LAFAYETTE FOOTBALL BOOSTERS, INC.; BLUEGRASS GYMNASTICS, INC.; HENRY CLAY BASEBALL BOOSTERS, INC.; PAUL LAURENCE DUNBAR BASEBALL BOOSTERS, INC.; TATES CREEK BASEBALL BOOSTERS, INC.; AND TATES CREEK VARSITY CHEERLEADING, INC. ON DISCRETIONARY REVIEW v. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 24, 2007; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001750-DG
LAFAYETTE FOOTBALL BOOSTERS, INC.;
BLUEGRASS GYMNASTICS, INC.; HENRY
CLAY BASEBALL BOOSTERS, INC.; PAUL
LAURENCE DUNBAR BASEBALL
BOOSTERS, INC.; TATES CREEK
BASEBALL BOOSTERS, INC.; AND TATES
CREEK VARSITY CHEERLEADING, INC.
v.
APPELLANTS
ON DISCRETIONARY REVIEW FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NOS. 04-M-12911; 04-M-15572; 04-M-15628;
04-M-15712; 04-M-15713; AND 04-M-16187
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; NICKELL AND WINE, JUDGES.
NICKELL, JUDGE: The Appellants (hereinafter “Boosters”) are six not-for-profit
booster clubs charged with violating a smoking ban ordinance1 enacted by the Lexington-
1
Ordinance No. 171-2003.
Fayette Urban County Government (hereinafter “L-FUCG”). Each Booster2 was cited by
the L-FUCG Health Department for allowing smoking to occur in a building that was
open to the public during a bingo game. We granted discretionary review to consider the
April 18, 2006, opinion and order of the Fayette Circuit Court which held the Boosters
are not exempt from the smoking ban ordinance, reversed the dismissal of the Fayette
District Court’s charges, and remanded the matter to the Fayette District Court for further
proceedings. We also review an order of the same court entered July 27, 2006, that
overruled a motion to reconsider and vacate its April 18, 2006, opinion and order. We
reverse and remand to the Fayette Circuit Court for specific findings and further
proceedings.
The facts are undisputed. On July 1, 2003, the L-FUCG enacted a smoking
ban ordinance with the declared purpose of prohibiting “smoking in all buildings open to
the public.”3 The ban was not absolute, however, as several locations were exempted
from the ordinance including dwellings (with some limitations), rooms or halls being
used for private social functions, retail tobacco stores, tobacco warehouses, theatrical
2
Jackpot Bingo, lessor of the premises on which all the bingo games occurred, was originally
named on the citations with the various Boosters. On March 1, 2005, the Fayette County
Attorney dropped all charges against Jackpot Bingo and elected instead to proceed solely against
the Boosters. At oral argument, the Fayette County Attorney’s Office explained it made this
election because the Boosters were actually operating the games. In the government’s view,
since representatives of the Boosters were physically present during the games they were in a
position to actually enforce the smoking ban ordinance by asking bingo players to stop smoking.
3
Ordinance No. 171-2003, Section 1.
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stages (with appropriate signage), indoor smoking areas in government office buildings,
and “facilities operated by private organizations.”4 It is this last exemption that is at the
heart of this appeal.
Each Booster operates bingo games in Fayette County. All of the bingo
sessions occur in the same building that is leased by each Booster for a specified time
each week. Funds generated by the games support youth activities throughout Fayette
County. Between October 6, 2004, and December 27, 2004, each Booster was cited for
violating the smoking ban ordinance by allowing patrons to smoke inside the bingo hall.
The ordinance requires owners, principal managers, lessees and anyone in control of a
building or establishment inside a building5 to: post “No Smoking” signs;6 prohibit
smoking on the premises;7 advise those in violation of the ordinance of its provisions and
require their compliance;8 ensure compliance with the ordinance by patrons, employees,
subordinates and agents;9 and ask smokers to refrain from smoking in no-smoking
sections.10
4
Ordinance No. 171-2003, Section 14-98(1).
5
Ordinance No. 171-2003, Section 14-98(2).
6
Ordinance No. 171-2003, Section 14-99(1).
7
Ordinance No. 171-2003, Section 14-98(2).
8
Ordinance No. 171-2003, Section 14-99(2).
9
Ordinance No. 171-2003, Section 14-100(2).
10
Ordinance No. 171-2003, Section 14-100(1)(a).
-3-
In anticipation of a jury trial,11 the Commonwealth filed a motion in limine
asking the Fayette District Court to prohibit the Boosters from claiming they were private
organizations and therefore exempt from the smoking ban. The ordinance defines a
private organization as, “[a]n establishment which maintains selective members, is
operated by the membership, does not provide food or lodging for pay to anyone who is
not a member or a member’s guest and is not profit oriented.”12
A hearing was held on the motion in limine on March 1, 2005. The District
Court characterized the motion as premature and questioned whether it could make a
pretrial ruling on whether the Boosters could claim the private organization exemption
unless the parties were willing to stipulate all the evidence that would be offered at trial.
The Boosters opposed the motion saying they were entitled to their day in court. The
court viewed the Commonwealth’s motion as a pretrial request for a directed verdict. As
such, the court deemed it inappropriate to preclude the Boosters from presenting evidence
in support of a defense to a violation of the smoking ban ordinance. From the bench, the
District Court overruled the motion in limine and stated the Boosters were entitled to go
forward with proof in an attempt to establish themselves as private organizations.
11
By agreed order entered March 22, 2005, the cases of the six Boosters were consolidated for
appeal purposes only. The facts and arguments are common to all the Boosters and one opinion
and order was issued by the District Court to resolve all six cases.
12
Ordinance No. 171-2003, Section 14-97.
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To further distill the issues for trial, it was agreed the District Court would
rule on whether each Booster qualified as a private organization and was therefore
exempt from the smoking ban. At a hearing held on March 10, 2005, counsel for the
Boosters13 admitted on the record that each Booster operated a bingo game in a venue that
was open to the public and because each Booster satisfied the definition of a “private
organization” under the ordinance they considered themselves to be exempt from the
smoking ban and did not prohibit smoking during the games. Stipulations14 filed by the
parties readily established each Booster satisfied three of the five elements required to be
a private organization in that they were operated by their members; none provides food or
lodging to any nonmember or nonmember’s guest; and none was operated as a for-profit
organization. Less clear was whether each Booster was an “establishment” and whether
they maintained “selective members.”
In the opinion issued on March 22, 2005, the District Court found the term
“establishment” is not defined in the ordinance and in common usage it has a variety of
meanings. The Commonwealth urged the court to follow Snook v. International
Harvester Company, 276 S.W.2d 658, 661 (Ky. 1955) (in the context of a factory with a
13
Each Booster signed a waiver of dual representation. One attorney represented all Boosters.
14
The parties stipulated that each Booster: (1) “is operated by the membership of the respective
charity”; (2) “through charitable gaming does not provide food or lodging for pay to anyone who
is not a member or a member’s guest. A concession stand is operated by a separate contractor
through Lexington Bingo Associates, LLC;” and, (3) “is a 501(c)(3) charity and registered with
the Kentucky Secretary of State as a non-profit organization.”
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fixed location, it was held that members of separate labor unions working in separate
buildings for the same company constituted one “establishment”) and rule against the
Boosters because they lacked a fixed location. The District Court relied instead upon the
dictionary definition15 which lists civil and military organizations as one form of
“establishment.” Since each Booster is a civil organization created to promote baseball,
cheerleading or gymnastics, the court reasoned the “establishment” element of the
definition was satisfied.
The final criterion was whether the Boosters maintain “selective members.”
After reviewing the Articles of Incorporation and the By-Laws of each Booster, and
applying the eight factors discussed in United States v. Lansdowne Swim Club, 713
F.Supp. 785 (E.D. Pa. 1989) and later in Hendricks v. Commonwealth, 865 S.W.2d 332,
334-5 (Ky. 1993), the District Court found: (1) none of the Boosters impose substantial
dues; (2) the number of potential members of each club is infinite; (3) members exert
little or no control over the selection of new members, generally all that is required of a
new member is an interest in supporting the club’s purpose; (4) each Booster maintains
records regarding its admission procedures; (5) members of each Booster control
operation of the bingo games; (6) Boosters do not sell food or lodging to nonmembers or
their guests; (7) nonmembers use the leased facility a significant amount of the time,
including an independent vendor who sells concessions during bingo games; and finally,
15
The Living Webster Encyclopedia Dictionary of the English Language, 1974.
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(8) the purpose of each Booster is to support a stated youth activity and each has a history
of involvement in charitable gaming activities. After weighing all of these factors, and
considering the noncommercial purpose of the Boosters, the District Court expressed
some concerns16 but ultimately found the Boosters qualified as private organizations
under the ordinance, and were therefore exempt from obeying and enforcing the ban
because of a specific exemption adopted by the L-FUCG. The District Court dismissed
without prejudice all six citations against the Boosters.
The Commonwealth, through the Fayette County Attorney’s Office,
appealed to the Fayette Circuit Court on April 15, 2005, arguing the District Court erred
in finding the Boosters are private organizations because they do not satisfy the
“selective membership” factor. On April 18, 2006, the Fayette Circuit Court issued an
opinion and order finding that whether the Boosters were private organizations was of no
consequence because the Supreme Court of Kentucky had already upheld Lexington’s
smoking ban ordinance as an appropriate exercise of local governmental authority.17 The
Circuit Court then concluded that once the Boosters opened the doors of the bingo hall to
the general public without restriction, they were not operating the game as a private
organization and therefore they were required to prohibit smoking inside the building
16
The District Court noted the bingo games are open to the general public and an independent
contractor sells concessions while games are being conducted.
17
Lexington Fayette County Food and Beverage Ass’n v. Lexington-Fayette Urban County
Government, 131 S.W.3d 745 (Ky. 2004).
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since it was open to the public. Without deciding whether the Boosters were private
organizations, the Circuit Court reversed the dismissal of the charges and remanded the
matter to the Fayette District Court for further proceedings.
On April 27, 2006, the Boosters moved the Fayette Circuit Court to
reconsider and vacate the opinion and order on two grounds. First, they argued the only
issue before the Circuit Court was whether the District Court correctly found the Boosters
were private organizations. Without making a specific finding on this issue, the Circuit
Court did state in its opinion that “each separate Booster may, for sake of argument only,
meet the criteria and definition of a ‘private organization’ as defined in the Smoking Ban
Ordinance.” The Boosters argued that once they were found to be private organizations
they were automatically exempt from the ordinance regardless of who was playing bingo
inside the building. Second, the Boosters argued the Circuit Court misconstrued the
District Court’s comments about the parties’ stipulation that none of the Boosters
provides food or lodging to nonmembers and their guests. The District Court commented
upon this stipulation in its analysis of whether the Boosters satisfied the fourth element of
the definition of a private organization (not providing food or lodging for pay to
nonmembers and their guests). The Circuit Court, however, took this statement as proof
that members of the general public were playing bingo and therefore the bingo hall was a
public building rather than a facility operated by a private organization.
-8-
The Commonwealth filed a response on June 16, 2006, supporting the
Circuit Court’s rejection of the Booster’s attempt to assert an exemption. For the first
time, the Commonwealth argued (without conceding) that even if the Boosters qualified
as private organizations, they forfeited any exemption by opening the bingo hall to the
public. On July 19, 2006, the Boosters filed a reply in which they argued, for the first
time, that the Circuit Court overstepped its judicial authority by adding words to the
smoking ban ordinance that were not adopted by the L-FUCG.
After a hearing on July 21, 2006, the motion to reconsider was denied by
order entered July 27, 2006. We granted the Booster’s motion for discretionary review
on October 30, 2006, to review the Circuit Court’s opinion and order as well as its order
overruling the motion to reconsider and vacate the opinion and order. After thoroughly
reviewing the record and considering the precise language of the smoking ban ordinance,
we reverse and remand to the Fayette Circuit Court for specific findings and further
proceedings.
Two arguments, both pertaining to statutory interpretation, are presented to
this Court. The first contention advanced by the Boosters is that if they are found to be
private organizations as that term is defined in the smoking ban ordinance, then they
cannot be cited for violating the smoking ban because “facilities operated by private
organizations” are specifically exempted by Section 14-98(1)(f) of the ordinance.
However, if the Commonwealth is correct, and the Boosters do not satisfy all five
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elements of the definition of a private organization, then each Booster must abide by the
smoking ban or face the specter of being cited for violating its terms.
We are called upon to determine whether the Circuit Court correctly
interpreted the smoking ban ordinance. Our review of the trial court’s application of the
law is de novo. Revenue Cabinet v. Comcast Cablevision of the South, 147 S.W.3d 743
(Ky.App. 2003). We are not bound by the Circuit Court’s interpretation, “but rather must
interpret the statute according to the plain meaning of the act and in accordance with its
intent.” Commonwealth v. Garnett, 8 S.W.3d 573, 575 (Ky.App. 1999) (citing Floyd
County Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 925 (Ky. 1997)) If the language enacted
is plain and unambiguous, we need not resort to principles of statutory construction and
further interpretation is unnecessary. Mohammad v. Commonwealth, 202 S.W.3d 589,
590 (Ky. 2006); Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002); Overnite
Transp. Co. v. Gaddis, 793 S.W.2d 129, 131 (Ky.App. 1990). In giving the words of the
smoking ban their plain, ordinary meaning, “[w]e are not at liberty to add or subtract
from the legislative enactment or discover meanings not reasonably ascertainable from
the language used.” Commonwealth v. Harrelson, 14 S.W.3d 541, 546 (Ky. 2000). If,
however, the language of the ordinance is ambiguous and its meaning unclear, we will
determine the L-FUCG’s intent by considering the whole statute and the purpose to be
accomplished. Dep’t of Motor Transp. v. City Bus Co., 252 S.W.2d 46, 47 (Ky. 1952).
In the end, we are bound by the words actually enacted by the L-FUCG and we must test
- 10 -
the ordinance based upon what they said, not what they might have said.
Commonwealth, Transp. Cabinet, Bureau of Highways v. Roof, 913 S.W.2d 322, 326
(Ky. 1996); Musselman v. Commonwealth, 705 S.W.2d 476, 478 (Ky. 1986); Estes v.
Commonwealth, 952 S.W.2d 701, 703 (Ky. 1997).
With these principles of statutory interpretation in mind, our reading of the
smoking ban ordinance leaves little room for debate. Once an entity demonstrates it
possesses the five attributes required of a “private organization,” as set out in the
ordinance, it is exempt from following the ordinance because the L-FUCG has created a
specific exemption for “facilities operated by private organizations.” If the Boosters are
able to prove they are private organizations, then they are indeed exempt from
enforcement of the smoking ban. We hold the Circuit Court erred in failing to rule on
whether the District Court correctly found the Boosters are private organizations and
therefore may claim the private organization exemption. Thus, we reverse and remand to
the Fayette Circuit Court for a specific finding on whether the Boosters qualify as private
organizations.
The second contention advanced by the Boosters is that the Circuit Court
overstepped its judicial authority and violated the separation of powers doctrine18 by
adding words to the ordinance that the L-FUCG did not adopt. In contrast, the
Commonwealth argues the Circuit Court correctly found the Boosters were not exempt
18
Kentucky Constitution §27.
- 11 -
from the ban because they invited the public to play bingo without restriction. According
to the Commonwealth, the Boosters are no different than a private country club that
invites the public to dine in its restaurant. In the Commonwealth’s view, both must
prohibit smoking in buildings that are open to the public.
As the judiciary, we may construe an ordinance liberally, but not to the
point that the words take on a meaning that was wholly unintended by the governmental
body that adopted them. It is not our prerogative to add to or subtract from language
adopted by the L-FUCG, but rather to read the ordinance as enacted and in its entirety.
County of Harlan v. Appalachian Regional Healthcare, Inc., 85 S.W.3d 607, 611 (Ky.
2002); Garnett, supra at 576; Wilson v. SKW Alloys, Inc., 893 S.W.2d 800, 802 (Ky.App.
1995). Here, it appears the Circuit Court focused upon one section of the ordinance to
the exclusion of another and thus reversal is required.
Our Supreme Court has already held the L-FUCG may enact a nonsmoking ordinance. Lexington Fayette County Food and Beverage Ass’n, 131 S.W.3d at
749. It necessarily follows then that the L-FUCG may tailor the language of any
ordinance it enacts to achieve its goals. This may include specific exemptions for entities
and locations. In reviewing this particular scenario, the Circuit Court reasoned that once
the Boosters opened their bingo games to the public without restriction, the focus shifted
from the character of the organization running the game to the character of the building in
which the game was played. Since the bingo games were open to the public, the Circuit
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Court concluded the bingo hall was a building that was open to the public and therefore it
was subject to the ordinance. However, such a reading ignores the express language of
the exemption adopted by the L-FUCG.
Although not mentioned by either party or by either lower court, we note
with interest that Section 14-98(1)(b) of the ordinance exempts “a room or hall being
used by a person or group for a private social function that is not open to the public.”
This demonstrates to us that the L-FUCG could have, but did not, include similar
qualifying language in Section 14-98(1)(f) pertaining to the private organization
exemption. One of the most basic principles of statutory interpretation is to give meaning
to legislative intent. Similarly, “where particular language is used in one section of a
statute, but omitted in another section of the same statute, it is presumed that the
legislature acted intentionally and purposefully in the disparate inclusion or exclusion.”
Liquor Outlet v. Alcoholic Beverage Control Bd., 141 S.W.3d 378, 385 (Ky.App. 2004)
(citing Palmer v. Commonwealth, 3 S.W.3d 763 (Ky.App. 1999)). Here, the L-FUCG
had the opportunity to restrict the private organization exemption to facilities operated by
private organizations that are not open to the public. Their failure to do so implies no
such intent to do so. See Commonwealth v. Allen, 980 S.W.2d 278, 280 (Ky. 1998).
When reviewing an ordinance, we are not at liberty to simply add words to it. We must
read it as it was enacted and we must presume all the words chosen by, or excluded by,
the L-FUCG have some meaning. City of Lexington v. Rennick, 20 Ky.L.Rptr. 1609, 49
- 13 -
S.W. 787, 788 (Ky. 1899). Further, we must presume that each word was “carefully
chosen and intentionally placed.” 16 Am.Jur.2d Constitutional Law § 61 (1998).
Contrary to the Fayette Circuit Court’s opinion, the exemption included within the
ordinance permits a private organization to operate a facility and to invite the public
inside without transforming that facility into a building that is open to the public for
purposes of the L-FUCG smoking ban. Because there is no limiting language in the
ordinance as it pertains to “facilities operated by private organizations,” we will not add
such limitations by judicial fiat.
For the foregoing reasons, we reverse and remand this matter to the Fayette
Circuit Court for a specific finding on whether the Boosters are “private organizations” as
that term is defined in the L-FUCG smoking ban ordinance. If the Circuit Court finds the
Boosters are private organizations, then they are exempt from enforcement of the
ordinance according to the clear, unambiguous and unqualified language of Section 1498(1)(f) and the charges shall be dismissed with prejudice. If, however, the Circuit Court
finds the Boosters are not private organizations, the dismissal of the charges shall be
reversed and the matter shall be remanded to the District Court for trial or other
appropriate resolution of the charges.
COMBS, CHIEF JUDGE, CONCURS.
WINE, JUDGE, CONCURS IN PART AND DISSENTS IN
PART AND FILES SEPARATE OPINION.
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WINE, JUDGE, CONCURRING IN PART AND DISSENTING IN PART:
I concur with that portion of the opinion which remands this matter to the Fayette Circuit
Court for a specific finding on whether the Boosters are private organizations, which was
the only issue on appeal from the Fayette District Court.
However, I respectfully dissent from that portion of the opinion which
suggests private organizations such as the Boosters may permit smoking in a facility
owned by a third party and open to the general public.
Section 14-98 of the Lexington smoking ban ordinance provides
exemptions to the general ban against smoking, including: “(1)(b) In a room or hall
being used by a person or group for a private social function that is not open to the
public, . . .” and “(1)(f) Facilities operated by private organizations.”
At issue is how to construe the phrase “[f]acilities operated by private
organizations.” The Boosters believe the exemption follows the private organizations
wherever they may hold a fundraiser or other function. The circuit court found that
facilities not owned by private organizations, and to which the general public may be
invited, are not exempt. I believe the circuit court narrowly and correctly construed this
provision.
First, one of the fundamental maxims of statutory construction is that “an
act . . . must be considered as a whole . . . .” Commonwealth v. Louisville Taxicab &
- 15 -
Transfer Co., 210 Ky. 324, 275 S.W. 795 (Ky. 1925). Further, words are to be given
their plain meaning. Revenue Cabinet v. O’Daniel, 153 S.W.3d 815 (Ky. 2005).
Contrary to the majority opinion, it is not necessary to add the words “not
open to the public” to accomplish the goal of the ordinance; to wit, ban smoking in public
places. Section (f) must be read in light of the outlined general purpose of the ordinance
found in Section 1 of the ordinance:
In order to serve the public health, safety and general welfare,
it is the declared purpose of Sections 14-97 to 14-104 to
prohibit smoking in all buildings open to the public.
(Emphasis added).
“Not open to the public” modifies “private social function” not room or hall
as suggested by the majority opinion. Thus, individuals or groups which rent a facility
for a wedding, birthday party or meeting and only invite a select group, may permit
smoking. The general public would not have access to the hall or room when used for a
private purpose. Likewise, “[f]acilities operated by private organizations” limits access
by the general public.
A second rule of statutory construction is “to ascertain and give effect to the
intention of the Legislature and that intention must be determined from the language of
the statute itself if possible.” Revenue Cabinet v. Comcast Cablevision of South, 147
S.W.3d 743, 748 (Ky.App. 2003), quoting Moore v. Alsmiller, 289 Ky. 682, 160 S.W.2d
10, 12 (1942). “When there is no specific statutory definition, words of a statute shall be
- 16 -
construed according to their common and approved usage.” Revenue Cabinet v.
Comcast, supra, quoting Kentucky Unemployment Insurance Commission v. Jones, 809
S.W.2d 715, 716 (Ky.App. 1991). “Operate” is defined as “to conduct the affairs of;
manage.” The American Heritage Dictionary of the English Language, 4th ed.
“Facility(ies)” is defined as something created to serve a particular purpose; a building or
place that provides a particular service or is used for a particular industry.” Id.
The Boosters do not manage or conduct the affairs of the bingo hall. They
lease the facility and utilize the hall for the purpose of operating a bingo. Boosters may
well operate various fields, gyms or concession stands where youth activities are held.
Unquestionably, if they owned such facilities, they could permit smoking.
If, as suggested by the Boosters, the exemption follows the private
organizations, then an organization such as the Shriners could rent a large facility (where
the owner does not ban smoking), invite hundreds of children to enjoy a circus and permit
smoking for those of the general public who purchased tickets.
Third, when interpreting a statute or ordinance, we must give “significance
and effect . . . to every part of [an] Act.” McElroy v. Taylor, 977 S.W.2d 929, 931 (Ky.
1998), quoting George v. Scent, 346 S.W.2d 784, 789 (Ky. 1961). To require the
addition of “not open to the public” would ignore the stated purpose of the ordinance.
Rules of statutory construction require the interpretation that harmonizes the statutes and
- 17 -
prevents a part of the statute from becoming meaningless or ineffectual. Commonwealth
v. Phon, 17 S.W.3d 106, 108 (Ky. 2000).
In Conley v. Sousa, 554 S.W.2d 87 (Ky. 1977), the Court cited a rule of
statutory construction written more than 400 years ago in COKE, Heydon’s Case (1584)
3 Rep. 7a, 7b, requiring an interpretation which would advance the remedy and suppress
the mischief. Known as the “mischief rule” the interpretation should “add force and life
to the cure and remedy according to the true intent of the makers of the act pro bono
publico.” Id. at 89.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Jerry L. Wright
Herren & Adams
Lexington, Kentucky
Gregory D. Stumbo
Attorney General
Jennifer O. True
Special Assistant Attorney General
Fayette County Attorney’s Office
Lexington, Kentucky
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