Note: Eric’s charity was Rich Franklins disabled vets charity. Eric earned $1000 for the charity.
And I lost. But, I take the following away from my fight. This will be comments about same here at the blog so I can move on to the next adventure.
1. I give credit to Larry “The Poodle” Shelton for winning.
2. For those who thought I would chicken out or it wasn’t real – wrong.
3. I’m uninjured and unscathed.
4. I take pride that I took him down and nearly had his neck in a scissors hold.
5. You can’t announce such a thing before a fight because it exposes you, but I suffered a severe bone bruise in my knee. (Dr. Colissimo said it would only get better if I stayed off it. I’ve been limping for two months. No serious running/cardio for two months. And, try fighting on a leg in pain. It sucked.) Colissimo told me not to fight.
6. I lasted the fourth longest of the fourteen losers in all the bouts. I got gassed and tapped out.
8. The only person who can talk smack to me is Larry Shelton. He earned it.
9. It was fun. I was not scared. It was an experience I’ll tell stories about forever.
10. The police and their wives in the crowd behaved like juveniles. You wonder why there is police misconduct? Because behind a lot of those badges are jerks. They showed it Saturday night.
11. There are a lot of good police officers and they have my respect and they also understand humor a lot better than those who don’t.
12. I’m going to heal my knee and keep training. I love being in good shape.
That he could kick any County Cop’s rear.
And now spoke without any thought of mortality.
So the local cops he would continue berating.
He thought he had little to fear.
At that moment it seems several cops were tuned in.
But there was one whose eyes started to glisten.
He’d make that S.O.B. pay.
This cop was a trained martial arts fighter.
His chance to knock out a foe never seemed brighter.
So he picked up the phone and answered the dare.
Words he would later regret.
Two local states refused to permit the fight.
And they were most happy to sanction the brawl.
The Bulldog was beginning to fret.
In the history of this most violent sport.
The lawyer now wished he could take it all back.
He loathed the idea of eyes blue and black.
His mouth had worked faster than his brain on that day.
But the brawl will go off as originally planned.
That’s what the ticket holders justly demand.
At the Lawrenceburg Fairgrounds, on a hot August night.
But backing down from a challenge is not in his yoke.
What he lacks in good sense he makes up for with balls.
Whose outrageous comments made him appear rather silly.
He won’t let the facts or his ignorance stand in the way.
His tired old act was wearing thin as a thread.
With menacing scars and front teeth to fix.
To see the Bulldog covered in band-aids and gauze.
He entered the ring to a chorus of boo’s.
The K-9 charged forward and landed a right.
In the blood thirsty crowd there was nary a frown.
As the K-9 pummeled him with fists of lead.
The mighty Bulldog has tapped out.
As they laid to rest the third prince, some said that Camelot would now be “forgot”.
But men and women from every hamlet, from every land, champion the tale, and carry forward its banner.
This Arthurian tale, that skeptics call legend, has lived a thousand years and will live another, and another.
Camelot speaks of a Roundtable, where men of all classes sit as equals. To sit at this table one need only be a seeker of justice, no pedigree required. Its Knights recognize a quest of public service. Be they a clerk, a scribe, a wise man, a merchant, a teacher or speak a foreign tongue, all are welcome at this table. This is the eternal flame of Camelot. This is why it will not be “forgot”.
Skeptics forget the message of John F. Kennedy that public service was a high calling, and served a noble purpose. They forget the call of Robert Kennedy for social justice and the virtues of peace.
“To those who seek justice…The Work Continues, Hope Still Lives, The Cause Endures, And the Dream Lives On”.
FRANKFORT, Ky. — The public is invited to a groundbreaking ceremony for the planned Campbell County Judicial Center on Tuesday, Sept. 1, at 3 p.m. EDT. The event will take place at 330 York St. in Newport.
The Kentucky General Assembly authorized an addition/renovation project for Campbell County in 2006 and approved funding in 2008. The project is designed to update and preserve the 125-year-old Campbell County Courthouse while increasing the judicial center to 103,700 square feet.
New judicial centers replace older, inadequate facilities, greatly increasing the efficiency of services and public flow. All new judicial centers are equipped with the modern infrastructure to support data, computer, video and networking technology. The facilities also provide the highest level of Kentucky court security through a single-point entry with magnetometers and security personnel.
CMW Inc. architectural firm of Lexington designed the Campbell County Judicial Center. Codell Construction Company of Winchester is the construction manager for the project and Ross, Sinclaire & Associates, which serves Kentucky and six other states, is the financial agent.
Chief Justice Minton will be among the speakers at the ceremony. Other state and local officials expected to attend include judges, attorneys, the Campbell County judge-executive and the Campbell County circuit court clerk. For more information, contact Vance Mitchell, manager of the AOC Division of Capital Construction, at 800-928-2350.
The Kentucky Administrative Office of the Courts provides oversight and administration of court facilities in accordance with House Bill 734, which was passed by the 2000 General Assembly. As a result of this legislation, the AOC created a process that would fairly and objectively determine facility needs. The AOC’s Facilities Management System has earned the Kentucky Court of Justice a national reputation for being able to identify facilities with the greatest needs for new construction, renovation, expansion and adaptation.
Once funding for a judicial center is authorized, the AOC Division of Capital Construction works with local communities to assemble a Project Development Board. This board ensures that county and court officials have input on all aspects of the project, including decisions on the site, architect and contractor. This PDB consists of two Campbell County Courthouse Commission representatives, the county judge-executive, the chief circuit judge, the chief district judge, the circuit court clerk, the AOC designee, a local citizen at large and a Kentucky Bar Association designee.
The DUI bar has been eagerly awaiting the ruling of the Kentucky Supreme Court regarding the attempt of a defendant (Lennie House of Lexington) to obtain access to the computer code of the Intoxilyzer 5000 Breathalyzer machine. At least two other states have granted access to these codes. The Kentucky company which manufacturers the BA machine faces contempt of court fines in two states totaling $21,000,000, for their failure to release the codes as ordered by the courts.
The Kentucky Supreme Court ruled in a published decision released on Aug. 27th, 2009 that the subpoena for the codes was a “fishing expedition” and was not supported by sufficient facts to justify discovery.
LawReader analyzes this ruling as to say that if there were sufficient grounds to believe the evidence was relevant and material, that a different conclusion might have been found by the court.
House’s conditional guilty plea to a charge of driving under the influence (DUI) .
code on the facts presented, we reverse .
Lexington police officer observed him driving erratically on Tates Creek Road .
scientifically reliable test or tests of a sample of the person’s breath . . .
establish relevancy and so granted the motions to quash.
offense, but reserved his right to appeal the order quashing his CMI subpoena.
material error in the source code defeated his demand to inspect it.
unreasonable and should be quashed .
States v. Nixon, 418 U.S . 683, 698-99 (1974) (citing Bowman Dairy Co . v.
evidence. See, ..e-,Ungited States v. Abdush-Shakur, 465 F.3d 458 (10th Cir.
2006); United States v. Tokash, 282 F.3d 962 (7th Cir. 2002) ; United States v.
test does not apply to the former) .
erred by ruling otherwise .
has failed to raise it in this Court by a cross-motion for discretionary review.
address his constitutional claim .
In sum, CR 7.02(3) provides for subpoenas duces tecum to permit pretrial inspection of evidence to be admitted at trial. It is not meant to be a discovery device, however, and does not permit the subpoenaing of materials in the mere hope that they will prove evidentiary. Because House’s CMI subpoena demanding production of the Intoxilyzer’s source code was based on nothing more substantial than the conjecture that there might be material flaws in the code, the subpoena was “unreasonable” for the purposes of the rule, and the Court of Appeals erred by requiring that it be enforced .
subpoena and its October 26, 2006 Agreed Order providing for House’s conviction in the event his appeal of the subpoena issue was unsuccessful .
COUNSEL FOR AMICUS CURL4E, CMI, Inc .
FRANKFORT, Ky. – The Judicial Nominating Commission, led by Chief Justice of Kentucky John D. Minton Jr., today announced the nominees to fill three vacant judgeships that serve Jefferson County. The nominees are for the vacant circuit judgeship in the 30th Judicial Circuit, Division 11, and the vacant district judgeships in the 30th Judicial District, Divisions 7 and 9. The JNC selects three nominees for each judgeship.
The three nominees to fill the Circuit Court vacancy are Judge Angela McCormick Bisig and attorneys Brian Clifford Edwards and Robert S. Silverthorn Jr. The Circuit Court judgeship was left vacant by Judge Geoffrey P. Morris, who resigned Jan. 15, 2009, to join the Senior Judges Program.
Angela McCormick Bisig is currently serving as a Jefferson County District Court judge. She earned her juris doctor at the University of Louisville Louis D. Brandeis School of Law.
Brian Clifford Edwards is a solo practitioner with Brian C. Edwards, Attorney at Law, an assistant professor in the U of L Department of Pan-African Studies and associate director of the U of L Center for the Study of Crime and Justice in Black Communities. He holds a juris doctor from the University of Kentucky College of Law.
Robert S. Silverthorn Jr. has been practicing with Silverthorn Law Office since 1993. He earned his juris doctor from the U of L Louis D. Brandeis School of Law.
The three attorneys named as nominees to fill this District Court vacancy are William Henry Mooney, Angela Christine Ward and Jennifer Bryant Wilcox. This District Court judgeship was left vacant by Judge William P. Ryan Jr., who resigned Jan. 5, 2009, to join the Senior Judges Program.
William Henry Mooney is currently affiliated with Lynch, Cox, Gilman & Mahan, P.S.C., in Louisville. He earned a juris doctor from the U of L Louis D. Brandeis School of Law.
Angela Christine Ward is currently associated with a specialized prosecution unit in the Office of the Jefferson County Attorney. She earned a juris doctor from the UK College of Law.
Jennifer Bryant Wilcox is Division Chief of Trial Division A in the Office of the Commonwealth’s Attorney in Jefferson County. She earned a juris doctor from the UK College of Law.
The three attorneys named as nominees to fill this District Court vacancy are Wanda Mitchell Baker, Sheila Berman and David L. Holton. This District Court judgeship was left vacant by Judge Janice R. Martin., who resigned Jan. 5, 2009, to join the Senior Judges Program.
Wanda Mitchell Baker is currently serving as chief operating officer for the Jefferson County Office of Circuit Court Clerk. She holds a juris doctor from the University of Virginia Law School in Charlottesville, Va.
Sheila Berman is a solo practitioner who works in association with the Haddad Law Office. She earned a juris doctor from the U of L Louis D. Brandis School of Law.
David L. Holton is currently an assistant Jefferson County attorney with the Office of the Jefferson County Attorney. He previously served as a judge for Jefferson County District Court. Holton earned a juris doctor from the UK College of Law.
When a judicial vacancy occurs, the executive secretary of the Judicial Nominating Commission publishes a notice of vacancy in the judicial circuit or the judicial district affected. Attorneys can recommend someone or nominate themselves. The names of the applicants are not released. Once nominations occur, the individuals interested in the position return a questionnaire to the Office of the Chief Justice. Chief Justice Minton then meets with the Judicial Nominating Commission to choose three nominees. Because the Kentucky Constitution requires that three names be submitted to the governor, in some cases the commission submits an attorney’s name even though the attorney did not apply. A letter naming the three nominees is sent to Gov. Steve Beshear for review. The governor has 60 days to appoint a replacement, and his office makes the announcement.
The Judicial Nominating Commission is established in the Kentucky Constitution. Ky. Const. § 118; SCR 6.000, et. Seq. The commission has seven members. The membership is comprised of the chief justice of Kentucky (who also serves as chair), two lawyers elected by all the lawyers in their circuit/district and four Kentucky citizens who are appointed by the governor. The four citizens appointed by the governor must equally represent the two major political parties, so two must be Democrats and two must be Republicans. It is the responsibility of the commission to submit a list of three names to the governor and the governor must appoint a judge from this list of three.
“Whatever their views about capital punishment, most Americans probably assume that a convicted defendant will be released from prison if he can prove that he didn’t commit the crime. In fact, the Supreme Court has stopped short of endorsing what lawyers call the “actual innocence” doctrine. But an unexpected order in a Georgia death penalty case may indicate that the justices are coming around to a common-sense view about the due process of law.
Last week, they ordered a federal court in Georgia to reconsider the case of death row inmate Troy Anthony Davis, convicted of murdering an off-duty police officer 18 years ago. Since then, seven prosecution witnesses have recanted their testimony, and dignitaries including former President Carter, Archbishop Desmond Tutu and Pope Benedict XVI have pleaded for clemency, with the pope’s representative providing Georgia officials with a detailed critique of the evidence used to convict Davis.
In dissenting from the order, Justice Antonin Scalia (joined by Justice Clarence Thomas) complained that the court “has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” The dissenters are right about the history of the actual innocence doctrine, which is one reason the ruling in favor of Davis is so surprising.
Three Franklin County Attorneys Nominated to Governor for Family Court Position – They are Roy Church Gray III, Rex Lee Hunt and Squire Needham Williams III.
FRANKFORT, Ky. – The Judicial Nominating Commission, led by Chief Justice of Kentucky John D. Minton Jr., today announced the nominees to fill the vacant Family Court judgeship in the 48th Judicial Circuit, Division 3, which serves Franklin County.
The three attorneys named as nominees to fill the vacancy are Roy Church Gray III, Rex Lee Hunt and Squire Needham Williams III.
The Family Court judgeship was left vacant by Judge Reed Rhorer, who resigned Jan. 31 to join the Senior Judges Program.
Roy Church Gray III is an attorney in private practice at Roy Gray Law Office. He earned his juris doctor at Florida State University College of Law, graduating in 1982.
Rex Lee Hunt is an attorney with McBrayer, McGinnis, Leslie & Kirkland and with the Franklin County Attorney’s Office. He earned his juris doctor at the University of Louisville Louis D. Brandeis School of Law, graduating in 1980.
Squire Needham Williams III is a partner with the law firm Hazelrigg & Cox. He earned his juris doctor at the Northern Kentucky University Salmon P. Chase College of Law, graduating in 1999.
The right to confront your accuser is a constitutional right, and the U.S. Supreme Court has recently held that this includes the right to cross-examine forensic crime lab experts. Some states have interpreted this ruling to require an expert who monitors the proper working condition of BA machines to be available at trial to testify and to disallow the practice of submitting written reports.
This ruling has inflamed DUI crusaders, and they are already seeking ways to create a work around to avoid the U.S. Constitution. Our judges and legislators all take an oath to ”protect” the constitution …then why are they working so hard to violate their oaths?
RICHMOND, Aug. 19, 2009 — The Virginia General Assembly voted Wednesday to drop a legal requirement that prosecutors prove that breath machines in drunken driving cases have been tested and are accurate, and lawmakers also established a timetable for defendants to challenge scientific evidence in criminal cases.
The emergency changes to state law will be effective as soon as Gov. Timothy M. Kaine (D) signs the bill.
The legislation emerged from a special session convened by Kaine to address a U.S. Supreme Court ruling in June that threw Virginia’s criminal justice system into an uproar. The Supreme Court, in the landmark Melendez-Diaz v. Massachusetts case, ruled that certificates of analysis, such as drug examinations or blood alcohol tests, are subject to cross-examination under the constitutional right to confront one’s accuser. Simply submitting a piece of paper was not sufficient, the court said.
Defense attorneys began demanding that the state’s 43 drug examiners appear in court to testify about their analyses and that prosecutors subpoena the three technicians who calibrate all of the state’s breath-testing machines as well. When the examiners or technicians couldn’t appear, judges sometimes threw out the cases.
In drug cases, the state Department of Forensic Sciences said, examiners were subpoenaed 43 times in July 2008 and 925 times this July. Legislators and experts agree that the best way to resolve the problem is to hire more examiners. But money is short — a fact underlined by Kaine’s announcement Wednesday of another budget shortfall — so legislators sought only an interim fix before the next full legislative session in January.
The Supreme Court ruled that states such as Virginia, by requiring a defendant to subpoena the prosecution’s experts to challenge a paper certificate, wrongly shifted the burden of proof from the prosecution to the defense. So the General Assembly on Wednesday created a scheme in which commonwealth’s attorneys must notify a defendant at least 28 days before trial that they intend to use a scientific analysis of alcohol, drugs, DNA, blood or other evidence. The defendant then has 14 days to object to prosecutors’ use of an analysis without a testifying witness.
If the defense objects, prosecutors must present the analyst in court as a witness. If the defense doesn’t object, the paper analysis can be introduced without live testimony.
That change shifts the burden of proof back to prosecutors to comply with Melendez-Diaz; it doesn’t solve the problem of dealing with defense demands for live testimony. But requiring advance notice from the defense might enable prosecutors and the Department of Forensic Sciences to schedule witnesses more efficiently. The revised law also grants prosecutors the right to continue cases, giving them more time to get their witnesses to the courthouse.
The most time-consuming part of the special session dealt with drunken driving cases, and Virginia’s requirement that prosecutors prove that breath-testing machines have been calibrated within the preceding six months. Legislators agreed to delete that requirement, making it a Forensic Sciences Department regulation instead. The change is intended to turn calibration records into “non-testimonial records,” which can be presented in court without supporting testimony.
Defense lawyers may still challenge the accuracy of the breath machines, most of which now have a feature that prevents them from printing a breath-test result if they haven’t been inspected for six months, state officials said. But proving that the machines are accurate will no longer be the prosecution’s responsibility.
Neil S. Vener, the commonwealth’s attorney for Campbell County and head of the statewide prosecutors association, said, “I think the concern is unwarranted.” He noted that the state’s breath machines are programmed to fail if not inspected.
Defendants, then, might still subpoena the records of an individual breath-testing machine and the technician who maintained it, and so the demands on the three technicians to appear in court might still be high.
“We do not believe the bill takes care of all the problems arising from Melendez-Diaz,” House Majority Leader H. Morgan Griffith (R-Salem) said.
Griffith said that calibration of laser equipment in speeding cases could pose similar problems and that legislators would be monitoring rulings by district and circuit court judges to see how they interpret Melendez-Diaz.
Here is a compelling interview with Dr. Allen Ault on his views of the death penalty made from his vantage point as a former prison warden, state corrections commissioner, psychologist (phd) and now dean. After our meeting last Friday, he authorized its release.
WHAS-TV’s Joe Arnold just reported live the following results from the first state-wide SurveyUSA poll on primary head-to-head races. The whole poll will probably be posted later tonight.
AOC SETTLEMENT WITH CODELL CONSTRUCTION ALLOWS COURT HOUSE PROJECTS FOR CARLISLE, HANCOCK, MERCER and WHITLEY counties TO COMMENCE.
FRANKFORT, Ky. – Construction on judicial center projects in four Kentucky counties can commence immediately based on a settlement agreement finalized today by the Administrative Office of the Courts and Codell Construction Company of Winchester, Ky. Under the terms of the agreement, Codell has provided 100 percent Performance and Payment bonds for projects under way in Carlisle, Hancock, Mercer and Whitley counties.
Under the agreement, Codell will furnish 100 percent Performance and Payment bonds for eight additional projects when they reach Phase D construction. Those eight projects are in Allen, Breckinridge, Campbell, Franklin, Owen, Pike, Todd and Wolfe counties. Codell has already furnished Performance and Payment bonds for 7 percent of its fee for those projects.
The settlement ends a dispute that began in March 2009 when Chief Justice Minton released a legal opinion by construction law attorney William G. Geisen of Graydon Head & Ritchey LLP in Fort Mitchell, Ky. The opinion found the AOC had allowed certain construction managers to furnish Performance and Payment Bonds that were legally insufficient. Chief Justice Minton called for immediate action to ensure compliance with the AOC’s Administrative Procedures, which govern judicial center construction. He asked the county judge-executives to require the construction managers on their projects to immediately furnish a Performance and Payment Bond equivalent to 100 percent of the contract sum, with the owner as obligee.
As the administrative and fiscal agent for the Judicial Branch of state government, the AOC provides oversight and administration of court facilities statewide in accordance with House Bill 734, which was passed by the 2000 General Assembly. The AOC also supports the activities of 3,800 court system employees, including the elected justices, judges and circuit court clerks.
The Kentucky Supreme Court has approved a proposal to test a cost-saving initiative that could allow people arrested for marijuana possession, prostitution and hundreds of other nonviolent crimes to avoid going to jail.
The Kentucky Supreme Court has approved a proposal to test the initiative in a handful of counties before deciding whether to expand it statewide.
Justice Will T. Scott said the move has the potential to save the state more than $400,000 a day in jail costs by allowing people arrested on any of more than 700 mostly obscure charges to immediately post bail and go home.
The Lexington Herald-Leader reported that prosecutors favor testing the initiative, saying it makes sense financially and poses no risk to public safety.
The State of California now spends more on their corrections system than they do on their educational system. Kentucky will eventually face such a condition if the prisons and jails continue to fill up at current rates.
Justice Sharon Keller, goes on trial today in Texas on ethics charges including the allegation that she refused to leave her office open past 5 p.m. when attorneys were attempting to file a last minute motion that could have delayed their clients execution. Keller, who is called “Killer” Keller by some in Texas, denies the charge and says she was only asked by an employee if the office should stay open past closing time and that she didn’t know of the attempted appeal. She also claims that another judge was on duty to receive such appeals. Nevertheless, she is charged with several ethical violations and could lose her license to practice law which would result from her removal from the appellate bench. Justice Keller is well known in Texas for her anti-defendant opinions.
No matter the outcome of the hearing scheduled to begin today that could end in sanctions against embattled Texas Court of Criminal Appeals Chief Justice Sharon Keller, her already battered reputation will be pounded some more. While the judge’s many detractors will find some satisfaction in that, the Texas way of administering criminal justice also will take a beating.
A politician’s reputation is insignificant in the grand scheme of things, but if a society claims to be one based on law, then its justice system is only as good as the confidence in it.
Beyond the question of whether Keller’s handling of a last-minute death row appeal was legally appropriate is the much larger question of whether criminal appeals in Texas are handled objectively and whether the state’s court of last resort in criminal cases is in reality nothing more than a state agency dedicated to upholding convictions.
Texas has always relished its “tough on crime” reputation. Politicians who campaign against crime always find a friendly crowd, and Keller jumped on that and rode pro-prosecution rhetoric to a seat on what should be an objective forum for hearing appeals. But promising fairness is boring and doesn’t get you on television.
Keller — and by extension, the state’s justice system — has been the subject of hours of air time, gallons of ink and enough bytes of electronic information to operate a fleet of spaceships as a result of the case that has led to today’s proceedings before the State Commission on Judicial Conduct.
Keller’s lawyer disputes that now-famous reply. Furthermore, he claims that defense lawyers are to blame for Richard not getting a hearing.
Only two months after his release from a second prison term in 1986, Richard raped, shot and killed Marguerite Lucille Dixon, 53, a nurse and mother of seven, inside her Harris County home. Richard won a second trial after pleading that he was abused as a child and possessed an IQ well below average. Tried again, he was convicted again in 1995 and sentenced to death.
The last-minute appeal was based on the U.S. Supreme Court’s announcement earlier that same day that it would hear a case (from Kentucky) arguing that death by injection violates the Constitution because it constitutes cruel and unusual punishment.
Keller’s critics say closing the Texas Court of Criminal Appeals to the appeal was callous. The state’s Commission on Judicial Conduct filed a list of more legal complaints against Keller in connection with the Richard case.
The he-said, she-said nature of the depositions doesn’t hold much promise for shedding light on the situation but offers a rare glimpse into the court’s inner workings. However repugnant some may find it, the hearing ought to be considered mandatory viewing.
Some commentators predict that the worst that will happen is that Keller will end up with a slap on the wrist once it’s all said and done.
Laura Voorhees, the Deputy U.S. Attorney who prosecuted William Gallion and Shirley Cunningham announced that she is seeking 35 years imprisonment for Gallion and 30 years for Cunningham. Considering their current age, this amounts to a life sentence.
Reports from the defense camp indicate that both parties plan to file appeals of their conviction. One issue being discussed by members of the bar familiar with the case suggest that one issue that is almost certainly to be raised on appeal is the ruling of U.S. District Judge Danny Reeves that allowed an expert witness for the Government to testify but denied the right for the defendants to call an expert on the same topic.
The Courier-Journal reported on Aug. 13th. numerous comments by angry members of the class action defrauded by the two Lexington attorneys. The comments present the suggestion that many of the 440 plaintiffs in the class action were denied medical treatment due to the reduced settlements they received when the attorneys paid themselves more than they were supposed to.
Evidence presented in the civil trial indicated that all 440 plaintiffs signed two settlement agreements where they stated they were satisfied with the amount of money they received. Those settlement statements were presented to the court who approved the settlement.
Many of the 440 plaintiffs were unable to present evidence of any injury sustained from the use of the Phen Fen diet drug which formed the basis for the $200 million dollar settlement. Some of the plaintiffs had been seriously injured by the drug.
An expert mediator was appointed in the class action civil case to determine the injury of each plaintiff and he recommended different amounts based on the reported injuries. When he finished with his evaluation millions of dollars were left over. Twenty million of this went in to a charitable trust authorized by the Cy Pres Doctrine often used to dispose of excess class action settlement funds. The Civil Trial Judge has seized the money placed in the Charitable Trust. No decision has been made yet on how these funds will be distributed among the 440 plaintiffs. It would appear unfair to give each plaintiff 1/440th of the seized funds, as some claimants had real injuries, but many had no symptoms or injuries.
An appeal in the Civil Case, is likely due to a number of procedural issues and legal issues which have not been finalized in the Civil Case which is being heard by Special Judge Roger Crittenden. It is assumed that Judge Crittenden will finalize the Civil Case in the Boone Circuit Court after the termination of the Criminal case in Federal Court.
One basic issue in the Civil case is the timeliness of the filing of the civil case, as the plaintiffs appeal time had run, and they had accepted their settlements. The finality of court rulings is a looming issue that has largely been overlooked, but is likely to be raised on an appeal in the civil case.
This case is likely to continue for years.
Judge Susan Gibson Dismisses Coach’s Indictment Due to Failure of Commonwealth to Notify Grand Jury of His Request to Testify – Grand Jury Not Required to Grant Such Request But Must be Informed by Commonwealth.
Jefferson Circuit Judge Susan Schultz Gibson this week dismissed an indictment against Pleasure Ridge Park High School Coach Jason Stinson. The Commonwealth had failed to advise the Grand Jury that heard the indictment handed down last week, that Stinson had requested that the Grand Jury allow him to appear and testify before them.
The Commonwealth admitted they had not disclosed the Coach’s request to appear before the Grand Jury, but said that request only applied to the original panel that indicted him, and that the most recent indictment for Wanton Endangerment was issued by a new Grand Jury and the request had not been restated.
Judge Gibson did not buy that argument. The Commonwealth can still go back and present another request to the Grand Jury, but for the moment this indictment is dismissed.
Criminal Rule 5.08 grants the defendant the right to request an appearance before the Grand Jury that indicts him/her.
While the Defendant may request that the Grand Jury hear his testimony before an indictment is considered, there is no obligation for the Grand Jury to grant the request.
If the defendant notifies the attorney for the Commonwealth in writing of his or her desire to present evidence before the grand jury, the attorney for the Commonwealth shall so inform the grand jury. The grand jurors may hear evidence for the defendant but are not required to do so.
Appellant argues that requiring a defendant to go through the Commonwealth’s attorney, the adversarial party, in order to present evidence to the grand jury is a constitutional violation. Appellant cites no authority for his position, and we are of the opinion that since the Commonwealth is charged with assisting the grand jury, it is, in fact, the appropriate party to inform the grand jury that a defendant wishes to present evidence. RCr 5.41. There is no constitutional right to appear before the grand jury; RCr 5.08 is an indulgence of this Court. We find no distinction for a capital case.
Skip to next paragraph “The State of California may be about to execute an innocent man,” it began.
The Court of Appeals issued a decision on Friday August 7th. which held that a Blood Test ordered by police officer at hospital was admissible even though the officer testified that he filled out the consent form and he believed the defendant was unconscious.
The court held that no search warrant was required. They based their ruling on the claim that all motorists have given their consent to blood tests due to KRS 189A.103 the implied consent statute.
This raises a question of liability of the medical personnel taking the blood test.
Is the consent mentioned in KRS 189A.103 sufficient to negate the patient’s right to have informed consent for any medical procedure?
It is one thing to say that the results of a Blood Test are admissible into evidence, but it is another issue as to whether KRS 189A.103 overrides KRS 333.160 which limits who may take blood tests.
Further a blood test taken for evidentiary purposes is not the same as a blood test necessary for the treatment of the patient.
Some hospitals are refusing to perform blood tests for DUI purposes unless a prescription has been issued by a physician authorized to make medical decisions.
Kentucky DUI law has been expanded by court rulings that allow EMT personnel in some instances to take a blood sample from a defendant charged with DUI. In common practice police also take defendants to hospitals and the nursing staff frequently takes a blood sample for use by the police without a doctor’s prescription (i.e. authorization).
We believe that any blood sample taken without a prescription (i.e. physicians authorization) is illegal. See KRS 333.160 which spells out “who may collect human specimens”.
This is justification for the argument that nurses and non-licensed physicians must be authorized by a physician before they can draw a blood sample. If a hospital allows such a procedure without the physician’s authorization they have violated this statute.
A hospital in Paducah has refused to allow its nursing staff take blood samples at the request of police officers in the absence of a physician’s authorization. We note that KRS 333.990 makes it a misdemeanor for anyone to take a blood sample without a physician’s authorization.
Any hospital or clinic that allows its personnel to take blood samples without a physician’s authorization is treading on thin ice and are subjecting themselves to liability for any injuries caused by the procedure (i.e. infection, damage to a nerve etc.).
While court rulings have said that nurses and EMT personnel and phlebotomists may withdraw blood samples, the applicable statutes still require that they must be authorized to do so by a licensed physician. No court ruling has said that a blood test can be taken without a physicians authorization.
It is one thing for the court to say that a blood test may be introduced into evidence, but it appears to be illegal if the blood specimen was taken without a physicians “authorization”.
We caution that admissibility of evidence and legality of how the evidence are obtained are legal issues which have not been clearly ruled on in Kentucky.
We are not aware of any appellate decision in which the court has clearly addressed the issue: Can a blood test obtained in violation of the law be admitted into evidence?
Surgery is a medical technology consisting of a physical intervention on tissues. As a general rule, a procedure is considered surgical when it involves cutting of a patient’s tissues or closure of a previously sustained wound.
KRS 189A.103 governs implied consent in DUI cases…The language “‘has given his consent’ makes it unmistakable that a suspected drunk driver must submit to a test to determine blood alcohol concentration.” Commonwealth v. Hernandez-Gonzalez, 72 S.W.3d 914, 915 (Ky. 2002). Further, unconsciousness does not invalidate implied consent. KRS 189A.103(2).
BEFORE: DIXON AND KELLER, JUDGES; KNOPF, SENIOR JUDGE.
Grand Jury for murder, illegal possession of a controlled substance (cocaine), and DUI 2nd offense.
At the close of trial, Appellant was found guilty of second-degree manslaughter and DUI, 2nd offense. The jury recommended, and the trial court ultimately sentenced Appellant to a total of seven and one-half years’ imprisonment and fined him $500. This appeal ensued.
Appellant argues that the trial court erred by denying his motion to suppress the toxicology report showing the blood-alcohol results. Appellant argues that the police officers violated both his statutory and constitutional rights when they failed to acquire either his consent or a search warrant prior to the blood test. We disagree.
Officer Shoenlaub first testified that Appellant may have been unconscious at the time he attempted to have him sign the consent form.
S.W.3d 351, 360 (Ky. 2004).
Because Officer Shoenlaub did not follow the dictates of KRS 189A.105, Appellant argues that the blood test should have been deemed inadmissible. Again, we disagree.
excluded for the violation of provisions of a statute where no constitutional right is involved. See Little v.
state and federal courts. We find the language of the Wisconsin Supreme Court to be persuasive.
Accordingly, we conclude that neither Appellant’s statutory or constitutional rights were violated. As a driver on the roads of Kentucky, Appellant is bound by the implied consent laws. As such, he is deemed to have consented to the blood test and the trial court properly admitted the toxicology report.
The judgment and sentence of the Jefferson Circuit Court are affirmed.
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WARNER-LAMBERT COMPANY, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
Before RADER, SCHALL, and BRYSON, Circuit Judges. Patrick D. Gill, Rode & Qualey, of New York, New York, argued for plaintiff-appellant. Of counsel on the brief were John S. Rode and Eleanore Kelly-Kobayashi. Bruce N. Stratvert, Attorney, International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, of New York, New York, argued for defendant-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Barbara S. Williams, Attorney in Charge. Of counsel on the brief was Chi S. Choy, Office of Assistant Chief Counsel, United States Customs and Border Protection, of New York, New York.
The United States Court of International Trade sustained the United States Customs Service determination to classify Warner-Lambert's imported Certs® “Powerful Mints” under Harmonized Tariff Schedule of the United States (HTSUS) subheading 2106.90.99, as a “food preparation not elsewhere specified or included.” Customs had proposed this classification if the Court of International Trade found, as a matter of fact, that the mints are sugar-free. Warner-Lambert instead sought classification under HTSUS subheading 3306.90.00, “Preparations for oral or dental hygiene ․ Other,” which would be free of duty. Because Customs' classification of Warner-Lambert's Certs® Powerful Mints within subheading 2106.90.99 of the Harmonized Tariff Schedules of the United States (HTSUS) does not persuade under the appropriate standard, this court reverses.
Warner-Lambert markets Certs® Powerful Mints as a product to freshen the breath, and in particular to eliminate oral malodor. The product contains sorbitol, maltodextrin, aspartame, magnesium stearate, “Retsyn®,” and blue food coloring. Retsyn® contains flavoring, partially hydrogenated cottonseed oil, and copper gluconate. Warner-Lambert presented expert evidence that Certs® is “an effective breath freshening product” because it stimulates salivary flow, which controls malodor by purging. Further testimony indicated that the product contains flavors that mask malodor and copper gluconate that breaks down odor-producing volatile compounds. Finally, the product contains cottonseed oil to absorb odor-producing volatile compounds.
Customs presented expert evidence that the product does not contain ingredients considered by professionals to remove bacteria and bacterial products contributing to oral diseases. Accordingly, Customs argues that the product “does not promote oral hygiene.” Customs' expert did note, however, that saliva is an effective cleansing solution that dissolves malodorous compounds and helps to mechanically remove bacteria and volatile compounds from the mouth.
The Court of International Trade considered a monograph entitled “Over-the-Counter Oral Health Care and Discomfort Drugs: Establishment of a Monograph,” 47 Fed.Reg. 22,760 (May 25, 1982), published by the Food and Drug Administration (FDA). This monograph summarized the conclusions of a professional panel of the FDA that evaluated ingredients in oral health care preparations sold without prescription. The monograph stated that “hygienic measures” to control malodor included “various cosmetic preparations, such as odoriferous mouthwashes and gargles, and lozenges. Some of the products employed contain antimicrobial and other active ingredients for which therapeutic claims are made in addition to cosmetic claims.” Id. at 22,842. The monograph also stated that malodor may be controlled by purging, masking, chemical neutralization, or bacterial inhibition. Id. at 22,843-44.
The Court of International Trade weighed this evidence and consulted definitions for “preparations” and “hygiene” from medical and general dictionaries. The trial court concluded that, because “hygiene” “relates to the presence of health,” preparations for oral hygiene are “medicines made ready for the practice of preserving the health of the mouth or oral cavity.” Warner-Lambert Co. v. United States, 343 F.Supp.2d 1315, 1320 (Ct. Int'l Trade 2004). Therefore, the court concluded that cosmetic products “must reach an antimicrobial result to be considered a preparation for oral or dental hygiene.” Id. Because Certs® Powerful Mints do not contain an antimicrobial agent, the trial court declined to classify them as a preparation for oral hygiene under HTSUS 33.06. Id. at 1321.
The parties do not dispute material facts about these imports. This court's review of their classification reduces to a determination of the proper meaning and scope of the HTSUS terms. That determination is a matter of statutory interpretation, i.e., a question of law. See SGI, Inc. v. United States, 122 F.3d 1468, 1471 (Fed.Cir.1997). This court construes a tariff term according to its common and commercial meanings-presumably the same. To discern the commercial meaning of a tariff term, this court may consult dictionaries, scientific authorities, and other reliable information sources. See Mead Corp. v. United States, 283 F.3d 1342, 1346 (Fed.Cir.2002). The HTSUS Explanatory Notes themselves are not binding, but are “generally indicative of the proper interpretation of ․ the Harmonized Tariff System.” Lynteq, Inc. v. United States, 976 F.2d 693, 699 (Fed.Cir.1992).
This court defers to a classification ruling by Customs following the principles in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). United States v. Mead Corp. v. 533 U.S. 218, 219-20, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). Under Skidmore, the degree of deference depends on the thoroughness evident in the classification ruling; the validity of the reasoning that led to the classification; consistency of the classification with earlier and later pronouncements; the formality with which the particular ruling was established; and other factors that supply a “power to persuade.” Skidmore, 323 U.S. at 140, 65 S.Ct. 161. Although according deference, this court has an independent responsibility to decide the legal issue of the proper meaning and scope of HTSUS terms. See Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1358 (Fed.Cir.2001).
Preparations for oral or dental hygiene, including denture fixative pastes and powders; yarn used to clean between the teeth (dental floss), in individual retail packages: Dentifrices: Yarn used to clean between the teeth (dental floss): Other.
The court below found that the phrase “preparations for oral or dental hygiene” is not defined in any standard or technical lexicon. For guidance on this phrase, the court resorted to the FDA monograph, which states, as noted above, that the use of odoriferous cosmetic preparations without antimicrobial agents is a hygienic measure. See Monograph, at 22,842. The monograph states that “only antimicrobial ingredients known to be effective against the causative microorganisms are effective in suppressing the malodor,” Id. at 22,844, but it does not state anywhere that “hygiene” requires antimicrobial action. The trial court, not the monograph, connected “health” with “hygiene.” Nothing in the monograph, or in the dictionaries consulted by the court, requires that identification. “Hygiene” might lead to “health”-but it is not “health” itself. The trial court simply read too much into the monograph.
Further, the court's interpretation discounts both the Explanatory Notes to Chapter 33 and the examples in Heading 33.06 itself. The Chapter Notes specify that the products of Heading 33.06 need not “contain subsidiary pharmaceutical or disinfectant constituents,” nor be held out “as having therapeutic or prophylactic value.” World Customs Organization, Harmonized Commodity Description and Coding System 613 (3d ed.2002). The Explanatory Note to Heading 33.06 further specifies that the heading encompasses “[m]outh washes and oral perfumes.” Id. at 620. Therefore, the Notes accompanying this heading do not require antimicrobial agents in “preparations for oral or dental hygiene.” To the contrary, the Notes expressly encompass “oral perfumes” within the heading. In sum, the Court of International Trade went too far in requiring that a product under Heading 33.06 include an antimicrobial agent.
As noted earlier, Customs proposed to classify Certs® Powerful Mints under HTSUS Heading 2106.90.99. In assessing the deference appropriate for this action, this court examines Headquarters Ruling Letter No. HQ 963764 of January 11, 2002. In HQ 963764 Customs considered the appropriateness of classifying Certs® Powerful Mints under Headings 17.04 (“sugar confectionery ․ not containing cocoa”); 21.06 (“[f]ood preparations not elsewhere specified or included”); and 33.06 (“preparations for oral or dental hygiene”). Customs also based its decision on the FDA monograph, The Random House Dictionary of the English Language (n.d.), and the Explanatory Notes. In its analysis of the FDA monograph, Customs did not acknowledge that the monograph does not require a malodor preparation to contain an antimicrobial agent, although the monograph does not suggest that only antibacterial products are “hygienic.” Further, although Customs quoted the dictionary definition of “hygiene” as “a condition or practice conducive to the preservation of health, as cleanliness,” it overlooked the uncontested facts that Certs® Powerful Mints effect a cleansing action.
To justify its proposed classification under Headings 17.04 or 21.06, Customs stated simply: “The Certs® Cool Mint Drops consist essentially of sugar.” HQ 963764, at 7. This dismissive analysis neglects not only those chemical components of the mints which achieve the breakdown and absorption function, but also the cleansing effect of the purging activity. In sum, Customs' proposed classification carried little power to persuade because it overlooked some characteristics of the imports and read the term “hygiene” too narrowly to remain consistent with the Explanatory Notes.
For these reasons, this court holds that Warner-Lambert's Certs® Powerful Mints properly fall under heading 33.06 of the HTSUS. The justification for Customs' desired alternative classification lacks the power to persuade under Skidmore. Because the imported articles belong under Heading 33.06 of the HTSUS, this court reverses the decision of the Court of International Trade.

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DAVID NOLTE, ET AL., Respondents, v. THE CITY OF OLYMPIA, Appellant, BUILDING INDUSTRY ASSOCIATION OF WASHINGTON, Respondent/Intervenor.
 Municipal Corporations - Development Fees - Statutory Authority - Property Outside Municipal Boundaries. RCW 82.02.050 - .090 do not authorize a city to impose impact fees on projects outside its borders. Only an entity with development approval authority, or an entity with authority to approve or disapprove a change in the use of land on which the project will be built, has authority to impose impact fees.
 Municipal Corporations - Development Fees - Statutory Authority - Condition of Subdivision Approval - Limitation. RCW 58.17.110, which authorizes a municipality to impose impact fees as a condition of subdivision approval, does not authorize impact fees other than those permitted by RCW 82.02.050.090.
 Municipal Corporations - Development Fees - Statutory Prohibition - Exceptions - "Voluntary Agreements" - Scope - Property Outside Municipal Boundaries. The voluntary agreement provision of RCW 82.02.020 does not authorize a municipality to impose impact fees on developments outside its borders.
be estopped were allowed to contradict his earlier admission, statement, or act.
 Estoppel - Elements - Representation of Law - In General. Equitable estoppel does not apply when the representations allegedly relied upon are matters of law, rather than of fact.
 Administrative Law - Judicial Review - Exhaustion of Administrative Remedies - Futile Effort - Effect. A party is not required to exhaust administrative remedies if doing so would be futile.
 Contracts - Validity - Partial Invalidity - Essential Part of Consideration - What Constitutes. If the unenforceable portion of a contract is an essential part of the consideration given to support the contract, the remaining portions of the contract are also unenforceable. The unenforceable portion is an essential part of the consideration given if the parties would not have formed the contract without it.
 Utility Services - Sewers - Service Outside Municipal Boundaries - Necessity - Public Duty. A city that is the exclusive provider of water and sewer service to an urban growth area outside its boundaries owes a public duty to serve all the land within the urban growth area, subject to any reasonable conditions allowed by law.
Nature of Action: Developer's declaratory judgment action challenging a city's authority to impose impact fees on a project located in an urban growth area outside the city's boundaries.
Superior Court: The Superior Court for Thurston County, No. 97-2-01234-9, Gary Tabor, J., on September 4, 1998, entered a judgment declaring that the city did not have authority to impose the fees and that a utility extension agreement between the city and the developer was enforceable without its impact fee provisions.
declaring that the utility extension agreement remained enforceable, which is reversed.
Mark O. Erickson, City Attorney; and Elizabeth Thomas, Stephen Alan Smith, and Robert Bertelson Mitchell, Jr., of Preston Gates & Ellis, for appellant.
Mark Stephen Davidson of Williams, Kastner & Gibbs, P.L.L.C., for respondents.
Stephen Harold G. Overstreet, for respondent/intervenor.
MORGAN, J. - The City of Olympia appeals a trial court ruling that it imposed impact fees without the necessary statutory authority. We affirm with one modification.
The City of Olympia (the City) is located in Thurston County (the County). Immediately outside the City's borders, but within the County, is an "urban growth area" (UGA) defined pursuant to the Growth Management Act,(RCW 36.70)A.
Before 1994, the County and City agreed that they would plan jointly for the UGA. The City's utilities would serve the UGA, and the City's development standards would apply in the UGA.
«1» Opening Br. of Appellant at 9.
«2» Opening Br. of Appellant at 10; see also Opening Br. of Appellant at 9. According to the City, impact fees were to pay about half the cost of parks and twenty percent of the cost of roads.
«3» Olympia Municipal Code (OMC) 13.08.180; OMC 13.04.240. Clerk's Papers at 64.
Every city or town may permit connections with any of its sewers, either directly or indirectly, from property beyond its limits, upon such terms, conditions and payments as may be prescribed by ordinance, which may be required by the city or town to be evidenced by a written agreement between the city or town and the owner of the property to be served by the connecting sewer.
A city or town may enter into a firm contract with any outside municipality, community, corporation, or person, for furnishing them with water without regard to whether said water shall be considered as surplus or not and regardless of the source from which such water is obtained, which contract may fix the terms upon which the outside distribution systems will be installed and the rates at which and the manner in which payment shall be made for the water supplied or for the service rendered.
«5» Clerk's Papers at 65-66.
In 1994, David Nolte«8» owned 24 acres of land in the UGA. He wanted to subdivide it and construct a 117-unit planned residential development called Chambers Creek Crossing. Hence, he applied to Thurston County for approval of a proposed plat.
26. It is the intent of the applicant to use City of Olympia domestic water and sanitary sewers to serve this project. The City of Olympia has a "Utility Extension Agreement" that must be signed by the developer in order to receive the city utilities. . . .
«8» The respondents include David Nolte, D.N. Woodside Development Company, Inc., Jeff Edwards, and Win. Edwards Construction Co., Inc. For convenience, we refer to them collectively as "Nolte." The Building Industry Association of Washington (BIAW) intervened on Nolte's behalf in the trial court, and it has also filed a brief on appeal.
«9» Clerk's Papers at 30.
«10» Clerk's Papers at 24-25.
«11» Clerk's Papers at 648.
A county or city shall only approve a development agreement by ordinance or resolution after a public hearing. The county or city legislative body or a planning commission, hearing examiner, or other body designated by the legislative body to conduct the public hearing may conduct the hearing. . . .
February 18, 1997, the City Council approved Nolte's application for service.
On June 3, 1997, Nolte filed a declaratory judgment action. He alleged that the City was the sole and exclusive provider of utility service to properties in the UGA, but that it would not provide such service unless the property owner paid impact fees. He further alleged that the City could not lawfully impose impact fees without statutory authority; that in his case the City did not have authority under(RCW 82.02); and that "there is no other statutory authority for the City to impose such impact fees."«14» He prayed for an order requiring the City to supply sewer and water service without charging impact fees.
«13» Clerk's Papers at 84.
«14» Clerk's Papers at 15.
The parties raise four basic issues. (1) Were impact fees properly imposed? (2) Is Nolte estopped from claiming that impact fees were improperly imposed? (3) Is Nolte prevented from claiming that impact fees were improperly imposed because he failed to exhaust his administrative remedies? (4) If the UEA's impact-fee provisions are stricken, must the City honor the remainder of that agreement?
«15» Clerk's Papers at 93.
«16» Clerk's Papers at 696.
«17» On January 28, 1999, Nolte filed a motion to strike Thurston County Resolution No. 10683, which the City attached as appendix A to its reply brief. We grant the motion because the Resolution is not in the record on appeal.
«18» See San Telmo Assocs. v. Seattle, 108 Wn.2d 20, 23, 735 P.2d 673 (1987); Hillis Homes, Inc. v. Snohomish County, 97 Wn.2d 804, 809, 650 P.2d 193 (1982); Ivy Club Investors Ltd. Partnership v. Kennewick, 40 Wn. App. 524, 528, 699 P.2d 782, review denied, 104 Wn.2d 1006 (1985).
the City imposed impact fees on Nolte, and, if the City did, on whether the City had statutory authority to do so.
«19» Opening Br. of Appellant at 17-18.
«20» OMC 13.08.180; 13.04.240. The record does not show that the County even had an impact-fee ordinance. Consistent with this omission, the City describes the comprehensive plan as "[r]ecognizing that the City would collect impact fees" from landowners in the UGA, and as "contemplating] little County investment" in the UGA Opening Br. of Appellant at 10 (emphasis added).
«21» OMC chapters 15.04 and 15.06.
«22» Opening Br. of Appellant at 10; see also Opening Br. of Appellant at 9.
«23» Opening Br. of Appellant at 23; see also Opening Br. of Appellant at 11.
«24» Opening Br. of Appellant at 11.
«25» Opening Br. of Appellant at 18 (emphasis added).
The next question is whether the City had statutory authority to impose impact fees. RCW 36.70B.170 authorizes a city to "enter into a development agreement for real property outside its boundaries as part of a proposed annexation or a service agreement." It also provides that a development agreement may include "[t]he amount and payment of impact fees imposed or agreed to in accordance with any applicable provisions of state law,"«27» and that a development agreement "may obligate a party to fund or provide services, infrastructure, or other facilities."«28» Its effects are restricted, however, by RCW 36.70B.210, which states that "[n]othing in RCW 36.70B.170 . . . is intended to authorize local governments to impose impact fees, . . . except as expressly authorized by other applicable provisions of state law."
«26» Opening Br. of Appellant at 11 (emphasis added); Opening Br. of Appellant at 18 (emphasis added).
«29» Opening Br. of Appellant at 22 (emphasis added).
approval" as "written authorization" to commence "development activity,"«32» and "development activity" as including any change "in the use of land."«33» Necessarily then, an impact fee must be imposed by an entity with development-approval authority, or, in alternate terms, by an entity with authority to approve or disapprove a change in the use of the land on which the project will be built. Because a city lacks statutory authority to approve a change in the use of land beyond its borders--that authority generally rests with the municipality in which the land is located, which here is the County--RCW 82.02.050 - .090 does not authorize a city to impose impact fees on land outside its borders.
(1) The city, town, or county legislative body shall inquire into the public use and interest proposed to be served by the establishment of the subdivision and dedication. It shall determine: (a) If appropriate provisions are made for . . . streets or roads, . . . parks and recreation . . . .
(2) A proposed subdivision and dedication shall not be approved unless the city, town, or county legislative body makes written findings that: (a) Appropriate provisions are made for . . . streets or roads, . . ., parks and recreation . . . . [I]mpact fees imposed under RCW 82.02.050 through 82.02.090 may be required as a condition of subdivision approval.
This statute does not authorize impact fees other than those imposed under RCW 82.02.050 - .090, and thus it does not authorize the fees imposed here.
county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on the construction or reconstruction of residential buildings, commercial buildings, industrial buildings, or on any other building or building space or appurtenance thereto, or on the development, subdivision, classification, or reclassification of land.
By its plain terms, this statute governs the city in all of its roles. It restricts the city to imposing impact fees under RCW 82.02.050 - .090, and thus it does not authorize the fees imposed here.
Based on the foregoing, we conclude that the City lacked statutory authority to impose impact fees on Nolte's project. Nothing we have said means that the County (i.e., the entity with development-approval authority) could not have imposed such fees; that the City could not have imposed such fees if Nolte's project had been within its borders; or that the City could or could not have formed a voluntary agreement under RCW 82.02.020.
«34» Opening Br. of Appellant at 37.
«35» Opening Br. of Appellant at 39.
Here, the City claims that Nolte promised to pay impact fees; that the City relied on his promise by not taking certain actions it might otherwise have taken; that he later breached ("repudiated") his promise; and that the City has been injured by the resultant "funding gap."«40» Assuming all of this is true, it amounts to a claim for breach of contract, which has not been made. It does not amount to a claim for equitable estoppel.
«36» See Department of Ecology v. Theodoratus, 135 Wn.2d 582 599, 957 P.2d 1241 (1998), Chemical Bank v. WPPSS, 102 Wn.2d 874, 905, 691 P.2d 524 (1984), cert. denied, 471 U.S. 1065 and 471 U.S. 1075 (1985).
«37» Theodoratus, 135 Wn.2d at 599, see also Chemical Bank 102 Wn.2d at 905, Concerned Land Owners of Union Hill v. King County, 64 Wn. App. 768, 778, 827 P.2d 1017, review denied, 119 Wn.2d 1008 (1992).
«38» See E. ALLAN FARNSWORTH, CONTRACTS § 2.19 (1990).
«39» Suppose, for example, that X offers to sell a product to Y for a certain price Y accepts Thereafter, X breaches (i.e., "repudiates"). Y was relying on receiving the product, and suffers injury when it does not arrive. Y clearly has a claim for breach of contract But does he also have a claim for equitable estoppel? The elements of equitable estoppel are (1) "an admission, statement, or act [by the party to be estopped] which was inconsistent with his later claim, (2) that the other party relied thereon, and (3) that the other party would suffer injury if the party to be estopped were allowed to contradict or repudiate his earlier admission, statement, or act." Henderson Homes v. Bothell, 124 Wn.2d 240, 248-49, 877 P.2d 176 (1994), see also Robinson v. Seattle 119 Wn.2d 34, 82, 830 P.2d 318, cert. denied, 506 U.S. 1028 (1992). Each of these elements is met by the facts supposed above X's offer was an act inconsistent with his later breach; Y relied, and Y will suffer injury if X is allowed to repudiate his offer. Under the law, however, Y's claim is for breach of contract, not equitable estoppel, because equitable estoppel must be founded on a representation of fact.
«40» Opening Br. of Appellant at 39-40.
his later attack on impact fees. The hearing examiner was not considering whether Nolte should pay the City's impact fees; the examiner was only considering whether Nolte should be required to connect to City water and sewer. Nolte had no duty to speak on an issue not being considered, and his silence was not inconsistent with his later claim that the City's impact fees were invalid. We conclude that the doctrine of equitable estoppel has no place in this case.
 The City claims that Nolte is prevented from claiming that impact fees were improperly imposed, because he failed to exhaust his administrative remedies. A party must exhaust his or her administrative remedies«41» unless doing so would be futile.«42» Nolte had no remedy before the hearing examiner, because the latter did not consider the impact fees required by the City's sewer and water ordinances; he considered only whether Nolte should be required to hook up to City sewer and water. Nolte had no remedy before the City, or his remedy was futile, because the City was bound by, and surely would have adhered to, its ordinances. We conclude that Nolte did not fail to exhaust any meaningful administrative remedy.
«41» See Dioxin/Organochlorine Ctr. v. Department of Ecology, 119 Wn.2d 761, 776, 837 P.2d 1007 (1992); Ventures NW Ltd. Partnership v. State, 81 Wn. App. 353, 368, 914 P.2d 1180 (1996).
«42» See Dioxin/Organochlorine, 119 Wn.2d at 776, Ventures NW 81 Wn. App. at 368.
«43» Opening Br. of Appellant at 43.
The City and Nolte are addressing different concepts. The City claims that it is relieved of any contractual duty under the UEA, once the UEA's impact-fee provisions are stricken. Rather than relying on the existence of a contractual duty, Nolte claims the existence of a public duty to serve everyone in the UGA.
 The City's claim is correct. When part of an agreement is illegal and thus unenforceable, but part is legal and enforceable, a court may enforce the legal part "only where the unenforceable portion is not an 'essential part' of the consideration given to support the contract."«45» Whether the unenforceable portion is "an essential part of the consideration given" depends on whether the parties would have formed the agreement without it.«46» The only reasonable view of this record is that the City would not have formed the UEA without impact-fee provisions. It was bound to follow its ordinance, it wanted to follow its ordinance, and its ordinance required impact fees. Nolte may not enforce the UEA once the impact-fee provisions are stricken.
«44» Br. of Resp't at 41-42 (citations omitted).
«45» Yakima County Fire Protection Dist. No. 12 v. Yakima, 122 Wn.2d 371, 396, 858 P.2d 245 (1993).
«47» Yakima County, 122 Wn.2d at 381-82.
need not perform the contractual provisions of the UEA, but that it must perform any public duty in the manner provided by law.
Affirmed, except that the City shall not be required to perform the remaining portions of the UEA.
HOUGHTON and HUNT, JJ., concur.

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Justia › US Law › US Case Law › US Supreme Court › Volume 280 › Henry Ford & Son, Inc. v. Little Falls Fibre Co.
Henry Ford & Son, Inc. v. Little Falls Fibre Co.
placed flashboards on the crest of the dam, as the license permitted but did not require it to do, and thus raised the level of the water pool to such an extent as to diminish the head and impair the value of a dam and water power belonging to riparian proprietors above on the Mohawk River, a navigable tributary of the Hudson. The parties so injured sued the licensee in the New York courts and were awarded damage and an injunction restraining it from maintaining the flashboards.
1. That the interest of the plaintiffs in the use of the water, even though subject to destruction under the power of the United States to control navigation, was, so far as the state laws were concerned, a vested right acquired under those laws, and, as such was, by § 27 of the federal Water Power Act, expressly saved from destruction or appropriation without compensation by licensees of the Commission, and that the licensee, by acceptance of the license under § 6 of that Act, must be deemed to have agreed to recognize and protect such interests. Pp. 280 U. S. 375, 280 U. S. 377.
2. Whether § 21 of the federal Water Power Act, giving to licensees the power of eminent domain, confers on them the power to condemn rights such as those of the plaintiffs, and whether it might have been invoked by the licensee in this case, were questions not before the Court. P. 280 U. S. 379.
Certiorari, 279 U.S. 829, to review a judgment entered in the Supreme Court of New York on remittitur from the court of appeals, restraining the above-named petitioner from maintaining flashboards on a dam in the Hudson River, and awarding damages.
but does not require, petitioner has placed flashboards on the crest of the dam which, under normal conditions, raise the level of the water in the pool above the dam approximately two feet. Electric power developed by the project is used in the business of an affiliated private manufacturing corporation. The maintenance of the water at the new level has resulted in materially raising the water at the tailraces of respondents' power plants, with a corresponding reduction of the head of water and of the power developed at their dam.
As the court below held, the acts complained of constitute, under local law, an actionable wrong, entitling respondents to an injunction and to damages. Hammond v. Fuller, 1 Paige (N.Y.) 197; Brown v. Bowen, 30 N.Y. 519; Hall v. Augsbury, 46 N.Y. 622, 625, 626; Rothery v. New York Rubber Co., 24 Hun, 172, aff'd, 90 N.Y. 30; American Woolen Co. v. State, 195 App.Div. (N.Y.) 698, 705. To avoid this liability, petitioner relies on the federal right or immunity specially set up by its answer, that the Hudson and Mohawk are navigable rivers; that all of the acts complained of were done under the license and authority of the federal Power Commission and under regulations of the Secretary of War, authorized by the Water Power Act; that the license and the acts of petitioner authorized by it were found by the Commission to be desirable and justified in the public interest for the purpose of improving and developing the Hudson River for the benefit of interstate commerce, and that the petitioner, acting under the license, is an agency of the federal government, in the exercise of its power to regulate commerce and navigation.
Dunbar Co., 229 U. S. 53, 229 U. S. 63; New Jersey v. Sargent, 269 U. S. 328, 269 U. S. 337, which may constitutionally be delegated to the Power Commission, cf. Wisconsin v. Illinois, 278 U. S. 367, 278 U. S. 415; that, even if the finding of the Commission that the licensed project is in aid of commerce and navigation is not conclusive, as petitioner asserts it is, and even though some of the power developed by petitioner is used for private purposes, the raising of the level of the water by the use of flashboards is shown by the evidence to be beneficial to navigation, and it was therefore within the competency of the Commission to determine whether the project should be authorized. It appears that the petitioner is required by the license and its acceptance of it to supply from the licensed project power in specified amounts for the lighting and operation of the existing government lock and a second projected lock at the federal dam, which are instrumentalities of navigation.
Paper Co. v. Railway Commission, 274 U. S. 651; Chase-Hibbard Co. v. City of Elmira, 207 N.Y. 460; compare United States v. Cress, 243 U. S. 316.
The respondents insist, as the court below found, that the federal dam was designed to be sufficient for purposes of navigation without the flashboards and it was unnecessary to use them for purposes of navigation; that the petitioner had installed them for the development of power for its own private use; that the effect upon navigation of the power plant and flashboards is negligible, hence the licensed project was not one authorized under the federal Water Power Act. In any case, it is urged that the injury and damage complained of amount to a taking of respondents' property without compensation, and, further, that the federal Water Power Act, by its terms, does not authorize the granting of licenses which would enable the licensee to destroy or affect the rights of riparian owners.
in the grant of a valuable privilege to a licensee. We think that the provisions of the act are quite sufficient in themselves to save respondents from any such appropriation of their water power.
"Nothing contained in this chapter shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective states relating to the control, appropriation, . . . or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein."
"or the right to use or damage the lands or property of others necessary to the construction, maintenance, or operation of any dam . . . [or] . . . diversion structure . . ."
in connection with an authorized project which they are unable to acquire by contract. By § 6 (U.S.C., Title 16, § 799), all licenses are required to be "conditioned upon acceptance by the licensee of all the terms and conditions of this Act."
the respondents, so far as the laws of the state are concerned, is a vested right acquired under those laws, and so is one expressly saved by § 27 from destruction or appropriation by licensees without compensation, and that it is one which petitioner, by acceptance of the license under the provisions of § 6, must be deemed to have agreed to recognize and protect. Whether § 21, giving to licensees the power of eminent domain, confers on them power to condemn rights such as those of respondents, and whether it might have been invoked by the petitioner in the present situation, are questions not before us.