complaint as true which he was obligated to do in response to the defendant's motion to dismiss she determined that the sole question was whether the criminal proceeding was terminated in favor of mr honest and based upon an agreement to make restitution decided that question adversely to mr anonymous this case dates back to december  ten when mr thompson who's the deputy sheriff for the plastic county kentucky sheriff's department contacted airfoil aerial systems which is an illinois corporation regarding the purchase of a drone helicopter with a thermal imaging camera there were some negotiations that occurred in december and there was finally a deal struck by the end of december in february twentieth eleven mid february the drone was shipped to the plastic county sheriff's department at that time it did not have the thermal imaging unit had been ordered it's referred to as a fully or camera forward looking infrared camera court where there was a requirement that your claim pay restitution to the sheriff did your client agree to this order your honor the record reflect that at least his attorney  agreed to the order at the time the order was entered my client wasn't in court he was arraigned in several months allegro can an argument pick your client's not bound by his i have i have not argued that given to the restitution we would argue that notwithstanding judge caldwell's determination that that rendered this agreement if you will to not have resulted in terminations favor that there was clearly an under lying contractual dispute and that the restitution agreement actually resolved that contractual dispute and in the context of this case and other rummery decision these these case suggesting then that in this order that was signed by the alaskan district court judge that the payment requirement that your client pay restitution is a civil restitution as opposed to a criminal that that's not that's that's exactly what i'm saying and in fact judge caldwell i would argue in parentally recognize that when  four of her decision when she indicated that negotiations were going on with regard to the purchase contract between december and september of two thousand and eleven over ten months that the deputy sheriff stop negotiating out of what she characterized as either frustration over the doorway and or buyer's remorse there was no suggestion there that a crime had been committed then what happened is that in october the month following the  deputy's refusal to continue negotiations he takes a warrant out for theft for failure to make required disposition and what i would submit is that particularly if we've been allowed some discovery is that there was a recognition by airfoil systems that the correct camera wasn't delivered with the g s r they drown and the reason it wasn't delivered is because the company that was making that  camera apparently was no make longer making that particular camera and there was an attempt made which is documented to get a substitute infrared imaging cameras there clearly in this case not only was agreement had to do with the underlying contractual dispute with respect to the amount of money that was paid for the camera that was not delivered although as i said there were numerous  telephone conversations and correspondence back and forth with respect to that does the please help me out here i'm not really understanding how this works in kentucky but does the particular court here the twentieth judicial circuit poleski district court have both civil and criminal jurisdiction so it could order a civil payment it wouldn't have contesting whether the court had jurisdiction to make that order but with respect to judge caldwell's determination that because this was a compromise that under come under kentucky  law it did not constitute determination in favor of the accused the cases that speak to that including the broadest case and other cases that judge caldwell relied upon make that determination because the compromises that were issue in this case or those cases stipulations of probable cause or covenants not to sue indicated the lack of innocence of the accused were given the underlying facts in this case that there really isn't any suggestion and there's nothing that can be pointed to and nothing has been pointed to by deputy thompson that mr animists was in fact guilty of the crime of theft by failure to make required disposition disposition and as a matter of in his favor and while there is nothing to indicate that he with guilty as you say there's also nothing to indicate that he was exonerated by virtue of the order so that question of guilt is left open would you agree with that the question of guilt with left open by virtue of the entry of this order wow i think to the extent that it might have been left open your honor that's exactly why there should have been some discovery permitted and why  court should not have dismissed this on a motion to dismiss we never had an opportunity to lab rate on and any of the contentions that we made how would you if you had discovery be able to establish that the proceedings which were terminated virtue by this order which was contingent on the payment of restitution were terminated in his favor in his favor i want you establish that one of things we would have been able to do is is to depose the prosecutor as to the circumstances  of this agreement we would have been able to depose the criminal defense counsel who was not counsel in the civil case we would have been able to depose deputy thompson as to why he took this war agree to some disposition of criminal charges having to do with the expense of litigation the delay the consternation and things like that but even given all these things i mean it's pretty clear under  that the court had to make a determination as to whether the agreement was voluntarily made whether the agreement was not the product of prosecutorial overreaching and whether the agreement serves the public interest and we would indicate we would suggest that given the fact that she found that this was a disturbing abuse of power that clearly this agreement violates the public interest by protecting a deputy  who took out a warrant really based upon no finding a probable cause almost in retaliation for the failure of these negotiations we also believe should be the same kind of i'm sorry to interrupt but you believe the test should be the same in this instance as in the release and dismiss cases absolutely i believe that they really not all don't we have ample indication that this was a voluntary  the proponent of the release agreement and i would say that this is not dissimilar in any kind of fashion from a more formal agreement if anything it probably requires more attention to detail the circumstances than a release of actual release agreement and in the three cases that i just cited to the court the court required that the proponent of the release agreement has to prove these  things these three elements that there grammont was voluntarily made that was not the product of overreaching and that it serves the public interest those items were in even touched on either by deputy thompson or by the court and at the very least i think this case would need to be remanded for a determination by judge caldwell of those three factors i mean that's that's what this court required in kaufman versus thank you very much united states supreme court and after this court looked at qut under the same type of rumor and that's this in one nine hundred ninety five the kentucky courts refused to adopt that and said this is our to case the coots case involved federal law issues and a federal statute this case in the broadest case involve kentucky tort law which is well established and we'd have to ignore that completely in order to have the order overturned this case is here on diversity only so it's state law claims state law that applies as your honour's have noted it is required that mr amiss prove each and every element of the tort an element he just simply cannot prove is that the underlying matter was terminated in his favor the broadest case than all the progeny of cases that come after that have adopted the restatement second that says you have to show that by circumstances that indicate his innocence and a compromise  question order showing his in this that it is dismissing the case with prejudice you are with prejudice upon the payment of the restitution which is exactly a circumstance that is  in the kentucky cases it's a compromise pollutants arguing that the restitution is civil civil settlement as opposed to a criminal restitution it's within the full framework of a criminal case and as was noted that court didn't even have the jurisdiction to make a civil settlement and that in this matter because it did your stiction in kentucky for district court is four thousand dollars or less less for civil cases seriously kentucky law kentucky criminal statutes include restitution somewhere in that chapter oh they do in this part it is an alternate punishment to incarceration exactly and that's what happened in this case the criminal law kentucky law did require there be a conviction before restitution could be criminally ordered i i i don't know either and i'm sorry and i know that it is routinely part of plea bargaining and compromise and ways to dispose of cases and the restatement which has been followed consistently kentucky clearly contemplates this type of situation where a compromise was made and mr hecht us argues that his client was in fact innocent and all these other things well we don't know because that litigation was terminated upon the agreement and just to clarify for just judge moore mr autumn is did in fact agree to pay this there's a statement in the my notes and won the kentucky revised statute that i came across was five thirty two point three fifty defining restitution of any form of compensation paid by a convicted person to a victim suggests to me that you have to have a conviction in order to actually have restitution and i that's why i'm wondering if the word restitution in this order because there is no conviction is referring to civil a civil payment as opposed to a criminal payment your honor i don't know that any of the parties at that time contemplated whether or not that restitution was a term of art as of it  they were furring to a civil case or not what we do know whether it's i don't know where refund restitution what it whatever they might have called it it's still a compromise and the cases that have looked at this  kentucky the broadest case and some of those afterwards really looked at even just a stipulation of probable cause was enough to make it and not a terminations in favor of the now plaintiff and that's a pretty low standard in this case there was an agreement to pay agreement to get rid of this criminal case for twenty two thousand dollars and so that's that's a whole lot more and mr hecht is also argues and would like to have discovery in this case but twelve b six is the mechanism by which we terminate litigation when it is impossible for him to to prevail when he simply did not stay to a claim upon which were relief could be granted and he didn't because it isn't there because there that element of the shortcoming in his case if there is one is a is a feature of the docket entry of what to what could he what could he is not indicative of his innocence it may not be indicative of his guilt either but it's a restatement the document how do we know that it is the compromise it is that it is a document  the repair page that i have from i d j d fifty three the commonwealth of kentucky is moving the court for an order maybe i'm not looking at the right thing and then it's at the  bottom of that that's an exhibit b from the original it was docket intrigue seven two in this matter thank you  that so the law is clear i think mr hecht to says reliance on the rummery case and prodigy is also misplaced again that was kentucky i'm sorry that was federal law applying a federal statutory right but honor and this is clearly kentucky tort law you can't shift the burden that mr honest has to prove each and every element of this tort case by referring to a federal statute and federal in any way it was a case from the kentucky court of appeals and was d published further even if we were to assume that rummery would apply all it says is a case by case analysis all they did was decline to adopt a per se rule that all release dismissal agreements are invalid a case by case analysis does not mean that you get the full full compliment of discovery in this case it was and that analyzed individually the elements cannot be met and so the order of dismissal was appropriate honor since mr pic was did not address the defamation claim let me do that very quickly i think also the court below judge caldwell properly dismissed that case because the only publications that were alleged in the complaint were in the court system in the paul ascii circuit court records and to the newspaper and those are without question absolutely privileged  think this case is there a certain amount of this in the complaint about republicans in terms of what what exactly happened your honor i think it at paragraph and kentucky is privileged under the greenfield versus courier journal those things that are published from the court record into the newspaper are privileged communications where you're it's not well drafted or not that it's all he says is that it was in the court record and in a republic he didn't say an article he didn't say there were statements about it he says it was repub the court record and then re public into the newspaper and those are perfectly communications absolutely privilege regardless of the intent behind them it was my understanding of your response that is that know arrests in pelasgic county or charges in pelasgic county and put that statement there i believe that's what was alleged here and i believe that's what is privileged and thus makes his claim fail on that pleadings you want to this is the appropriate case for dismissal on the pleadings you look like you had a question i'm sorry ok i was thinking about the word republication i mean it's does coincide with papers newspapers are published but republication i suppose in the broad sense of that word could be someone going out on the courthouse steps and screaming out the news that that this man you know agreed to whatever your honor i think if that had been the case that would have been stated in detail i realize that i'm thinking about the meaning of the word right but you know it doesn't have to be that judge moore is trying to think and so my about whether that tells us it means the newspaper picked up the docket i think appellants use of the word in the complaint every publication indicates that it was picked up it wasn't just published in the newspaper but you know those documents were picked up they were published in the court which we know is privilege without question and then republished in some way does that mean published exactly in the newspaper no  believe that but i think those statements are our privilege and i don't think he's put enough and who to his complaint to get over that hurdle of a dismissal on the pleadings you're on i think this is this is a case that needs to be a far judge caldwell did a very thoughtful very very nice opinion and i know mr suspect mr hecht just will come back and say again that she said that this was a disturbing abuse of power and i would suggest that most cases where there is a malicious prosecution claim presented there is an allegation of a disturbing abuse of power that's just kind of the nature of the base and so that doesn't relieve him of the obligation to  put into his complaint those facts to sustain his cause of action and for those reasons we ask that the decision of judge caldwell in the district court below be affirmed thank you now we are accused of ignoring kentucky law and yet the only response that the defendant house to williams vs climb is that it was the published but that doesn't  ms jacobs made the university of home had mr onus has to prove it each and every element of the tour but we were deprived of the opportunity to prove anything what does the publishing what is the effect of the publishing in kentucky the fact of it is that it doesn't become the law of the land it was total it was still the law of that particular case it still indicate and it's can still be cited under as authority despite it's the publication would indicate that it has some authority whether it's presidential value someone or to a published opinion i would say no it doesn't thanks but but nonetheless this case is also in federal court and when it is suggested that because this stemmed from a kentucky prosecution that federal law has no bearing on it for example the town of newton case or kaufman versus kreutz i would suggest that at the very least the coffin versus crudes establishes a procedural rule for the district courts that in evaluating these type of agreements that the district or is in the context of a diversity yes and judge burleson dismissed it without going behind the agreement to determine the things like the voluntariness the public interest  just think that that document is separate apart from the the actual criminal proceeding where he was not present because he was the surety on the bond and so the surety no matter what the circumstance of the order is there has to be a release by the surety of the bond whether very often it's for attorney's fees because very often prominent defense attorneys will represent clients in return for a bond assignment sometimes in whole and sometimes in part so in effect what that did is that allowed the clerk to write two checks one to mr imus for the difference and we're looking to the significance of that well i think the significance of it is what i had suggested there was an underlying contractual dispute and this made the entire dispute go away at this point there could be no lawsuit which there should have been in the first instance this was clearly a civil matter and i'm not suggesting that it's bit that it went away is a benefit to your client and a detriment well i would say that it was a benefit will hit the detriment i'd look at if the twenty two thousand dollars well that's true but on the other hand there was a dispute about the delivery of the camera and  what camera can be delivered and so you know that was the entire price was it didn't the portion for the drone which was retained by the sheriff's department yes he was paying much more  than the thumb that would be represented by the camera while now actually there's an invoice in the record and the the the the proper amount of restoration was the price of the camera the drone was actually nine thousand and the plastic county sheriff's department retained the the drone and the only thing i would say with respect to the defamation claim and the publication publication is a term of art and defamation law it simply means making a statement or