Archive for October, 2008

Sec. of State Trey Grayson Lists Election Do’s and Don’ts List for Nov. 4th.

Friday, October 31st, 2008

Frankfort, KY)  With just a few days before the November 4, 2008 election, Secretary of State Trey Grayson released, today, an election “Dos and Don’ts” list for Kentucky voters.  The list is designed to help voters understand Kentucky’s election process and to inform them of helpful hints before they go to the polls on election day. 
            “Our office is taking unprecedented steps to educate voters about elections in Kentucky,” stated Secretary Grayson.  “We have so many new and infrequent voters that are expected to participate this year; we want to provide as much information as possible to ensure a smooth election for voters.  A positive experience will hopefully cause them to vote in future elections.”
            Below is a list of important “Dos and Don’ts.”  For more information, visit www.vote.ky.gov.
# # #
                                           Kentucky Election Day Dos and Don’ts

 

Do:             Verify your voter registration status before you head to the polls.  Visit the Voter Information Center at www.vote.ky.gov/vic
 

Don’t:         Get discouraged by long lines or long ballots. You can be prepared by previewing your ballot online at Vote.Ky.Gov.  Remember, as long as you are in line by 6 PM on November 4th you will be able to cast your ballot.
Do:             Know where to go to vote. The Vote.Ky.Gov website has the Voter Information Center that allows voters to both find the address of their polling place and to obtain driving directions from their residence.
Don’t:         Campaign or solicit votes within 300 feet of a polling place. Electioneering in the immediate area around polling places is illegal in Kentucky.  However, you will not be turned away from the polls for simply wearing a campaign button, shirt, hat, etc.
 

Do:             Know the most convenient times to vote are during low traffic periods: not during the morning rush hour, lunch, or the evening rush hour.  Remember, polls are open from 6:00 a.m. to 6:00 p.m.  However, if you are in line by the close of polls at 6:00 p.m. local time, you will be allowed to vote. 
 

Don’t:         Wait until the last minute to head to the polls.  You may encounter traffic or another unexpected delay.  If you are not in line by 6:00 p.m. local time, you will not be allowed to vote.
 

Do:             Bring identification to the polls on Election Day. Types of acceptable voter ID include: personal acquaintance of precinct officer, driver’s license, social security card, credit card, or another form of ID containing both picture and signature. 
 

Don’t:         Use prohibited items at the polls such as video cameras, cell phones, or any other device that can record the identity of voters.  If you bring a cell phone to the polls, you are encouraged to place it on silent or vibrate. 
 

Do:             Know what races are on your ballot.  Newspapers across the Commonwealth print sample ballots, and you can find them online at Vote.Ky.Gov and posted in each precinct.
 

Don’t:         Cast a provisional ballot at the incorrect polling place. If a poll worker tells you that you are at the wrong polling place, please take the time to go to the correct location to make sure your voice is heard.  Provisional ballots cast at the incorrect polling place will not be counted.
 

Do:             Ask a poll worker for instructions on how to use the voting machine or ask other procedural questions of the precinct election officials if you are confused about the voting process.
 

Don’t:         Get caught up in election rumors.  To get the facts, visit: www.vote.ky.gov/rumorcontrol.
 

Do:             Let officials know immediately if you encounter any problems at the polls.  Start with your precinct election officers and county clerk, or call the State Board of Elections at (502) 573-7100.
 

Don’t:         Forget to thank your poll workers. Without the nearly 15,000 Kentuckians that have volunteered to be poll workers across our state, this election would not be possible. They work long days on the front lines of our elections and deserve our appreciation.  Contact your county clerk if you are interested in helping in the future. 
 

Do:             Call your friends and family to remind them to vote.  All elections are important as it is one way that you can make your voice heard. 
 

Don’t:         Forget that you can obtain all of the election results in near real time by visiting www.elect.ky.gov after the polls have closed.
 

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Remember time change this weekend, replace smoke alarm batteries

Friday, October 31st, 2008

 

  As you prepare to “fall back” by setting clocks back one hour Sunday to return to standard time, it’s a good time to change the batteries in your smoke alarms, says William Swope, Kentucky State Fire Marshal.
 
     “It’s important to keep a fresh battery in your smoke detector,” said Swope. “One way to ensure this is to make a point of switching batteries at the same time every year. So the time change is a perfect opportunity to take a few minutes to help ensure the safety of you and your family in the event of a fire.”
 
     The National Fire Protection Association (NFPA) offers these tips on home smoke alarms:
Ø      Install a smoke alarm in every bedroom, outside every sleeping area, and on every level of the home, including the basement.
Ø      Test your smoke alarm monthly by pushing the test button.
Ø      Follow manufacturer instructions in deciding where to install a smoke alarm on a wall or ceiling.
Ø      Replace the battery if the alarm chirps.
Ø      Keep your smoke alarm free of dust, and don’t paint over it.
Ø      Replace any smoke alarm that is at least 10 years old.
 

More smoke alarm safety tips are available on NFPA’s Web site at http://www.nfpa.org.
 
    Swope added that any home with a gas appliance should also have a carbon monoxide detector. Such a device also needs a fresh battery regularly.
 
 

Ky. Court of Appeals releases 26 cases on Oct. 31…

Friday, October 31st, 2008

The Kentucky Court of Appeals released 25 cases on Oct. 31st.  Subscribers to LawReader can read the full text of these decisions and a synopsis by going to:

 

COURT OF APPEALS DECISIONS FOR OCT. 31, 2008    

 

Non members can sign up at “SIGN UP – PRICING for lawreader”.
 

Important decisions this week featured:
 

An important decision regarding the Board of Claims and the states liability for not maintaining highways so as to contribute to collisions.

 

Qualified immunity of a county highway engineer in making a decision not to erect a guardrail.

 

An adverse possession case discusses competing reports of surveyors.

 

The court sets out the formula for justifying attorney fee award in divorce case and overruled the courts practice.

 

In a wrongful death case the court sets out priority of beneficiaries when a beneficiary is a partial cause of the negligent death of the decedent.

 

An important case discusses choice of law and choice of forum standards to be followed by the trial court.

 

Jurisdiction of the District Court to hear a claim regarding a lease of mineral rights is discussed and new law is made.

 

In an at will employment case, the court discussed preinjury release agreements.

 

Several cases deal with procedures for discharge of a teach and state workers.

 

The court discusses the relationship of the courts in reviewing ecclesiastical issues.

 

Standards of review of parents waiver of rights discussed.

 

Another case involving Good Time credit calculation is presented.

 

Wirth DUI case is discussed and use of BA technician records is discussed.

 

Standards for a Faretta review is discussed.

Poll show McConnell with 5 point lead over Lunsford

Thursday, October 30th, 2008

U.S. Sen. Mitch McConnell holds a five point lead over Democrat Bruce Lunsford in the closing days of the election, according to the latest Courier-Journal Bluegrass Poll.

The telephone survey of 817 likely voters was taken Oct. 27-29 and has a margin of error of plus or minus 3.4 percentage points.

According to the poll, McConnell leads 47-42, with 9 percent of voters saying they are still undecided. Two percent of voters said they favor other candidates — though there are no other candidates in the race.

Last week, The Lexington Herald-Leader reported that McConnell held a 47-43 lead.

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Ky. Court of Appeals releases 28 important decisions…

Thursday, October 30th, 2008

The Kentucky Court of Appeals released 28 important cases on Friday.  LawReader Subscribers can read a synopsis and the full text of each decision by going to COURT OF APPEALS DECISIONS FOR OCT. 24, 2008    .

Non subscriber’s can sign up for LawReader at www.lawreader.com for only $34.95 a month.

Important decisions this week held that:

 

A breach of a settlement contract is a jury issue.

Discussion of uninsured motorist coverage and the regular use exception.   
One decision held that the court has equitable power to reform a contract.

The court ruled that the effect and allowance of evidence of a dismissed criminal action in a subsequent civil claim.

The court ruled that in Kentucky there is no privace cause of action for a HIPPA violation. This decision did not discuss the right to privacy.

The court ruled that a defendant in a DVO action has the right to a due process hearing before he can be held in contempt of court for actions not committed in front of the court. 

 A termination of parental rights action was set aside when the parent was denied the right to counsel at a portion of the proceedings.

The court ruled that a worker has the right to consult with their private physician if there is a dispute over treatment recommended by company physician. 

The court discussed KRE 615 regarding the right of the prosecution to allow a police officer to sit at their table during a trial.

 In another case, the court upheld the constitutionality of grandparent visitation rights.

Ky. Supreme Court Releases 40 important cases…

Thursday, October 30th, 2008

The Kentucky Supreme Court has released 40 decisions for October.  LawReader subscribers can read a synopsis and the full text of each of these decisions by going to KENTUCKY SUPREME COURT OPINIONS FOR OCTOBER 2008 


 Non members can subscribe at www.lawreader.com for only $34.95 a month.

The court issued two decisions overruling major portions of the Fenwick case regarding modification of child visitation and time sharing. See LawReader cases #8 and #10. An important distinction is discussed in situations where a parent wishes to move with the child and the court discusses the importance of relocation being  pre or post decree.

In a short decision (See LawReader case #13A) the court ruled that reports of medical peer review committees were not subject to discovery in medical malpractice cases.

The Court also established a rule that when a worker’s compensation insurance carrier mislead a worker about their reporting duties, that equitable estoppel could be applied to toll the statute of limitations.

One case from Campbell County granted a new trial in a child sexual abuse case due to many errors committed by the Commonwealth and the trial Judge.  The decision is unpublished but provides a great deal of information with authorities regarding discussion of “reasonable doubt”, inadmissibility of child’s behavioral symptoms, attempted use of doctor as expert on credibility of a child, delayed disclosure, and the limitation of the defendant’s right to cross examine a doctor who had testified by deposition.

The court also ruled in Case #29, that the defense of Extreme Emotional Disturbance could be used in situations where the event triggering the emotional outburse occurred sometime before the violent act.  This case also discusses defense funding of expert witnesses.

 

An important search and seizure case (#30) the court upheld the Knock and Talk procedure for police but limited the right of a police officer to enter portions of the home’s cartilage not generally open to the public to try to get the witness to come to the door.

.

See compilation and links to latest election polls….

Thursday, October 30th, 2008
 

USA Election Polls               National Head to Head Polls

 

Election: McCain vs. Obama

Poll
Date
Sample
MoE
Obama (D)
McCain (R)
Spread
RCP Average
10/22 – 10/29


50.0
43.8
Obama +6.2
Reuters/C-SPAN/Zogby 10/27 – 10/29
1179 LV
2.9
50
43
Obama +7
Rasmussen Reports 10/26 – 10/28
3000 LV
2.0
50
47
Obama +3
Gallup (Traditional)* 10/26 – 10/28
2435 LV
2.0
49
46
Obama +3
Gallup (Expanded)* 10/26 – 10/28
2409 LV
2.0
51
44
Obama +7
Diageo/Hotline 10/26 – 10/28
870 LV
3.6
49
42
Obama +7
ABC News/Wash Post 10/25 – 10/28
1316 LV
2.5
52
44
Obama +8
IBD/TIPP 10/24 – 10/28
894 LV
3.0
47
44
Obama +3
GWU/Battleground 10/22 – 10/28
1000 LV
3.1
49
46
Obama +3
Ipsos/McClatchy 10/23 – 10/27
831 LV
3.4
50
45
Obama +5
Pew Research 10/23 – 10/26
1198 LV
3.5
53
38
Obama +15

More Polling Data | Chart | News
 

State presidential Polls

AL HI MA NM SD
AK ID MI NY TN
AZ IL MN NC TX
AR IN MS ND UT
CA IA MO OH VA
CO KS MT OK VT
CT KY NE OR WA
DE LA NV PA WV
FL ME NH RI WI
GA MD NJ SC WY

 

Races 2008 U.S. Senate Races

AL: Sessions vs Figures
AK: Stevens vs Begich
CO: Schaffer vs Udall
DE: O’Donnell vs Biden
GA: Chambliss vs Martin
IA: Reed vs Harkin
ID: Risch vs Larocco
IL: Sauerberg vs Durbin
KS: Roberts vs Slattery
KY: McConnell vs Lunsford
LA: Kennedy vs Landrieu
MA: Beatty vs Kerry
MI: Hoogendyk vs Levin
ME: Collins vs Allen
MN: Coleman vs Franken
MS: Cochran vs Fleming
MS: Wicker vs Musgrove
MT: Kelleher vs Baucus
NC: Dole vs Hagan
NE: Johanns vs Kleeb
NH: Sununu vs Shaheen
NJ: Zimmer vs Lautenberg
NM: Pearce vs Udall
OK: Inhofe vs Rice
OR: Smith vs Merkley
RI: Tingle vs Reed
SC: Graham vs Conley
SD: Dykstra vs Johnson
TN: Alexander vs Tuke
TX: Cornyn vs Noriega
VA: Gilmore vs Warner
WV: Wolfe vs Rockefeller
WY: Enzi vs Rothfuss
WY: Barasso vs Carter

 

Shake outraises Abramson in states most important Judicial Race

Thursday, October 30th, 2008

Mark Hebert of WHAS11 reports that Jefferson Circuit Judge Jim Shake has outraised Supreme Court Justice Lisabeth Abramson in their Supreme Court race Nov. 4th.
“The latest reports filed with the Kentucky Registry of Election Finance shows Shake raised $43,000 over the first two-and-a-half weeks of October, compared to Abramson’s $17,000. Shake has now outraised Abramson $164K to $143K over the course of the election.”
Both candidates are highly qualified and both are very popular in their Jefferson County Judicial District.   Shake has been elected Chief Circuit Judge on several occasions and Abramson has received numerous valuable endorsements.

 

The raise is believed to be a toss-up.

The McConnell campaign may have made a serious mistake by complaining about Lunsford handling of a recording device. McConnell campaign worker could end up facing a felony charge for eavesdropping in violation of KRS 526.020

Wednesday, October 29th, 2008

Oct. 29, 2008


  A Marshall County Grand Jury will hear evidence on Nov. 7th. about a controversy over a digital recording device that erupted after last week’s debate between candidates in the Kentucky U.S. Senate race.  This investigation launched at the request of the McConnell campaign may boomerang and could result in prosecution of a McConnell campaign worker.

 The investigation concerns various claims reported in the press.  Lunsford is quoted as saying he was at his podium in the public debate with Mitch McConnell, and found a digital recording device hidden under a notebook on his podium. Lunsford turned the recording device over to a campaign aide and it was later delivered to the Marshall County Sheriff  Kevin Byars.
 

A McConnell campaign worker Richard St. Onge  filed a complaint with the Marshall County attorney’s office asking that charges be filed against Lunsford and Achim Bergmann a Lunsford campaign consultant.  St. Onge claims that the Lunsford campaign deleted the recordings on the recording device before delivering it to Sheriff Byars.

A press report yesterday stated that the McConnell campaign had taken the recording device to an expert and they had restored the audio recording.

The complaint by St. Onge seems to make the claim that he is the owner of the digital recorder.  Therefore, the Grand Jury can be expected to inquire about how the device got to the Lunsford podium.   It is suggested that the device had recorded private comments of Lunsford with his campaign workers.
 

Throughout this election the McConnell campaign has assigned a worker identified as “Richard” to follow Lunsford throughout the state and videotape every Lunsford appearance.  “Richard” repeatedly followed Lunsford and videotaped him as he walked through crowds and shook hands with voters and spoke to them.  Is this “Richard” the same person as the Richard St. Onge who filed the complaint with the Marshall County prosecutor?
 

So far the media has run this story as a charge against the Lunsford campaign.  However Kentucky law appears to cover the activities as a potential felony offense committed by the person who placed the recording device on Lunsford’s podium and hid it.
 

Kentucky law (KRS 526.010) defines “eavesdrop”  as meaning “to …record…any part of (a) oral communication of others without the consent of at least one (1) party thereto by means of any electronic, mechanical or other device.”
 

Lunsford said that he believed the device was placed on his podium and hidden in an attempt to record pre-debate comments he made to his campaign workers and to record any public comments he made under his breath during the debate. 
It is one thing to record a public statement of a candidate.  It may well be a felony however if any part of a private conversation is recorded without permission of at least one of the participants to the conversation.   It would not be a violation of law to record or videotape a public statement of a candidate, but conversations  made in private appear to be protected by Kentucky law.
 If a person is guilty of eavesdropping under Kentucky law they have committed a Class D Felony punishable by a sentence of up to five years in prison.  (KRS 526.020).
 

Even the act of installing a recording device with the intent to eavesdrop is defined as a Felony under KRS 526.030.
 

Mere possession of an eavesdropping device is itself a misdemeanor.  (KRS 526.040).
 

If a device is determined to be an eavesdropping device, it must be forfeited. (KRS 526.080).    
 

The procedure where the Lunsford campaign turned the device over to the local Sheriff seems to be the correct thing to do. If you find evidence of a crime you should turn it over to the law enforcement officials. 
 

The act of the Sheriff in not holding on to the device, and instead delivering it back to the McConnell campaign seems to be a strange thing for a law enforcement official to do with material evidence of a crime. 
 

The Marshall County Grand Jury will not meet to consider the McConnell campaign complaint against Lunsford until Nov. 7th., but due to the eavesdropping laws, the Grand Jury may well be more interested in examining the conduct of Richard St. Onge, than of the Lunsford campaign.
 

The claim that the Lunsford campaign deleted the recorded information on the recording device, if true, could complicate the issue.  However KRS 526. 030 makes it a Felony offense just to install such a device, and does not require proof that a private conversation was actually recorded.
  

Read the applicable Kentucky Law for yourself


 
KRS 526.010 Definition.
The following definition applies in this chapter, unless the context otherwise requires:
“Eavesdrop” means to overhear, record, amplify or transmit any part of a wire or
oral communication of others without the consent of at least one (1) party thereto by
means of any electronic, mechanical or other device.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 226, effective January 1, 1975.
 

KRS 526.020 Eavesdropping.
(1) A person is guilty of eavesdropping when he intentionally uses any device to
eavesdrop, whether or not he is present at the time.
(2) Eavesdropping is a Class D felony.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 227, effective January 1, 1975.
 

KRS 526.030 Installing eavesdropping device.
(1) A person is guilty of installing an eavesdropping device when he intentionally
installs or places such a device in any place with the knowledge that it is to be used
for eavesdropping.
(2) Installing an eavesdropping device is a Class D felony.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 228, effective January 1, 1975.
 

KRS 526.040 Possession of eavesdropping device.
(1) A person is guilty of possession of an eavesdropping device when he possesses any
electronic, mechanical or other device designed or commonly used for
eavesdropping with intent to use that device to eavesdrop or knowing that another
intends to use that device to eavesdrop.
(2) Possession of an eavesdropping device is a Class A misdemeanor.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 229, effective January 1, 1975.
 

KRS 526.080 Forfeiture.
Any electronic, mechanical or other device designed or commonly used for
eavesdropping which is possessed or used in violation of this chapter, is forfeited to the
state and shall be disposed of in accordance with KRS 500.090.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 233, effective January 1, 1975.
 

KRS 500.090 Forfeiture.
(1) All property which is subject to forfeiture under any section of the Kentucky Penal Code shall be disposed of in accordance with this section.
(a) Property other than firearms which is forfeited under any section of this code may, upon order of the trial court, be destroyed by the sheriff of the county in which the conviction was obtained.
(b) Property other than firearms which is forfeited under any section of this code may, upon order of the trial court, be sold at public auction. The expenses of keeping and selling such property and the amount of all valid recorded liens that are established by intervention as being bona fide shall be paid out of the proceeds of the sale. The balance shall be paid to:
1. The state, if the property was seized by an agency of the state or peace officer thereof;
2. The county, if the property was seized by the sheriff or an agency or peace officer of the county;
3. The Department of Fish and Wildlife Resources, if the property was seized by a peace officer of the Department of Fish and Wildlife or was seized by any other officer for violation of KRS Chapter 150;
4. The city, if the property was seized by the city or by an agency or peace officer thereof and the property was delivered to the city property clerk;
5. The city (ninety percent (90%) of the proceeds) and the sheriff (ten percent (10%) of the proceeds), if the property was seized by the city or by an agency or peace officer thereof and the property was delivered to the sheriff or the county police; or
6. The state, if the property was seized by any combination of agencies listed above.
(c) Subject to the duty to return confiscated firearms and ammunition to innocent owners pursuant to this section, all firearms and ammunition confiscated by a state or local law enforcement agency, all firearms ordered forfeited by a court, and all abandoned firearms and ammunition coming into the custody of a state or local law enforcement agency and not retained for official use shall be transferred to the Department of Kentucky State Police for disposition as provided by KRS 16.220. The transfer shall occur not more than ninety (90) days after the abandonment of the firearm or ammunition to the law enforcement agency or not more than ninety (90) days after its confiscation, unless a court requires the firearm or ammunition for use as evidence, in which case it shall be transferred to the Department of Kentucky State Police not more than ninety (90) days following the order of forfeiture by the court or after the court returns the firearm or ammunition from use as evidence. Prior to the sale of any firearm or ammunition, the law enforcement agency shall make a bona fide attempt to determine if the firearm or ammunition to be sold has been stolen or otherwise unlawfully obtained from an innocent owner and return the firearm and ammunition to its lawful innocent owner, unless that person is ineligible to purchase a firearm under federal law. This subsection relating to auction of firearms and ammunition shall not apply to firearms and ammunition auctioned by the Department of Fish and Wildlife that may be sold to individual purchasers residing in Kentucky who are eligible under federal law to purchase firearms and ammunition of the type auctioned.
(d) If property which is forfeited under any section of this code is determined by the trial court to be worthless, encumbered with liens in excess of its value, or otherwise a burdensome asset, the court may abandon any interest in such property. Property which is abandoned pursuant to this section shall be returned to the lawful claimant upon payment of expenses for keeping the property.
(e) Property which is forfeited under any section of this code may, upon order of the trial court, be retained for official use in the following manner. Property which has been seized by an agency of the state may be retained for official state use. Property which has been seized by an agency of county, city, or urban-county government may be retained for official use by the government whose agency seized the property or for official state use. Property seized by any other unit of government may be retained only for official state use. The expenses for keeping and transferring such property shall be paid by the unit of government by which the property is retained.
(2) Money which has been obtained or conferred in violation of any section of this code shall, upon conviction, be forfeited for the use of the state. This subsection shall not apply when, during the course of the proceeding in which the conviction is obtained, the person from whom said money was unlawfully acquired is identified.
(3) Property forfeited under any section of this code shall be disposed of in accordance with this section only after being advertised pursuant to KRS Chapter 424. This subsection shall not apply to property which is designed and suitable only for criminal use or to money forfeited under subsection (2) of this section.
(4) The trial court shall remit the forfeiture of property when the lawful claimant:
(a) Asserts his or her claim before disposition of the property pursuant to this section;
(b) Establishes his or her legal interest in the property; and
(c) Establishes that the unlawful use of the property was without his or her knowledge and consent. This subsection shall not apply to a lien holder of record when the trial court elects to dispose of the property pursuant to subsection (1)(b) of this section.
(5) For purposes of this section, “lawful claimant” means owner or lien holder of record.
(6) Before property which has had its identity obscured in violation of KRS 514.120 may be sold or retained for official use as provided in this section, the court shall cause a serial or other identifying number to be placed thereon, and a record of the number assigned shall be placed in the court order authorizing the sale or retention of the property. This number shall be assigned, whenever applicable, in consultation with the Department of Kentucky State Police and any other state or federal regulatory agency. The purchaser of the property shall be given a document stating that the property had been forfeited pursuant to law and that a number, shown on the document, has been assigned which shall be deemed as compliance of the owner with KRS 514.120. When property is returned to an owner pursuant to this section and its identity has been obscured by another person in violation of KRS 514.120, the court shall provide a document to the owner relieving him or her of liability for its continued possession. This document shall serve as evidence of compliance with KRS 514.120 by the owner or any person to whom he or she lawfully disposes of the property. This section shall not apply to any person after property has been sold or returned in compliance with this section who violates the provisions of KRS 514.120 with respect to that property.
(7) Before forfeiture of any property under this section, it shall be the duty of the trial court to determine if a lawful owner or claimant to the property has been identified or is identifiable. If a lawful owner or claimant has been identified or is identifiable, the court shall notify the owner or claimant that the property is being held and specify a reasonable period of time during which the claim may be made or may, in lieu thereof, order the return of the property to the lawful owner or claimant. If the lawful owner or claimant does not assert his or her claim to the property after notification or if he or she renounces his or her claim to the property, the property shall be disposed of as provided in this section. It shall be the duty of all peace officers and other public officers or officials having knowledge of the lawful owner or claimant of property subject to forfeiture to report the same to the trial court before the act of forfeiture occurs.
Effective: June 26, 2007
History: Amended 2007 Ky. Acts ch. 85, sec. 325, effective June 26, 2007. – Amended 2000 Ky. Acts ch. 405, sec. 2, effective July 14, 2000. — Amended 1998 Ky. Acts ch. 606, sec. 127, effective July 15, 1998. — Amended 1980 Ky. Acts ch. 193, sec. 5; and ch. 267, sec. 1, effective July 15, 1980. — Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 473, effective January 2, 1978. — Created 1974 Ky. Acts ch. 406, sec. 9, effective January 1, 1975.
Legislative Research Commission Note (6/26/2007). A technical correction has been made in subsection (4) of this section by the Reviser of Statutes pursuant to KRS 7.136.
 
 
ANNOTATION FOR THIS STATUTE:
 
Com. v. Fint, 940 S.W.2d 896 (Ky., 1997)
Upon the conviction of any person for the violation of any offense in this chapter … any personal property, including but not limited to vehicles or aircraft, used in the commission or furtherance of an offense under this chapter or in the transportation of stolen property shall be forfeited as provided in KRS 500.090 by court order and sold, destroyed or otherwise disposed of in accordance with KRS 500.090 by court order and sold, destroyed or otherwise disposed of in accordance with KRS 500.090.

 

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Mark Carey wins Federal Ruling to allow Judicial Candidates to express party affilitation and stands on controversial issues

Tuesday, October 28th, 2008

Mark Carey, a former candidate for the Ky. Supreme Court has won a decision in federal court that would repeal provisions of the Judicial Conduct Code and allow judges and judicial candidates  to name their party affiliation and express their views on controversial topics like abortion.
The ruling by U.S. District Judge Karen Caldwell, handed down on Monday, strikes down many of the restrictions the Kentucky Bar Association places on judicial candidates and could open up this year’s judicial races to the types of campaigning seen in other races.
Carey argued that rules barring him from declaring his views on such legal issues as abortion and gay marriage infringe on his free-speech rights.

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NASA Selects Kentucky Spacecraft for 2009 Mission – To be Launched in 2009

Tuesday, October 28th, 2008

 

FRANKFORT, Ky.—Kentucky Space today announced that its first orbital satellite, KySat-1, has been selected by NASA to fly on a mission projected for launch in mid-2009.

 

The selection of KySat-1 comes after a rigorous national review process by the NASA Launch Services Program of the Flight Projects Office at Kennedy Space Center. Satellites from the University of Colorado and Montana State University were also chosen for the mission.

 

“This highly innovative Kentucky effort is the epitome of the talent that lies within our state,” said Gov. Beshear. “The Commonwealth has been, and will continue to be, aggressive in its pursuit of technological and knowledge-driven economic opportunities.”

KySat-1, the first satellite ever built in Kentucky, is a cube shaped pico-class satellite powered by solar energy, weighs 1 kg and measures 10cm on a side. Once KySat’s on-board computers confirm its release into orbit, Kentucky Space ground controllers in Kentucky will operate the satellite for the duration of its expected 18-24 month mission. After proper operation is confirmed, KySat-1 will be made available to K-12 students throughout Kentucky, and the world, to allow them to issue select commands to the satellite and download the data received. The Commonwealth of Kentucky has invested approximately $850,000 over the last three years on this research and development of this project.

 

Kentucky Space, a consortium of universities, public organizations and companies, has launched a series of sub-orbital and near space missions; however, this selection by NASA marks a historic first for the program and for Kentucky. This is also the first time NASA will launch university built satellites into orbit.

 

The recommendations made by the launch panel and the NASA Flight Projects Office are being forwarded to NASA Headquarters for final approval and designation of the primary NASA mission. This announcement is expected as soon as December 2008. The KYSat-1 team has been asked to be prepared for a June 2009 launch

.

More details and information can be found at www.kentuckyspace.com.

 

States make uneven progress in reducing dna test backlog

Monday, October 27th, 2008

New York Times article Oct. 26, 2008:

 

LOS ANGELES — Local and state law enforcement agencies have made uneven progress in reducing a nationwide backlog of cases awaiting DNA analysis over the past four years, according to reports filed by more than 100 agencies with the National Institute of Justice.

 

The patchy results came despite stepped-up efforts by the federal government, including nearly $500 million in grants since 2004, to help crime laboratories reduce the backlog.

Victims’ rights groups and some law enforcement officials say the untested evidence, much of it stemming from sexual assault crimes, leaves open the possibility that thousands of criminal offenders have gone unpunished or are on the loose and committing new crimes.

 

“That’s always a concern,” said Sharon Papa, an assistant chief in the Los Angeles Police Department, “because, unfortunately, oftentimes rape is a serial crime.”

The problem seems most severe here in Los Angeles, where the Police Department has the largest known backlog, about 7,000 cases, including many with rape kits from sexual assaults.

 

The backlog comprises a mix of open cases and solved cases awaiting analysis and entry of DNA into state and national databases.

 

An audit released Monday by the Los Angeles city comptroller found that 217 backlogged cases here involved sexual assaults so old the 10-year statute of limitations had lapsed. The audit did not determine how many, if any, of those cases might have been prosecuted based on other evidence. The federal government has not quantified the country’s overall DNA evidence backlog since 2003, when it stood at 542,000 cases, but a researcher for Human Rights Watch who has studied the backlog, Sarah Tofte, estimates that it exceeds 400,000.

 

“People just assumed that we were testing every kit,” Chief Papa said, “and we were not.”

 

About 95 percent of state and local criminal cases are resolved through plea agreements, often before DNA analyses are completed. The police and prosecutors rely on confessions, witness testimony and physical evidence like fingerprints and ballistics.

Still, DNA remains the most sophisticated and reliable physical evidence, especially in cases with no named suspects or promising investigative leads.

 

Two weeks ago, President Bush signed a bill that includes an additional $1.6 billion over six years intended to speed DNA analyses by hiring temporary crime lab workers, providing overtime pay and renovating crime labs.

 

But many crime labs are disqualified from receiving more money because they have failed to spend previous financing in a timely manner. A report prepared for Representative Howard L. Berman, a Democrat representing a district in Los Angeles, found that the Police Department had spent less than half of the $4.4 million in federal money it received from 2004 to 2008. Los Angeles police officials said that they had spent or committed all but one-third of that money but that they had not properly recorded some expenditures.

 

The Los Angeles County Sheriff’s Department spent less than half of its $4.9 million in grants, the report said. Law enforcement agencies blame several factors for the DNA backlogs, including restrictions on how the federal money can be spent, local staff shortages, bureaucratic delays and planning problems. Some agencies have also seen the demand for new DNA analyses outpace efforts to clear old cases, criminalists said.

Pete Marone, chairman of the Consortium of Forensic Science Organizations and director of the Virginia state crime lab, said staffing levels at crime labs had not kept pace with technological advances in DNA analysis.

 

“Police are starting to send us new work that we couldn’t have done before,” Mr. Marone said. “We can do ‘touch’ evidence now, utilizing DNA analysis to see whether a defendant even touched a weapon. We can get DNA evidence from steering wheels. We can go into a room and find drugs on the floor and we’ll be able to analyze those drugs to determine which hand threw them down on the floor.”

Criminalists said that other kinds of evidence occupied much of their time. Many crime labs facing hundreds of backlogged DNA cases have even more shelved fingerprint, serology, ballistics and drug evidence that needs to be tested.

 

“DNA really accounts for just 10 percent of the caseload in crime labs around the country,” Mr. Marone said. “The majority of our work is analyzing drugs.”

Processing of a DNA evidence sample takes about a week, said Larry Blanton, a criminologist for the Los Angeles Police Department.

 

After a sexual assault, the police try to collect biological material — blood, semen, saliva — from the victim and the crime scene. If DNA is found, a chemical process creates billions of copies. A machine then produces a profile of 13 unique markers, which are entered into state and national databases for matches. Each DNA sample costs about $1,500 to analyze, criminalists said.

 

About a quarter of the 105 local and state law enforcement agencies that received federal money to reduce their DNA backlogs beginning in 2004, when Congress first authorized the spending, were granted less money this year because they had failed to meet spending goals, according to the report prepared for Mr. Berman. In progress reports filed in January with the National Institute of Justice, about 40 of 82 agencies said their DNA case backlogs had increased or remained constant during the previous six months.

 

 “Many places have not even counted their backlogs,” said Ms. Tofte, the researcher with Human Rights Watch.

 

In January, the Denver Police Department reported that it had used federal funds to process 13 cases last year, including eight rape kits, out of 934 backlogged cases. The Miami-Dade Police Department failed to spend any of the $200,000 it requested in 2007 to cut its DNA backlog, whose size was not reported to the federal government.

The West Virginia State Police reported that its DNA case backlog had grown to 697 cases by Dec. 31, 2007, from 560 cases in July 2007, despite receiving about $230,000 in federal money.

 

“Our backlog at its peak was around 730, and now we have about a 650-case backlog,” said Lt. Brent Myers, head of the state’s DNA analysis unit. “We haven’t been able to hire temporary employees as we would have liked, so that’s why it’s taken longer to spend that money.”

 

The federal grants can be used to outsource DNA testing or to hire temporary employees, but not permanent staff members.

 

Some police departments have done better. In New York City, a backlog of more than 17,000 DNA samples from sexual assault and homicide cases from 2001 to 2004 was brought under control when the Police Department hired additional criminalists to work more cases, added overtime, bought analysis equipment and hired private firms to process DNA.

 

Elsewhere, the backlog has haunted detectives, as it did in a rape case that Detective Tim Marcia of the Los Angeles Police Department worked 10 years ago. A 43-year-old legal secretary was raped in her home as her son slept in another room. The attacker forced the woman to destroy evidence by cleaning herself.

 

“Given the way everything happened,” Detective Marcia said, “I knew in my gut that this was a repeat offender and he was going to strike again.”

Detective Marcia said he had rushed the woman’s rape kit to the department’s crime lab but was told to expect a processing delay of more than a year. He drove the kit to the state’s DNA testing laboratory in Sacramento, about 350 miles north. But a backlog there prevented testing for four months.

 

During that time, the rapist broke into the homes of a pregnant woman and a 17-year-old girl and sexually assaulted them.

 

Ky. Supreme Court once again sends message to Trial Judges and Attorneys to do a better job on jury instructions –

Monday, October 27th, 2008

 

Oct. 27, 2008

 

In the case of Wilbert Harp v. Commonwealth  –  an unpublished Decision out of Jefferson Circuit Court released on Oct. 23, 2008. 2007-SC-000288-MR.pdf
The court said:
 

“[w]hen the evidence is sufficient to support multiple counts of the same offense, the jury instructions must be tailored to the testimony in order to differentiate each count from the others .”.
 

Based on this precedent, it is apparent that the trial court erred by submitting seven identical sexual abuse instructions to the jury.
 

We again instruct the bench and bar of the Commonwealth that in a case involving multiple counts of the same offense, a trial court is obliged to include some sort of identifying characteristic in each instruction that will require the jury to determine whether it is satisfied from the evidence the existence of facts proving that each of the separately charged offenses occurred.”
 

Fen Phen Defendants William J. Gallion & Shirley Cunningham agree to permanent disbarment

Thursday, October 23rd, 2008

Fen Phen Defendant William J. Gallion  and Shirley Cunningham Jr. were permitted to withdrawn their membership in Ky. Bar Association.  On Thursday Oct. 23rd. the Ky. Supreme Court issued an order approving the KBA recommendations.
 

As condition for allowing Gallion and Cunningham to withdraw from the Bar, they agreed to never apply for reinstatement, and to pay all costs associated with these disciplinary proceedings in the amount of $24,928.25.

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Ky. Commission on Human Rights Issues Latest Rulings

Thursday, October 23rd, 2008

LOUISVILLE – The Kentucky Commission on Human Rights Board of Commissioners at its monthly meeting today ruled to accept two conciliation agreements to resolve discrimination complaints, both in Louisville. The commission dismissed 39 cases with findings of no probable cause, accepted four withdrawals with private, undisclosed settlements, and accepted eight withdrawals without settlements but with a right to file a private suit.
The conciliation agreements were as follows:
Karen McDonald v. HISE Inc. and MPKS Hospitality LLC at 3255 Bardstown Road in Louisville: Ms. McDonald filed a discrimination complaint based on the protected class of familial status in the jurisdiction of housing, a violation of the Kentucky Civil Rights Act [KRS 344.360]. The hotel employing her husband and in which the family lived asked the McDonalds to move from the property. Upon investigation, the commission found the hotel asked another employee family with children to move but allowed another employee with no children to continue living at the property. The company denied all allegations, asserting it asked all employees of the Quality Inn and Suites to move from its property except those related to hotel security. The commission found probable cause to believe discrimination occurred after which the parties agreed to resolve the matter by conciliation. The respondent agreed to compensate the complainant in the amount of $7,000 and to undergo commission monitoring for civil rights law compliance for the next three years.
Jennifer Ebendorf v. Curves of the Highlands in Louisville: Jennifer Ebendorf filed a discrimination complaint based on the protected class of disability in the jurisdiction of public accommodations, a violation of the Kentucky Civil Rights Act [KRS 344.120]. Ms. Ebendorf alleged the company asked her to leave and returned her money because she was not moving quickly through the exercise circuit. The company denied all allegations of wrongdoing. The parties agreed to conciliate the matter rather than pursue litigation. The respondent agreed to compensate the complainant in the amount of $600 and undergo civil rights compliance training and commission monitoring for compliance for the next three years.
In other business, the commission passed a resolution supporting policies and laws in Kentucky that include sexual orientation and gender identity as protected classes in a person’s pursuit of employment, housing, and the goods and services of public accommodations. 
“Civil rights protect fundamental freedoms essential to every person in Kentucky and laws regarding civil rights should include every person in Kentucky, said John J. Johnson, executive director of the Kentucky Commission on Human Rights. “This reflects the promise and integrity of democracy,” he said.
The commission commended Governor Steven L. Beshear on the recent enactment of Executive Order 2008-473, which states a broad and inclusive policy of equal opportunity in state government employment.  In a letter to Governor Beshear, John Johnson said, “Your inclusion of both sexual orientation and gender identity [in the executive order] is in keeping with Kentucky’s historic tradition as a leader in the protection of the dignity and fundamental rights of its citizens.” 
The commission passed a second resolution to honor the late Alice Wade, a well-known civil rights activist who died at the end of May. “Ms. Wade was a staunch soldier for justice in Louisville and throughout Kentucky,” said Executive Director Johnson.
The Kentucky Commission on Human Rights is the state government agency that enforces the Kentucky Civil Rights Act and the policies of federal civil rights laws. The Kentucky Civil Rights Act prohibits discrimination on the bases of race, color, religion, national origin, sex, age and disability in the jurisdictions of employment, public accommodations, housing and financial transactions. Tobacco-smoking status is an additional protected class in the jurisdiction of employment
 

Hart County Judicial Center to be dedicated Oct. 30

Thursday, October 23rd, 2008

FRANKFORT, Ky. — The public is invited to a dedication ceremony for the Hart County Judicial Center on Thursday, Oct. 30, at 11 a.m. CDT at

117 E. South St.

in Munfordville. 

“The Hart County Judicial Center will greatly enhance the security of our court system,” Hart County Judge Executive Terry Martin said. “This modern facility is a very welcome addition to Hart County and will streamline a lot of our new technology.” 

The judicial center consists of approximately 36,000 square feet and includes space for Circuit Court, District Court, the Office of Circuit Court Clerk and ancillary services. 

The new court facility increases efficiency of services and public flow. It is equipped with the latest computer, video and networking technology. The design also provides the highest level of Kentucky court security through a single-point entry with magnetometers and security personnel. In addition, prisoners will be segregated from the public by separate entrances and corridors. 

The Hart County Judicial Center was designed to meet the standards required by the Administrative Office of the Courts. The project was completed by Brandstetter Carroll architectural firm of Lexington and Alliance Corporation of Glasgow. Ross, Sinclaire & Associates, which serves Kentucky and six other states, was the financial agent. 

Chief Justice John D. Minton Jr. and Judge Executive Martin will be among the speakers at the dedication ceremony. State legislators, circuit and district judges, county magistrates, AOC staff and local officials are also expected to attend. For more information, contact Judge Executive Martin at 270-524-5219. 

As the administrative and fiscal agent for the Kentucky Court of Justice, the AOC oversees construction of court facilities statewide. The AOC also supports the activities of approximately 4,000 court system employees, including the elected justices, judges and circuit court clerks. 

Supreme Court takes on identity theft case

Wednesday, October 22nd, 2008

By MARK SHERMAN – Oct. 21, 2008 

WASHINGTON (AP) — The Supreme Court is taking a look at federal prosecutors’ efforts to pin identity theft charges on undocumented foreign workers who have Social Security and identification numbers that belong to others. 

The government has used the charges — with the possibility of prison time — to persuade people to plead guilty to lesser immigration violations. In other cases, defendants have been convicted of “aggravated identity theft,” even without proof that they knew their phony ID numbers belonged to real people. 

The issue has divided federal appeals courts around the country and the justices said Monday they will resolve the issue after hearing arguments next year. 

The central question is whether the defendant must know that the counterfeit identification belongs to someone else. Federal prosecutors have increasingly been bringing the more serious identity theft charges against undocumented immigrants, including many who were arrested in raids on meatpacking plants. 

Defense lawyers have argued that their clients should not be charged with stealing an identity because the immigrants were seeking documentation only to allow them to work. They didn’t know if the numbers were fictitious or belonged to someone else, their lawyers say. 

“When a person makes up a Social Security number, having no idea whether it belongs to someone else, it is hard to see how that conduct qualifies as ‘theft’ — much less ‘aggravated theft,’” said the lawyers for Ignacio Carlos Flores-Figueroa, a Mexican national who was convicted of the crime. 

The Bush administration, however, contends that the conviction was justified under a provision of federal law that makes it a crime to “knowingly” use a means of identification of another person. 

The 8th U.S. Circuit Court of Appeals, based in St. Louis, agreed with the administration and upheld Flores-Figueroa’s conviction. 

He worked at a steel plant in East Moline, Ill., since 2000. Originally, he worked there under an assumed name, false Social Security and alien registration numbers. In 2006, he told his employer he wanted to be known by his real name and submitted new identification documents. 

This time, though, the Social Security number belonged to someone else, and his green card number was that of yet another person. Suspicious, the employer contacted immigration authorities, who arrested Flores-Figueroa. 

The five-count indictment against him included two counts of aggravated identity theft. A judge added two years to Flores-Figueroa’s sentence after his conviction. 

Federal appeals courts based in Atlanta and Richmond also have ruled in the government’s favor in similar cases, while the appeals courts based in Boston, San Francisco and Washington, D.C., have sided with defendants. 

The case is Flores-Figueroa v. U.S., 08-108. 

U.S. Supreme Court: When Does Citizen Have the Right to Sue for Violations of Constitutional and Statutory Rights

Wednesday, October 22nd, 2008

The Supreme Court Puts Ideology Aside in Deciding a Small But Important Ohio Election Case that Could Affect the 2008 Presidential Election

 

                          By MICHAEL C. DORF     Findlaw –  Oct. 21, 2008

During his confirmation hearings for the Supreme Court, then-Judge and now-Chief Justice John Roberts likened the judicial role to that of an umpire calling balls and strikes. His personal and ideological views, he said, would not play a role in his decision-making.
The simile was and is inapt, however. In fact Supreme Court cases afford Justices many opportunities to make decisions based on value judgments. In just three terms, for example, Chief Justice Roberts has come down on the conservative side in cases involving abortion, free speech, gun control, and racial segregation. If he is an umpire, he has a strike zone that is markedly wider to the right.
Nonetheless, occasionally the Justices do remind us that while ideological factors undoubtedly enter their decision-making, active partisanship of the sort many observers perceived in Bush v. Gore is rare. A terse ruling last week in Brunner v. Ohio Republican Party-a case that could have important ramifications for the Presidential election-should serve as a reminder that the Supreme Court is, for all of its imperfections, capable of genuinely putting aside politics to apply the law.
The Underlying Dispute: Did Ohio’s Secretary of State Violate the Post-Bush v. Gore Federal Voting Statute?
In the wake of Bush v. Gore, Congress enacted the Help America Vote Act (HAVA), a statute that, among other things, sets standards for federal elections. In important respects, HAVA lives up to its name: One of its provisions requires that states permit people whose eligibility to vote is questioned by election officials to cast provisional ballots, so that if these voters are later determined to be eligible (and if the outcome is sufficiently uncertain that provisional ballots could make a difference), they will not be unfairly deprived of their votes.
Another provision of HAVA is less about helping Americans vote than it is about preventing some people from voting. It obligates relevant state officials to match registered voter lists (typically kept at the county level) against motor vehicle records (typically kept statewide) “to the extent required to enable each such official to verify the accuracy of the information provided on applications for voter registration.” In the political realm, this provision is typically extolled by Republicans who worry about fraudulent voting, and derided by Democrats who worry that manufactured concerns about voter-level fraud have been used to suppress the votes of minorities and other core Democratic constituencies.
Ohio is a swing state that President Bush narrowly carried in 2004 amidst allegations of irregularities that disproportionately suppressed the votes of Democrats. Ohio’s current Secretary of State is a Democrat, Jennifer Brunner. She was recently sued by the Ohio Republican Party and a Republican state representative in Ohio, who claimed that by failing to provide county election officials with lists of newly registered voters whose registration information did not match their motor vehicle information, she had violated HAVA.
Secretary Brunner in turn responded that HAVA does not specifically require her to provide lists to county officials; that doing so would be unduly burden her office; and that, in any event, another federal law-the National Voter Registration Act or “Motor Voter”-forbids systematic purging of voters from the rolls within 90 days of an election, so that there would be no point in providing this information to county election officials at this late date.
A federal district judge originally ruled in favor of the Ohio Republican Party, granting a temporary restraining order (TRO) against Secretary Brunner. However, a panel of the Sixth Circuit quickly reversed that decision, only to be reversed in turn by the full (en banc) Sixth Circuit.
Last week’s en banc opinion in Ohio Republican Party v. Brunner rejected Secretary Brunner’s reading of HAVA and also rejected the argument, advanced by the Secretary, that private parties could not sue to enforce HAVA. The en banc court said this was a close question, but that the district judge acted within his authority in finding a sufficient likelihood of success on the merits to grant the plaintiffs their TRO. (To gain the temporary relief of a TRO, a plaintiff must show only that he is likely to succeed in proving the allegations of the complaint, not that he actually will succeed in doing so, and that he will suffer irreparable injury absent the TRO.)
Faster than you can say “Bush v. Gore,” the Supreme Court reversed the Sixth Circuit’s en banc decision. It held that the legal standard governing who can sue to enforce statutes is simply too demanding for the plaintiffs to have established a likelihood of success on the merits. It was probable, instead, that they lacked the right to bring the case in the first place. As a consequence, the federal court suit was dismissed. Thus, it now appears that Secretary Brunner’s decision not to flag discrepancies between voter registrations and motor vehicle records for county election officials will stand.
Had the Supreme Court not reversed the en banc Sixth Circuit ruling, thousands of newly registered Ohio voters might have been purged from the rolls. Because the Democrats have registered more new Ohio voters than have the Republicans, last week’s ruling was no doubt welcome news to the Obama campaign and a disappointment to the McCain campaign. Should Senator Obama capture Ohio by a razor-thin margin, and should Ohio prove decisive in the Electoral College race, he will have the Supreme Court to thank on Inauguration Day.
The Evolution of the Doctrine of Implied Rights of Action: How the Law Turned Right
By contrast with 2000, however, the Supreme Court ruling in Brunner v. Ohio Republican Party cannot be characterized as partisan. Notably, the key line of cases on which the Supreme Court relied is the product of years of judicial conservatives’ efforts to limit the ability of plaintiffs to sue to enforce federal statutes. This seemingly technical area of the law concerns what lawyers call a “cause of action,” a “right of action,” or in lay parlance, simply a right to sue.
Sometimes, when Congress enacts a law, it includes provisions specifying who can and who cannot sue to enforce the legal rights and duties the law creates. However, Congress does not always address this issue expressly. Some laws, for example, authorize enforcement by federal administrative agencies but are silent on the question of whether, in addition, private parties can sue other private parties or the government on the basis of the legal rights and duties these laws create.
What happens when a private party sues either another private party or the government, invoking a federal law that is silent on the question of whether it creates a private cause of action? Then the federal courts must decide whether the statute creates an “implied” right of action.
During the Warren Court era, the Supreme Court freely found implied rights of action. As the Court explained in the 1964 case of J.I. Case Co. v. Borak, “it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose.” Courts operating under this framework frequently found that private rights of action were an appropriate supplement to administrative action, even where Congress had not expressly authorized private rights of action.
More recently, however, the Supreme Court has taken a tougher line on implied rights of action. Judicial conservatives distrust the notion that there even exists any such thing as a “congressional purpose” that goes beyond a statute’s text. Conservatives also tend to dislike lawsuits more generally. Thus, as the Court has turned to the right in the last forty years, it has enunciated a stricter standard for finding an implied right of action.
How strict? Consider the 2001 decision in Alexander v. Sandoval. There, the Court accepted that there is a private right of action to enforce Title VI of the 1964 Civil Rights Act, which bars certain forms of invidious discrimination by entities that receive federal funding. The Court also accepted (at least for the sake of argument) that the Department of Justice could, by regulation, bar not only intentional discrimination but also practices that have a discriminatory effect on protected groups. Nonetheless, Justice Scalia said for the Court in Sandoval that there was no private right of action to enforce the Justice Department’s disparate impact regulation.
Why? Because, Justice Scalia claimed, the language of the Civil Rights Act did not create any individual right to be free of practices that have a discriminatory impact. In other words, rather than ask-as the Court would have asked in the 1960s-whether the Civil Rights Act’s purposes would be advanced by an implied right of action, the Sandoval Court asked simply whether the statutory text manifested an intent to create a private right of action.
Application of that very conservative, text-focused test to the facts of Brunner v. Ohio Republican Party leads ineluctably to the conclusion that there is likewise no implied cause of action for private parties to enforce the provision of HAVA requiring that new voter registrations be checked against motor vehicle records. That aspect of HAVA may create a legal duty on state officials like Secretary Brunner, but it creates no correlative right for private parties.
To its credit, the Supreme Court reversed the Sixth Circuit en banc court, citing Sandoval on this point. The conservatives who had fashioned a test that makes it very hard for plaintiffs to bring civil rights lawsuits, were consistent enough to say that the test must be equally difficult for Republican plaintiffs to satisfy. Whether or not one agrees with that strict test, one should at least respect the Justices for applying it in a way that did not focus on the results-in this case a benefit to a Democratic Secretary of State and, more importantly, the Democratic Party.
The Relevance of the Ku Klux Klan Act: A Right to Sue for Violations of Constitutional and Statutory Rights, But Not to Sue Under Every Federal Statute
The plaintiffs did not simply rely on HAVA, however. Even if HAVA itself does not confer a private cause of action, the plaintiffs argued, the Ku Klux Klan Act, enacted in 1871 and codified in relevant part today as section 1983 of Title 42 of the U.S. Code, grants them a right to sue. Section 1983 is the general civil rights law that permits plaintiffs to sue government officials for violations of their federal constitutional and statutory rights.
However, the same conservative Justices who have narrowed the scope of implied rights of action over the last forty years have imposed roughly the same requirement under Section 1983: A plaintiff suing to enforce a federal statute must show not only that the statute has been violated, but that the statute conferred upon him a “right” that the defendant violated. Accordingly, a law that confers duties on government officials without using the language of rights for the beneficiaries of those duties, the Court has said, cannot be enforced by a Section 1983 action.
Recall that the Ohio plaintiffs could not rely directly on the provision of HAVA that they want to see enforced because it does not contain any rights-conferring language. Due to that very same omission, the Supreme Court said that these plaintiffs are also unlikely to succeed in a Section 1983 action. Therefore, the Court concluded that the district court was mistaken in granting the temporary restraining order, and the en banc Sixth Circuit court was mistaken in reinstating that order.
It is no doubt faint praise to laud the Supreme Court for having the intellectual honesty to apply its legal principles even-handedly, regardless of whether those principles favor Democrats or Republicans. At a minimum, justice is supposed to be blind. Still, given the lingering shadow that Bush v. Gore casts over the Supreme Court’s objectivity in cases involving Presidential elections, even such minimal fairness is heartening.
 

SurveyUSA: Ky. Senate race tied

Tuesday, October 21st, 2008

In last year’s governor’s race the SurveyUSA poll was the most accurate poll released.   

In a poll released Oct. 20th. they are saying the race is dead even.

Democrat Bruce Lunsford has pulled even with Senate Republican Leader Mitch McConnell in a new poll conducted by SurveyUSA for WHAS-TV in Louisville.
Lunsford and McConnell tied at 48 percent each, with 4 percent undecided. The automated phone survey has a margin of error of 4.3 percentage points.
A month ago, SurveyUSA showed McConnell with a 3-point lead over Lunsford.
McConnell still holds a 10-point lead over Lunsford among men, but Lunsford leads among women by 11 percentage points.
Lunsford leads in Eastern Kentucky and Louisville, while McConnell leads in Northern Kentucky and Western Kentucky

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New Poll shows Lunsford closing on McConnell – McCain increases lead in Ky.

Monday, October 20th, 2008

Research 2000 for Daily Kos. 10/15-16. Likely voters. MoE 4% (9/15-17 results) 

McConnell (R) 46 Lunsford (D) 42 

Stunning. That’s a 9-point swing in a month, with McConnell now falling well below the magical 50 percent mark. 

Lunsford’s gains come among Democrats (12-point gain) and independents (10-point gain). 12 percent of Democrats remain undecided, which isn’t surprising given that 1) it’s a southern state with a significant number of Dixiecrats, and 2) Lunsford has been a historically terrible Democrat. He seems to have learned from his mistakes, however, bending over backwards to try and reassure skittish Democratic constituencies. 

Also note the large number of undecided African Americans — still more evidence of the “reverse Bradley” effect we’re seeing in Southern states. In short, black respondents seem skittish about telling pollsters their electoral choices. We can safely assume they’ll slot in with the Democratic ticket at an over-90 percent rate. In this case, that could mean an extra two points for Lunsford. 

This one is going down to the wire, guys. And if you want to talk about crushing the GOP, eliminating their highest-ranking leader, and perhaps the only one left who can hold their coalition together, would be a stunner — a true leadership decapitation. 

In the presidential, it’s McCain 53-39, a slight improvement from last month’s 55-37. Bush won the state 60-40 in 2004, so at worse, Obama seems to be performing at John Kerry-levels.