Wednesday, September 21, 2016

Very Bad News for West Buechel

Going all the way back to West Buechel's original Insurance Premium Tax Ordinance in 1984 and including all available variations and subsequent amendments, both real and imagined (See: West Buechel: The Great Tax Hoax of 2012), NOT A SINGLE ONE states a purpose for the tax imposed.  

If anyone takes the Kentucky Revised Statutes on this subject seriously, it means the City of West Buechel has a big potential problem.

KRS 92.330 requires of Home Rule Class Cities that the purpose for which a tax or license fee is imposed, "shall be specified in the ordinance, and the revenue therefrom shall be expended for no other purpose than that for which the tax was levied or the license fee imposed. Failure to specify the purpose of the tax or license fee shall render the ordinance invalid."   

The size of the problem would be about $1 Million of Insurance Premium Taxes collected over the last five years. Five years is likely the applicable statute of limitations.


Is there a lawyer in the house?

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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The danger of legal specialization

The Kentucky Department of Insurance is kind enough to offer Cities and Counties a Model  Local Insurance Premium Tax Ordinance. It is, in my estimate, the best and most comprehensive Ordinance of its type that I have seen, with one serious flaw.

KRS 92.330 requires of Home Rule Class Cities that the purpose for which a tax or license fee is imposed, "shall be specified in the ordinance, and the revenue therefrom shall be expended for no other purpose than that for which the tax was levied or the license fee imposed. Failure to specify the purpose of the tax or license fee shall render the ordinance invalid.

Tough love. 

Further, KRS 92.340 is also very tough.
"If, in any city of the home rule class, any city tax revenue is expended for a purpose other than that for which the tax was levied or the license fee imposed, each officer, agent or employee who, by a refusal to act, could have prevented the expenditure, and the members of the city legislative body who voted for the expenditure, shall be jointly and severally liable to the city for the amount so expended. . . . ."
 Alas, the Department of Insurance's Model Ordinance does not seem to include any provision or reminder that a city ordinance must state a purpose for the tax or license fee. I've read through it only three times, so maybe it's there.

It looks to be a nasty trap for the unwary city official.

Good insurance lawyers are not necessarily good municipal lawyers.




--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Sunday, September 18, 2016

Show Cause Motion Served

Yes, I am an old dog.

Yes, this is a new trick.

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Dear Mr. Attorney General - Part 2

Kim Richards - West Buechel, KY, Clerk-Treasurer

If you ever wish to do business with West Buechel City Hall, bring lollipops.  You will be dealing with children.

Evil defective children.

William Golding wrote a book about this place.









--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Saturday, September 17, 2016

We are off now to annoy the Attorney General

What better way to spend a Saturday evening? Asking the Attorney General to review a West Buechel Open Records response. Can't beat it.


--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Wednesday, September 14, 2016

Open Records and Settlement Agreements

This is what the Kentucky Supreme Court has to say about it.

"[I]n Central Kentucky News-Journal v. George, 306 S.W.3d 41 (Ky. 2010) and Lexington-Fayette Urban County Government v. Lexington Herald-Leader Company, 941 S.W.2d 469 (Ky. 1997), we addressed requests for disclosure of settlement agreements in law suits brought by private citizens against, respectively, a school board and a police department. Notwithstanding confidentiality agreements between the parties, we held that the settlements were subject to disclosure. The public's keen interest in knowing the terms of the settlements—the amount of public funds paid out by the agencies in compensation for what injuries to whom—easily outweighed, we explained, the recipients' interest in keeping the settlements private."

Lawson v. Office of Attorney General, 415 SW 3d 59 (Ky. 2013)

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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West Buechel - Let the process begin

Yep. It might take a year or two to get to the bottom of this.

What of it?



To:

Kimberly R. Richards, Clerk-Treasurer
City of West Buechel
3705 Bashford Avenue
West Buechel, Kentucky 40218


DELIVERED BY Fax to 502-456-6928
& via emailed PDF attachment to r.richards@westbuechelky.gov & k.richards@westbuechelky.gov
           
           

Re: Open Records Request – August, 2016 City check issued for $10,350  


Dear Ms Richards:

The August, 2016, Check Detail report you prepared recently shows a City check having been issued on August 13 in the amount of $10,350 for "Legal  Services – Admin."

I hereby request to inspect that cancelled check and to inspect all documentation supporting such expenditure of public funds.


Sincerely yours,


Thomas Fox



--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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West Buechel - Brazen Illegality

On Friday Rick Richards, Mayor of West Buechel, released a list of checks the City had issued during the month of August, 2016. One of these checks was in the amount $10,350, for "Legal  Services - Admin," but the name of the payee was intentionally omitted ( "xxxxx" ).

  
In a breathtaking display of bluff, bluster and bravado last night, Mayor Richards and his two primary co-conspirators, City Clerk-Treasurer Kim Richards and Mayor Richards' long time personal attorney (who is also City Attorney), John Casey McCall, stonewalled the West Buechel City Council and refused to disclose to whom and for what purposes this $10,350 check was issued.

Richards' plan of bamboozlement hinges upon an erroneous assertion that a city's settlement of legal claims against it can be kept secret, even from the City Council. Under Kentucky Open Records law, such use of public funds is not exempt from disclosure and will not remain hidden for long.

Given the amount of the check, in excess of $10,000, if there is anything significantly crooked about the secret payment, it might easily be classified as a Class C Felony.


  

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Friday, September 9, 2016

West Buechel: State Suspends Road Aid Payments

Re-posted from AccountableKY.org:Watchdog :West Buechel: State Suspends Road Aid Payments

The Commonwealth of Kentucky has suspended making monthly Road Aid payment to the City of West Buechel due to the City’s failure to submit a Uniform Financial Information Report (UFIR) for FY 2014-2015. The last Road Aid payment was made in May, 2016.

The City cannot submit a UFIR for FY 2014-2015 until that year’s Financial Statements have been audited by an independent CPA as required by law. Our repeated requests to inspect the City’s Financial Statements for FY 2014-2015 have gone unanswered. The Financial Statement required by KRS 424.220 should have been finalized and published a year ago. An independent audit of the City’s Financial Statements cannot begin if the Financial Statements do not yet exist.

The State Road Aid allocated to West Buechel will continue to accumulate. Those funds, which are about $2,000 per month, will not be paid to West Buechel until the City gets its financial reporting in proper order and a UFIR is submitted.


--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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West Buechel Late Pay Update | Watchdog

Re-posted from AccountableKY.org:Watchdog : West Buechel Late Pay Update

 ------------- 

We previously reported $5,000 in late fees imposed upon the City of West Buechel by Kentucky Retirement Systems because of Kimberly R. Richards' multiple failures to report or pay retirement contributions on time. See: Gross Negligence. Ms. Richards has been City Clerk-Treasurer for West Buechel since Richard W. Richards took office as Mayor in January, 2015. She continues in that position with an annual salary in excess of $60,000. By a recent Open Records request to Kentucky Retirement Systems, we have been advised that an additional $1,000 late penalty has been imposed.


The two required reports and the contribution payment for May, 2016, were six days late. The City has not paid any of the accumulated $6,000 in fines.

 --------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Wednesday, September 7, 2016

West Buechel: Show me EVERYTHING

I'm beginning to believe that the City of West Buechel's banking records are "public records" within the meaning of Kentucky's Open Records Act, and that they are subject to inspection by the public upon reasonable request. It shouldn't be a big deal, but so it seems to be, nonetheless.

When faced with the questions:
  • How much money has the City of West Buechel collected;
  • How much money has the City of West Buechel spent,;
  • and What was that money spend upon?

You'd think the answers could be obtained without getting the Attorney General and the Jefferson Circuit Court involved.

No so.

Now that I have Kentucky's Attorney General and a Jefferson Circuit Court Judge in agreement, along with a lot of other lawyers, judges and legislators, that public bank records ARE public records subject to examination by the public, maybe these questions can now be answered.

You see, the problem is that NOBODY KNOWS! Except, maybe West Buechel's City Clerk-Treasurer, but she's not telling. She not telling even though the City has paid her over $100,000 in eighteen months from January, 2015 through June, 2016. She not telling because she's the Mayor's ex-wife and not even the Mayor can tell her what to do if she doesn't want to.

So, YAORR (Yet Another Open Records Request), as follows:

-----oOo-----

September 7, 2016

To:

Kimberly R. Richards, Clerk-Treasurer
City of West Buechel
3705 Bashford Avenue
West Buechel, Kentucky 40218


DELIVERED BY Fax to 502-456-6928
& via emailed PDF attachment to
r.richards@westbuechelky.gov,
k.richards@westbuechelky.gov
& brdlawfirm@gmail.com


Re: Open Records Request – City Bank Records


Dear Ms Richards:


Since I will be spending some of my time in West Buechel City Hall examining the previously specifically requested City banking records, I’d like to take the opportunity to also examine all of the City’s bank records from January 1, 2015 to the date of my examination, whenever that may be.

That is my request, in general. Show me everything. But, to be specific, I now request to examine and scan, at my option, each monthly account statement, every check and each deposit slip for the following City bank accounts:

BB&T deposit accounts

• xxx-4321
• xxx-4356 Payroll
• xxx-4313 State Grant
• xxx-4119 Municipal Road Aid
• xxx-4518 Buechel Festival
• xxx-4828 General
• xxx-4437 Christmas Fund
• xxx-4836 West Buechel Grant
• xxx-2003 New General Fund Account (created 1-5-2015)

PNC deposit accounts

xxx-1999 Explorer Post 790

Bank of New York Mellon (BNY Mellon)

I do not know the account number for this, but it was created in 2012 as a conduit for loan proceeds from the $260,000 bond issued through the Kentucky Bond Corporation by the prior administration. This account had a balance of only a few thousand dollars when Richard Richards took office in January, 2015.

Clearly, my examination of these bank records cannot be accomplished in just a few hours, or even in only one day. Find me an out of the way corner in City Hall to do my work and this process will not interfere with normal City business. These are not the type of files that are frequently in “active use,” except possibly when the City’s independent auditors may, someday, be at work.


Sincerely yours,


Thomas Fox


--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Thursday, September 1, 2016

Fox wins Open Records suit against West Buechel

By an order dated August 29, 2016, Jefferson County, Kentucky, Circuit Court Judge Ann Bailey Smith granted the motion of Thomas Fox for Partial Summary Judgment in an Open Records Act lawsuit he had filed in November, 2015 against the City of West Buechel, Kentucky. This Judgment ordered City officials to allow Fox to inspect certain specified banking records and other documents.
--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Saturday, July 30, 2016

Exception to the terminable-at-will doctrine


The limitations to the wrongful discharge exception to the terminable-at-will doctrine are carefully set out in Firestone. We state: "[e]mployers as a group have a legitimate interest to protect" which requires that "the cause of action for wrongful discharge [be] clearly defined and suitably controlled." Id.
We embraced Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834 (1983), to establish the limitations on "any judicial exceptions to the employment-at-will doctrine." 335 N.W.2d at 835. They are:
1) The discharge must be contrary to a fundamental and well-defined public policy as evidenced by existing law.
2) That policy must be evidenced by a constitutional or statutory provision.
3) The decision of whether the public policy asserted meets these criteria is a question of law for the court to decide, not a question of fact.

* * *

 We adopt, as an appropriate caveat to our decision in Firestone Textile Co. Div. v. Meadows, supra, the position of the Michigan Supreme Court in Suchodolski v. Michigan Consolidated Gas Co., 412 Mich. 692, 316 N.W.2d 710 (1982). The Michigan court held that only two situations exist where "grounds for discharging an employee are so contrary to public policy as to be actionable" absent "explicit legislative statements prohibiting the discharge." 316 N.W.2d at 711. First, "where the alleged reason for the discharge of the employee was the failure or refusal to violate a law in the course of employment." Second, "when the reason for a discharge was the employee's exercise of a right conferred by well-established legislative enactment." 316 N.W.2d at 711-12. Here the concept of an employment-related nexus is critical to the creation of a "clearly defined" and "suitably controlled" cause of action for wrongful discharge. These are the limitations imposed by Firestone Textile Co. Div. v. Meadows, supra at 733.

Grzyb v. Evans, 700 SW 2d 399 (Ky 1985)

See also:

Foster V. Jennie Stuart Medical Center, 435 SW 3d 629 (Ky App 2013)
Pierce v. Bennett, 835 F. Supp. 2d 288 (WD Ky 2011)
--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Friday, July 29, 2016

Notes: KRS 514.070 Theft by failure to make required disposition of property.

 KRS 514.070(1) A person is guilty of theft by failure to make required disposition of property received when:
(a) He obtains property upon agreement or subject to a known legal obligation to make specified payment or other disposition whether from such property or its proceeds or from his own property to be reserved in equivalent amount; and
(b) He intentionally deals with the property as his own and fails to make the required payment or disposition.
 ----------- oOo ---------- 

 Blanton v. Commonwealth 562 SW 2d 90 (Ky App, 1978) - New Trial

" . . . . the failure to pay claims for labor and material out of amounts received from the owner constitutes a misdemeanor under KRS 376.990(2) only if the contractor fails to pay sums which he knows to be due and owing. No criminal liability may be imposed for failure to pay an amount which is disputed in good faith by the contractor. Moreover, to commit the felony of theft by failure to make required disposition of property under KRS 514.070, a contractor must not only know that an amount is due and owing for labor and material, but he must also know that he has a legal obligation to make payment out of the proceeds received from the owner and must intentionally deal with proceeds as his own."
 ----------- oOo ---------- 

Commonwealth v. Jeter 590 SW 2d 346 (Ky App, 1979)

["K.R.S. 514.070 does not proscribe the type of transaction whereby a seller accepts money for the purchase of merchandise and then refuses to deliver the property as promised."]
"The basic thrust of this statute [KRS 514.070] is to impose penal sanctions for such conduct as a retailer's failure to pay over to the state sales taxes which have been collected, a contractor's failure to make proper application of payments in satisfaction of materialmans' liens, an employer's failure to apply withheld employee's wages to a pension fund, or a bank employee's failure to properly credit funds deposited for the account of a customer. Brickey, Kentucky Criminal Law, § 14.08."
 ----------- oOo ---------- 

Commonwealth v. Perry, 219 S.W.3d at 720 (Ky 2007)
"The sole issue in this certification of the law sought by the Commonwealth is whether the offense of Theft by Failure to Make Required Disposition of Property (KRS 514.070) covers a situation in which the victim gives money to the defendant with the agreement that the defendant will purchase merchandise from a third party source and give it to the victim, and then the defendant fails to purchase the item or return the money. We hold that it does."
 ----------- oOo ---------- 

Taylor v. Commonwealth, 799 SW 2d 818 (Ky 1990) - Conviction affirmed
 In the context here presented, the only substantial difference between the elements of KRS 304.9-400 and those of KRS 514.070 is that conviction under the insurance code would lie if the agent converts the funds to his own use or illegally withholds them, whereas conviction under the penal code would properly ensue if he intentionally deals with the proceeds as his own and fails to make the required disposition. Taylor could be acquitted of theft and convicted of the lesser offense only if he had withheld the premiums but had not intentionally dealt with them as his own. Appellant's avowal of an intention and ability to pay, termed a denial of criminal intent, does not, even if believed, exculpate him under KRS 514.070.
 ----------- oOo ---------- 

Butts v. Commonwealth, 581 SW 2d 565 (Ky 1979) - agent of a corporation is liable for crimes he commits for the benefit of corporation
Butts contends that his motions for directed verdicts of acquittal on these charges should have been granted because there was no evidence that he dealt with customers' property, which Sentry held under an obligation to repay, as his own. Rather, he maintains that he obtained the property as Sentry's agent and that he disposed of the property for the benefit of Sentry and not himself. We do not agree with this contention.

An agent of a corporation is liable for crimes he commits for the benefit of or in the name of a corporation "to the same extent as if the conduct were performed in his own name or behalf." KRS 502.060 (Emphasis added). The purpose of this section of the Penal Code is to prevent an individual from hiding behind a corporation to avoid criminal liability for his conduct. KRS 502.060 Commentary (1971). The evidence is uncontradicted that Sentry intentionally dealt with customers' property as its own. Butts was the agent of Sentry who executed these illegal conversions. By operation of statute Butts is responsible for converting the property.
--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Notes: CR 36.01 and 37.03 - Rumpel v. Rumpel 438 SW 3d 354, (Ky 2014)

 The trial court found that Kaven violated CR 36.01. That rule permits one party to request another party to admit "the truth of any matters within the scope of Rule 26.02 [the rule defining what is discoverable]." Under the rule, the party receiving the request must, in a timely manner, either admit the matter asserted, deny it, or object to the request. The purpose of the rule is to streamline the litigation by eliminating from controversy factual matters that will not be disputed at trial. Thompson v. King Feed & Nutrition Service, Inc., 153 Wash.2d 447, 105 P.3d 378, 390 (2005) (discussing Washington's virtually identical rule); Dobos v. Ingersoll, 9 P.3d 1020, 1028 (Alaska 2000) (discussing Alaska's version of the rule).

Under CR 37.03, an improper failure to admit the matter asserted, if the requesting party thereafter proves the truth of it, authorizes the trial court, upon the requesting party's application, to order "the other party to pay him [the requesting party] the reasonable expenses incurred in making that proof, including reasonable attorney's fee."[2] CR 37.03 thus provides an exception to the American Rule against the shifting of fees. Because CR 36 and CR 37.03 apply to civil proceedings generally, the fee shifting they allow is potentially of far-reaching effect. Indeed, if under those rules a party could obtain a fee award merely by requesting prior to trial that a disputed fact be admitted and then, if the fact were denied, prevailing on the dispute at trial, prevailing parties would be routinely entitled to fee awards, and our approach to fee shifting would be turned on its head. Cf. Piney Meeting House Investments, Inc. v. Hart, 284 Va. 187, 726 S.E.2d 319 (2012) (disallowing under Virginia's version of CR 37 a request intended merely to subvert the American Rule).

That clearly is not the intent of the rules allowing for fee sanctions. See Bell, 423 S.W.3d at 742 (noting that rules allowing for fees as a sanction must be narrowly construed precisely to prevent this sort of subversion of the American Rule). On the contrary, CR 37.03 provides that, even if the requesting party proves the truth of a matter concerning which an admission was requested and denied, a fee sanction is not appropriate if

    (a) the request was held objectionable pursuant to Rule 36.01, or

    (b) the admission sought was of no substantial importance, or

    (c) the party failing to admit had reasonable ground to believe that he might prevail on the matter, or

    (d) there was other good reason for the failure to admit.

CR 37.03.

The rule does not require, in other words, that a party admit a genuinely disputed fact or risk having to pay fees should the fact-finder ultimately decide the dispute against him. Prevailing at trial, although necessary to invoke the rule, is not the sole issue. The main issue under the rule, rather, is whether the party denying a request for admission acted reasonably in believing that he might prevail, or had some other legitimate reason for making the denial. We review a trial court's grant or denial of discovery sanctions, including fee awards, for abuse of discretion, Turner v. Andrew, 413 S.W.3d 272 (Ky.2013), and we agree with Kaven that the trial court abused its discretion here by failing to consider whether Kaven's denials of Kathie's requests for admission were justified.
 Rumpel v. Rumpel 438 SW 3d 354, (Ky 2014)
--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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West Buechel: Bad joke bookkeeping

For a few months during the Spring of 2015, West Buechel's Clerk-Treasurer distributed generated "check registers," showing City checks, amounts and to whom paid, and she also distributed copies of the City's General Fund II bank account statements. If you know that check numbers and amounts are listed on the bank's monthly account statements, it is only natural to wonder, "How do the bank's numbers compare to Kim Richards' numbers?"

Not good. Officially, First Degree Meshuggeneh.



Bank
Check
Check No. Statement
Register




2002 $826.45
$266.32
2003 $607.58
$95.00
2004 $1,416.03
$17.72
2005 $81.78
$18.00
2006 $1,306.53
$23.32
2007 $1,375.57
$220.32
2008 $44.28
$148.47
2009 $66.34
$40.00
2010 $68.99
$45.36
2011 $5,295.20
$675.40
2012 $520.69
$30.00
2013 $183.28
$80.56
2014 $24.20
$313.39
2015 $313.39
$24.20
2016 $80.56
$183.28
2017 $30.00
$520.69
2018 $675.40
$5,295.20
2019 $45.36
$68.99
2020 $40.00
$66.34
2021 $148.47
$44.28
2022 $220.32
$1,375.57
2023 $23.32
$1,306.53
2024 $18.00
$81.78
2025 $17.72
$1,416.03
2026 $95.00
$607.58
2027 $266.32
$826.45
2028 $26.00
$10.00
2029 $10.00
$26.00

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Stalking the wild KRS 424.220 Financial Statement

 There is always a gap between the written law and the law that is actually put into play in practical day-to-day life. It helps to have actual examples. The more the better.

This is a start. What I lack by being slow, I try to make up for by being relentless. The following are recently completed KRS 424.220 Financial Statements from Meade County, Kentucky, for FY 2015-2016. Since FY 2015-16 just ended on June 30th, I mean recent when I say recent. The Meade County Treasurer, Tammy Weick, is clearly on top of her job.

This document is divided into five parts
  1. Statement of Assets 
  2. Statement of Receipts
  3. Statement of Revenues
  4. Statement of Appropriations
  5. Statement of Claims
--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

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Thursday, July 28, 2016

Tort of fraudulent misrepresentation


Reposted from DelCotto Law Group: Kentucky Law: Elements of Fraud Claims By: Jamie L. Harris, Esq.

"Kentucky law . . .  recognizes the tort of fraudulent misrepresentation. In Kentucky, fraud by misrepresentation comprises six elements:
(1) the defendant must have made a material misrepresentation;
(2) that was false;
(3) that the defendant knew was false, or made with reckless disregard for its truth;
(4) that was intended to induce the plaintiff to act, based on the misrepresentation;
(5) that the plaintiff reasonably relied; and
(6) that caused the plaintiff injury.
Flegles, Inc. v. TruServ Corp., 289 S.W.3d 544, 549 (Ky. 2009). To be actionable, a misrepresentation. . . must relate to a past or present material fact. A mere statement of opinion or prediction may not be the basis of an action. This means . . . that forward-looking opinions about investment prospects or future sales performance . . . generally cannot be the basis for a fraud claim.” Ibid. Nor does “sales talk or puffing which is universal and an expected practice . . . amount to actionable misrepresentation. This is certainly true where the parties deal at arm’s length and have equal means of information.” McHargue v. Fayette Coal & Feed Co.,283 S.W.2d 170, 172 (Ky. 1955) (internal quotation marks omitted). A caveat to the necessary elements under either a fraud by omission claim or a fraudulent misrepresentation claim is that “mere silence does not constitute fraud where it relates to facts open to common observation or discoverable by the exercise of ordinary diligence, or where means of information are as accessible to one party as to the other.” Bryant v. Troutman, 287 S.W.2d 918, 920–921 (Ky.1956).
-oOo-


--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
AccountableKY.org

----------- oOo ----------

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Administrative dissolution

 In Kentucky, business entities are required by law to formally dissolve. In order to properly close, a domestic entity must file articles of dissolution. The Secretary of State's filing fee for articles of dissolution is $40.00.

In the alternative, failure to file the required annual report ($15 filing fee) will automatically result, through the mere passage of time, in an administrative dissolution. Net out of pocket savings of $55 and no need to draft articles of anything..

Hmmmm . . . . which way to go?
--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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----------- oOo ----------

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Monday, July 25, 2016

Easy money

If there are any under-employed Kentucky trial lawyers out there looking to make some easy money, I have a plan and I hate leaving money on the table. I can't collect statutory attorney fees myself. If you're interested, get in contact with me.

If you can't figure out how to get in contact with me, I don't want you as my attorney. 

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Motion hour

Motion hour in Kentucky civil practice has its good side and it has its bad side, but without any doubt in my mind, the main structural design purpose behind motion hour is to inflate lawyers' billable hours for doing nothing.

With a little advance planning, any inventive attorney can structure his motion hour practice to bill four clients in four different actions for an hour each for a fifteen minute walk, fifteen minutes waiting and fifteen minutes of pure formality. God bless the economies of scale! 

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Sunday, July 24, 2016

Pity

I have a lot of compassion for folk with substance abuse problems and addictions. It does really bad things to a person's physical and mental health, with nasty blow-back on family life in general. But, being a Libertarian and a Christian, my principles embrace non-interference linked to a ready willingness to help and guided by Jesus' teaching that it's impossible to save anyone by condemning them first.

I still have a problem with dealers.

--------------------

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

A division of Accountable Kentucky Incorporated
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The answer to the question

On August 26, 2014, Rick Richards enters his guilty plea on two counts of trafficking in a controlled substance. Specifically, prescription Oxycodone and Hydrocodone.

On September 22, 2014 the Jefferson Circuit Court accepted the guilty plea and the plea agreement, and grants a motion for pretrial diversion.

On October 9, 2014 Defendant files a "Motion for the Defendant to Exercise Constitutional Rights" and the Jefferson Circuit Court grants the motion by entering an Order, "that Rick Richards is hereby allowed to continue to seek public office and to exercise his voting rights and any other constitutional rights therefore [sic] afforded him." 

On  Tuesday, November 11, 2014, Rick Richards wins the election for Mayor of West Buechel by 10 votes.


This is a legal move worthy of further discussion, but not today.

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Saturday, July 23, 2016

Citizen criminal complaints

The Kentucky legal system is somewhat unusual in that for minor criminal violations and misdemeanor offenses, citizens have the option to bypass the police and complain directly to the County Attorney. The County Attorney, or an Assistant County Attorney, reviews the citizen complaint and makes an initial determination of probable cause.

If there is probable cause, the Assistant County Attorney completes AOC Form 315.B, Criminal Complaint and refers the matter to the District Court for final determination. It seems that if the Assistant County rejects the citizen complaint, that too is referred to the District Court. I don't know what form is used, but there must be one. There is always a form.

The District Court may accept the County Attorney's recommendation and issue an arrest warrant or summons or refer the matter to mediation.  The District Court may also reject the County Attorney's recommendation regarding the citizen complaint and not take action.

Domestic violence is a common basis for such citizen complaints, but the process can be employed for any violation or misdemeanor.

The first step is to convince an Assistant County Attorney that a non-felony crime has been committed.



--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Kentucky Instructions to Juries - by Judge John S. Palmore





Kentucky Instructions to Juries (Civil), 5th Ed. 2016
by Judge John S. Palmore
898 pages

Amazon Kindle Edition $170.49





--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Jury instruction

After thinking about it for thirty year, or so, I finally realize that jury instructions are much more important and deserve more work than I had ever previously considered.

CR 51 Instructions to jury; objections
(1) At any time before or during the trial, the court may direct the parties to tender written instructions. At the close of the evidence any party may move the court to instruct the jury on any matter appropriate to the issues in the action.

(2) After considering any tendered instructions and motions to instruct and before the commencement of the argument, the court shall show the parties the written instructions it will give the jury, allowing them an opportunity to make objections out of the hearing of the jury. Thereafter, and before argument to the jury, the written instructions shall be given.
 
(3) No party may assign as error the giving or the failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion, or unless he makes objection before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection.

--------------------

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

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Up to my ass in lawyers: Aunt Zoe

Zoe S. Wyatt was my mother's mother's sister, but she was known to me simply as Aunt Zoe. Great Aunt Zoe was a self-contained woman who passed in 1982 at the age of 102. She lived alone on a farm outside Redkey, Indiana, East of Muncie, for most of her life until she moved to a Westminster retirement home at the age of 92. She was the last survivor of her five sisters and one brother, Russell, whom the five sisters always called "baby."

She was remarkable. I didn't see it when she was alive, but she was surely remarkable as I now clearly understand. There was a Mr. Wyatt at one time, briefly, who went "over there" in WWI and who didn't come back.

Before World War I, Aunt Zoe worked as a law clerk in the Navy Department in Washington to help pay her way through law school. She graduated from the National University of Law in Washington. She maintained law offices in Washington D. C. for years, and always one in Redkey. Her father had made the bricks for the one-room school house she attended as a child and she taught in as an adult.  She later used that same school house for a law office.

Zoe was the first woman elected prosecuting attorney in Indiana. The first of her two terms in office began in 1933. In the 1940's she staged an unsuccessful campaign for the Indiana Governorship on the old Prohibitionist Party ticket.

I just thought of her as a cheerful old woman who liked to grow roses.

UPI obituary March 1, 1982

  1. My mother's mother's sister was a lawyer;
  2. My father was a lawyer;
  3. My father's brother was a lawyer;
  4. My father's father was a lawyer;
  5. My father's mother's brother was a lawyer;
  6. My brother is a lawyer, and;
  7. My brother's son is a lawyer.

I think that's all of them.
--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Friday, July 22, 2016

An avalanch of bullshit

A whole year full of imaginary numbers.

These are links to the four quarterly Financial Statements produced and distributed by West Buechel City Hall for calendar year 2015. Faced with severe criticism questioning the accuracy of these Financial Statements, Mayor Richards' response was to stop handing them out. None have been made available for 2016.

West Buechel's Quarterly Financial Report - March 31, 2015
West Buechel's Quarterly Financial Report - June 30, 2015
West Buechel's Quarterly Financial Report - September 30, 2015
West Buechel's Quarterly Financial Report - December 31, 2015

The scatology of bookkeeping - the bottom line.

It is not easy to penetrate the fog of slobishness that enshrouds these reports, and it's really not worth the effort to do so. Extrinsic evidence clearly shows the numbers reported are pure fiction.  But, doing the best we can to take these reports at face value, it looks like the City of West Buechel had total income and expense for 2015 sort of something like this:

Total  receipts - $1,459,386.70
Total expenses - $1,566,517.97

Net difference - ($107,131.27)

This is not horrible, in isolation . . . for a fairy tale.

If banks are good at anything, it's how to add and subtract and never forget.

West Buechel's audited Financial Statement shows cash on hand on June 30, 2014 of $2,001,929.

Between 6/30/14 and 12/31/14, when former Mayor Sharon Fowler left office, the City's General Fund bank account declined by $133,751.28. All else being equal, the City shoulda oughta had about $1.87 million cash in various bank accounts when Richard Richards took office as Mayor on January 1, 2015.

Bank records for January 12, 2016 show the City had a total of $1,575,635.99 cash on hand, which represents a deficit of some $290,000 since 1/1/15.

It is impossible to reconcile the bank numbers with the City's financial reports, even if you're allowed to round off to the nearest hundred thousand dollars. The difference between a $290k decline shown in the bank records and the claimed deficit of $107k shown in the City's financial reports is too big to ignore.

Except, everyone seems to have no trouble ignoring it.

One of these days, somebody will take this seriously.


Don't get excited,
The thief he kindly spoke,
There are those here among us
Who think that life is but a joke.






--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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What does a West Buechel Financial Statement look like?

This is the Quarterly Financial Statement for the City of West Buechel, Kentucky for the quarter ending 12/31/2015. It was prepared by City Clerk-Treasurer Kimberly Richards and it was submitted to the West Buechel City Council by Mayor Richard Richards. This report is called a Profit & Loss Statement and, as you can see, it is not a GASB compliant Financial Statement. It is a KRS 424.220 Financial Statement.

This report suffers from quite a few factual inaccuracies.

For example, Police Department payroll for the quarter was reported as $91,954.01

In fact, Police Department payroll for the quarter was $176, 158.02

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Thursday, July 21, 2016

What does a GASB Financial Statement look like?

 Since KRS 91A.040(6)(c) requires the GASB compliant Financial Statements to be made part of the City's annual audit report, the quick way to find one is to go to a recent audit report for an example of what a GSAB Financial Statement looks like. Unfortunately Richards & Richards have not commissioned or produced an audit report for FY 2014-2015, so we have to go back to the last audit report produced by the Fowler administration for FY 2013-2014:

These Financial Statements for the City of West Buechel are extracted from the City's FY 2013-14 audit report. They were produced by Jonathan Michael Smith.

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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There is more than one type of "Financial Statement"

 KRS 91A(1)(b) requires a city's books of account to be maintained so to fairly and fully disclosure the City's financial operations in conformity with generally accepted governmental accounting principles.

The Governmental Accounting Standards Board (GASB) is the recognized authority on generally accepted governmental accounting principles.

The first type of Financial Statement for city fiscal accounting is the type that is mandated by the GSAB. These Financial Statements are created monthly, quarterly, but at least annually by the city's treasurer or bookkeeper and these are the Financial Statements that an independent C.P.A. audits, as required by KRS 91A.040.

KRS 91A.040(6), however, specifically references two different types of Financial Statements. The first one is the type just discussed, GASB Financial Statements:

 KRS 91A.040(6) "Each city shall . . . publish . . . "
(c) A statement that a copy of the complete audit report, including financial statements and supplemental information, is on file at city hall and is available for public inspection during normal business hours;
But,  KRS 91A.040(6) also states:
(f) A statement that copies of the financial statement prepared in accordance with KRS 424.220 . . . are available to the public at no cost . . . .
 Thus, there are clearly two different types of Financial Statements cities are required to produce:
  1. GASB Financial Statements, and; 
  2. Financial Statement prepared in accordance with KRS 424.220
One or the other is not enough. Gotta have both.

KRS 424.990 provides the criminal and civil penalties imposed upon government officials personally for not complying with the financial reporting requirements of KRS 424.220.

Being trusted with public money is clearly not a job for amateurs. Having a competent lawyer helps too. 

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Fun times in Jefferson District Court

So, back in March I filed a lawsuit against against Richard W. Richards and his ace bookkeeper Kimberly Richards under KRS 424.990. I have come to suspect that I am the first person in the History of the Universe to undertake such litigation.

Floating a totally brand new idea before a Jefferson District Court Judge is not the wholly joyful experience you might expect it to be.

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Once upon a time in the Southern District of Indiana

Once, in the U. S. District Court for the Southern District of Indiana, Indianapolis Division, Hon. Cale J. Holder presiding,  there was a long jury trial of a major drug smuggling operation. Every day the DEA agents would cart in six or seven huge bales of marijuana and stack them right in the front of the courtroom where the jury could see them all day long, and then they would cart them out after the jury was sent home for the day. It was good courtroom theatrics and for some reason the defense lawyers never complained about it.

These big bales of pot were not wrapped in plastic or burlap. They were like hay bales with nothing but baling wire holding them together. Did International Harvester know their hay balers were being used for this purpose? I like to imagine that John Deere has a dedicated sales force marketing farm machinery to Mexican pot plantations. Business is business.

Kentucky farmers may have a thing or two to learn from the Mexicans, as hard as that may be to admit.

Once, after court had recessed for the day and the bales had been removed from the courtroom, I noticed that there was still a lot of loose pot left on the carpet. It looked like about an eighth of an ounce that fell out of the bales. The DEA guys didn't clean up after themselves.

Next morning, the pot that had been on the carpet was gone. I guessed the cleaning guy scooped it up over night and smoked it. Having a generous spirit, I went out of my way to give those bales a little kick with the toe of my shoe when I walked past, to loosen them up some.

My philosophy is a happy worker is a productive worker and nobody ever got killed by a runaway vacuum cleaner. 
--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Things I learned as a litigator


1.  It is impossible to win at settlement if you are not prepared to win at trial. Therefore, to settle a case, get ready for trial.

2, It is pointless to win at trial if you are not also prepared to win on appeal, or to win on appeal if you lose at the first trial. Therefore, to win at trial, prepare to win on appeal.

It the grand scheme of things, appeals are a lot cheaper than are trials. If trial preparation is competently planned and executed, the research is done, the briefs are already written and part of the Clerk's file, and you made your damn record!

Therefore, to settle a case, aim to win the appeal.

The specialization and division of labor between trial lawyers and appeal lawyers makes no sense. A good trial lawyer must, of necessity, also be a good appeal lawyer.

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Why do people do what they do?

Litigation between spouses in divorce situations are frequent example of irrationality in action, to the benefit of only the lawyers involved. The recent Court of Appeals opinion in Lee v. Lee,  No. 2014-CA-000387-MR, July 15, 2016 is a good example.

Mr. Lee formed a Kentucky Limited Liability Corporation to shield his assets from a $70,000 judgement obtained by Mrs, Lee. The Jefferson Circuit Court disregarded the supposed separate and independent existence of the LLC and held, as a matter of fact, that the LLC was the judgment debtor's "alter ego."

In other words, the LLC was a sham and, for all practical purposes, the judgment against Mr. Lee was also a judgment against the LLC. Therefore, the Court issued a garnishment order against the LLC's bank.

Mr. Lee was clearly a big fan of Founding Father Robert Goodloe Harper, who famously issues the drunken declaration of principle "Millions for defense, but not one cent for tribute," in connection with the XYZ affair and French attempts at extortion. (Harper's toast was subsequently adopted as a slogan in connection with the Barbary pirate conflict, for which it is better known.) Mr. Lee did not appeal the Circuit Court's factual determination to disregard the LLC's separate existence, but he did assert the proposition on appeal that a separate judgment against the LLC was required for a bank garnishment, whether the LLC was a sham or not.

It didn't work.

I think I understand everything so far.

The trial and appellate judges do what they do because it's their job.

The lawyers do what they do for the money and pointless appeals are actually cheaper than the time it would take to talk sense to a blockhead. "You pay for it, we'll do it," is not a bad motto.

Mrs. Lee wanted her money and Mr. Lee didn't want to give it to her.

But, the Amicus brief in the appeal has me stumped. Who and why would anyone file an Amicus brief in an appeal like this?

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Wednesday, July 20, 2016

Things I learned while a Federal Disctict Court Judge law clerk

1.  F.B.I. Agents have NO sense of humor, but D.E.A. Agents like to have fun.

2. Unbiased judges do not exist.

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Did you ever hear the story about the chicken?

 OK. If I understand KRE 608 correctly, this is how it works:


Question: Do you have an opinion about the defendant's truthfulness? KRE 608(a)(1)

Answer: Yes I do.

Question: What is your opinion about the defendant's truthfulness?

Answer:  I believe the defendant is very truthful.

-----

Cross exam: On direct you expressed your opinion that the defendant was truthful.

 Answer: Yes.

Cross exam: Did you ever hear about the incident with the defendant and the chicken? KRE 608(b)

-- Objection, your Honor. Foundation.

-- I have an affidavit right here, your Honor, that explains all about that chicken. May I approach? (Hands paper to judge. Judge reads and frowns. The defendant's dog killed a neighbor's chicken. When the neighbor asked the defendant to pay for his chicken, the defendant falsely insisted his dog had been at the vet for two days, but he had been caught in the lie.)

Alternate ending #1

--  Objection overruled. Proceed.

Answer: No. I don't know anything about any chicken. What chicken?


Alternate ending #2

--  Objection sustained. Proceed

 Question: OK. Did you ever hear about the incident with the defendant and the pig?

This is bound to have have a bad effect on the jury. Chickens? Pigs? What type of pervert is this? 

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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What I learned while Law Clerk for the Indiana Supreme Court


1. Make your damn record!!

2. 90% of all homicides are alcohol or drug related.

Oh, I also learned that if one is exposed to a steady diet of insanity, senseless mayhem and gore, it takes about six months to go totally numb to it.

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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The heart of accountability

 The heart of accountability rests on acknowledging that we cannot trust politicians and public officials  to regulate themselves.

Quis custodiet ipsos custodes?

Who will guard the guards themselves?

You are the only one.

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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Tuesday, July 19, 2016

A snippet


When a witness testifies to the good character of a party, he may be asked if he has not heard that the party had done this or that; but proof may not be made by other witnesses in rebuttal that the party had done the things in question.
Etherton v. Commonwealth, 246 Ky. 553, 55 S.W.2d 343, 347 (1932).

KRE 405
(a) *** 
(b) Inquiry on cross-examination. On cross-examination of a character witness, it is proper to inquire if the witness has heard of or knows about relevant specific instances of conduct. However, no specific instance of conduct may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of the inquiry.
(c) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

See also:
Baze v. Commonwealth, 965 SW 2d 817, (Ky 1997)
Purcell v. Commonwealth, 149 SW 3d 382, (Ky 2004)

--------------------

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

A division of Accountable Kentucky Incorporated
a Kentucky Non-profit corporation
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