Archive for April, 2008

Secretary Brown names chairs of criminal justice council committees

Tuesday, April 29th, 2008

April 29, 2008 

FRANKFORT, KY – Justice and Public Safety Secretary J. Michael Brown has named chairpersons of each of five committees created to review specific issues that impact incarceration rates. 

The announcement came during a meeting of the Kentucky Criminal Justice Council as it continued its work developing strategies to curb the growth rate of the commonwealth’s prison population. 

Committees and their chairs are: 

Sentencing Committee (review Kentucky’s sentencing practices, including but not limited to KRS 439; sentencing enhancements and disparities; persistent felony offender statutes; and various published sentencing reports). Chair: Charles Geveden, Deputy Secretary, Justice and Public Safety Cabinet; 

Penal Code Committee (general review of Kentucky’s penal code for statutory changes). Chair: Chris Cohron, President,  Kentucky Commonwealth Attorneys Association; 

218A Committee (specific review of controlled substance statutes for uniformity, proposed changes, and the advisability of controlled substance statutes becoming part of the penal code). Chair: Greg Howard, Commissioner, Department of Kentucky Vehicle Enforcement; 

Corrections, Probation and Parole Committee (review of current inmate population, including aging and infirm prisoners; possible alternatives to incarceration; statutes and practices relating to probation and parole, including but not limited to KRS 439; Kentucky’s violation and recidivism rates; and disparities within the system).  Chair: LaDonna Thompson, Commissioner, Department of Corrections; and 

Pre-trial Release Committee ( review criminal rules regarding bail, actions of pre-trial officers and judges, and policies to accomplish release after arrest in a timely and efficient manner).  Chair: The Honorable Kelly Easton, chief regional circuit judge, Green River Region. 

Chairs will appoint members of their committees, which will begin meeting immediately to prepare recommendations for consideration by the full council. 

Sen. Williams gives LawReader a Sherman(esque) statement regarding Supreme Court vacancy.

Tuesday, April 29th, 2008


 

By LawReader Senior Editor Stan Billingsley                         April 29, 2008
 

LawReader has received a number of inquiries about the possible intent of Sen. David Williams seeking to fill the vacancy on the Ky. Supreme Court.  The vacancy will be created on June 30th. upon the announced retirement of Chief Justice Lambert.  This question naturally grows out of the fact that Williams of Burkesville in Wayne County, like Lambert,  is a resident of the 3rd. Supreme Court District
 

In a LawReader interview we asked him if he had any interest in the Judicial post.
He gave us a statement in as firm a manner as did General William Tecumseh Sherman* when he was asked if he would run for the presidency:
 

Williams said : “I will not seek nor will I accept appointment to the Ky. Supreme Court “.  
 

We conclude from his statement, and from the tenor of his voice that he clearly intends to remain in the State Senate.
 

*Sherman(esque) statement” or “Sherman speech” is American political jargon for a clear and direct statement, by a potential candidate, indicating that he or she will not run for a particular elected position.
The term derives from the Sherman pledge, a remark made by American Civil War General William Tecumseh Sherman when he was being considered as a possible Republican candidate for the presidential election of 1884. He declined, saying “If drafted, I will not run; if nominated, I will not accept; if elected, I will not serve.” – Wikipedia

The timing of the Governor’s veto of the transportation bill challenged by Sen. David Williams. He has a strong argument.

Tuesday, April 29th, 2008

By LawReader Senior Editor Stan Billingsley                        April 29, 2008

 We have previously analyzed this veto and concluded that Section 88 of the Ky. Constitution disposed of this issue.  Sen. Williams makes a strong argument which convinces us we should have studied Section 88 a little closer.

We relied on the portion of Section 88 which states the governor may veto a bill:

“Every bill which shall have passed the two Houses shall be presented to the Governor. If he approve, he shall sign it; but if not, he shall return it with his objection”s (i.e. veto it)  …
 This section goes on to say: “If any bill shall not be returned by the Governor within ten days (Sundays excepted) after it shall have been presented to him..”
The legislature adjourned on April 15th.   The bill was not “presented” to the Governor until the l6th.  Then under legal procedures for counting periods of limitation you start your counting of days with the next day. See: Lewis, Secretary of State, v. Cozine, 234 Ky. 781 (KY, 1930)

That means that day one of the 10 day time period would have been April l7th. (with Sundays excluded), and therefore the governor’s veto on April 25th, would have been on the last day of the ten day veto period.
 However in a interview with Sen. Williams he brought to our attention additional wording in Section 88 which upon close examination supports the conclusion that the bill became law and the veto is invalid.  

We have not found any case law in Kentucky applying directly on point with this question, and therefore the courts may reach a different conclusion,  however we find the reading given to Section 88 by Senator Williams to be overwhelmingly persuasive.

That additional language in Section 88 states:
 “it shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which case it shall be a law, unless disapproved by him within ten days after the adjournment, in which case his veto message shall be spread upon the register kept by the Secretary of State.”
 

Any veto made within ten days after the adjournment of the General Assembly is therefore sent to the Secretary of State since the General Assembly is then not in session.
Let’s break this down into its components parts. 
 This says the bill if unsigned, will become law, unless the general assembly by their adjournment prevents its return.  Note the General Assembly adjourned on April 15th.
 

Therefore the ten day period “after adjournment” in which the Governor has the right to veto a bill started running on April l6th.  Then counting forward (excluding Sundays) we find that the 10th. and last day for the issuance of a veto expired on Saturday April 26th.  (This leaves out April 20th. which was a Sunday).
 The first provision for a veto period starts with the PRESENTMENT of the bill to the Governor. The language of Section 88 then sets another time period in the event the General Assembly has prevented the Governor from returning the bill due to the adjournment of the General Assembly.
 

We restate the distinction. There is one time period running from the presentment of the bill, and the other time period starts, and supersedes the first time period, with the act of adjournment.  The first time period would end on Monday April 28th. the day the Governor vetoed the bill.   The second time period began at the time of the adjournment and ended on Sat. April 26th.  Under the adjournment time period, the transportation bill became law at midnight on Saturday April 26th.
 The reason there are two different time periods in which a veto can be issued is that some bills are passed early in the session, and others are passed at the last minute.  Therefore, the Constitution recognizes the need for two different starting times for veto periods, but each are for 10 days.
 

The act of presentment is not required or possible after the official adjournment of the General Assembly.  The act of the adjournment sets up a different time period for the commencement of the ten day veto period.
 There is yet another wrinkle to this issue which may have to be resolved by the Courts.
When did the General Assembly adjourn?
 

Section 42 of the Constitution states:
 “nor shall a session of the General Assembly continue beyond sixty legislative days nor shall it extend beyond April 15..”
 

While the Constitution declares that the General Assembly ends on April l5th. the press reports that the clocks were stopped a few minutes before midnight while additional legislation was formalized.  Then the General Assembly adjourned, presumably after midnight.. 
 The courts have ruled that they will generally rely on the official journal of the House and Senate to determine when the legislature adjourned and on which day official acts occurred.  However, they have also said if this issue is raised, then they will receive “extrinsic evidence” as to the actual time an “official act” occurred.  The Courier-Journal wrote that the act of turning the clocks back was recorded by KET television. That would seem to provide a whole lot of extrinsic evidence as to whether or not the legislature adjourned on the l5th. or the l6th.
 

If this time period was actually carried over to April l6th. and the adjournment  then occurred on the l6th., then the time period in which Gov. Beshear had to veto the transportation bill was Monday April 28th  and his veto would be upheld.
 We believe it is very unlikely that the courts would ever rule that by stopping the clocks the General Assembly was able to perform an official act after midnight on the l5th. Therefore the General Assembly will be found to have adjourned automatically and legally even if not by formal action, upon the stroke of midnight on April l5th.
 

Such a ruling would be cheered by any opponents of the two or three bills that are alleged to have been enrolled after midnight, since it would declare them void.  But such a ruling would be the death knell of the Governor’s veto action of the transportation bill, since it most likely means the time in which he had to veto the bill began to toll on the l6th. and became law two days before the attempted veto.
 ***
Footnote:  An Attorney General’s Opinion  24 supports the 10 day veto period after an adjournment as being separate from the intial 10 day veto period otherwise mentioned in Section 88.  See:

  

 

1980-91 Ky. Op. Attn. Gen 2-152, Ky. OAG 80-204 1980 WL 10319 


 

 

Williams challenges Beshear veto of highway bill. See the law behind the news.

Monday, April 28th, 2008

 

 

By LawrReader Senior Editor  Stan Billingsley                                                 April 28, 2008

A controversy has arisen over a bill passed by the Legislature and subsequently vetoed by Gov. Beshear.

The bill was passed late on April 15.  The bill was not vetoed by the Governor until Monday April 28, 2008. That means that the veto didn’t occur until l3 days after the date of passage of the bill.

 Senate President David Williams, R-Burkesville, contends that Beshear did not issue the veto in time.The legislature approved House Bill 79 in the final hours of April 15 and did not send it to the governor until April 16, Beshear said.
Gov. Beshear said he had the necessary time to consider the veto. He said the Constitution does not count Sundays in the 10 days it gives a governor to consider a veto.
We have reviewed Section 88 of the Kentucky Constitution which deals with the
Governor’s veto power.  After reading this constitutional provision we conclude the Governor is right on this one. 
 

The veto must be within 10 days after the bill is PRESENTED to the Governor and so the 10 day period did not start to run until April l6th, the day he received the bill.  The date of passage (April l5th.) is not relevant to the calculation of the ten day time period.
 

Secondly, in counting the ten day period, one is required by the Constitution to NOT COUNT SUNDAYS. Therefore when you count April l7th. as the first day, and delete Sundays, you will discover that Monday April 28th. was indeed the 10th. day, and the Governors veto powers remained intact.  (Kentucky law holds that when a time period is mandated you start counting the lst day of the time period as the day after the commencement of the tolling period, i.e. April l7th..)
See the operative wording of Kentucky Constitution - Section 88Signature of bills by Governor — Veto — Passage over veto — Partial veto.
“If any bill shall not be returned by the Governor within ten days (Sundays excepted) after it shall have been presented to him, it shall be a law in like manner as if he had signed it, ..?
So House Bill 79 was legally vetoed.  The bill would have mandated that a legislative wish list of highway and bridge projects be advanced in lieu of allowing the Transportation Cabinet to determine which projects were most worthy.

American Association of Internet Journalists

Monday, April 28th, 2008

 
American Association of Internet Journalists membership applications invited   
            

 
The American Association of Internet Journalists was formed to recognize the contribution that writer’s and publisher’s who deliver their news, opinions, and educational materials by electronic means, make to the benefit and enlightenment of society.
 
The association requires all members in good standing to ascribe to a Code of Ethics that attempts to elevate the level of discourse they publish on web sites, blogs and electronically distributed newsletters.  View Code of Ethics at American Association of Internet Journalists
 
The association will attempt to advance the quality of Internet Journalism, and will support laws which recognize the contribution that internet journalists make to the elevation of public discourse and education of society.
 
The association will from time to time publically recognize the outstanding work of internet journalists.
 
                                                       MEMBERSHIP
 

 
Applicants for membership in the non-profit association may submit an application for membership to:
 
AAIJ
 

314th. 7th. St.
 

Carrollton, Ky. 41008
 

 


A membership application fee of $25 shall be enclosed.  This fee covers the processing of the application for membership and the first year’s membership fee in the association. All memberships shall expire on the first day of July.  Memberships fees shall not be pro-rated or refunded.
 
The membership application should include a description of the means by which the applicant publishes their writings, the address of the web site which hosts their publication, and an example of a recent article published by the applicant.  The membership committee will evaluate the information provided by the applicant.
 

GOVERNER WILL BE CALLED ON TO FILL TWO VACANCIES ON SUPREME COURT NOMINATING COMMISSION BEFORE THEY ACT TO FILL 3RD. DISTRICT SUPREME COURT SEAT VACATED BY CHIEF JUSTICE LAMBERT

Monday, April 28th, 2008

APRIL 28, 2008

 

There are currently two vacancies on the Appellate Judge’s Nominating Commission (which makes nominations for all Appellate Judges statewide). This Commission for Appellate judges is separate from the Judicial District Commissions.  The current members are listed below.

 

These two vacant commission positions will be filled by appointment by Governor Beshear before the next meeting of the Commission. Chief Justice Lambert will be replaced on the commission by whomever is elected as the new Chief Justice.

 

 

CURRENT MEMBERS OF JUDICIAL NOMINATING COMMISSION FOR THE SUPREME COURT AND COURT OF APPEALS
 

Hon. Joseph E. Lambert, Chair
Chief Justice, Supreme Court
Room 231 – Capitol Building
Frankfort, Kentucky 40601
Phone: 502/564-4162 (Business)
 

Hon. Charles E. English, Sr.
Attorney at Law
1101 College Street
                                    Bowling Green, Kentucky 42101
                                    Phone:  270/781-6500 (Business)
 

Hon. John T. Ballantine
Attorney at Law
2000 PNC Plaza
500 W. Jefferson St.
Louisville, KY  40202
Phone: 502/582-1601 (Business)
 

Jeff Farmer
400 Michigan Avenue
Elizabethtown, KY  42701
Phone: 270/769-0975
(Term Expires:  January 1, 2010)
 

Eunice D. Montfort
210 Fairway Drive
Frankfort, KY 40601
Phone: 502/695-8005 (Residence)
 502/223-5754 (Business)
(Term Expires:  January 1, 2010)
 

Phyllis Liebman
453 Blackfoot Trail
Frankfort, KY  40601
Phone: 502/695-1484 (Residence)
(Term Expires:  January 1, 2008)
 

John McIntosh
176 Cherokee Park
Lexington, KY  40503
Phone: 859/276-2715 (Residence)
 859/335-8151 (Business)
(Term Expires: January 1, 2008)
 

 

Living off Free Fast Food store Condiments – Making Mulligan Stew

Monday, April 28th, 2008

     

By LawReader Food & Beverage Critic Stan Billingsley                       April 28, 2008

 

    Recently I ordered a sandwich from a fast food restaurant and when I got home I noticed the burger was accompanied by whole handfuls of condiments that the restaurant worker had scooped into my bag.  This wasn’t the first time this has happened.

 

My wife used to be a Food Broker and she shakes her head every time she sees a restaurant worker fill the carry out bag with most of their employers profit.  Some of these condiments cost the restaurant up to a nickel a piece. 

 

Just being curious I counted out 45 separate items of condiments which came free with my burger.

 

My bag contained:

 

5 packages of Heinz Mayonnaise ( 394 calories per package) =    1970 calories
 

13 packages of Heinz Ketchup (100 calories per package)  =        1300 calories
 

5 packages of Heinz Mustard  (50 calories per package)    =           250 calories
 

9 packages of salt  (enough to elevate your blood pressure to fight or flee mode)
 

13 packages of pepper                                                      ____________________
                                                                                           Total calories     3,520
 

  

If you buy a small hamburger for $1.00 and you get condiments in the quantity that I did, you are getting your dollar back in condiments alone.  That means the restaurant is giving  $2.00 worth of “goods? for $1.00. No wonder they can only pay minimum wage.

 

Assuming a hamburger with all the trimmings and four ounces of beef comes to 750 calories, you are actually getting 3.5 times more calories in the condiments than in the sandwich.

 

Seeing how much nutrition is being given away for free, (many restaurants have their condiments laying out in the open at self-service counters), I understand that the old stories about people who are broke making Mulligan Stew from restaurant condiments is believable.

 

Mulligan Stew is a pseudonym for the concoction that tramps are said to make.  They go into a restaurant and ask for a free cup of hot water.  They then fill up the cup with free condiments from the counter, stir it up and slurp away a free meal full of two days worth of required calories. 

 

I may just save these condiments and put them in the refrigerator vegetable drawer and wait for the current food crisis caused by all the corn being used to grow ethanol to get a little worse, and then see what I can get for these tasty provisions on E-Bay.

Procedure that will be followed to fill the Supreme Court vacancy that will exist after June 30th due to the resignation of Chief Justice Joseph Lambert.

Monday, April 28th, 2008

By LawReader Senior Editor Stan Billingsley                               April 28, 2008

Will the next member of the Ky. Supreme Court be from Bardstown, Lebanon, Somerset,  Burkesville or some other Kentucky community?  The district from which the replacement Justice will be selected covers a large portion of south central Kentucky.

The nomination process will be headed up by the next Chief Justice who will be selected before the effective date of Justice Lambert’s resignation.  He has stated that he will call for an election of the Chief Justice before he resigns, and therefore will have one of the four votes necessary to select the next Chief Justice.

If you have an interest in becoming one of Kentucky’s seven Supreme Court Justices, you should submit your name to the Judicial Nominating Commission.

The vacancy on the Supreme Court will occur on June 27th. due to the announced resignation of Chief Justice Joseph Lambert.  His district is the 3rd. Judicial District.

There are 27 counties in the Third Supreme Court Judicial District: Adair, Bell, Casey, Clay, Clinton, Cumberland, Estill, Garrard, Green, Jackson, Knox, Laurel, Lee, Leslie, Lincoln, Marion, McCreary, Metcalfe, Monroe, Nelson, Pulaski, Rockcastle, Russell, Taylor, Washington, Wayne, and Whitley Counties.

Any attorney who has been licensed for eight years, and is a resident of the 3rd. Supreme Court Judicial District is eligible to be appointed to the Supreme Court. There is no requirement that a nominee have any prior judicial experience.

Two potential candidates for the vacancy created by the resignation of Chief Justice Joseph Lambert, and who may be considered are the sitting Court of  Appeals judges from the 3rd. Judicial District: Michael Caperton - 3rd District, 1st Division and James H. Lambert - 3rd District, 2nd Division.  James H. Lambert is the brother of Chief Justice Joseph Lambert.  Both Ct. of Appeals Judges have served only a short time.

When a vacancy occurs in a judicial office, the Chief Justice is required to give notice of the vacancy to “alert the general public‿.  An applicant can call the KBA at (502) 564-3795 to find the names and addresses of the current members of the Judicial Nomination Commission, to submit his/her name as an interested applicant.  This can also be accomplished by submitting a letter of interest to the next Chief Justice.

Having gone through this process ourselves, we recommend that an interested nominee write or contact each member of the nominating commission and express their interest in the nomination.  We would caution against any hard core campaigning for the vacancy.  A simple letter expressing your interest and perhaps listing your resume would be appropriate.

A questionnaire will be sent out to applicants. This information will be provided to the members of the appropriate Nominating Commission.  The Chief Justice will call a meeting of the commission and they may consider the people who have submitted an application, OR ANYONE ELSE.  Even if a person has not submitted a request to be considered, and has failed to return the questionnaire, they can still be considered by the Nominating Commission.  The Commission itself can generate a name irrespective or any time limits.

The Commission then forwards up to three nominees they select to the Governor.  The Governor has 60 days to select a nominee from the list of names submitted to him.  Some commissions have sent less than three names, but that practice has been criticized as a ruse to limit the Governor’s options.  If the Governor fails to select a nominee during this period, then the Chief Justice is empowered to fill the vacancy.

Once the Governor selects a nominee, that person must only be sworn in by a person authorized to administer an oath, and they then take office. A preferred procedure would be to be sworn in by the Chief Justice in a ceremony at Frankfort.  We would expect that this process to fill the vacancy will take 60 to 90 days, and the replacement Justice should be in office by late August or early September.

The nominee holds the office until the next general election, and then must run for the balance of the unexpired term to which he/she was appointed.  Any one wishing to run for the election for the unexpired term must file for the Nov. election as soon as there is a vacancy.  You should contact the Sec. of State for filing details.

The person appointed by the Gov. must also file for the Nov. election if they want to extend their term past November.

The members of the  Supreme Court and Court of Appeals Nominating Commission will make the decision as to the nominees to be recommended to the Governor.  Some Commission members will be up for election this November, but this vacancy will be filled by current members whose term has not yet expired

There is a separate Judicial Nomination Commission for Appellate judges.  The current members are listed below.

There are two vacancies on the Commission who will be appointed by Governor Beshear before the next meeting of the Commission.  Chief Justice Lambert will be replaced by whomever is elected by the other Supreme Court Justices as the new Chief Justice. Justice Lambert has indicated he plans to call for an election of the new Chief Justice before he retires. 

CURRENT JUDICIAL NOMINATING COMMISSION FOR THE SUPREME COURT AND COURT OF APPEALS
 

Hon. Joseph E. Lambert, Chair
Chief Justice, Supreme Court
Room 231 – Capitol Building
Frankfort, Kentucky 40601
Phone: 502/564-4162 (Business)
 Hon. Charles E. English, Sr.
Attorney at Law
1101 College Street
                                     Bowling Green, Kentucky 42101
                                     Phone:  270/781-6500 (Business)
 Hon. John T. Ballantine
Attorney at Law
2000 PNC Plaza
500 W. Jefferson St.
Louisville, KY  40202
Phone: 502/582-1601 (Business)
 Jeff Farmer
400 Michigan Avenue
Elizabethtown, KY  42701
Phone: 270/769-0975
(Term Expires:  January 1, 2010)
  Eunice D. Montfort
210 Fairway Drive
Frankfort, KY 40601
Phone: 502/695-8005 (Residence)
502/223-5754 (Business)
(Term Expires:  January 1, 2010)
 Phyllis Liebman
453 Blackfoot Trail
Frankfort, KY  40601
Phone: 502/695-1484 (Residence)
(Term Expires:  January 1, 2008)
 John McIntosh
176 Cherokee Park
Lexington, KY  40503
Phone: 859/276-2715 (Residence)
 859/335-8151 (Business)
(Term Expires: January 1, 2008)
 
   

Supreme Court will hear campaign finance law that give millionaires an advantage

Saturday, April 26th, 2008

WASHINGTON (AFP) — The US Supreme Court Tuesday began deliberations on an amendment to campaign finance laws aimed at easing the rules for Congress hopefuls who run against millionaire candidates.

Under US law, individual donors are limited as to how much they can contribute to one or more candidates.

But in the name of freedom of expression, candidates can dig deep and spend as much of their personal wealth as they want on their own campaigns.

As part of a campaign finance reform co-sponsored by Republican Senator John McCain and adopted by Congress in 2002, the donor rules were eased for anyone whose opponent puts up more than 350,000 dollars of their own fortune.

In that case, an individual donor can contribute up to 6,900 dollars to that candidate, compared with just 2,300 to all the others in the race.

In 2004 and 2006, Jack Davis ran in vain for the House of Representatives in New York state and spent some three million dollars of his own money on the two campaigns.

Later in 2006 he appealed to the US courts saying he had been disadvantaged by the amendment which allowed his opponent to boost his campaign chest.

“It’s not often that the rich claim they’ve been unduly burdened because of their fortunes,? the Washington Post said dryly in an editorial Tuesday.

“The public good is served when voters have confidence that seats cannot be bought. The disclosure rules and accommodations required by the amendment fairly promote that goal and should be upheld.?

According to figures from the Federal Election Commission, candidates who spent more than 350,000 dollars of their own funds in 2004 and 2006 put up a total of 144 million dollars of their personal fortune.

Correspondingly, thanks to the amendment their opponents boosted their campaign chests by an extra 8.6 million dollars, although that figure fell short of how much more they could have raised under the rules.

“The perception that House and Senate seats may be bought and are the exclusive province of the rich are corrosive perceptions that Congress can seek to address,? the commission’s brief said.

A ruling is expected before July.

The funding rules for Congressional elections are different from those governing US presidential campaigns, with the 2008 White House race shaping up to be the most expensive ever with estimates reaching a billion dollars.

We have a winner. How the Gov. can work with Senator David Williams -we propose a Summit at Summit Hills

Saturday, April 26th, 2008

Can the relationship of Governor Beshear and the Democratic House, with Sen. David Williams and the Republican Senate be saved?
 

 A LawReader sponsor has offered a prize of $50 for the best suggestion on how to deal with Sen. Williams.  We believe we have a winner of that contest.  That winner is Senator David Williams himself.   The submissions ranged from illegal and humorous, all the way to interesting and possible. We have winnowed the submissions down to two “entries?.

 

The first idea discusses a broad frontal attack launching a political effort to remove enough Republican Senators in this fall’s election cycle to allow the Democrats to gain control of the State Senate.  That is an obvious strategy and it is nothing new.  Both parties are always trying to take control through the electoral process.  However the electorate in Kentucky recently seems to like a divided legislature, or at least they haven’t evidenced any great interest in granting control to one party.  If the public wants such a change they can make one on the November 4th. of this year.

 

This suggestion goes on to suggest looking for the weak links in the Senate and recruiting them to the other team.  This worked for the Republicans and could possible work again.  If the Democrats were to get within one or two seats necessary to control the Senate, then you can be sure that feelers will be extended to any potential Republican deserters.  We can anticipate offers of bridges, highways, and civic centers to sweeten such deals.

 

The problem with this first proposal is that it is nothing new.  More confrontation is not likely to provide a benefit for the Commonwealth anytime soon.

 

Whatever you want to say about David Williams, you have got to admit that he has firm control of the Senate, and so far has outsmarted his opponents time and time again.  He is a better coach at getting his team to play defense than Pitino or Gillespie.  So the frontal assault suggestion loses out to a more attainable plan.

 

This takes us to the second proposal we have received, and it comes from a source with credibility on this topic.  In a telephone conversation with Sen. Williams we asked him his thoughts about the relationship between him and the House leaders and Gov.Beshear.  From his comments, we perceive the best  answer to our request for ideas on “How to deal with David Williams? (even though he wasn’t aware we would consider his comments as an official entry) comes from Senator Williams himself.

 

He detailed attempts on his part to meet with the Governor and discuss common ground on various legislative issues. These meetings did not go as well as he had hoped. 

 

Apparently he has had little opportunity to spend personal time with Gov. Beshear without the chilling presence of gubernatorial aides being present.  We concluded from his comments that he is willing to seek bi-partisan cooperation in a number of areas, but the casino issue is not one of them.

 

He said that the Governor campaigned on two issues, casino gambling and taking control of the Senate.  The Governor’s efforts to take control of the Senate is an obvious bone of contention for Williams.  This is obviously not conducive to a close working relationship between Williams and Beshear.

 

Williams pointed out that that the legislature is quite different than it was thirty years ago. He notes that legislators are not as easy to be lead by a governor than they used to be before the legislative independence movement that started in the Administration of John Y. Brown.  

 

Senator Williams detailed a list of issues on which there were bi-partisan efforts during this 2008 session of the General Assembly.  Some of these efforts were derailed due to the inability of the House leaders to come to meetings with the authority to make commitments.  He cited an example of some legislation on education where House members had reached an agreement but quickly changed their position when it faced opposition from teacher’s organizations.  “How can you mediate an issue when the representatives come to the meeting without any authority to negotiate?? he asked.

 

He brought my attention to an issue I had raised concerning the Judicial Budget bill which severely cut the Judicial Budget by $50 million dollars.  He cited his successful efforts to restore some funding from the initial proposal for the Judicial Budget.  He said that the Judicial Budget was substantially created by the House not by the Senate. (So perhaps critics of what happened to the Judicial Budget, myself included, should direct some questions to the House Budget Chairman, Representative Harry Moberly Jr.).

 

He said the legislation that will terminate the Judicial Form Retirement System and throw it in with the State Retirement System as an idea that originated in the House not the Senate.  He denied any generalized opposition to the Judicial system, and pointed out that his wife is a District Judge.

 

While we can not directly credit Sen.Williams with offering an olive branch to the Governor, we conclude from the tenor of his comments that he is open to discussion with the Governor on a number of issues. We believe he is amenable to discussions on important issues that remain on the table such as the underfunding of the State Retirement System.  He said that as a Kentuckian, “…he wants the Governor to succeed.?

 

Governor Beshear has announced that he will consider a Special Session of the General Assembly to consider the State Retirement systems problems if  members of the legislature can come to an agreement. 

 

So we believe that Senator Williams may have answered the question, at least from his point of view, on how the relationship between Governor Beshear and the House, and Senator Williams and the Senate, can be saved. 

 

This would begin by the Governor making efforts to develop a better relationship with Senator Williams. We don’t expect a close personal relationship will develop, but that isn’t required for the present gridlock in Frankfort to be broken.  We would suggest that a “professional? relationship is possible.  

 

The Governor should leave his aides at home, and conduct any such meetings with the realization that Williams is likely going to be in control of the Senate during the entire term of this Administration.   

 

We would suggest that some things are not going to change.  The Democrats are going to try to remove the Republicans from office, and the Republicans are going to try to remove the Democrats from office. That is just a fact of life. That being said, that doesn’t prevent some level of cooperation to prevent the kind of gridlock presently existing.

 

Both Senator Williams and Governor Beshear should not focus on the issues which are beyond their control.  They should focus on specific legislative issues that can be achieved. We suggest the application of the Socratic Method which holds that opposing parties first discuss the things on which they can agree, and then the issues on which they can’t agree may be possible to work around.  

 

As a mediator, I have seen parties farther apart then Williams and Beshear reach an agreement.  This occurs because both sides usually come to the conclusion that some agreement is more beneficial than the risks of not reaching an agreement.  If this gridlock goes on much longer, the public is going to punish someone, and it is possible that they will punish everyone in Frankfort.

 

LawReader hereby makes an offer to Governor Beshear and President Williams to get this process started.  We will set up a golf outing for them at Summit Hills Country Club in Northern Kentucky.  We will call this “The Summit at Summit Hills.?   If they will put away their Billy Clubs and take out their Callaways, we will front the bar tab and the greens fees.  This is neutral ground far from the intrigue of Frankfort.  This is as good a place to start a discussion as one will find anywhere.

 

The third party to this process is of course the House of Representatives. The Governor needs to build a relationship with House Leaders and this may be far more difficult than building a “relationship? with one Senator.  This can’t be done by Executive Orders or the issuance of marching orders.  The Governor needs to get close, very close, to his legislative leaders and share with them the heavy lifting of building a consensus and common goals.  This means that he needs to learn their goals, and as far as possible make them his own.

 

 While in basic training at Ft. Knox, many years ago, a General came to our barracks to inspect the troops.  He didn’t stand us up at attention and order us around, instead he visited with us in small groups and asked us if the food was good, were we getting enough sleep, did our uniforms fit? He actually got me a new uniform when he saw my uniform didn’t fit!  I point out this story because to me it is the perfect model for a leader to follow.  Don’t start with the big things, start with the little things.  That will get the troops in the mood to follow their leader to the barricades.

See more about the exciting world of participle’s

Saturday, April 26th, 2008

Justice Abramson opined on the use of adverbs and participle’s in a recent Sup. Ct. opinion she wrote. The following information might help illuminate the topic a bit more.
Gwen Billingsley
CEO LawReader.com
 

Verb Tense
Definition
The Four Principal Parts of a Verb

Simple Past Past Participle Present Participle (-ing form)

Past Participle
The past participle form of a verb also expresses action that occurred in the past. However, unlike the past tense, the past participle indicates that the action is complete.
You can easily identify the past participle by putting the helping verb had before the verb and then choosing the correct form.
Regular verbs form the past partciple by adding -ed to the simple form, so the past tense and the past participle of a regular verb are the same.
Irregular verbs may form the past participle form by changing the spelling completely—or not at all!

Regular Verbs
Simple Past Past Participle
slip slipped (had) slipped
open opened (had) opened
type typed (had) typed
    
Irregular Verbs
Simple Past Past Participle
drink drank (had) drunk
eat ate (had) eaten
drive drove (had) driven

Present Participle (-ing form)
The present participle describes action that is ongoing or continuing. The present participle is formed by adding -ing to the simple form. The present participle does not change regardless of whether the verb is regular or irregular.

  Simple Past Past Participle Present Participle (-ing)
Regular Verbs open opened (had) opened opening
type typed (had) typed typing
Irregular Verbs eat ate (had) eaten eating
drive drove (had) driven driving

Here’s a simple formula to help you identify the principal parts of any verb:

  • The simple form of the verb is the infinitive. Identify the simple form by placing the word to in front of the verb and choosing the correct form.
  • to skate
  • to bring
  • The past tense of the verb is easily discovered by contextualizing the verb in this sentence:
  • Yesterday, I _________________.

    • Yesterday, I skated.
    • Yesterday, I brought cookies to class.
  • The past participle can be discovered by putting the helping verb had in front of the verb and choosing the correct form.
    • had skated
    • had brought
  • The present participle is formed by adding -ing to the simple form of the verb.
    • skating
    • bringing

    Gwen Billingsley
    C.E.O. Lawreader.com
     

    Links to all new laws passed by 2008 session

    Saturday, April 26th, 2008

    The following laws were adopted by the 2008 Session of the General Assembly.
     

    Click the bill number to read synopsis of bill.  An internal link posted on each bill allows you to read the entire bill.
     

    LRC reports the following bills have been Enrolled, Delivered to Governor and await approval or veto:
    SB 2, 16, 58, 64, 75, 83, 92, 135, 188; HB 2, 29, 79, 84, 170, 179, 182, 187, 201, 204, 293, 316, 322, 328, 369, 370, 440, 475, 506, 507, 509, 510, 514, 540, 552, 577, 590, 606, 607, 608, 611, 615, 625, 626, 633, 638, 640, 649, 655, 676, 683, 690, 696, 697, 698, 704, 758, 765; HCR 93; HJR 6, 68, 81, 82, 83, 130
    Bills Signed by Governor: SB 13, 21, 22, 23, 30, 46, 47, 49, 53, 57, 65, 68, 69, 76, 86, 90, 93, 95, 96, 98, 100, 118, 120, 125, 127, 129, 131, 132, 136, 146, 149, 150, 151, 155, 157, 158, 159, 167, 169, 173, 174, 179, 189, 190, 192, 195, 196, 199, 203, 226, 242, 243; SJR 9, 76, 80; HB 36, 44, 65, 83, 88, 91, 103, 106, 110, 131, 139, 168, 186, 202, 211, 227, 233, 239, 258, 259, 277, 284, 319, 321, 324, 330, 334, 348, 365, 366, 371, 373, 384, 385, 388, 389, 393, 405, 411, 415, 426, 435, 457, 458, 470, 471, 479, 482, 484, 495, 524, 534, 538, 551, 579, 583, 594, 605, 609, 610, 618, 629, 639, 684, 694, 717, 734, 759; HCR 112
     

     

    Became Law Without Governor’s Signature: HB 407, 410
    .
     Line Items Vetoed by Governor: HB 406, 408  (The legislature did not override these vetoes.)
    Any bills vetoed after April 15, cannot be overridden by the legislature.

    Joseph E. Lambert stepping down as Chief Justice of Kentucky June 27th.

    Thursday, April 24th, 2008

    FRANKFORT, Ky., April 24, 2008 — After a decade as chief justice and nearly 22 years as a justice of the Supreme Court of Kentucky, Chief Justice Joseph E. Lambert has decided to leave the court and join the Senior Judge Program. His resignation will be effective June 27, 2008.
    “We have made great progress in the last decade to improve Kentucky courts and make them more responsive to the needs of Kentucky’s families and children,” said Chief Justice Lambert. “As with any individual’s efforts, however, there comes a time to move on.
    “I believe it’s a mistake to remain for too long in a high-level position in government,” he said. “When I became chief justice, it was with the full intention of serving only two four-year terms. However, due to a massive number of judicial elections in 2006 and due to significant changes in the makeup of the Supreme Court at that time, I felt a duty to stay through the period of transition. I’m happy to say that the Court of Justice continues to operate smoothly and this is an appropriate time for me to move on to other professional opportunities.”
    Chief Justice Lambert, 59, was first elected to the Supreme Court in 1986 from the 27 southeastern Kentucky counties of the 3rd Supreme Court District. He was subsequently re-elected in 1994 and 2002. He become Kentucky’s fourth chief justice in October 1998 by a vote of his fellow justices. Chief Justice Lambert was later re-elected to two additional four-year terms as chief justice, in 2002 and in 2006.
    Reflecting on his tenure, Chief Justice Lambert said, “Serving on the Supreme Court and as chief justice has been the greatest privilege of my life. I have had the honor of serving with 26 outstanding men and women, every one of whom has been a fine legal scholar and a thoroughly honorable person.”
    Seven justices sit on the Supreme Court, Kentucky’s highest court. They are elected from seven appellate court districts and serve eight-year terms. The Kentucky Constitution provides that the justices elect one of their fellow justices to serve as chief justice for a term of four years. The chief justice is executive head of the statewide judicial system. He oversees the Administrative Office of the Courts (AOC) in Frankfort and the 4,000 statewide employees of the Kentucky Court of Justice, including elected justices, judges and circuit court clerks. The chief justice proposes a biennial budget to the General Assembly and executes the Judicial Branch budget. 
    During Chief Justice Lambert’s 10-year tenure, the Kentucky Court of Justice has made great strides in Family Court, judicial facilities, court technology, Drug Court, judicial education, pretrial services and diversity awareness. He considers passage of the Family Court constitutional amendment in 2002 to be one of his most significant accomplishments. In the last decade, Kentucky has earned a national reputation for Family Court, court facilities improvement, Drug Court and many other cutting-edge initiatives.
    As a justice of the Supreme Court, Chief Justice Lambert authored more than 400 published opinions of the Court and scores of dissenting and concurring opinions. In addition, he has authored more than 500 memorandum opinions. Chief Justice Lambert has been a frequent lecturer at bar conferences and has authored articles for publication in scholarly journals and the Kentucky Bar Association’s Bench and Bar magazine. He has also participated in numerous national legal education events as an invited speaker or panelist. As chief justice, he has been an active member of the national Conference of Chief Justices and was elected to serve on its board of directors.
    Profile of Chief Justice Lambert
    In 2000, the Kentucky Bar Association named him Outstanding Judge of Kentucky. He is a former board member of the Conference of Chief Justices and a former regent of Eastern Kentucky University. He currently serves as board chair of the Kentucky Judicial Form Retirement Plan.
    The Kentucky Department of Public Advocacy gave Chief Justice Lambert its Public Service Award in 2006. In 2004, he received the Civil Rights Award from both the Northern Kentucky NAACP and the Lexington NAACP for his commitment to eliminating discrimination. In 2003, he was awarded the Kentucky Bar Association President’s Special Service Award. He was given the Kentucky Public Advocate Award in 2001. In 2000, the National Association of Drug Court Professionals gave him its Leadership Award.
    In October 2007, U.S. Chief Justice John G. Roberts Jr. appointed Chief Justice Lambert to membership on the Committee on Federal-State Jurisdiction of the Judicial Conference of the United States.
    He holds a bachelor’s degree from Georgetown (Ky.) College and a juris doctor from the University of Louisville Brandeis School of Law, which gave him its Distinguished Alumni Award. He has received honorary doctor of laws degrees from Georgetown College, Eastern Kentucky University and Northern Kentucky University Chase College of Law. He is a native of Rockcastle County and resides in Mt. Vernon with his wife, Debra, an attorney. They have two sons, Joseph and John.
    A Decade of Court of Justice Accomplishments
    Improving Court Facilities
    Chief Justice Lambert believes his greatest legacy may be the 70 new judicial centers that have been completed, authorized or begun during his tenure. These new facilities have given Kentucky citizens safe, cost-effective buildings in which to exercise their legal and constitutional rights. Kentucky’s courthouses have long served as the heart of its cities and counties, yet extensive deterioration of many old courthouses threatened to compromise access to the courts. An audit in the 1990s showed that many courthouses suffered from overcrowding and safety and security issues. Outdated technology and aging electrical and mechanical systems rendered many of these buildings inadequate.
    A major initiative to improve judicial buildings began in 2000 when the Kentucky Court of Justice launched the comprehensive Facilities Management System. This new system was designed to objectively and fairly set priorities for court facility improvements. Chief Justice Lambert worked with the 2000 General Assembly to pass House Bill 734, which led to the establishment of rules to regulate the state’s judicial center construction program. In October 2000, Chief Justice Lambert implemented the new system by adopting the Administrative Procedures for the Court of Justice, Part X, which carries the authority of law. In only eight years, this new approach has exceeded all expectations in its ability to provide practical and efficient judicial buildings for Kentucky citizens.
    Family Court
    To establish the legality of Family Court in Kentucky, Chief Justice Lambert proposed and obtained passage of the 2002 Family Court constitutional amendment with more than 75 percent of voters supporting the amendment. Since then Family Court has expanded to 71 Kentucky counties with a combined population of nearly 3.2 million. Family Court provides one judge to hear all of a family’s issues relating to divorce, child custody, adoption, termination of parental rights, domestic violence, child abuse and neglect.
    Because Family Court is devoted exclusively to cases involving families and children, these cases do not compete for court time with criminal and other civil cases. Family Court is a division of Circuit Court, Kentucky’s highest trial court level, and employs full-time judges with the same qualifications as those who serve other divisions of Circuit Court.
     
    Drug Court
    Chief Justice Lambert has expanded Drug Court to 115 counties, making Kentucky a national leader in the Drug Court movement. For two years he served on the board of the National Association of Drug Court Professionals.
    Since the Court of Justice began implementing Drug Court in 1996, more than 2,250 participants have graduated from the program. Instead of spending time in jail, eligible participants complete a substance abuse program supervised by a judge and receive support through treatment, drug testing and case management. Because of the focus on rehabilitation, Drug Court graduates are more likely to return to productive lives where they stay gainfully employed, pay child support and meet other obligations. The program’s solid track record has convinced leaders in state government, along with judges, prosecutors and treatment providers, that Drug Court is an essential component of the state court system.
    Chief Justice Lambert is proud of Drug Court’s success. Two years after completing the program, Drug Court graduates have a recidivism rate of 20 percent versus 57.3 percent for those on probation without Drug Court treatment. Drug Court has saved the state more than $26 million in prison costs. For every dollar spent on Drug Court the state saves an average of $4.14 from reduced costs related to crime victims, rearrest and reconviction, increased employment rates and child support payments. As of Jan. 1, 2007, Drug Court participants had paid more than $2.2 million in child support, fines, fees and restitution.
    Advocating Diversity
    Chief Justice Lambert has been a strong advocate for fair and equal treatment of all citizens in Kentucky courts, regardless of race, gender, religion, ethnicity or sexual orientation. He created the AOC Office of Minority Affairs to enhance the court system’s minority and diversity outreach programs; established the Kentucky Legal Education Opportunity (KLEO) program to offer scholarships to help historically underserved students attend law school; began a statewide network of interpreting and translating services for individuals who have a limited ability to communicate in English; and appointed the Jefferson County Commission on Racial Fairness to study claims of racial bias in Jefferson Circuit Court.
    Under his direction, the Kentucky Court of Justice hosted a one-day conference titled “Equal Treatment for All: Pursuing Diversity in Kentucky Courts” in March 2008. This was the first court-sponsored forum to bring together professionals from across the state to discuss Kentucky’s progress in pursuit of diversity and fairness in the courts. Chief Justice Lambert counts creation of the KLEO program as one of his finest accomplishments.
    Open and Accountable Courts
    Chief Justice Lambert’s administration supported the creation of a statewide court case management system that has put Kentucky on the cutting edge of court technology nationwide. Unlike many states that still maintain court data on a county-by-county basis, Kentucky’s statewide network allows data to be collected from every court facility in the state and stored in a central location at the AOC in Frankfort.
    Following on the heels of a disclosure that many criminal cases were pending for years and languishing in Kentucky courts, Chief Justice Lambert and a group of well-respected circuit judges from across the Commonwealth quickly moved to implement changes to ensure that no criminal case falls through the cracks. Kentucky judges are now charged with the responsibility of keeping their dockets timely and clear so that the delivery of justice is not delayed.
    The AOC Department of Technology Services has also implemented a statewide e-mail system for Court of Justice personnel; launched a Web site that provides comprehensive information on the Court of Justice, Supreme Court and Court of Appeals opinions, and court dockets statewide; automated the jury management process; provided digital audio capability for court recordings in District Court; created a computerized bookkeeping program for the Offices of Circuit Court Clerk; and produced platforms to support the new E-Citation and E-Warrant programs to assist law enforcement in protecting citizens in local communities.
    Kentucky Summit on Children
    Chief Justice Lambert was the impetus behind the first Kentucky Summit on Children in Louisville in August 2007. Nearly 500 judges, attorneys, legislators, guardians ad litem, child welfare officials, court system personnel, and foster parents and children gathered for three days to discuss how Kentucky courts can improve services to children, one of the most pressing issues facing Kentucky today. As a follow-up to the Summit on Children, the AOC hosted nine regional meetings from October to December 2007 to gather input from communities statewide on court procedures, legislation and services pertaining to child maltreatment and juvenile delinquency.
    Quotes From Professional Colleagues
    David J. Leibson, Bernard Flexner Professor of Law
    University of Louisville Brandeis School of Law
    “Joe Lambert was one of the first students I had the honor of teaching when I came to the University of Louisville School of Law faculty. He was a smart and earnest student and has continued to exhibit those traits throughout his distinguished career. As chief justice he has guided the Supreme Court in a way that has brought honor to the legal profession as a whole and to the judiciary in particular. He has shown real concern for the average citizen of the Commonwealth and the importance of the justice system to the everyday life of us all. He has vigorously and vocally fought for adequate funding for the courts and innovative ways to make them more efficient and accessible. He will be a very tough act to follow, but a wonderful role model. I am really proud of him as an alumnus of the U of L School of Law and so happy that I can call him a wonderful friend. I wish him the best in his retirement.”
    Sara Walter Combs, Chief Judge
    Kentucky Court of Appeals
    “During his tenure leading our court system, Chief Justice Lambert has transformed and modernized courthouses across Kentucky. He has instituted innovative programs having immediate impact on people – especially Drug Court and Family Court. Perhaps he will be most remembered for his sincere commitment to expanding racial and ethnic diversity in the court system and to providing the needy with access to justice.”
    James E. Keller
    Justice of the Supreme Court of Kentucky, 1999-2005
    “Chief Justice Lambert has truly been an outstanding chief justice of the Commonwealth. He has brought about more diversity to the practice of law and the Court of Justice through his steadfast and important support of the Kentucky Legal Education Opportunity (KLEO) program scholarships. He has championed the expansion of Drug Court throughout the state. As a result of his leadership and advocacy, the Family Court constitutional amendment was adopted overwhelmingly and has resulted in the establishment of Family Court across the state. Thanks to his efforts, many rural counties now have modern courthouses that incorporate up-to-date technology. These are but a few of his accomplishments. I served under all of Chief Justice Lambert’s predecessors, and like them, Chief Justice Lambert leaves the Court of Justice in much better shape than when he assumed the duties of his office. He was indeed a good and faithful steward of the Kentucky Court of Justice.
    “I had the privilege to serve six years with Chief Justice Lambert on the Supreme Court. From my first day there until I retired, I was impressed with his leadership and his fairness. As chief justice he presided when the Court met to decide cases. By his example, he encouraged each justice not only to express his or her views, but also to listen and respectfully consider the views of the other justices. He never called for a vote on a case until all justices had fully expressed their views. He was always vigilant to ensure that extraneous matters, including political views, were not a consideration in the resolution of a case. Chief Justice Lambert truly believed in the rule of law.”
    Filling Vacancy of Chief Justice
    In the coming weeks, Chief Justice Lambert will call a vote of the justices to elect his successor as chief justice for a term of four years. The date for the vote has not yet been scheduled. The other justices of the Supreme Court are Deputy Chief Justice Will T. Scott, Lisabeth Hughes Abramson, Bill Cunningham, John D. Minton Jr., Mary C. Noble and Wil Schroder.
    Filling Vacancy of Justice for 3rd Appellate Court District
    Because Chief Justice Lambert’s eight-year term as a justice of the Supreme Court is through Dec. 31, 2010, the process provided by the Kentucky Constitution will be followed to fill the vacancy for the 3rd Supreme Court District seat. It will be filled initially by gubernatorial appointment after the Judicial Nominating Commission process. Qualified candidates may run for the balance of the unexpired term in the November 2008 general election.
      Chief Justice Lambert said: “After a decade as chief justice and nearly 22 years as a justice of the Supreme Court of Kentucky, Chief Justice Joseph E. Lambert has decided to leave the court and join the Senior Judge Program. His resignation will be effective June 27, 2008.
    “We have made great progress in the last decade to improve Kentucky courts and make them more responsive to the needs of Kentucky’s families and children,” said Chief Justice Lambert. “As with any individual’s efforts, however, there comes a time to move on. “
    “I believe it’s a mistake to remain for too long in a high-level position in government,” he said. “When I became chief justice, it was with the full intention of serving only two four-year terms. However, due to a massive number of judicial elections in 2006 and due to significant changes in the makeup of the Supreme Court at that time, I felt a duty to stay through the period of transition. I’m happy to say that the Court of Justice continues to operate smoothly and this is an appropriate time for me to move on to other professional opportunities.”
     

    Governor Beshear Appoints Members to Prosecutors Advisory Council

    Thursday, April 24th, 2008


      

    APRIL 24, 2008
    FRANKFORT, KY (April 24, 2008) – Kentucky Gov. Steve Beshear has appointed the following members to the Prosecutors Advisory Council to serve at the pleasure of the governor:
    *                     Christopher T. Cohron, of Bowling Green, is the commonwealth’s attorney for Warren County in the 8th Judicial Circuit. He represents commonwealth attorneys of counties containing a first or second class city or an urban county government. The appointment replaces Raymond M. Larson.
     
    *                     Rob Sanders, of Fort Mitchell, is the commonwealth’s attorney for Kenton County in the 16th Judicial Circuit. He represents commonwealth attorneys from counties containing a third class city. The appointment replaces Linda Tally Smith.
     
    *                     G. L. Ovey, of Eddyville, is the commonwealth’s attorney for Caldwell, Livingston, Lyon and Trigg counties in the 56th Judicial Circuit. He represents commonwealth attorneys from other counties. The appointment replaces Timothy R. Coleman.
     
    *                     James Michael Foster, of Hopkinsville, is the Christian County attorney. He represents county attorneys from counties containing a first or second class city or an urban county government. The appointment replaces Marc Robbins.
     
    *                     Irv Maze, of Louisville, is the Jefferson County attorney. He represents county attorneys from counties containing a third class city. The appointment replaces Jeffrey Scott Sharp.
     
    *                     Jeffrey Galen Edwards, of Benton, is the Marshall County attorney. He represents county attorneys from other counties. The appointment replaces Clay M. Bishop Jr.
     
    *                     Margaret A. Daniel, of Frankfort, is a retired principal assistant for the Kentucky Personnel Cabinet. She represents non-attorney citizen members. The appointment replaces Patsy Sponcil.
     
    *                     Melissa W. Quillen, of Hazard, is executive director for the Kentucky River Children’s Advocacy Center. She represents non-attorney citizen members. The appointment replaces Edwin R. Orange.
    The council shall be responsible for, but not limited to, the preparation of the budget of the unified prosecutorial system of the Commonwealth of Kentucky and the continuing legal education and program development of the unified prosecutorial system of Kentucky

    Governor signs new Criminal Justice Initiatives into Law

    Thursday, April 24th, 2008


      

    April 24, 2008
    Significant laws relating to Kentucky’s criminal justice system were passed by the General Assembly and signed into law by Gov. Steve Beshear, including initiatives to curb the rising costs of incarceration and improve the safety of law enforcement officers.

    Among the most significant is House Bill 683, an omnibus criminal justice bill that requires that DNA samples be taken from all felons, including juveniles ages 13 and older who are convicted of violent or felony sex offenses.  The Kentucky State Police Forensic Lab estimates the legislation could yield an additional 15,000 samples per year for the state database, with the potential to solve an additional 250 cases annually.

    The bill also includes initiatives to reduce Department of Corrections’ spending.  Under the law, two full-time parole board members will be added to the Kentucky Parole Board, and the board will be allowed to conduct file review of certain Class C felons eligible for parole.  Both measures will allow the parole board to review more cases, and to do so earlier in the month, so that parolees may be eligible for release sooner.  Additionally, the legislation defines the method of monitoring for inmates completing their sentence on home incarceration to allow for GPS tracking of certain felons.

    In addition:

    –The just-concluded session saw the passage of two bills that preserve millions of dollars in federal funding by bringing the state into compliance with federal guidelines. Senate Bill 151 prohibits mandatory polygraphing of alleged sex offense victims, bringing Kentucky into compliance with federal guidelines for receiving nearly $1.6 million annually in STOP Violence Against Women Act (VAWA) Formula Grants.  These grants are distributed by the Cabinet to agencies throughout the Commonwealth that serve victims of sexual assault and domestic violence.  House Bill 384 brings state law into compliance with the federal Juvenile Justice & Delinquency Prevention Act (JJDP Act) of 2002, and aims to reduce the number of status offenders and dependent, neglected and abused children, or “non-offenders,? who are inappropriately or unnecessarily placed in secure detention.

    –A law protecting consumers from unknowingly purchasing or inhabiting property that has been contaminated by methamphetamine passed on the final day of the session.  Under House Bill 765, law enforcement officials can post notice of methamphetamine contamination on dwellings, and can assess penalties on property owners for removing the notice, or for not alerting prospective buyers or renters about the contamination.  The law also allows property owners to self-clean the property if officials determine methamphetamine ingredients were present, but there was no evidence that a meth cook occurred.  The bill is pending signature by the governor.

    –Child victims or witnesses, ages 12 and younger, of violent offenses will be allowed to testify by closed circuit or video testimony when the court determines there is a compelling need, under Senate Bill 13.  The bill protects child victims of violent crime and Internet solicitation from possible revictimization and traumatization by having to face the defendant in court, if the child would be unable to reasonably communicate in their presence.

    –Several bills passed this legislative session to improve safety for the Kentucky State Police.  House Bill 639 directs the Firearms Confiscation Fund – created by the selling of confiscated firearms from all local, city and county law enforcement agencies – to first be used to purchase body armor before purchasing firearms and ammunition. The bill also allots KSP, which receives the confiscated items and handles their sale, 20% of the gross proceeds of each sale.  KSP officials indicate the agency intends to use proceeds to purchase tasers for its officers, part of the agency’s focus on utilizing non-lethal weaponry.

    –Police service dogs, which are trained and required to occasionally bite people in the line of duty, will be exempted from the 10-day quarantine law after biting a human, under Senate Bill 159.  Prior to this, the police dog would be quarantined for 10 days, even though the animal had been fully vaccinated, taking it out of service for that time.

    –House Bill 696 allows vehicle accident reports to be accessed through the KSP website, eliminating the need for accident victims to go to a KSP post or the local clerk’s office.  The bill also allows KSP to provide limited vehicle accident report data to alert potential buyers when a vehicle has been in an accident.  Until now, KSP could not allow vendors such as CARFAX and EXPERIEN to access the data.  Consumers in Kentucky who purchased a used car could not trace the vehicle’s history to determine whether the vehicle has been in an accident.

    –Under Senate Bill 226, KSP will be required to reimburse sworn officers for the “rider? policy they purchase for their personal vehicles that extends liability coverage to their police vehicle.  The legislation closes a gap in coverage that currently occurs if the officer is injured in the line of duty by an uninsured or underinsured motorist.  While workers’ compensation covers most of the losses, there is still a significant gap in pay from sick leave and/or compensatory time that the officer must cover. 
     

    Presidents who were lawyers…

    Thursday, April 24th, 2008

    Presidents’ Occupations
    43.9%
    (18 out of 41) have been Lawyers!

    President Major Jobs Before the Presidency Jobs After the Presidency
    1 George Washington surveyor, planter, general of the Army of the United Colonies planter, lieutenant-general of all the U.S. armies
    2 John Adams schoolteacher, lawyer, diplomat, vice president under Washington writer
    3 Thomas Jefferson writer, inventor, lawyer, architect, governor of Virginia, secretary of state under Washington, vice president under Adams writer, gentleman farmer, rector at the University of Virginia
    4 James Madison lawyer, political theorist, U.S. congressman, secretary of state under Jefferson rector at the University of Virginia
    5 James Monroe soldier, lawyer, U.S. senator, governor of Virginia writer, regent at the University of Virginia
    6 John Quincy Adams lawyer, diplomat, professor, U.S. senator, secretary of state under Monroe U.S. representative from Massachusetts
    7 Andrew Jackson soldier, U.S. congressman, U.S. senator, governor of Florida gentleman farmer
    8 Martin Van Buren lawyer, U.S. senator, governor of New York, vice president under Jackson activist for Free Soil Party
    9 William Henry Harrison soldier, diplomat, U.S. congressman, U.S. senator from Ohio died in office
    10 John Tyler lawyer, U.S. congressman, U.S. senator, vice president under Harrison lawyer, chancellor of the College of William and Mary, member of the Confederate House of Representatives
    11 James Knox Polk lawyer, U.S. congressman, governor of Tennessee died 103 days after leaving office
    12 Zachary Taylor soldier died in office
    13 Millard Fillmore lawyer, U.S. congressman, vice president under Taylor rogue political activist, chancellor of the University of Buffalo
    14 Franklin Pierce lawyer, soldier, U.S. congressman, U.S. senator from New Hampshire gentleman farmer
    15 James Buchanan lawyer, U.S. congressman, U.S. senator, U.S. secretary of state writer
    16 Abraham Lincoln postmaster, lawyer, U.S. congressman from Illinois died in office
    17 Andrew Johnson tailor, U.S. congressman, governor of Tennessee, U.S. senator from Tennessee, vice president under Lincoln U.S. senator from Tennessee
    18 Ulysses Simpson Grant U.S. Army general political activist, writer
    19 Rutherford Birchard Hayes lawyer, soldier, U.S. congressman, governor of Ohio education activist, president of the National Prison Reform Association
    20 James Abram Garfield schoolteacher, soldier, U.S. representative from Ohio died in office
    21 Chester Alan Arthur schoolteacher, lawyer, tariff collector, vice president under Garfield lawyer
    22 Grover Cleveland sheriff, lawyer, mayor, governor of New York reelected president
    23 Benjamin Harrison lawyer, soldier, journalist, U.S. senator from Indiana lawyer, lecturer
    24 William McKinley soldier, lawyer, U.S. congressman, governor of Ohio died in office
    25 Theodore Roosevelt rancher, soldier, governor of New York, vice president under McKinley hunter, writer
    26 William Howard Taft lawyer, judge, dean of the University of Cincinnati Law School, U.S. secretary of war professor, chief justice of the U.S. Supreme Court
    27 Woodrow Wilson lawyer, professor, president of Princeton University, governor of New Jersey retired in poor health
    28 Warren Gamaliel Harding newspaper editor, U.S. senator from Ohio died in office
    29 Calvin Coolidge lawyer, governor of Massachusetts, vice president under Harding writer, president of the American Antiquarian Society
    30 Herbert Clark Hoover engineer, U.S. secretary of commerce chair of the Hoover Commission on administrative reform
    31 Franklin Delano Roosevelt lawyer, governor of New York died in office
    32 Harry S. Truman farmer, soldier, haberdasher, judge, U.S. senator, vice president under Roosevelt writer
    33 Dwight David Eisenhower supreme commander of the Allied forces in Europe, U.S. Army chief of staff writer
    34 John Fitzgerald Kennedy journalist, U.S. congressman, U.S. senator from Massachusetts died in office
    35 Lyndon Baines Johnson schoolteacher, soldier, congressman, U.S. senator from Texas, vice president under Kennedy rancher, writer
    36 Richard Milhous Nixon lawyer, U.S. congressman, U.S. senator, vice president under Eisenhower writer
    37 Gerald Rudolph Ford lawyer, U.S. congressman, vice president under Nixon writer
    38 James Earl Carter, Jr. peanut farmer, governor of Georgia writer, humanitarian, Nobel-prize winning statesman
    39 Ronald Wilson Reagan movie actor, corporate spokesman, governor of California writer
    40 George Herbert Walker Bush oil executive, U.S. congressman, U.S. ambassador to the UN, Director of CIA, vice president under Reagan private citizen; teamed with President Clinton to form tsunami and Hurricane Katrina aid funds
    41 William Jefferson Clinton lawyer, governor of Arkansas writer, independent ambassador; teamed with President G.H.W. Bush to form tsunami and Hurricane Katrina aid funds
    42 George Walker Bush oil executive, sport team owner, governor of Texas

    Information Please® Database, © 2007 Pearson Education, Inc. All rights reserved.

     

    See all bills passed or vetoed from 2008 Legislative Session

    Thursday, April 24th, 2008

    The following laws were adopted by the 2008 Session of the General Assembly.
     

    Click the bill number to read synopsis of bill.  An internal link posted on each bill allows you to read the entire bill.
     

    LRC reports the following bills have been Enrolled, Delivered to Governor and await approval or veto:
    SB 2, 16, 58, 64, 75, 83, 92, 135, 188; HB 2, 29, 79, 84, 170, 179, 182, 187, 201, 204, 293, 316, 322, 328, 369, 370, 440, 475, 506, 507, 509, 510, 514, 540, 552, 577, 590, 606, 607, 608, 611, 615, 625, 626, 633, 638, 640, 649, 655, 676, 683, 690, 696, 697, 698, 704, 758, 765; HCR 93; HJR 6, 68, 81, 82, 83, 130
    Bills Signed by Governor: SB 13, 21, 22, 23, 30, 46, 47, 49, 53, 57, 65, 68, 69, 76, 86, 90, 93, 95, 96, 98, 100, 118, 120, 125, 127, 129, 131, 132, 136, 146, 149, 150, 151, 155, 157, 158, 159, 167, 169, 173, 174, 179, 189, 190, 192, 195, 196, 199, 203, 226, 242, 243; SJR 9, 76, 80; HB 36, 44, 65, 83, 88, 91, 103, 106, 110, 131, 139, 168, 186, 202, 211, 227, 233, 239, 258, 259, 277, 284, 319, 321, 324, 330, 334, 348, 365, 366, 371, 373, 384, 385, 388, 389, 393, 405, 411, 415, 426, 435, 457, 458, 470, 471, 479, 482, 484, 495, 524, 534, 538, 551, 579, 583, 594, 605, 609, 610, 618, 629, 639, 684, 694, 717, 734, 759; HCR 112
     

     

    Became Law Without Governor’s Signature: HB 407, 410
    .
     Line Items Vetoed by Governor: HB 406, 408  (The legislature did not override these vetoes.)
    Any bills vetoed after April 15, cannot be overridden by the legislature.

    See all bills passed and vetoed from 2008 Session.

    Thursday, April 24th, 2008

    The following laws were adopted by the 2008 Session of the General Assembly.
     

    Click the bill number to read synopsis of bill.  An internal link posted on each bill allows you to read the entire bill.
     

    LRC reports the following bills have been Enrolled, Delivered to Governor and await approval or veto:
    SB 2, 16, 58, 64, 75, 83, 92, 135, 188; HB 2, 29, 79, 84, 170, 179, 182, 187, 201, 204, 293, 316, 322, 328, 369, 370, 440, 475, 506, 507, 509, 510, 514, 540, 552, 577, 590, 606, 607, 608, 611, 615, 625, 626, 633, 638, 640, 649, 655, 676, 683, 690, 696, 697, 698, 704, 758, 765; HCR 93; HJR 6, 68, 81, 82, 83, 130
    Bills Signed by Governor: SB 13, 21, 22, 23, 30, 46, 47, 49, 53, 57, 65, 68, 69, 76, 86, 90, 93, 95, 96, 98, 100, 118, 120, 125, 127, 129, 131, 132, 136, 146, 149, 150, 151, 155, 157, 158, 159, 167, 169, 173, 174, 179, 189, 190, 192, 195, 196, 199, 203, 226, 242, 243; SJR 9, 76, 80; HB 36, 44, 65, 83, 88, 91, 103, 106, 110, 131, 139, 168, 186, 202, 211, 227, 233, 239, 258, 259, 277, 284, 319, 321, 324, 330, 334, 348, 365, 366, 371, 373, 384, 385, 388, 389, 393, 405, 411, 415, 426, 435, 457, 458, 470, 471, 479, 482, 484, 495, 524, 534, 538, 551, 579, 583, 594, 605, 609, 610, 618, 629, 639, 684, 694, 717, 734, 759; HCR 112
     

     

    Became Law Without Governor’s Signature: HB 407, 410
    .
     Line Items Vetoed by Governor: HB 406, 408  (The legislature did not override these vetoes.)
    Any bills vetoed after April 15, cannot be overridden by the legislature.
     

    Supreme Court hears arguments to allow some age discrimination in employment

    Thursday, April 24th, 2008

     

    By LINDA GREENHOUSE N.Y. Times April 24, 2008

     

    WASHINGTON — It is not necessarily unlawful for an employer to adopt policies that put older workers at a disadvantage. Such policies pass muster under the Age Discrimination in Employment Act as long as they are based on “reasonable factors other than age.?

     

    The question in a Supreme Court argument on Wednesday was whether the employer has to prove that such “reasonable factors? exist, or whether it is up to the employee who has brought a lawsuit to show that they do not.

     

    The burden of proof makes a substantial difference in any lawsuit, although statutes rarely specify which side bears it. For federal laws against race and sex discrimination in the workplace, the Supreme Court has filled the gap by developing fairly elaborate procedures that plaintiffs and defendants must follow. But for age discrimination, the rules have remained murky, leaving the lower courts in confusion over how to handle this rapidly growing category of workplace discrimination claims.

     

    The argument the justices heard on Wednesday was in a case brought by two dozen workers at a federal research laboratory in upstate New York. Carrying out a reduction in force, the employer, Knolls Atomic Power Laboratory, which is owned by the Lockheed Martin Corporation, terminated 31 employees after using a set of guidelines to evaluate workers’ skills and amenability to retraining. All but one dismissed employee was over 40, the age at which the protections of the federal age discrimination law begin to apply.

    Most of the affected employees joined a lawsuit arguing that there was no justification for using an evaluation system that had such a starkly disparate impact on older workers, and that the procedure consequently violated the federal law. The plaintiffs won in a jury trial. But the judgment was overturned by the United States Court of Appeals for the Second Circuit, in Manhattan, which held that plaintiffs in such a case had the burden of showing that the policy they were challenging was unreasonable.

     

    In the Supreme Court, the Bush administration supported the employees’ appeal, Meacham v. Knolls Atomic Power Laboratory, No. 06-1505. Daryl Joseffer, an assistant to the solicitor general, told the justices that the inclusion in the statute of “reasonable factors other than age? as an exception to liability showed that Congress was offering employers a defense, the existence of which they would have to prove.

     

    “But even if the text wasn’t so clear, one would logically put it on the employer,? Mr. Joseffer continued. “All else being equal, the employer is in a better position to explain the reasonableness of its very own business practice.?

     

    The employees’ lawyer, Kevin K. Russell, made a similar point, and met with resistance from both Justice Anthony M. Kennedy and Chief Justice John G. Roberts Jr.

    “That doesn’t seem a very compelling case,? the chief justice said, because in pretrial discovery, employees’ lawyers could question company officials about their rationale. “It doesn’t seem to me that the fact that the employer possesses the information, given the very liberal discovery we have, is much of a factor,? he said.

     

    The employer’s lawyer, Seth P. Waxman, said the court should keep in mind the difference between age discrimination and other kinds of workplace discrimination. Policies that have a differential impact on the basis of race or sex can rarely be justified as reasonable, he said, while age, on the other hand, “often does correlate with reasonable employment factors.?

     

    Consequently, Mr. Waxman continued, “the presumption actually is quite weak? that a challenged policy amounts to improper age discrimination, and it made sense for plaintiffs to have to prove that there was no legitimate justification.

     

    The justice most skeptical of Mr. Waxman’s argument was Justice Ruth Bader Ginsburg, who questioned him closely both on his legal theory and on the facts of the case.

    The argument in this case was the 70th and final one of the court’s current term. From now until the term ends in late June, the justices will spend their time deciding the remaining cases they have heard and selecting new appeals to hear in the next term.

    In a decision on Wednesday, the court held by a vote of 9 to 0 that a search by the police in connection with an arrest based on probable cause is constitutional, under the United States Constitution, even if the arrest was invalid under state law.

     

    The case, Virginia v. Moore, No. 06-1082, was an appeal by the State of Virginia of a ruling by its Supreme Court. The police arrested a man for driving with a suspended license, and in the subsequent search found a small quantity of crack cocaine. Under Virginia law, driving with a suspended license merits only a summons, not an arrest, and the state court consequently found the search to be invalid under the Fourth Amendment.

    In his opinion overturning that decision on Wednesday, Justice Antonin Scalia said that the Fourth Amendment, which prohibits unreasonable searches and seizures, was not intended by its framers “as a redundant guarantee of whatever limits on search and seizure legislatures might have enacted? in the individual states.

     

    As long as “an officer has probable cause to believe a person committed even a minor crime in his presence,? Justice Scalia continued, “the arrest is constitutionally reasonable? even if it violates state law. States are free to give their citizens more protection than the constitutional minimum, he added, but “when states go above the Fourth Amendment minimum, the Constitution’s protections concerning search and seizure remain the same.?

     

    The other members of the court all signed Justice Scalia’s opinion except Justice Ginsburg, who concurred separately. She said she agreed that the arrest and search did not violate the Fourth Amendment, but found the issue more complicated, both as a matter of constitutional history and precedent, than Justice Scalia’s opinion acknowledged.

    U.S. Supreme Court appears to support Whipping Post and Branding with a Hot Iron?

    Wednesday, April 23rd, 2008

    -Could Alabama bring back the whipping post or brand the skin of a thief with a scarlet T-
    Doug Kendall The Huffington Post  April 23, 2008)
    Could Alabama bring back the whipping post or brand the skin of a thief with a scarlet T, and not run afoul of the Eighth Amendment’s prohibition against cruel and unusual punishment? Such a proposition may seem outlandish, but it is what opinions signed last week by Justices Antonin Scalia and Clarence Thomas in Baze v. Rees would seem to sanction.
    These opinions haven’t gotten much attention, but they illustrate everything that is wrong about originalism as it is practiced by Justices Scalia and Thomas. Too often, these justices manipulate text, speculate wildly about the intentions of the Framers, and end up far from the letter and spirit of the Constitution. Recognizing the weakness of the conservative arguments about what the Constitution says and compels would help progressives immeasurably in responding to the rise of the conservative legal movement.
    In Baze, seven members of the Supreme Court (including Scalia and Thomas) voted to uphold procedures used in lethal injections in Kentucky against the claim that these processes could result in horrific pain, constituting cruel and unusual punishment. Justice John Paul Stevens voted with Thomas and Scalia on the merits in Baze, dutifully following his interpretation of the Supreme Court’s prior decisions. Stevens wrote separately to say that, after reviewing death penalty appeals for more than 30 years on the Court, he had concluded that the death penalty consists of “pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes” and, as a result, runs afoul of the Eighth amendment.
    Stevens’ thoughtful, measured opinion enraged Justice Scalia, who thundered that “[p]urer expression cannot be found of the principle of rule by judicial fiat.” Scalia accused Stevens of refusing to follow the plain text of the Constitution. Scalia notes two parts of the Constitution’s Fifth Amendment mention the possibility that “life” would be taken away, and he concludes from this that the Framers favored the death penalty. It is “no business of unelected judges,” Scalia asserts, to find unconstitutional a “mode of punishment that is explicitly sanctioned by the Constitution.”
    This sounds pretty convincing until you consider the Double Jeopardy Clause, which sits right between the two portions of the Fifth Amendment Scalia cites, and prohibits criminals from being “twice put in jeopardy of life and limb.” As the Supreme Court recognized in 1873 in Ex Parte Lange, this “life and limb” formulation dates from a period in England when “almost every offence was punished with death or other punishment touching the person.” This Clause reinforces Scalia’s point, by again mentioning the possibility that a criminal could be in jeopardy of losing “life,” but it presents a much larger problem for him: by the terms of Scalia’s argument the Framers also appear to have “expressly sanctioned” maiming as punishment for criminal behavior. Does the Framers’ recognition of the historic fact that punishments “touching the person” were frequently used also give constitutional protection to this form of punishment?
    The answer is no. The text does not “sanction” either death or dismemberment at the hands of the state. Rather, the Fifth Amendment imposes limits on these penalties if the state tries to use them. The Fifth Amendment tells us nothing important about whether these forms of punishment are good or bad, cruel or unusual.
    Even more remarkably, Justice Scalia himself has declared that flogging, branding and similar forms of punishment are so abhorrent that they should be considered cruel and unusual no matter what the Framers’ view of the matter. Calling himself a “faint-hearted originalist,” Scalia asserts in his 1989 article Originalism: The Lesser Evil, “I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging.” Given this admission, how can Scalia possibly justify the bitter words he directs at Justice Stevens in Baze? Is flogging really that much more abhorrent than death?
    A separate concurring opinion by Justice Thomas’ (Thomas and Scalia each joined each other’s opinions) is equally flawed. Thomas endorses Justice Scalia’s reading of the Fifth Amendment, and then adds the argument that the Eighth Amendment cannot be held to prohibit the death penalty because of “the ubiquity of the death penalty in the founding era.” This is interesting history, but it is largely irrelevant. Some punishments that have always been cruel – flogging, for example – may have been cruel and ubiquitous at the time of the founding, but cruel and vanishingly rare now. Cruel is only one part of a two-part test. The word unusual, then and now, requires a court to look around and say whether or not a form of punishment is common. For this reason, the commonness of a form of punishment at the time the Constitution was drafted, and the Framers’ expectations about whether a particular form of punishment would be considered “cruel and unusual,” are entitled to almost no weight.
    Frustratingly, no other justice in Baze responded in any detail to the sloppy account of text and history offered by Scalia and Thomas. One can understand the desire of the other justices not to get dragged down into debates about long settled points of law, but this has an important downside: it leaves the reader with the distinct impression that Scalia and Thomas are correct about the Constitution’s text. This feeds into the right’s claim that the Supreme Court is being activist in even considering whether the death penalty and its application can be cruel and unusual punishment.
    Progressives opposed to the vision of the Constitution being advanced by Justices Scalia and Thomas under the label of originalism need to take the arguments like those made in Baze far more seriously, not because they are right about text and history, but precisely because so often they are so wrong. This yields a corresponding question: if Scalia and Thomas so frequently have to push the envelope on text and history to reach conservative results, why aren’t progressives using these sources more to support the results they seek in the courts?
    (This piece will be cross-posted at the blog of the American Constitution Society www.acsblog.com.)