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Suit Challenging City's Ordinance to Control Deer Population, Plus Criminal & Bankruptcy Law Matters

By FindLaw Staff on September 07, 2010 | Last updated on March 21, 2019

Wilson v. Rees, 09-6306, concerned a challenge to the district court's dismissal, as untimely, of an inmate's 42 U.S.C. section 1983 suit challenging Kentucky's lethal injection protocol under the Eighth and Fourteenth Amendments.  In affirming, the court held that Bowling v. Ky. Dept. of Corrections, 301 S.W.3d 478, (Ky. 2009), and its aftermath do not disrupt the district court's holding that defendant's complaint is barred by the statute of limitations.


Sheffield v. City of Fort Thomas, 09-5619, involved a plaintiff's suit against a city and various city officials in their official and individual capacities, claiming that several of the city's ordinances related to controlling deer population, violate the United States and Kentucky Constitutions and that the ordinances are preempted by Kentucky state statutes and administrative regulations.

The court affirmed in part, the district court's judgment that the Bow-and-Arrow Ordinance is not preempted, and that the Field-Dressing Ordinance is not preempted by Chapter 150.  However, the court reversed in part as, although 301 Ky. Admin. Regs. 2:-015 has preemptive force and the Deer-Feeding Ordinance is preempted insofar as it purports to ban deer-feeding within the curtilage of Fort Thomas homes, the ordinance is not preempted in its entirety, as it is a legitimate exercise of municipal authority as applied to deer-feeding outside the curtilage of the home.  The court rejected plaintiff's substantive due process challenge to the Bow-and-Arrow Ordinance, and held that the Deer-Feeding Ordinance is not unconstitutionally vague.

Official Comm. of Unsecured Creditors v. Anderson Senior Living Prop., LLC., 09-5817, involved an appeal from the Bankruptcy Appellate Panel's (BAP) grant of debtors' motion to dismiss as moot pursuant to 11 U.S.C. section 363(m),  plaintiffs' appeal of the bankruptcy court's authorization of the sale of debtors' interests in seven co-owned properties as well as the undivided interests of the tenants in common (TIC).  In affirming, the court held that the BAP properly determined that section 363(m) moots the appeal because, even though the bankruptcy court approved the sale of the TIC property interests pursuant to section 363(h), the debtors ultimately sold the properties pursuant to section 363(b) and that sale was never stayed.

Babick v. Berghuis, 08-1376, concerned a challenge to the district court's denial of defendant's petition for habeas relief from his convictions for arson and first-degree felony murder, as well as a sentence of two terms of life imprisonment without possibility of parole.  In affirming, the court held that defendant's ineffective assistance of counsel claim is without merit as he has shown no prejudice as a result of his trial counsel's failure to produce an arson expert in support of his not-arson defense.  Also, the district court did not abuse its discretion in denying defendant's request for an evidentiary hearing.  Defendant's claim, that trial counsel was ineffective for failing to investigate the basis of a witness's testimony regarding the time of defendant's visit to the house that burned down, is rejected.  Finally, the court rejected defendant's claims of prosecutorial misconduct. 

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