Archive for May, 2006

Ky. Supreme Court rules out new indictments of those pardoned

Thursday, May 18th, 2006

TO READ FULL TEXT OF THIS CASE GO TO:  2005-SC-001009-MR.pdf

FRANKFORT, Ky. —May 18 – The Kentucky Supreme Court ruled Thursday that the special grand jury investigating Fletcher administration hiring practices cannot indict people covered by the broad pardon the governor issued last August.

The decision does not affect last week’s indictment of Gov. Ernie Fletcher because he specifically excluded himself from his pardon.

But the ruling means the grand jury can return no more indictments of anyone other than Fletcher for alleged violations of the state merit system law before or on the Aug. 29 date of the pardon.

“The grand jury must be advised that it has no authority to issue indictments against persons named in the pardon or persons falling within the class specified in the pardon,? Justice Martin Johnstone wrote.

Johnstone’s opinion does not directly address what happens with 14 sealed indictments returned by the grand jury last week when Fletcher was indicted.

Those indictments were sealed pending the Supreme Court’s opinion.

Attorney General Greg Stumbo said in a statement he is pleased with the ruling because he believes it will allow the grand jury to issue “a public report detailing its investigative findings.?

The special grand jury has been meeting for a year and, in addition to Fletcher and the unknown persons in the sealed indictments, has charged 14 people with various counts. Most of the counts are violations of the law that requires rank and file state workers be hired and fired on merit — not politics.

Two of those indictments are not covered by the pardon because they allege illegal acts after the date of Fletcher’s pardon.

The grand jury’s term expires Friday, but Stumbo has asked for a 90-day extension of the term because he says the Governor’s office has not yet turned over potentially significant e-mails stored on the computer server of the Governor’s office.

The grand jury had indicted nine current or former members of the Fletcher administration when Fletcher issued his pardon. But when the jury continued to indict people who were covered by the pardon, Fletcher objected — arguing the jury had no authority to indict anyone who had been already pardoned.

In the Supreme Court’s ruling, each of the six justices sitting in the case wrote an opinion. And on the main question of whether the grand jury can return indictments against persons covered by the pardon, the vote was 4-2 with Johnstone joined in the majority by Special Justice Ronald Green and Justices William Graves and Will T. Scott.

Justices who dissented were William Cooper and Donald Wintersheimer.

In his 53-page opinion, Cooper agreed with the arguments made by the Attorney General’s office that a governor must not be allowed to use his pardon power to thwart an investigation into corruption of his administration.

“Dead kings of England would rise from their graves … if they knew that one (though only one) jurisdiction of the Anglo-Saxon legal tradition has finally espoused their cause and rolled back hundreds of years of anti-corruption jurisprudence, including the hard-won independence of the grand jury,? Cooper wrote. “And history will not forget nor fondly remember the day that the Supreme Court of Kentucky put its imprimatur on a governor’s scheme to cover up alleged wrongdoing within his administration by granting a blanket pardon to all persons under investigation by a sitting grand jury.?

Franklin Circuit Judge William Graham ruled that Fletcher’s pardon could not stop the jury from returning indictments — even though those indictments would be dismissed because of the pardon. And the appeals court upheld Graham.

But Thursday’s Supreme Court ruling reversed the lower courts on that point.

When Fletcher appealed case to the Supreme Court, two justices disqualified themselves — John Roach, who had previously served as Fletcher’s general counsel, and Chief Justice Joseph Lambert, whose former assistant Jim Deckard is currently Fletcher’s general counsel.

That gave Fletcher the opportunity to appoint two special justices to hear his case.

Fletcher appointed Green, a Lexington lawyer, and Jeffrey Burdette, a circuit judge from Rockcastle County. Both Green and Burdette had previously contributed to political campaigns of Fletcher. Burdette gave $1,500 to Fletcher’s 2003 campaign for governor. Green gave $2,800 to Fletcher’s previous congressional campaigns.

After the Attorney General’s office asked that the two be removed because they had been Fletcher supporters, Burdette stepped aside. Burdette said his past contributions could be perceived as a possible conflict. But Green remained, saying he did not give to Fletcher’s campaign for governor and was not involved in state contracts held by his law firm.

As a result, the case was heard by six justices as opposed to the normal seven.
Reprinted from the  Courier-Journal

 

In a press release Governor Fletcher stated:

Governor Ernie Fletcher’s Communications Office
Summary   : “I am very pleased with this decision.  The Kentucky Supreme Court has vindicated us on every point and ruled that Greg Stumbo has been acting unconstitutionally.”

Attorney General Stumbo Investigating Purged Voter Complaints

Thursday, May 18th, 2006

   May 17, 2006  – Attorney General Greg Stumbo announced today that his office is seeking public records from all county clerks statewide regarding eligible voters erroneously purged by the State Board of Elections and Secretary of State.
In Bowling Green, the Commonwealth’s Attorney was surprised to find that his name had been purged from the voting rolls.  It took him a short time to be allowed to vote after the Clerk “identified” him.“As anticipated, eligible voters appearing to vote in yesterday’s election found that their names had been purged,? said Attorney General Greg Stumbo. “This is why our office took immediate action to ensure that these voters would be permitted to vote.?
The open records request to all county clerks seeks copies of all supplemental precinct rosters, new voter registration cards completed by voters who were purged, voter oath cards or other protests filed by purged voters, and other records relating to the State Board of Elections’ direction to counties to purge voter names.
The purge took place on April 10th and 11th, based on a comparison of voter databases in Tennessee and South Carolina.  The Attorney General’s Office asserts that such a systematic purge must be completed more than 90 days before a primary election.
An agreed order between the Attorney General and the State Board of Elections was entered before the election, ensuring that eligible voters who had been purged were permitted to vote. The Attorney General’s suit seeking to restore the entire list of 8,105 voters whose names were purged from voter rolls is ongoing.

 

 

MEMO TO CHIEF JUSTICE LAMBERT: LEAVE JUDGE HART ON THE CASE

Wednesday, May 17th, 2006

    Governor Fletchers attorney, R. Kent Westberry, has announced that he filed a motion with Chief Justice Joseph Lambert to  seek removal of Franklin District Judge William G. Hart from hearing the misdemeanor charges levied against their client by the Franklin County Grand Jury.
     The basis for the recusal motion is the claim that Judge Hart’s wife was once a state employee, and that Judge Hart and his wife are friends with one of the 92 witnesses who are expected to be called at the trial.
 The Louisville Courier-Journal reports that another reason Hart ‘s recusal is being sought           “.. is because he “recently made public statements to the media, specifically The Courier-Journal, regarding his intentions and thought processes regarding the conduct of the arraignment of Governor Fletcher.”
 Westberry said Hart also “expressed an opinion to The Courier-Journal as to how long the trial would take, potentially affecting Governor Fletcher’s rights to a speedy trial.”
Hart told the newspaper he felt Fletcher should appear at his arraignment because of the case’s “importance to the public.”
 But Hart said court rules do not require a person indicted on a misdemeanor charge to appear at arraignment, and he said he would listen to arguments from Fletcher’s lawyers as to why the governor should not appear.
 Yesterday, when Fletcher was asked if he planned to appear at his arraignment scheduled for June 7, he said, “It’s very unusual for an individual to appear on a misdemeanor indictment, from my understanding. And I think what we asked for is just the way everyone else is being treated.”
 Hart’s comment that the case could extend into next year came in response to a question as to how he, and not the other Franklin district judge, Thomas Wingate, got the case.
Hart said he and Wingate agreed that because Wingate is leaving district court at the end of this year, Hart should take the case because of the possibility it could last into 2007. Wingate is running unopposed for Franklin circuit judge.?
      Anyone familiar with the rules of procedure regarding recusal of a judge will recall that neither of these claims are a justifiable basis for recusal.   There is hardly ever a case tried in the United States where the judge is not a “friend? of a witness.   He may drink coffee with the Sheriff, play golf with a policeman, and may be member of the Rotary with a fact witness.   If this provides a real justification for recusal, then almost no trial could go forward anywhere.
     Recusal is justified when the judge has a close relationship with a “party?.  We must assume that the Governor’s case, will be tried by a jury.  The jury will be the fact finder.  The relationship of the judge with a witness has almost never been a basis for recusal, unless that relationship is extremely close.
 The suggestion that the judge’s wife was once a state employee should disqualify the judge should be viewed in the light that the Governor also is a state employee, the Judge is a state employee, and there are more than 30,000 employees on the state payroll and most of them live in Franklin County.  The vast majority of voters in Franklin County are state employees.  Does this mean that any judge elected from Franklin County could never sit on a case involving a state employee?  How does one intellectually conclude that when the defendant is a state employee and most of the 92 witnesses who will be called are state employees, that the judge will be biased by the appearance of one witness singled out by the defendant who also happens to be a state employee?   And how, we wonder, is a trial judge going to prejudice the trial by the fact that he happens to know one of the witnesses?
      Westberry’s argument that Judge Hart spoke to the newspaper about the scheduling of the trial and his prediction that this trial may go into the next year be a denial of Governor Fletcher’s “speedy trial? rights is a real stretch.  A judge may speak to the press about scheduling of trials.  That is not an impermissible communication.   We predict that the Governor’s attorneys will themselves be filing motions, and appealing those motions to delay the trial.   If a speedy trial is denied the Governor, it will likely be his own motions which cause the delay.
     The last issue raised is over the issue of whether or not the Governor should have to personally appear before the court for the arraignment.   Some comments have suggested that almost no one ever appears personally for the arraignment.  That is just not true. Every day Judges issue bench warrants for the arrest of defendants who fail to appear for their arraignment. 

 There is no provision under Kentucky law that allows an attorney to enter a plea for his client.  The Kentucky Supreme Court held a few years ago that it was improper for the court to receive a guilty plea entered by the attorney.  This ruling in a DUI case clearly held that this practice was not approved in Kentucky.  The reason for this is that it would create an appeal issue for the defendant if the defendant later raises a claim that he did not authorize his attorney to enter the plea.   Whether or not Judge Hart will allow the Governor’s attorney to enter a Not Guilty plea in his behalf is a very minor issue and does not justify recusal of a judge.   Judge Hart said he would be glad to hear motions on whether the Governor should or should not appear in person for the arraignment. 
    We do note that in District Court the defendant doesn’t even have to appear at trial.  If the Governor doesn’t wish to appear at his trial, the trial can proceed in his absence since the charges are only misdemeanors.  In any event this issue does not rise to the level as a proper basis for a recusal motion.  The bottom line is that Westberry is asking for special treatment for his client.  The last time I was in Washington, the statute of Lady Justice had a blindfold over her eyes to symbolize the concept that everyone was equal before the law.  I have never found a rule that makes an exception for an elected official.
    What we fear is going on here is that the Governor through his attorney has requested that the Chief Justice, a Republican, is being asked to appoint a Special Judge to hear the case if Judge Hart is removed.  This Special Judge does not have to be from Franklin County.  The Chief Justice could then appoint District Judge  Robyn Edmonds Williams, wife of  Republican Senator David Williams if he wished.  That is a real stretch we admit, but we  would not be surprised if the Governor doesn’t hope to obtain a Judge he may have recently appointed.
    We don’t know if Judge Hart is a Democrat or a Republican.  We don’t care what his politics are.  We believe that the practice of raising a weak argument for recusal in order to try to obtain a judge whom a party feels might be more inclined in their thinking to favor one party over another raises troubling questions.  At some point, the issue ought to focus on the integrity of the judicial process, and judges should not be easily removed at the pleasure of the defendant.  This is a very bad precedent to be setting.
    The people of Franklin County elected Judge Hart as District Judge.  The Grand Jury of his county brought these charges.  The case should be tried by the appropriate elected Judge unless the case for recusal is crystal clear.  So far, no reasonable basis for recusal has been raised.
 We don’t express an opinion about the Governor’s guilt or innocence. The issue is whether the Chief Justice will set a precedent  allowing any defendant to be able to recuse any judge on specious grounds.
  We call on the Chief Justice to uphold the integrity of the judicial process and to back the Franklin District Court.  Recusal motions  should not be automatically given to any party unless real grounds exist.  Not even the Governor should have the option to influence the selection of his own judge.
  

 

FBI Acknowledges: Journalists Phone Records are Fair Game

Tuesday, May 16th, 2006

ABC NEWS -  May 15, 2006  -   Brian Ross and Richard Esposito Report:

The FBI acknowledged late Monday that it is increasingly  seeking reporters’ phone records in leak investigations.
“It used to be very hard and complicated to do this, but it no longer is in the Bush administration,” said a senior federal official.

The acknowledgement followed our blotter item that ABC News reporters had been warned by a federal source that the government knew who we were calling.
The official said our blotter item was wrong to suggest that ABC News phone calls were being “tracked.”
“Think of it more as backtracking,” said a senior federal official.
But FBI officials did not deny that phone records of ABC News, the New York Times and the Washington Post had been sought as part of a investigation of leaks at the CIA.
In a statement, the FBI press office said its leak investigations begin with the examination of government phone records.

“The FBI will take logical investigative steps to determine if a criminal act was committed by a government employee by the unauthorized release of classified information,” the statement said.
Officials say that means that phone records of reporters will be sought if government records are not sufficient.
Officials say the FBI makes extensive use of a new provision of the Patriot Act which allows agents to seek information with what are called National Security Letters (NSL).
The NSLs are a version of an administrative subpoena and are not signed by a judge. Under the law, a phone company receiving a NSL for phone records must provide them and may not divulge to the customer that the records have been given to the government.

May 15, 2006 |
 

Smith v. Maryland, 1979 – Recording of numbers called not a search

Monday, May 15th, 2006

In l979 the U.S. Supreme Court held that the government did not need a search warrant to make a record of the phone numbers dialed from a particular telephone.    This practice may still be illegal due to the FISA act and other Telecommunications acts requiring phone companies to protect their customers private information.
See: Government may record phone numbers dialed- Smith v. Maryland, 1979 This case holds that there is no reasonable expectation of privacy in the numbers a telephone user dials, hence there is no search.
To view the Foreign Intelligence Surveillence (FISA) Act for yourself go to:
United States Code 

TITLE 50 – WAR AND NATIONAL DEFENSE 

CHAPTER 36 – FOREIGN INTELLIGENCE SURVEILLANCE 

Subchapter I. Electronic Surveillance 

Subchapter II. Physical Searches 

Subchapter III. Pen Registers And Trap And Trace Devices For Foreign Intelligence Purposes 

Subchapter IV. Access To Certain Business Records For Foreign Intelligence Purposes 

Chapter Notes 
 

U.S. Supreme Court overrules 6th. Cirt. Ct. of Appeals, and upholds states economic development tax breaks to business

Monday, May 15th, 2006

   In a decision that affects industrial and economic development incentives used by Kentucky and many other states, the Supreme Court on Monday May 15, upheld state plans that provide tax breaks for businesses that enlarge or locate in the state.
 
Chief Justice John Roberts said in the 9-0 decision, in two cases, that the alleged injury to the taxpayers was mere conjecture and that they had no standing to challenge tax or spending decisions “simply by virtue of their status as taxpayers.”

In an earlier ruling in favor of the taxpayers, the 6th U.S. Circuit Court of Appeals struck down Ohio’s tax credit on new equipment, saying the practice hinders interstate commerce because the incentives are available only to businesses that invest in Ohio.

To lure a $1.2 billion Jeep assembly plant to the area, the city of Toledo and two local school districts gave the company a 10-year exemption from property taxes, and the company received additional investment tax credits against the state’s corporate franchise tax.

The court disagreed with the taxpayers’ argument that their local and state tax burdens were increased by the tax breaks.

“A taxpayer-plaintiff has no right to insist that the government dispose of any increased revenue it might experience as a result of his suit by decreasing his tax liability or bolstering programs that benefit him,” the chief justice wrote. “To the contrary, the decision of how to allocate any such savings is the very epitome of a policy judgment.”

A basic tenet of constitutional law is that in order to have the right to seek relief from the courts for an action of the state, the plaintiff must demonstrate some personal injury caused by the defendant’s allegedly unlawful conduct, for which the requested relief can provide a remedy..

Ohio gave DaimlerChrysler nearly $300 million in property and investment tax benefits in the development plan which was the subject of the lawsuit.

To read the full text of these two decisions go to: U.S. Supreme Court Recent decisions of the U.S. Sup. Ct. and select Slip Opinions . The cases are Daimler Chrysler Corp. v. Cuno, 04-1704, and Wilkins v. Cuno, 04-1724.

Reports circulate on internet that Carl Rove has been indicted on three counts

Sunday, May 14th, 2006

Bluegrassreport.org reports that they have read internet reports that Special Prosecutor Fitzpatrick met with the attorneys for Carl Rove for l5 hours on Saturday May 15, and informed them that Rove had been indicted for perjury and lying to investigators.  Another report states that it is possible that he was also indicted for obstruction of justice.

Under these stories that are circulating, it was said that the indictments will be announced shortly. 

U.S. moves in secret to quash suit against AT&T for giving NSA phone records– Government cites authority under military and state secrets privilege.

Saturday, May 13th, 2006

The Bush administration is filing secret arguments with a federal judge to dismiss a lawsuit against AT&T over its alleged participation in the government’s electronic surveillance program, a privacy-rights group said Friday.


The Electronic Frontier Foundation, which filed the suit in a San Francisco federal court in January, said Justice Department lawyers had notified it that the motion to dismiss and accompanying sworn statements were being filed under seal. Only an edited version will be made public.

The Electronic Frontier Foundation, which filed the suit in a San Francisco federal court in January, said Justice Department lawyers had notified it that the motion to dismiss and accompanying sworn statements were being filed under seal. Only an edited version will be made public.
The administration said last month that it would assert the “military and state secrets privilege” and argue that allowing the case to proceed would jeopardize national security. Filing the arguments under seal is common in such cases and has been permitted by federal courts.
“We will be forced to argue against a secret brief that we will never see in total,” said Kevin Bankston, a lawyer with the foundation.
The suit, filed on behalf of AT&T customers, accuses the company of giving the National Security Agency access to its voice and data network and records of customers’ calls and e-mails without a search warrant or any evidence of wrongdoing. The suit seeks an order halting the company’s actions and damages for all affected customers.
President Bush has said that shortly after the terrorist attacks of Sept. 11, 2001, he authorized the National Security Agency to intercept phone calls and e-mails between U.S. residents and terror suspects abroad without court approval. The Foreign Intelligence Surveillance Act of 1978 required the government to obtain a warrant from a court in secret session for such surveillance, but Bush maintains he has the constitutional authority to override the law.
The lawsuit says AT&T has allowed the federal agency to sift electronically through all its messages. On Thursday, USA Today reported that AT&T, Verizon and Bell South had turned over domestic telephone records to the National Security Agency.
Chief U.S. District Judge Vaughn Walker is scheduled to hear arguments Wednesday on AT&T’s request to seal documents obtained by a former company technician allegedly describing company equipment in San Francisco capable of scanning huge amounts of data for use by the federal agency.
The government’s authority to keep military secrets out of court was recognized by the Supreme Court in 1953. A 1998 ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco said the potential disclosure of secret information may require dismissal of an entire lawsuit.
“This is the most powerful privilege that the government asserts,” said Gregory Sisk, a law professor at the University of St. Thomas in Minnesota who has studied the issue. “The Supreme Court has said that a (judge) must give utmost deference to the government.”
Bankston, lawyer for the San Francisco privacy-rights group, said, “We believe that we could prove our case without revealing any information that would harm the national security.”
 

Reprinted from San Francisco Chronicle

Bob Egelko, Chronicle Staff Writer  Saturday, May 13, 2006
 

U.S. opens assault on wiretap suit AT&T is accused of aiding surveillance  Tuesday, May 16, 2006
The Bush administration has launched a multipronged attack on a lawsuit that accuses AT&T of collaborating with the U.S. government in illegal electronic surveillance, arguing that customers can’t prove their phones were tapped or that the company or the government broke the law — and that, in any event, the entire case endangers national security.
Those assertions in a move for dismissal were based on arguments and evidence that the government submitted to a federal judge under seal, keeping them secret from the public and from the privacy-rights group that filed the suit on behalf of AT&T customers.
The sealed documents and a heavily edited public version were submitted in federal court in San Francisco early Saturday along with declarations from John Negroponte, the director of national intelligence, and Lt. Gen. Keith Alexander, director of the National Security Agency. Both officials attest to the need for secrecy as a reason to keep the lawsuit, filed by the Electronic Frontier Foundation, from going forward.
“Any attempt to proceed in this case will substantially risk disclosure of … privileged information and will cause exceptionally grave damage to the national security of the United States,” Alexander said in a public filing accompanying his sealed statement.
The foundation filed suit in January accusing AT&T of illegally giving the NSA access to its voice and data network and its customer databases to help the agency’s surveillance program.
The suit was accompanied by documents obtained by a former AT&T technician describing equipment installed in the company’s San Francisco office that allegedly would enable the federal agency to sweep up huge amounts of data that it could screen for targeted information. AT&T plans to ask a federal judge Wednesday to declare the documents, which have been sealed, to be trade secrets and order them returned.
The former employee, Mark Klein, handled problems on Internet fiber optic circuits and said in a statement that the equipment was being attached to the circuits in San Francisco and other AT&T offices. The equipment allowed the National Security Agency to conduct “vacuum-cleaner surveillance of all the data crossing the Internet,” he said.
His lawyers said in a court filing that the government had never classified as a secret anything that Klein saw.
In Saturday’s filing, government lawyers wrote that “the lawfulness of the alleged activities cannot be determined without a full factual record, and that record cannot be made without seriously compromising U.S. national security interests.”
Without evidence of how the program operated and whom it targeted — evidence that the Justice Department argued can’t be made public — the plaintiffs have no chance of proving the essential elements of their case, the government said.
Those elements are:
– That President Bush exceeded his legal authority by authorizing wiretaps and e-mail interception without a warrant;
– That innocent Americans not in contact with al Qaeda or affiliated groups had their calls or messages intercepted;
– That AT&T participated in the program;
– And that any participation by AT&T lacked authorization from the government. The Justice Department endorsed AT&T’s argument that the plaintiffs must prove that the company failed to obtain written approval from top federal officials.
The administration asked Chief U.S. District Judge Vaughn Walker to hear its dismissal motion June 21, the day Walker is scheduled to consider the Electronic Frontier Foundation’s request for an injunction that would prohibit AT&T from any further cooperation in the surveillance program.
Bush acknowledged in December that he had authorized the National Security Agency to intercept phone calls and e-mails between U.S. residents and terror suspects abroad without the court approval required by a 1978 federal law.
The alleged role of telecommunications companies gained new prominence last week when USA Today reported that the National Security Agency had paid AT&T, Verizon and Bell South for the telephone records of tens of millions of Americans. The government’s goal reportedly was to find calling patterns that could indicate communications with terrorists. (BellSouth later said a “thorough review” had found no indication that it had given such records to the

NSA.)

The government’s dismissal motion in the San Francisco case against AT&T relies on the “state secrets” privilege that the Supreme Court recognized in a 1953 ruling allowing the government to keep military secrets out of court. Lower courts, including the Ninth U.S. Circuit Court of Appeals in San Francisco, have ruled that a lawsuit must be dismissed if it can’t be litigated without the risk of exposing military secrets.
A court’s consideration of the Electronic Frontier Foundation suit “would require confirmation or denial of the existence, scope and potential targets of alleged intelligence activities, as well as AT&T’s alleged involvement,” information that cannot be revealed “without causing exceptionally grave danger to the national security,” government lawyers said.
Their brief repeatedly referred to arguments that were filed under seal, along with the sealed declarations of Negroponte and Alexander.
Kevin Bankston, a lawyer with the foundation, said Monday that it would be difficult for its attorneys to contest government arguments they hadn’t been allowed to see. But he said the factual claims in the lawsuit have already been widely reported in the press, and to some extent conceded by the government, without harming national security.
“We’re seeking to protect national security by protecting millions of Americans from a government that is colluding with telecommunications companies in spying on their phone and Internet communications,” Bankston said.
He also said the plaintiffs were not arguing that the government had monitored particular calls or messages, only that their phone and Internet records had been turned over to the government illegally, without a warrant or suspicion of wrongdoing. That should be enough to allow them to sue, Bankston said, unless AT&T produces evidence of valid authorization by the government.
The plaintiffs are four AT&T customers. The Electronic Frontier Foundation is proposing that the case become a class action on behalf of all affected customers.
Ann Beeson, an attorney with the American Civil Liberties Union, said she anticipates a similar government dismissal motion Friday in the ACLU’s suit on behalf of private citizens who say they have reason to believe their calls and messages have been or will be monitored. That suit, filed in a Michigan federal court, seeks to halt the federal surveillance program.
“There are no secrets here,” Beeson said. “All the facts that are needed to decide the case are known and conceded: that the government wiretapped without a warrant and that it did so on U.S. soil.”
Reprinted from the San Francisco Chronicle  Tuesday, May 16, 2006
 

14 decisions issued by Court of Appeals May 12, 2006

Friday, May 12th, 2006

LawReader has posted 14 decisions issued by the Court of Appeals on Friday May 12, 2006.  Each decision provides a synopsis and link to the full text of each decision.

LawReader subscribers may access these decisions at: COURT OF APPEALS DECISIONS FOR MAY 12, 2006 14 decisions

Membership in LawReader.com is only $34.95 per month.  To sign up go to www.lawreader.com.  No long term contracts, no extra charges for downloads, and full access to a 50 state case law data base.

Gov Fletcher issues statement re his indictment

Thursday, May 11th, 2006

Governor Ernie Fletcher’s Communications Office
Governor’s Office Responds to Grand Jury Indictments

Press Release Date:  Thursday, May 11, 2006  
Contact Information:  Brett Hall
Jodi Whitaker
Troy Body
502-564-2611
 
The following statement is from the Office of Governor Ernie Fletcher in light of today’s action by Attorney General Greg Stumbo:

“This has been a politically motivated, media-driven investigation from the start.

“As Governor Fletcher has said repeatedly, his conscience is clear.  He has done nothing wrong.

“We are evaluating the charges and, likewise, we are studying our recourse of action in the wake of this malicious prosecution.

“Because of the politicization of this entire investigation, we are filing a motion at this time to disqualify Greg Stumbo and his entire office from further participation in this matter.?

Governor Fletcher indicted on 3 counts – 14 other indictments issued to his administration

Thursday, May 11th, 2006

Television station WKYT has reported that Governor Ernie Fletcher has been indicted by the Franklin County Grand Jury on three misdemeanor charges.  The charges are: Criminal Conspiracy, Official Misconduct and Political Discrimination.

The jury also indicted former Transportation Cabinet official Sam Beverage for perjury, which is a felony.

The jury also submitted to Franklin Circuit Judge William Graham 14 more indictments that are under seal.

Those indictments cover crimes that may have occurred before Aug. 29, 2005, when Fletcher pardoned all administration officials except himself.

Attorney General Greg Stumbo launched the investigation into the Fletcher administration’s hiring procedures about a year ago, in May 2005, after whistleblower Doug Doerting turned over piles of paperwork. The prosecuting attorneys have said the paperwork showed personnel decisions were based on politics, not qualifications as the law requires.

 Fletcher pardoned the 13 current or former administration officials or associates who were indicted by the grand jury. 

State budget includes authorization for 18 new judicial center projects

Thursday, May 11th, 2006

Budget passed by 2006 General Assembly also provides funding for 18 judicial center projects approved by 2005 General Assembly
 

FRANKFORT, Ky., April 25, 2006  House Bill 380, the Executive Branch budget bill, has authorized new judicial centers and one expansion in 18 Kentucky counties, announced Chief Justice Joseph E. Lambert today. Although the 2006 General Assembly deferred funding until 2008-2010 for these 18 projects, this authorization allows planning for these projects to begin prior to the 2008 General Assembly.
 

House Bill 382, the 2006-2008 Judicial Branch budget bill passed by the 2006 General
Assembly, also provided funding for the 18 judicial center projects authorized in 2005, which will allow these projects to proceed as scheduled.
 

“I appreciate the legislators who supported improved judicial centers for these counties,” said Chief Justice Lambert. “Kentucky citizens generate more than 1 million court cases each year. Our citizens deserve safe, efficient facilities in which to conduct their business before the courts.”
 

“Because the new judicial centers often replace older, vastly inadequate facilities, the new buildings greatly increase the efficiency of services and public flow,” said Chief Justice Lambert. “All new judicial centers are equipped with the modern infrastructure to support data, computer, video and networking technology. They also provide the highest level of Kentucky court security through a single-point entry with magnetometers and security personnel.”
 

Next Steps
The Chief Justice said that once funding is authorized, the AOC Department of Court
Facilities begins to work with local communities to assemble the Project Development Board (PDB) in each county. This board ensures that county and court officials have input on all aspects of the project, including decisions on the site, architect and contractor. The PDB consists of the county judge executive, a fiscal court representative, the chief circuit judge, the circuit court clerk, the AOC director or designee, and a Kentucky Bar Association designee.
 

The AOC’s general manager of court facilities and legal counsel serve in an advisory capacity. Chief Justice Lambert explained that the AOC provides oversight and administration of court facilities in accordance with House Bill 734, which was passed by the 2000 General Assembly. “As a result of this legislation, the AOC created a process that would fairly and objectively determine facility needs,” he said. “Our Facilities Management System has earned the Kentucky Court of Justice a national reputation for being able to identify facilities with the greatest needs for new construction, renovation, expansion and adaptation.”
 

As the administrative and fiscal agent for the Kentucky Court of Justice, the Administrative Office of the Courts oversees construction of court facilities statewide. The AOC also supports the activities of more than 3,400 court system employees, including the elected offices of justices, judges and circuit court clerks.
 

Complete list of court facilities approved by the 2006 Kentucky General Assembly:
1. Breckinridge County, new judicial center, 33,000 square feet, $11,481,000
Sen. Carroll Gibson and Rep. Dwight Butler
2. Campbell County, new judicial center, 103,700 square feet, $29,284,000
Sen. Katie Stine and Reps. Dennis Keene, Thomas M. McKee, Jon David Reinhardt
and Joe Fischer
3. Fleming County, new judicial center, 32,800 square feet, $11,536,000
Sen. Walter Blevins and Rep. Mitchel B. Denham
4. Franklin County, new judicial center, 101,200 square feet, $29,114,000
Sen. Julian Carroll and Reps. Joe Barrows and Derrick Graham
5. Garrard County, new judicial center, 33,400 square feet, $11,598,000
Sen. Tom Buford and Rep. Lonnie Napier
6. Hancock County, new judicial center, 33,700 square feet, $11,715,000
Sen. Carroll Gibson and Rep. Dwight Butler
7. Hopkins County, new judicial center, 64,300 square feet, $20,492,000
Sen. Jerry Rhoads and Reps. Eddie Ballard, Jim Gooch Jr. and Brent Yonts
8. Marion County, new judicial center, 33,900 square feet, $11,781,000
Sen. Dan Kelly and Rep. Jimmy Higdon
9. Mercer County, new judicial center, 35,600 square feet, $11,963,000
Sen. Dan Kelly and Rep. Milward Dedman
10. Monroe County, new judicial center, 32,300 square feet, $11,207,000
Sen. David Williams and Rep. James Comer
11. Owen County, new judicial center, 33,000 square feet, $11,471,000
Sen. Damon Thayer and Rep. Royce Adams
12. Pendleton County, judicial center expansion, $8,010,100 added to the $2,228,000 project authorized in 2005 (Note: Previous authorization was for an addition/renovation; the expanded project will provide for a freestanding, independent judicial center)
Sen. Katie Stine and Rep. Thomas McKee
13. Pike County, new judicial center, 94,900 square feet, $28,413,000
Sen. Ray Jones and Reps. Hubert Collins, Howard Cornett and W. Keith Hall
14. Rowan County, new judicial center, 39,200 square feet, $13,044,000
Sen. Walter Blevins and Reps. Rocky Adkins and John Will Stacy
15. Russell County, new judicial center, 33,700 square feet, $11,720,000
Sen. Vernie McGaha and Rep. Jeffrey Hoover
16. Todd County, new judicial center, 27,200 square feet, $9,537,000
Sen. Joey Pendleton and Rep. Sheldon Baugh
17. Whitley County, new judicial center, 57,300 square feet, $18,901,000
Sen. David Williams and Rep. Charles Siler
18. Wolfe County, new judicial center, 33,500 square feet, $11,395,000
Sen. Robert Stivers and Reps. Adrian Arnold and John Will Stacy
 

Background: How the Kentucky Court of Justice Objectively Sets Priorities for Court Facility Needs
Kentucky is beginning to attract attention nationwide for the Facilities Management System (FMS) it implemented to objectively set priorities for court facility needs. “We believe this system is one of the most sophisticated and effective ever created to accurately assess facility needs,? said Joseph E. Lambert, Chief Justice of Kentucky. “This comprehensive process ensures that Kentucky counties are given fair and impartial consideration when it comes to setting priorities for court facility projects.?
 

Today’s Facilities Management System began as a modest capital projects program launched in the early 1990s to improve judicial buildings throughout Kentucky. The program made general improvements to existing buildings, and constructed building additions and several new, small freestanding courthouse facilities. These efforts had a surprising effect: They exposed the extensive deterioration of most of Kentucky’s courthouses, which suffered from inadequate space, safety and security issues, and outdated technology, mechanical and electrical systems.
 

When the scope of the program unexpectedly expanded, there was no budgetary support,
well-defined plan or centralized management to support it. Until 2000, attempts to construct new judicial centers were plagued with unrealistic program assessments and budget estimates, non-regulated contracting practices, lack of regulatory standards, and little design and construction contract oversight. Large cost overruns and inadequate facilities were the result.
 

Chief Justice Lambert began intensive efforts to remedy the situation in 1999 when he hired architect Garlan VanHook, AIA to serve as general manager of the Department of Court Facilities. The Chief Justice then turned his attention to the 2000 Kentucky General
Assembly. He worked with state legislators to pass House Bill 734, which authorized the
Chief Justice to establish rules to govern and regulate the state’s courthouse construction
program. Just months later, in October 2000, Chief Justice Lambert established a
comprehensive system for facility development by signing facilities-related policies and
practices into the Administrative Procedures for the Court of Justice, Part X, which carry the authority of law.
 

The Kentucky Facilities Management System consists of three sections:
 

Section I. Court Facilities Development. This section addresses how to analyze and
prioritize facility needs and develop the appropriate project scope and cost estimates.
 

Section II. Court Facilities Criteria. This section provides standardized criteria to determine the size and nature of required facilities in seven categories.
 

Section III. Court Facilities Design and Construction. This section gives designers and
builders guidance on the requirements of a modern judicial facility.
 

In only six years, this new approach has exceeded all expectations in its ability to provide
practical, efficient and cost-effective judicial buildings for Kentucky citizens. Under this new system, the 2000 General Assembly authorized construction of 20 new facilities. Of those, 19 have been completed. The estimated cost was $251,000,000 and the final cost was $255,000.000.
 

The Court of Justice currently has four projects under construction, 12 under design this year and 19 with design pending next year. These projects represent an investment of $481 million in much-needed judicial facilities in Kentucky.
 

Where do you vote, Candidate Info, Election Results, Contribution Info

Wednesday, May 10th, 2006

Election Information for May 16 Primary Election
www.courier-journal.com/election2006ky

 

Where Do You Vote?  Find your polling place at : Find your voting site

 

Candidate Information on more than 450 candidates: Look up candidates by name, office or location » Start your search
See how is many contributions to whom:  This database contains data on campaign contributions to Kentucky political candidates for the May 2006 primary.
» Begin search
The Ky. Board of Elections provides the following resources.
 

Voter Information
Election Statistics
Election Results
Election Laws
Election Calendar
Candidate Qualifications & Filing Fees
Election Schedule
Request for Voter Registration Data
 

 

 

 

UK Law School offers extensive CLE library to fit your schedule

Wednesday, May 10th, 2006

The University of Kentucky law school offers Continuing Legal Education credits on many subjects. You can purchase these programs for prices ranging from $40 to $175.  Lawyers may earn up to 6 hours of CLE a year by use of audio and video classes. 
 If you are interested go to: http://www.uky.edu/Law/cle/

 

The UK/CLE program  offers some 40 audio tape courses, and 20 video programs.

Kentucky Supreme Court Rule 3.663 allows attorneys to receive up to six hours of continuing legal education credit through the use of accredited technology products. This includes the full two-hour ethics continuing legal education requirement.
UK/CLE Video courses include: Boundary Law in Ky., Condemnation and Eminent Domain, Collection Law, Consumer Law, Estate Planning, Employment Law, Environmental Law, Health Law, Family Law, Real Estate Law, Worker’s Compensation and numerous Ethics courses.
If you are short a couple of hours of CLE, this resource will allow you to complete the requirements quickly.

Profile of Kentucky Judicial Candidates

Tuesday, May 9th, 2006

Two groups are hosting a profile of all judicial candidates for the Ky judicial elections for 2006.   Go to: Profile of Kentucky Judicial Candidates 

The website is sponsored by Justice at Stake and Common Cause of Kentucky, two groups that aim to promote public confidence in a fair and impartial court system. The site contains information supplied directly by the candidates, as well as basic information about how the courts operate in Kentucky.

National Poll shows Ky. voters would like nonpartisan voters guide

Tuesday, May 9th, 2006

WASHINGTON, May 9 /U.S. Newswire/ — As Kentuckians prepare to vote in the May 16 primary elections, a new state poll shows that 78 percent of Kentucky voters believe they would benefit from a nonpartisan voter’s guide that provides basic information and statements of qualifications directly from judicial candidates. A majority of voters also reported they did not have enough information about judicial candidates the last time they went to vote for judge.
The results underscore the value of a new, nonpartisan website being launched today, kyjudges.com, which aims to get vital information into the hands of Kentucky voters before they cast ballots in the May 16 primary election. The website is sponsored by Justice at Stake and Common Cause of Kentucky, two groups that aim to promote public confidence in a fair and impartial court system. The site contains information supplied directly by the candidates, as well as basic information about how the courts operate in Kentucky.
“Voters often find it difficult to make the right choice for judge, because they so often lack even basic information about the candidates,” said Bert Brandenburg, executive director of Justice at Stake. “This new website helps close that information gap.”
Justice at Stake also announced today that it is sponsoring a televised Public Service Announcement (PSA) to make Kentucky voters more aware of the online voter guide. The PSA will be airing on broadcast television stations in the Lexington and Louisville markets beginning today. The PSA can be viewed online at kyjudges.com.
Brandenburg added that nonpartisan voter guides are becoming popular in more states as an effective means to combat special interest campaigns in judicial elections.
The Justice at Stake and Common Cause of Kentucky poll indicates that worries persist about the role of outside influences in Kentucky’s judicial contests, with 71 percent being at least somewhat concerned that efforts of special interest groups to pressure judicial candidates will undermine the fairness and impartiality of Kentucky courts. When asked, an overwhelming majority of Kentucky voters indicate they want courts that are accountable to the law and the Constitution (83 percent), not politicians or special interests (4 percent). The poll of 411 Kentucky likely voters was completed by TSG of Chicago, Illinois, on May 3-4, 2006, and has a margin of error of 4.8 percent. Complete poll results are online at http://www.kyjudges.com.
“This poll confirms that Kentuckians are concerned when judicial candidates must raise money for big-time campaigns, and they don’t like the idea that special interests may try to put justice up for sale,” said Richard Beliles, Chairman of Common Cause of Kentucky.
Common Cause of Kentucky promotes good citizenship, and advocates for open, honest, and accessible state and local government. The Justice at Stake Campaign, based in Washington, DC, is a national nonpartisan partnership that works to protect fair, impartial and independent courts. Justice at Stake partners educate the public and work for reforms to keep politics and special interests out of the courtroom-so judges can do their job protecting the Constitution, individual rights and the rule of law. More information about the organizations is available online at justiceatstake.org and commoncause.org.
Interested citizens from across Kentucky have also formed a Judicial Campaign Conduct Committee, an independent, non-profit, non-partisan entity created to educate the public about the important difference between judicial campaigns and those for partisan, political office, and about the high standards expected in judicial campaigns. Such committees have proved successful in other states around the country in helping candidates conduct effective campaigns in an ethical and dignified manner. The committee is chaired by Lexington attorney Spencer Noe.

JUDICIAL ETHICS ISSUE: CAN A CANDIDATE FOR JUDICIAL OFFICE ACCEPT A CAMPAIGN DONATION FROM A POLITICAL PARTY

Monday, May 8th, 2006


  This issue appears to be novel and of first impression in Kentucky.  We will attempt to discuss some of the relevant issues that may be raised.

Section 117 of the Kentucky mandates that all judicial elections are to be non-partisan.
 Section ll7: “Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law.?
 

Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on as provided by law.?For complete opinion go to:  JUDICIAL ETHICS ISSUE: Can a candidate for judicial office accept a campaign donation from a political party?

Government dusts off old laws on Sedition to control speech

Sunday, May 7th, 2006

It is simply un-American, the governor of Montana said last week, as he granted posthumous pardons to scores of people convicted of sedition during World War I, to make it a crime to criticize the government.

How un-American can it be, though, when the country has a long history of such prosecutions, at
least in wartime, and when some laws and judicial doctrines that allowed them are still on the books?
They’re quite dusty books, it turns out. Perhaps that’s because the term sedition — it means inciti ng resistance to the government — bumps up against the First Amendment’s protection of free speech, and prosecutors are loath to invoke the taint that attached to it long ago. The particularly strident Montana law, for example, made it illegal merely to say anything “disloyal, profane, violent, scurrilous, contemptuous or abusive” about the government, soldiers or the American flag.
This does not mean, however, that the sorts of behavior once prosecuted under sedition laws are not prosecuted at all. There are, critics say, echoes of earlier sedition charges in some terrorism charges today. Sedition by other names.
An outright attempt to make an accusation of sedition can backfire. The Department of Veterans Affairs recently apologized to one of its nurses in New Mexico, Laura Berg, for an investigation into a letter critical of the Bush administration that she wrote to a newspaper. She had ended her letter by urging people to “act forcefully to remove a government administration playing games of smoke and mirrors and vicious deceit.” A Veterans Affairs official justified the investigation by saying that Ms. Berg’s language “potentially represents sedition.” But R. James Nicholson, the department’s secretary, wrote that throwing the word “sedition” around “was not appropriate.”
Though the word is out of favor, aspects of the concept retain vitality. A favorite Justice Department tool in terrorism prosecutions is a law that forbids providing “material support” to certain groups. That may include donating time and advice.
“Sedition laws and the material support laws,” said David Cole, a law professor at Georgetown University, “are all designed to serve the same purpose: to give the government incredible discretion to go after people without proving they took part in any criminal or violent act.”
Peter S. Margulies, a law professor at Roger Williams University, said the government can and should disrupt international terrorism using the material support laws. “They’re constitutional,” he said, “because they depend on something more than the mere expression of views.”
But he added that the laws must be used with care. They “push back the window of culpability almost to the point of pure thought,” he said.
The courts, too, are careful to police the distinction between protected expression and proscribed conduct, though it is not always easy to find the line. In 1999, the federal appeals court in New York upheld the conviction of Sheik Omar Abdel Rahman, an Egyptian cleric, for seditious conspiracy to wage war on the United States.
“We recognize that laws targeting ‘sedition’ must be scrutinized with care to assure that the threat of prosecution will not deter expression of unpopular viewpoints by persons ideologically opposed to the government,” the judges wrote. “It remains fundamental that while the state may not criminalize the expression of views — even including the view that violent overthrow of the government is desirable — it may nonetheless outlaw encouragement, inducement or conspiracy to take violent action.”
That distinction is based on a line of Supreme Court cases that are generally thought to have settled the question of whether sedition laws are constitutional.
But some legal scholarship says the conventional understanding may be wrong.
The usual view is that a series of dissents by Justices Oliver Wendell Holmes Jr. and Louis D. Brandeis early in the last century culminated in the 1969 decision of the Supreme Court, Brandenburg v. Ohio, that established a standard that is quite protective of political dissent. The government, the justices ruled in 1969, may not “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action.”
That account of the constitutional law is incomplete, Ronald K. L. Collins and David M. Skover wrote in The Rutgers Law Journal last year.
“What every law student ‘knows’ is wrong,” Mr. Collins and Mr. Skover wrote. The majority decisions in earlier cases have never been overruled, they said, and remain, strictly speaking, binding law. The Brandenburg case, moreover, they wrote, can be distinguished because it “did not involve a prosecution for speech that interfered with war efforts.”
“There is a vulnerability here,” Mr. Collins, a scholar at the First Amendment Center in Virginia, said in an interview. If a case ever went to the Supreme Court, “you could bet your last dollar that any solicitor general would make the same point.”
Indeed, Mr. Collins said, one case that has never been overturned is a majority opinion by Justice Holmes that upholds the conviction of Charles Schenck, the general secretary of the Socialist Party, for distributing pamphlets opposing the draft. “When a nation is at war,” the justice wrote, “many things that might be said in a time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right.”
 

By ADAM LIPTAK
Published: May 7, 2006
Reprinted from The Nation

Does the Presidents Executive Authority grant him the right to ignore laws passed by Congress when he determines they are inconsistent with his interpretation of the constitution

Sunday, May 7th, 2006

President Bush signed a military spending bill in December that included a hard-fought amendment banning the cruel, inhuman or degrading treatment of foreign prisoners. Then he put a statement in the Federal Register asserting his right to ignore the ban when necessary, in his judgment, to protect Americans from terrorism.

In March, Bush signed a renewal of search and surveillance provisions of the USA Patriot Act and said at a public ceremony that civil liberties would be protected by a series of new amendments. Then he quietly inserted another statement in the Federal Register that virtually nullified one of those amendments, a requirement that the administration report to Congress on the FBI’s use of its powers under the Patriot Act to seize library, bookstore and business records. Civics textbooks say presidents have two choices when Congress passes a bill that’s not completely to their liking: They can sign it into law, or they can veto it and let Congress try to override them. 

Bush, far more than any of his predecessors, is resorting to a third option: signing a bill while reserving the right to disregard any part of it that he considers an infringement on his executive authority or constitutional powers. In more than five years in office, the president has never vetoed a bill. But while approving new laws, he has routinely issued signing statements interpreting the legislation in ways that amount to partial vetoes of provisions to which he objects. 

White House spokesman Blair Jones insisted that Bush is not trying to undermine the lawmaking authority of Congress, and noted that many past presidents have issued statements on the meaning of bills they sign. Presidential scholars, in fact, trace signing statements back to the early 19th century. But for much of the nation’s history, they have been little more than bureaucratic memos instructing subordinates on the implementation of new laws. Bush has transformed them into declarations of executive supremacy. 

According to Christopher Kelley, an assistant professor of political science at Miami University in Ohio who has studied presidential powers, Bush issued 505 statements in his first term objecting to portions of new laws on constitutional grounds. Documents available at the White House Web site indicate that the number since Bush took office now exceeds 700. By comparison, Kelley said, President Ronald Reagan, the first to use signing statements as an instrument of presidential power, issued 71 such statements in two terms; President George Bush issued 146 in one term; and President Bill Clinton issued 105 in two terms. 

The numbers tell only part of the story, said Phillip Cooper, a professor of government administration at Portland State University who has studied signing statements and other executive actions. “This administration has been much more systematic and much broader in scope” in signing statements, Cooper said, on its “path to expand presidential powers at the expense of Congress and the courts.” 

He said Bush has pursued that goal with a variety of presidential directives and in the electronic surveillance he ordered after Sept. 11, 2001, of international contacts between Americans and alleged terror suspects, without the court warrants required by a 1978 law. When the surveillance program was disclosed by the New York Times in December, the administration said Bush’s constitutional powers overrode any congressional authority to require warrants. Among the most common targets of Bush’s signing statements have been laws requiring his administration to disclose information, issue reports, appoint officials with specified qualifications, or consult with Congress on the implementation of a law. Bush has regularly reinterpreted these mandates as “advisory” measures that he is free to ignore. 

Other statements have scuttled affirmative action programs, rejected congressional criteria for spending federal money, and declared that Bush would follow laws affecting international affairs only to the extent that they respected “the constitutional authority of the president to conduct the nation’s foreign relations.” A rare congressional reaction came from Sen. Patrick Leahy, D-Vt., author of the Patriot Act amendments requiring the Justice Department to report to Congress on the FBI’s use of its powers to search and seize records. 

After learning in March that Bush had asserted authority to withhold the information, Leahy said the president “appears to believe that he can pick and choose which laws to obey and need never submit to congressional oversight.” He accused Bush of making “a radical effort to reshape the constitutional separation of powers and evade accountability and responsibility for following the law.” In response, Jones, the White House spokesman, said Bush’s bill-signing statements simply affirm that he “will faithfully execute the law in a manner that is consistent with the Constitution. That’s the oath he took and the one he keeps.” 

The question is who decides — the president, Congress or the courts — whether a law is being executed in a manner that is consistent with the Constitution. The civics-book answer is clear: Congress passes the laws, the president carries them out, and the courts decide whether they’re constitutional. And before ruling on the validity of a law, courts traditionally determine its meaning by examining the intent of Congress — not the president — as expressed in the language of the statute, congressional debates and committee reports. 

Although the courts have not yet decided how much weight, if any, to give to presidential signing statements, most legal scholars doubt a president’s authority to reinterpret laws in ways that conflict with congressional intent. One who disagrees, John Eastman, a law professor at Chapman University in Orange County, says his view — that the president shares constitutional lawmaking power with Congress — is not widely held. “A significant majority of our nation’s leading constitutional scholars think we have a parliamentary system where the president is a functionary of Congress,” Eastman said. 

The Supreme Court could address the issue in a current case in which the administration has argued, based on a Bush signing statement in December, that a new federal law has stripped courts of jurisdiction over pending appeals from foreigners held at Guantanamo Bay. Sen. Carl Levin, D-Mich., an author of the law, says Congress “considered and rejected” the president’s interpretation. But presidential signing statements are seldom challenged, for two reasons: Congress pays little attention to most of them, and private citizens are usually unable to prove they were harmed by the president’s actions, a prerequisite for the right to sue. 

Much of the theory behind signing statements can be traced back 20 years to a Reagan administration effort to regain presidential prerogatives lost to Congress after the Watergate scandal of the 1970s. Future Supreme Court Justice Samuel Alito, then a Justice Department lawyer, was among the advocates for a new role for traditionally obscure bill-signing statements. “The president’s understanding of the bill should be just as important as that of Congress,” Alito said in a February 1986 memo. If presidents used the statements to announce their interpretations, he wrote, “it would increase the power of the executive to shape the law.” 

He cautioned, however, that such statements probably “will not be warmly welcomed by Congress.” Alito advised starting small, with a limited number of bills and with interpretations that avoided direct conflicts with lawmakers. Asked about the memo at his Supreme Court confirmation hearing in January, Alito stressed that he had been speaking as a lawyer, not a judge. 

The Reagan administration made signing statements more prominent, arranging for their publication as part of a bill’s legislative history, and in at least one case, persuading the Supreme Court to adopt Reagan’s interpretation of a newly signed law, Kelley said. On the other hand, a Reagan signing statement changing the rules on federal contracting led to lawsuits by contractors and a threat by Congress to cut Justice Department funding before the administration retreated, said Portland State’s Cooper. 

Clinton had a similar run-in with Congress, and ultimately backed down, after issuing a signing statement in 1999 questioning lawmakers’ authority over the appointment of an official to oversee security at nuclear weapons laboratories. Bush also backpedaled when members of Congress challenged his narrow definition of whistle-blower protections for federal employees in a 2002 signing statement. But that was a rare exception for a president who has “taken every opportunity to push the envelope,” Cooper said. 

In an article for the Presidential Studies Quarterly last September, Cooper wrote that Bush’s statements typically give the widest possible scope to presidential powers, and the narrowest scope to congressional powers, and are replete with catch-phrases that may offer barely a clue about how he plans to implement the law. An example was the March 9 statement on the Patriot Act’s FBI reporting requirements, which Bush said he would interpret “in a manner consistent with the president’s constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which would impair foreign relations, national security, the deliberative processes of the executive, or the performance of the executive’s constitutional duties.” 

Most of those phrases recur in other signing statements, particularly the “unitary executive branch,” a much-debated concept of absolute presidential control over all federal agencies. Cooper said he found the phrase in 82 Bush signing statements from 2001 through 2004. Bush’s language can be even more opaque. In signing the Export-Import Bank Reauthorization Act of 2002, he said he would implement one section “in a manner consistent with the requirements of equal protection under the Due Process Clause of the Fifth Amendment to the Constitution.” 

The phrase, which Cooper found in 15 first-term signing statements, is shorthand for the administration’s view that all affirmative action based on race or sex is unconstitutional. In this case, it meant that Bush would not implement a provision requiring the Export-Import Bank to try to increase loans to businesses owned by minorities or women. Occasionally, a signing statement attracts enough attention to become a public challenge to congressional lawmaking power. That was the case in December, when Bush claimed the authority to disregard Congress’ newly enacted ban on cruel, inhuman or degrading treatment of captives held abroad, citing his role as head of the “unitary executive branch” and his powers as commander in chief. 

The measure’s authors, Sens. John McCain, R-Ariz., and John Warner, R-Va., responded by promising “strict oversight to monitor the administration’s implementation of the new law.” They didn’t explain how they planned to detect abuse at far-flung and sometimes-secret prisons, and so far they have not held any hearings. Likewise, Leahy, despite his criticism of Bush’s Patriot Act signing statement, has not demanded a congressional inquiry. Last week, in response to an article on signing statements in the Boston Globe, Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said he would invite administration officials and legal scholars to a hearing on the topic in June. 

“Congress runs a real danger, in the long run, of diminishing (its) prerogatives” by failing to object forcefully, said Kelley, who generally supports a president’s authority to interpret the Constitution. He said Congress should draw the line, at some point, by threatening funding cutoffs or other measures that the president can’t ignore. Bush seems to be succeeding in a strategy “to put forth these extravagant claims and try to intimidate and cow Congress,” said Bruce Fein, a conservative commentator and former Justice Department official under Reagan. “He can go to court and say Congress remained silent.” 

Eastman, of Chapman University, said the critics have it backward. Congress, he said, always wants to tie the president’s hands, and Bush is merely defending his constitutional authority. “He has drawn the same line that every other president has drawn,” Eastman said. “He is exercising broader powers than other presidents have needed to exercise because he is in the middle of a war.” 

Nevertheless, it would be wise to lower the temperature and avoid unnecessary confrontations with Congress, said another administration supporter, Douglas Kmiec, who was a leader in developing signing statements in Reagan’s Justice Department. Signing statements were “intended to let the chief executive exercise some initial control over what his subordinates were doing in the implementation of statutes,” said Kmiec, now a Pepperdine University law professor. “It’s morphed into a general opportunity to say, ‘I’m president,’ over and over again.”  

Bob Egelko, Chronicle Staff Writer Reprinted from San Francisco Chronicle 

Sunday, May 7, 2006

LawReader announces Hall of Shame for bad court decisions

Friday, May 5th, 2006

Court Decisions So Bad They Deserve a Prize 

We appreciate the work of judges and acknowledge that most judges are very good in writing decisions. However, every year there are some decisions that are so far off the mark that one is amazed at the reasoning that was (not) applied to that decision.  Please send us your nominations and we will post the best ones.  Please name the judge and send as much information about the fact situation as possible so we can have our committee evaluate the nominated cases. We will probably not name the judge, but perhaps we can provide an outlet for you to blow off some steam.  We prefer to avoid pending cases.  Perhaps this might just improve the quality of work being handed down.

We can think of several legal opinions handed down over the years by several judges that are so bad they deserve recognition.

In one case the Circuit Court judge ruled that a specific U.S. Sup. Ct. case stood for the proposition that a search was authorized without a warrant…but the decision said absolutely that the search was prohibited under the 4th. Amendment…the judge had cited the case of J.L. v. Florida and left out the words “we do not find?…and changed his citation to “we find?….therefore justifying his reversal of a lower courts suppression ruling of the illegal search.

In another case a District Judge ruled that any peace officer could make a traffic stop in any county in Kentucky..i.e. a Pikeville constable could set up a DUI roadstop on the Watterson Expressway in Louisville..(??) …go figure the reasoning behind that…after about a year this bad decision was finally overruled.

Then there is the errant golf ball ruling where the judge ruled that when a golfer hit an errant shot and the ball left the golf course and caused property damage to a nearby home…that the homeowner was responsible for the damages and the golfer was immune….Theory: The homeowner was negligent for building his home near a golf course.

We also nominate all the decisions of the Court of Appeals that just flat ignore the Administrative Regulations and Statutes applying to the proper operation of the BA machine.  They continue to ignore the requirement for manufacturer’s instructions to be followed, and that the machine must be shown to be in good  operating condition.
The list goes on and on….send us yours…we will either print your name or not…as you request.  But we will post the decisions in our HALL OF SHAME.