, it is necessary to visit either the Clerk of the Supreme Court docket search page OR the Clerk of the Court of Appeals docket page online. There one can search by attorney name, appellate case number, Circuit Court case number or by any of the litigant's names. Supreme Court case numbers, such as 1996-SC-001085-MR, are identified by the 'SC' after the year designation, whereas Court of Appeals case numbers contain a 'CA' at that same location.

Obviously, one must search the Supreme Court's docket for Supreme Court case numbers and the Court of Appeals' docket for Court of Appeals case numbers. For such a docket search online, the only significant parts of the case number are the year and the number, without leading zeros. The trailing letters, 'MR', 'WC' etc. in the case number merely indicate the type of case it is and they are not used in the docket search.  

Whether one uses the opinion text search function or the docket search functions, one ends up with a PDF file of the court's slip opinion. The court's web site warns:
"This site will give you immediate access to opinions, in a PDF format, as they are rendered. When finality is entered in a case, the final opinion will replace the rendered copy on the site. Finality and publication status will be shown on the first page of the opinion."
Although it is true that court opinions are made public before those decisions are final, the finality of an opinion is not always marked on the first page of the online slip opinion. In order to verify the finality of any ambiguous online opinion, it is necessary to return to the relevant court clerk's docket search.

Generally, the finality of Kentucky appellate decisions is controlled by Civil Rule 76.30 Effective date of opinions, which reads in part:

(1) Scope of Rule.

This Rule 76.30 applies to any final decision of an appellate court styled an “Opinion.” A decision styled an “Opinion and Order” is an order, and is governed by Rule 76.38.

(2) Finality.

(a) An opinion of the Supreme Court becomes final on the 21st day after the date of its rendition unless a petition under Rule 76.32 has been timely filed or an extension of time has been granted for that purpose. An opinion of the Court of Appeals becomes final on the 31st day after the date of its rendition unless a petition under Rule 76.32 or a motion for review under Rule 76.20 has been timely filed or an extension of time has been granted for one of those purposes.

(b) In the event of a timely motion for review under Rule 76.20, the opinion becomes final immediately upon denial of the motion.

(c) In the event of a timely petition under Rule 76.32, (i) if it is in the Supreme Court and is denied, the opinion becomes final immediately upon such denial, but if the petition is granted and a new or revised opinion is rendered, the new or revised opinion becomes final on the 21st day after the date of its rendition unless otherwise ordered, or unless a further petition under Rule 76.32 has been timely filed or an extension of time has been granted for that purpose; (ii) if it is in the Court of Appeals and is denied, the opinion becomes final on the 31st day after the date the petition was denied unless a motion for review under Rule 76.20 has been timely filed; (iii) if it is in the Court of Appeals and is granted, and a new or revised opinion rendered, the new or revised opinion becomes final on the 31st day after the date of its rendition unless otherwise ordered, or unless a further petition under Rule 76.32 or a motion for review under Rule 76.20 has been timely filed or an extension of time has been granted for one of those purposes.

(d) Unless otherwise ordered, (i) in no event shall an opinion become final pending final disposition of a timely petition under Rule 76.32 or a timely motion for review under Rule 76.20; and (ii) in every case it shall become final when no such motion or petition has been filed within the time allowed for that purpose. * * * *
The lesson is that decisions of the Kentucky Court of Appeals and the Kentucky Supreme Court are never final at the time the opinions are first made public online, the finality of an opinion might not be apparent upon the face of the slip opinion itself and the finality of any given opinion may remain in limbo for many months after the opinion is made public. The way to know for sure is to check the relevant court clerk's docket details.