Archive for October, 2006

THE McCONNELL MACHINE – PRICE TAG POLITICS – Senators pet issue: money and the power it buys

Sunday, October 15th, 2006

See this four part series by John Cheves at the Herald-Leader Online : http://www.kentucky.com/mld/kentucky/ 

      Before this series started Senator McConnell tried to discredit the author. You may want to see for yourself
if this article treats the Senator fairly.

-In the early 1970s, Addison Mitchell McConnell Jr., a young and intense Republican lawyer, strode into the political science class he taught at the University of Louisville.
Read a McConnell letter to corporations to protest their executives working for campaign-finance reform.
See an example of benefits McConnell promised on behalf of Senate GOP panel.
Read lobbyists’ e-mails after McConnell requested $200,000. ……….

 

Tax Tips. Tax expert discusses tax on non-physical personal injury awards.

Saturday, October 14th, 2006

By Sidney Kess New York Law Journal

Federal tax law is created by Congress and administered by the Internal Revenue Service (IRS). This year, much attention has been focused on legislative developments, including the Tax Increase Prevention and Reconciliation Act of 2005, signed into law on May 16, 2006, and the Pension Protection Act of 2006, signed into law on Aug. 16, 2006.

However, judicial decisions interpreting tax rules can have a dramatic effect on individuals and businesses. Here is a roundup of some key decisions in 2006 that may impact personal and business returns.

Nonphysical Personal Injury Damages

Section 104(a)(2) of the Tax Code provides that only damages for physical personal injury or illness are excludable from gross income. Other damages, including payments for nonphysical personal injury, are taxable. Until now, this provision has meant that not only damages replacing lost wages were taxable, but also taxable were damages for defamation and other nonphysical injuries. However, a whistleblower in the National Guard who recovered damages for injury to her reputation and emotional distress when she was forced out of the service successfully challenged this code provision.

Marrita Murphy (then Leveille) told state authorities that her employer, the New York Air National Guard, had environmental hazards on its air base. She was effectively forced out of the Guard and, in 1994, filed a complaint with the U.S. Department of Labor that her former employer violated whistleblower statutes and “blacklisted” her by giving unfavorable references to potential employers. The secretary of Labor concluded that she had been unlawfully discriminated and retaliated against, ordered that adverse employment references be withdrawn and remanded the case to an administrative law judge (ALJ) for “findings on compensatory damages.” There she gave evidence that she suffered both mental and physical injuries as of result of the blacklisting, including “somatic” injuries (e.g., teeth grinding), anxiety attacks, shortness of breath and dizziness.

She was awarded compensatory damages of $45,000 for emotional distress and $25,000 for injury to professional reputation. She reported the award on her return, but later filed for a refund on the grounds that it was not taxable income.

A three-judge appellate court decided that damages for nonphysical personal injury are not income under the 16th Amendment of the Constitution, so that the Code section treating these payments as income is unconstitutional (Murphy, CA-DC, 2006-2 USTC ¶50,476). The award in this case was neither a gain nor an accretion to wealth, so it could not be income. Since her mental health and reputation were not taxable before the injury, damages to compensate her for injury to them is not income. Damages for lost wages would have been taxable, but the award in this case was not for lost wages.

Commentators have jumped on this decision as potentially throwing much of the Tax Code into question and certainly rewarding tax protestors who make seemingly far-out arguments. The Justice Department is asking the full appeals court to review the decision in a legal maneuver known as a petition for “rehearing en banc.” The question raised in the case is “one of exceptional importance to the administration of the nation’s tax laws,” the government said. The appeals court panel’s decision “represents the first time in over 85 years that an exercise of Congressional income-taxing power has been declared unconstitutional.”

Long-Distance Service

• Federal excise tax on long-distance service. At the time of the Spanish-American War, Congress sought to raise revenues by imposing a tax on long-distance telephone service. Since telephones were still viewed as a luxury item at the time, it was thought that only wealthy taxpayers and businesses would owe the fee. Today, there are more than 200 million cell phones alone in the United States.

A number of large corporations that together paid millions of dollars in federal excise tax brought separate actions against the federal government, arguing that the tax was erroneously collected. These corporations challenged how the tax was being applied, arguing that it was being charged on elapsed transmission and not on distance, as required by Code §4252(b)(1). This year, the IRS lost in two key decisions (Fortis, Inc., CA-2, April 27, 2006, and Reese Bros., CA-3,May 9, 2006). These cases conclude that the tax is being wrongly applied and should be refunded, the same conclusion reached by other courts last year (American Bankers Ins. Group, CA-11, 408 F3d 1328 (2005); OfficeMax, Inc., CA-6, 428 F3d 583 (2005); and Nat’l R.R. Passenger Corp. (AMTRAK), D.C. Cir., 431 F3d 374 (2005).

As a result of these decisions, the IRS announced that it would cease application of the tax and grant refunds for tax charged after Feb. 28, 2003, and before Aug. 1, 2006 (Notice 2006-50, IRB 2006-25, 1141). It is expected to refund about $13 billion. Consumers and Schedule C filers (sole proprietors and one-member limited liability companies) can claim a refund for their actual tax payments or rely on a standard refund amount fixed by the IRS. This amount depends on the number of exemptions claimed in a household: $30 for one exemption, $40 for two exemptions, $50 for three exemptions and $60 for four or more exemptions (IR-2006-137, Aug. 31, 2006). The standard amount includes interest on the overpayment; those claiming a refund of the actual tax will be entitled to interest (the amount of which has yet to be announced). The refund must be claimed only on a 2006 tax return.

Businesses cannot rely on a standard amount; they can only claim a refund for their actual tax payments. The refund amount is figured on Form 8913, which is attached to the tax return. Important: Partnerships and S corporations claim the refund themselves; the owners of these pass-through entities do not claim their share of the company’s refunds on their individual returns.

Taxpayers claiming a refund of the actual tax paid should amass old telephone bills. Check for payments covering federal excise tax on long-distance service. The refund does not apply to federal tax on local services, federal access charges, and state or local taxes and charges. The refund is figured on new Form 8913, the amount of which is entered on a new line of the 2006 tax return.

Capital Loss Limits

The exercise of incentive stock options (ISOs) does not result in any income for regular tax purposes. However, the spread between the stock’s price and its option price is an adjustment for the alternative minimum tax (AMT). This means that AMT can be triggered or increased by the exercise of ISOs, even if the stock price drops after the exercise.

When the stock market tumbled six years ago, the dot.com stocks took a severe hit. Some individuals holding ISOs got caught in a price squeeze. They exercised their options and then saw the value of their holdings plunge. That was the situation that plagued one individual in a case this past year.

Robert Merlo exerised ISOs in December 2000 to acquire stock worth $1,070,289; it cost him only $9,225, the option price, to do so. This created an AMT adjustment of $1,061,064 (the stock price minus the option price). Including this adjustment in alternative minimum taxable income (AMTI) produced AMT liability of about $290,000. In September 2001, less than a year after acquiring the stock, the company filed for bankruptcy and Mr. Merlo’s holdings became worthless. For regular tax purposes, only $3,000 of capital loss in excess of capital gains can be used to offset ordinary income (Code §1211(b)). The excess loss can be carried forward; there is no loss carryback. Mr. Merlo’s capital loss was $1,076,289 (this $9,225 cost plus the AMT adjustment of $1,061,064) and he wanted to use this loss as a carryback to effectively undo his AMT liability.

In Tax Court, Mr. Merlo argued that the capital loss limitation for regular tax purposes does not apply for AMT purposes (Merlo, 126 TC No. 10 (2006)). This would allow him to carryback the 2001 loss to 2000 to eliminate AMT liability in that year. Unfortunately for Mr. Merlo, and many others caught in the dot.com fiasco, the Tax Court held that the regular capital loss limits apply for AMT as well. No capital loss carryback is permitted.

In another case, a taxpayer argued that the capital loss limits were unconstitutional. Ken Perry has capital losses in two consecutive years of $9,200 and $60,000 and claimed the full amount of the losses on his returns, disregarding the $3,000 capital loss limitation. Before the Tax Court he argued that the capital loss limits violated the 16th Amendment of the U.S. Constitution because Congress’ power under this amendment is limited to imposing tax on “income.” He claimed that the capital loss limit, in effect, taxed him on income he did not receive.

The Tax Court held that the capital loss limit was valid (Perry, TC Memo 2006-77). Congress can choose to treat capital gains and losses differently from other types of income, and the capital loss limit does not subject a taxpayer to nonexistent income. The law merely restricts the current use of losses, something that Congress has the power to do.

Sale of Lottery Winnings

Many states pay their lottery winners in installments over a number of years. Some winners who prefer a lump sum sell the rights to collect the remaining payments to receive income now. Does this sale produce ordinary income or capital gains? That is the question that has been put to several courts; all have concluded that the resulting income from the sale is ordinary income and not capital gains.

Take the case of Latteras who won more than $9.5 million in the Pennsylvania lottery in 1991 with the purchase of a $1 lottery ticket. The winnings were to be paid in 26 annual installments. In 1999 they sold their remaining 17 installments to a finance company for $3.4 million and reported this as long-term capital gains on Schedule D of Form 1040. A federal appellate court upheld the Tax Court in treating the sale proceeds as ordinary income (Lattera, CA-3, 2006-1 USTC ¶50,165, aff’g TC Memo 2004-216). Applying the substitute-for-income doctrine (which requires the income received to be treated the same as the income that would have been received but for the transaction), the sale results in ordinary income. The lottery proceeds are ordinary income, so the sale proceeds must be treated the same way. A taxpayer cannot convert ordinary income into capital gains by selling the right to receive the income at a set time.

This court reached the same conclusion as the U.S. Court of Appeals for the Ninth Circuit (Maginnis, CA-9, 2004-1 USTC ¶50,149). That case applied the assignment of income doctrine under which a taxpayer who earns income cannot escape tax on it by giving the income away. However, there had been criticism of this court’s approach in various law reviews. The U.S. Court of Appeals for the Third Circuit’s approach is based on a 1941 U.S. Supreme Court decision (Hort, SCt, 41-1 USTC ¶9354) in which a tenant’s lease cancellation payment to get out of the lease had to be treated as ordinary income (as would the rent), rather than as capital gain.

Sidney Kess, CPA-attorney, is a consulting editor to CCH Inc., an author and a lecturer.

 

Sgt. Kathy Stafford, LawReader War Correspondent, reports on camp living conditions.

Saturday, October 14th, 2006

SSG Kathy Stafford continues her reports from the war zone in Iraq. In this report she describes memorial services for a lost soldier who was killed in a firefight.  Her living conditions improve a little.  A package of flavored teas, chocolates and paperback books sent from LawReader hqs. arrives. 

14 Oct 06          (Camp Speicher Iraq,  somewhere north of Baghdad)

Hello Sir

I received your package today.  Thank you so much for the tea, I am very excited.  I love to sit in the evening and have a cup.  I will share the chocolate with everyone.  Thank you for the books as well.  They all sound interesting and I need something to do with my down time other than play solitare.  I love to read, so thank you.

This has been a busy week for us.  You asked me what type of memorial service is held for soldiers here.  Strange that I would get that email from you because the following day a soldier died here.  Not one of ours, but with another unit. 

My soldier, SGT Rebecca Hagler, her husband is also deployed to COB Speicher.  His unit pulls security outside the wire and sometimes finds the bad people.  If the base is hit they are one of the first responders.  They go out searching for those who did it.  Any way, she was supposed to have breakfast with him Sunday, 8 Oct 06, but early that morning he showed up at the tent.  When I answered the knock he asked me to tell her that he would not be able to meet her for breakfast because he had lost a soldier last night.  He was really shaken up, this soldier was the first one he had lost. They were on a mission outside the wire when they got caught up in a fire fight with insurgents and his soldier was shot.  The unit held a memorial service for the soldier on Monday.  Usually a memorial service is held in a makeshift chapel, the M-16, a pair of boots, a Kevlar and dog tags are placed on a table in front.  Soldiers take turn sharing their feelings their about their comrade. 

I have  been to one memorial service in my military career like this and I can tell you it is a very emotional time for everyone there.  Makes a soldier hope that their family and friends know they are loved.  If I can give any advice to family and friends of soldiers deploying, do not let them leave without knowing they are loved as well.  Shit happens over here and lots of it is beyond our control.  Even soldiers that don’t go outside the wire can get killed.  I saw a bit of that on my first deployment.  So, don’t let your soldiers go away without knowing you love them because you may not get the chance to tell them again.

Well my living conditions have improved.  We moved into the Chu’s (pronounced Chew) which I think stands for container housing unit.  Our chu’s are in LSA 15.  LSA stands for life support area.  The chu’s look like job trailers, they are suppose to hold 3 soldiers but for now until the main body gets here I get a chu to myself.  It is peaceful, although somewhat lonely.  The nights are the worse, when I really miss my family when I have nothing to do.  We also have shower and latrine trailers, so no more porta-johns, unless we are out and about on the base.  I purchased a small refrigerator, microwave, tv and dvd player for my room.

My office is stick built and very cheaply done at that.  The carpentry work is horrible.  I was helping to clean up our new offices and thought of my friend Dwayne Chappell and how I could really use him about then to fix all the stuff that isn’t done right.  Not sure who the contractor was or if they used local nationals, but who ever built them did a very poor job.  We are still waiting on some type of flooring to put down.  They are also still working on our phone lines and computer lines.  We spent 3 days cleaning the 3 office buildings, and the last day at about 1600 hrs. we had our first sand storm.  So, we are back to square one and will have to clean all over again.

Right now I am not doing my assigned job because there isn’t anything in place for us to do our jobs, to include the aircraft.  My understanding is that the government wants to build up Camp Speicher, actually it is now called COB (Continual Operating Base) Speicher so that is why they decided to base Task Force Odin out of here.  The runway isn’t even complete.  Don’t know when all that will be fixed.  My company commander did tell me that I may get to go to Balad (Camp Anaconda) for a few days.  Then I will be able to do my job.  I am a flight operations sergeant.  Depending on what type of aviation unit I am assigned to depends on what type of work I do.  Anything from posting flight hours to typing diplomatic clearances.  Once we are up and running here we will work 12 hour shifts.  Flight Operations is open 24 hours 7 days a week. We will be short handed even when everyone is here so getting a day off will be difficult. 

Even if I have a day off, I am still the platoon  sergeant so I will still have to work in some capacity and when the first sergeant goes back to the states in Nov and Dec for training I will play First Sergeant.  Long days and the pay sucks.  But the food is good. 
Better be going for now.  I have mailed a CD with pictures to Shelley’s address.  Hope you enjoy the pictures.

Kathy

Noble – Roach Judicial election on verge of being the most costly, each have raised over $500,000

Friday, October 13th, 2006

By Brandon Ortiz  Reprinted from HERALD-LEADER STAFF WRITER 

Two candidates vying to sit on the state Supreme Court have raised more than half a million dollars combined, and the campaign is poised to become the most expensive Central Kentucky judicial race in history.

As of Wednesday, Justice John Roach had raised $286,522, with $85,411 on hand entering the campaign’s final month, according to reports made available yesterday by the Kentucky Registry of Election Finance.

Fayette Circuit Judge Mary Noble, who is battling to unseat the Fletcher appointee, had raised $249,605, with $93,294 left to spend.

The most expensive judicial race in Central Kentucky was a Court of Appeals race in 2003 pitting Circuit Judge Larry Vanmeter against incumbent Lewis Paisley. Vanmeter spent $440,000 — about $250,000 of it from his own pocket — and Paisley spent $136,000. Vanmeter narrowly defeated Paisley.

Watchdog groups worry that the money flowing into ostensibly non-partisan, non-political judicial races across the country will taint the public views of the court system, particularly in light of recent U.S. Supreme Court rulings loosening restrictions on campaign speech.

“It is quite clear that all the money that is going into these campaigns is having an adverse effect on people’s confidence in the courts,” said Deborah Goldberg, of the Brennan Center for Justice at the New York University School of Law.

Noble, who supports public financing of judicial elections, shares those concerns, campaign manager Dea Riley said. The judge does not watch who has contributed to her campaign so there is no appearance her rulings have been influenced by donations, Riley said.

“We have bent over backward to prevent any appearance of impropriety,” Riley said.

Roach, who opposes public financing, discloses contributors on his Web site.

“Justice Roach has and will continue to disclose his contributors frequently so that all transactions are transparent,” campaign director Cary Black said.

In 2000, Justice James E. Keller spent $220,000 to defeat lawyer and former Republican gubernatorial nominee Larry Forgy, who spent $148,000.

Statewide, the judicial spending record is a 1996 Supreme Court race in Louisville that topped a combined $1 million. Despite dipping into his personal fortune, incumbent Nick Johnson was trounced by challenger Martin Johnstone.

Justice McAnulty gives Supreme Court a bum rap on Published Decisions Issue.

Friday, October 13th, 2006

 By LawReader Senior Editor Stan Billingsley:

       At a Judicial candidates Forum in Louisville on Oct. 12th.  Supreme Court candidate William McAnulty told the audience that -there is a perception that the state Supreme Court is issuing too many unpublished decisions, and the lower courts and attorneys want and should get more guidance-.      

We take issue with Judge McAnulty’s perception of this issue. It has long been known nationally that the Kentucky Supreme Court (and it’s predecessor the old Court of Appeals) is one of the most prolific publishers of judicial opinions in the United States.       

A quick comparison of the relationship of published vs. unpublished cases issued in the last twelve months reveals that 54% of all decisions issued by the Ky. Supreme Court are published decisions and 46% are unpublished. (See Exhibit #1 below.)   

 Our review of the unpublished decisions reveals that the vast majority of the cases that are unreported are run of the mill criminal appeals and worker’s compensation appeals and which provide little guidance to the bar.These unpublished cases, while important to the parties involved, usually involve an evaluation of whether or not there was sufficient evidence to sustain the trial court’s verdict.   Rarely in these repetitive cases are new issues involved.  Whenever an important or novel issue of law or procedure is involved the Supreme Court of Kentucky has been very aggressive in publishing those decisions.   

The only difference between a published and an unpublished decision is that a published decision will be printed in the hard bound law books that fill lawyer’s offices, and has been determined by the court to be important enough to be cited as authority. Cases with legal issues get published.  Cases which only involve the sufficiency of the evidence rarely get published as they provide little guidance for legal scholars.  

 One should not get the impression that an unpublished decision is not made available to the lower courts or members of the Bar.  The designation of “unpublished? is a legal term which relates only to the status of the case.  Every decision released by the Supreme Court and the Court of Appeals are made available to the public.Since l999 the Supreme Court has published all decisions online.

LawReader also publishes all decisions issued by the Supreme Court and the Court of Appeals with a synopsis of the important facts and legal rulings. Further, the Supreme Court under the guidance of Chief Justice Lambert is working to enhance the status of unpublished cases by allowing them to be cited as authority.  Once this rules change is adopted, the argument that too many cases are going unpublished will be moot.  

 It is unfair to suggest that our Supreme Court doesn’t provide guidance to the lower courts and members of the bar.  Few state appellate court systems are as hardworking or diligent in publishing their decisions than the Kentucky Supreme Court.   

In order to study the perspective from which Justice McAnulty might have obtained his opinion about case workloads and the amount of published decisions we have studied his workload for a six month period.   (See Exhibit #2 below.)J Justice McAnulty authored only 6 decisions in the last six months of 2005 which were published.

  During that time period the court issued 704 published and unpublished decisions.  Of the 704 cases which came before the Court of Appeals during this six months Justice McAnulty voted in only 91 cases. 

 The number of cases that each of the 14 Court of Appeals judges should have been expected to vote in was 153.  (704 cases divided by 14 Judges). Justice McAnulty carried only 59% of the average caseload.

During that six month period he authored only 27 opinions.  With 3 judges on each panel the average number of cases to be authored if the workload was evenly shared would have been 51. (He authored only 52% of the cases on average he might have been expected to author.)

During this six months there were 12 weeks out of 26 that he authored no opinions.    There were 3 weeks that he did not vote in any decisions.

Exhibit #1:
 
      Kentucky Supreme Court Rulings in Last 12 Months
       Comparing Published vs. Unpublished Decisions
Jan 2006   30 decisions –        12 unpublished   18 published
 Feb 2006  45 decisions -         29 unpublished   16 published
  Mar 2006  23 decisions           10 unpublished   13 published
 April 2006  34 decisions          14 unpublished   20 published
 

May 2006  38 decisions            8 unpublished    30 published
 

June 2006  47 decisions         20 unpublished    27 published
 

August 2006 59 decisions       39 published       20 published
 

Sept. 2006 37 decisions          21 unpublished  16 published
 

Oct. 2005  30 decisions          13 unpublished   17 published
 

Nov. 2005  35 decisions         14 unpublished    21 published
 

Dec 2005   33 decisions         11 unpublished    22 published
                                        
   Total   411                         191  unpublished   220 published
 

   54% of all decisions were published in this one year cycle.
  The court does not issue decisions in the month of July.
 

Exhibit #2:
 

A  review of the Case Work Load of Justice McAnulty for the last six months of 2005 while he was a Ct. of Appeals judge.
 

Week of July 1, 2005      20 decisions issued by Ct. of Appeals
Participated in no decisions and authored  no decisions  none published
 

Week of July 8, 2005       38 decisions issued by Ct. of Appeals
Participated in 2 decisions and authored  no decisions   none published
 

Week of  July 15, 2005     27 decisions issued by Ct. of Appeals
Participated in  3  decisions and authored  3 decisions   none published
 

Week of  July 22, 2005     17 decisions issued by Ct. of Appeals
Participated in no decisions and authored no decisions  none published
 

Week of  July 29, 2005     30 decisions issued by Ct. of Appeals
Participated in 6 decisions and authored no decisions    none published
 

Week of August 26, 2005   28 decisions  issued by Ct. of Appeals participated in two decisions and authored 1 decision  none published
 

Week of August 19, 2005   33 decisions  issued by Ct. of Appeals
 Participated in 2 decisions and authored no decisions   none published
 

Week of Aug 12 2005        9 decisions  issued by Ct. of Appeals
Participated in 2 decisions and authored 2 decisions  none published
 

Week of August 5, 2005    21 decisions issued by Ct. of Appeals
Participated in  5 decisions and authored 1 decision.  none published
 

Week of Sept. 2, 2005       36 decisions  issued by Ct. of Appeals
Participated in 6 decisions and authored 2 decisions.    1 published decision
 

Week of Sept. 9, 2005     38 decisions  issued by Ct. of Appeals
Partipated in 5 decisions and authored 1 decision.  none published
 Week of Sept. 16, 2005       31 decisions  issued by Ct. of Appeals
Partricipated in 3 decisions and authored 1 decision   1 published decision
 Week of Sept. 23, 2005      27 decisions issued by Ct. of Appeals
Participated in 6 decisions and authored 2 decisions  1 published decision
 

Week of Sept. 30, 2005       29 decisions issued by Ct. of Appeals
Participate in no decisions and authored no decisions  no published decision
 

Week of Oct. 7, 2005   19 decisions issued by Ct. of Appeals
Participated in 2 decisions and authored 1 decision   none published
 

Week of Oct. 14, 2005  19 decisions issued by Ct. of Appeals
Participated in 6 decisions and authored 2 decisions  none published
 

Week of Oct. 21, 2005    24  decisions issued by Ct. of Appeals
Participated in 5 decisions and authored  2 decisions  1 published decision
 

Week of Oct. 28, 2005     23  decisions issued by Ct. of Appeals
Participated in  2  decisions and authored  no decisions  none published
 

Week of Nov. 4, 2005    31  decisions issued by Ct. of Appeals
Participated in  2 decisions and authored no decisions  none published
 

Week of Nov. 11, 2005     23 decisions issued by Ct. of Appeals
Participated in  4 decisions and authored  1 decision  1 published decision
 

Week of Nov. 18 2005   23   decisions issued by Ct. of Appeals
Participated in  1 decision and authored  no decisions  none published
 

Week of Nov. 25 2005     19 decisions issued by Ct. of Appeals
Participated in   4 decisions and authored  no decisions none published
 

Week of Dec. 2,  2005     22 decisions issued by Ct. of Appeals
Participated in  1 decision and authored  no decisions  none published
 

Week of Dec. 9, 2005     35 decisions issued by Ct. of Appeals
Participated in  9  decisions and authored 4 decisions   none published
 

Week of Dec. 16, 2005     26 decisions issued by Ct. of Appeals
Participated in   4 decisions and authored  no decisions none published
 

Week of Dec. 22, 2005     31 decisions issued by Ct. of Appeals
Participated in  7  decisions and authored  3 decisions    none published
 

Week of Dec.29 2005     25 decisions issued by Ct. of Appeals
Participated in  4  decisions and authored 1 decision   1 published decision
 


  

New law adopted by 2006 Ky. Legislature establishes presumption of width and area of road.

Thursday, October 12th, 2006

    This new statute will be a boon to parties trying to establish boundaries of old roads which cannot be established by property records.
 

KRS 178.025 Road presumed established — Presumption of width and area of public road right-of-way.
 

(1) Any road, street, highway, or parcel of ground, dedicated and laid off as a public way and used without restrictions on a continuous basis by the general public for fifteen (15) consecutive years, shall conclusively be presumed to be a public road.
 

(2) In the absence of any record, the width of a public road right-of-way shall be
presumed to extend to and include that area lying outside the shoulders and ditch
lines and within any landmarks such as fences, fence posts, cornerstones, or other
similar monuments indicating the boundary lines.
 

(3) In the absence of both record or landmark, the right-of-way of a public road shall be deemed to extend to and include the shoulders and ditch lines adjacent to said road  and to the top of cuts or toe of fills where such exist.
 

Effective: July 12, 2006
History: Amended 2006 Ky. Acts ch. 236, sec. 1, effective July 12, 2006. — Amended
2004 Ky. Acts ch. 61, sec. 2, effective July 13, 2004. — Created 1966 Ky. Acts
ch. 108, secs. 1 to 3.
 

 

Index of new laws passed by 2006 session of the Ky. Legislature

Thursday, October 12th, 2006

See index of new laws adopted by the 2006 session of the Ky. Legislature.   If you are writing a seminar program you will find this information invaluable.  This will allow you to quickly update your area of practice by understanding the some 250 new laws that may affect your work.  This index is available to subscribers to www.lawreader.com.  go to : Update of New Laws Passed by 2006 Legislature

 

Big Corporate interests jumping in Kentucky Judicial Elections.

Thursday, October 12th, 2006

A new national lobbying group representing large corporate interests has created a web site and is focusing on Kentucky Judicial Elections. The group is Partnership for Commonsense Justice, there web address is www.kycommonsense.com. They are advocating so called tort reform.

They write in a recent posting:

Kentucky’s legal climate gets very low marks

Meanwhile, as Kentuckians prepare to elect a majority of our Supreme Court, Court of Appeals, and so many other lower court judges, there is growing and disturbing evidence that Kentucky’s judicial system is doing a poor job of delivering the fair and evenhanded justice so essential to our prosperity, health and safety.

Three authoritative national assessments have given Kentucky very poor grades for its legal climate. Those low rankings have far-reaching implications for Kentucky’s quality of life, job growth, and business climate.

The commonwealth’s judicial climate unquestionably affects Kentucky’s ability to compete in a global economy, and to attract the new jobs and new investments so vital to our future. In a recent national survey of over 1,400 corporate attorneys and general counsels, 70% said that a state’s judicial climate is likely to impact important business location and expansion decisions within their companies.

In that same nationwide survey, conducted by the United States Chamber of Commerce, Kentucky’s judicial climate ranked 34th among the 50 states. As in so many other indices, Kentucky compares poorly in the quality of its justice system nationally – and concerned citizens and business leaders are taking notice.

For the first time ever, Kentucky – specifically Eastern Kentucky – has achieved the unfortunate distinction of being named to the authoritative American Tort Reform Association’s Judicial Hellholes 2005 Report. All indications are that the litigation industry is alive and well in Kentucky, not only in the courtroom but also in the state’s political process as well.

Here are links to the complete studies:

U.S. Chamber of Commerce Institute for Legal Reform’s 2006 State Legal Fairness Rankings.

     Kentucky’s legal climate ranked 34th among the 50 states in this survey of over
     1,400 corporate attorneys.

Pacific Research Institute’s U.S. Tort Liability Index: 2006 Report.

     In another authoritative national analysis, Kentucky’s tort climate ranked 39th among the 50 states.

 

AN EASY WAY TO IDENTIFY A JUDGE YOU SHOULD NOT PUT ON THE BENCH

Wednesday, October 11th, 2006

                      LawReader Editorial by Senior Editor Stan Billingsley:

 

    Due to a court ruling in Minnesota, and a ruling this week by a Federal Judge in Lexington, some candidates for judicial offices have assumed they had carte balance to ignore the Judicial Code of Conduct. The Code of Conduct is an ethics code designed to enhance and protect the reputation of our courts as impartial enforcers of the law.

 

  These candidates, and some sitting judges, now are choosing to ignore the ethical code followed by all judges in this state for many years.   These candidates are campaigning on hot button issues that are designed to appeal to the strongly held conviction of many voters.  These campaign statements take the form of a virtual promise on how they will rule on these issues if elected or re-elected to the bench.

 

    A judge takes an oath to uphold the constitution when he assumes office.  He commits himself to being fair and impartial to all litigants coming before him.  He is not authorized to change any law he doesn’t agree with. Most judges in their careers have frequently upheld and enforced laws they disagreed with.

 

   When a candidate starts talking about issues that are within the jurisdiction of the court position they are seeking, he/she is telling you that in spite of their duty to remain fair and impartial to all litigants, they have already made up their minds on some issues, and will not be fair and impartial on those cases coming before them regarding those issues.  They are giving the public a wink and a nudge and saying thereby: I will only be fair and impartial part of the time.   Part of the time is not good enough.

 

   They will protest their right to free speech, but in doing so they diminish your right to a fair trial by an impartial judge.  This requires a balancing test between the judges personal views and your right to a fair trial.  The Judicial Code of Conduct is such a test.  

 

This Code of Conduct limits the speech of judges and requires them to hear each case on its merits. It was written for the good of the public and to maintain the dignity and fairness of the court.

 

   If a candidate for judicial office announces to you that is strongly committed to a certain view on some social issue, then you should hide your wallet, lock up your daughters, and check out the water supply in your storm cellar.  He is either lying to you or he is planning to lie when he takes his oath of office.  He can’t have it both ways.

 

   If a candidate for judicial office foregoes the short cut being used by some candidates, and if he/she abides by the Code of Conduct during the election, then he/she is more likely to be faithful to the law when in office. This kind of the candidate deserves your support.  Those candidates who inflame the public with hot button issues are not to be trusted with such an important public position.

 

If you want to discuss hot button issues, discuss them with your legislator….he is permitted to make promises of his future conduct. 

 

 

 

 

  

 

  

Judge Caldwell ruled against Candidate Marcus Carey on several issues. Careys lawsuit is in conflict with the conduct of Judge Alito and Chief Justice Roberts in the confirmation hearings. McAnulty ethics complaint stayed. Judicial Campaign Conduct Commission letter.

Wednesday, October 11th, 2006

Judge Caldwell ruled against Candidate Marcus Carey on several issues.  Careys lawsuit is in conflict with the conduct of  Judge Alito and Chief Justice Roberts in the confirmation hearings.
 
LawReader Analysis by Senior Editor Stan Billingsley:


    The First thing to understand about Judge Caldwell’s decision is that it is a preliminary injunction that may later be reviewed, and is subject to the appeals process.  One must remember that the Federal Court order “stays? enforcement, and at this time it is too early to say that future enforcement is precluded.  This could be accomplished by a review by Judge Caldwell and by the decision being overruled by a higher appellate court (i.e. 6th. Circuit Court of Appeals of the U.S. Supreme Court.)

Further there are a number of issues raised by Candidate Marcus Carey which she did not Preclude from being enforced by the Judicial Conduct Commission.

  Judge Caldwell made two affirmative but “temporary? rulings.  She “stayed? enforcement of provisions of the Ky. Code of Judicial Conduct as follows:

1.  A candidate for a judicial office can tell voters which political party they belong to.

   It is one thing to answer a question about one’s political party affiliation.  This type of revelation has always been permitted by the Code.  This ruling if it is upheld will allow a candidate to publish in their campaign advertising their party affiliation.  This will remove the pre-condition of the candidate being asked.

Will this decision be read to diminish the power of the states to mandate non-partisan elections?  Most city councils in Kentucky are required by law to be non-partisan elections.  The political parties are not involved in the nomination process. The right of the state legislature to mandate that a particular public office be filled on a non-partisan basis has never been questioned before. Further, there is no mention in the U.S. constitution of political parties.

   We believe the legislature acted reasonably when they determined that there is not a Republican or Democratic way to pave a road or pick up the trash and therefore there is a long history of non-partisan elections.   Kentucky has chosen to require that judges are elected on a non-partisan basis.  Although there are some who can’t wait to politicize the courts and the election of judges, the real job description of a judge is to impartially follow and apply the law.  

     There is no real support for a Republican theory of law as opposed to a Democractic theory of the law….if you are speeding faster then the speed limit, there is only an evaluation of the facts and then the application of the penalty within the guidelines written by the legislature.

    We think it is to every judge’s disadvantage to publicize his/her politicial affiliation.  If the judge is a dedicated and active member of the Republican Party, does this create in those Democractic defendants who will appear before him the impression that they will not get a fair shake?  Will this mean that Republicans will be more or less likely to vote for a Democract or vice versa?  I believe we all know the answer to that question.  But why would the judge want to limit his potential pool of voters by announcing his party affiliation?   The only reason is that in those districts where party affiliation is lopsided, that the members of the majority registration believe they will have an advantage over their opponents who are members of the minority political party.

      The bottom line question is will such a disclosure of one’s party affiliation enhance the dignity of the court or will it belittle the dignity of the court?   We believe the Code of Conduct is a well thought out document and it has worked very well for many years and should be upheld. 

     This decision by Judge Caldwell is possibly the first step in removing from the Ky. legislature, and the people of Kentucky the right to declare some public offices as so important they should be free of the taint of partisanship.  By allowing a judicial candidate to declare his party affiliation, you are almost demanding that he is pledging himself to advance the interests of that party.  If there is anything we don’t need on the bench is partisanship.

We believe this issue warrants review on appeal.

2.  They can personally solicit contributions from attorneys who might later argue cases before them.


   This ruling by Judge Caldwell appears to be based on her observation that attorneys were permitted to contribute to committees set up by Judicial candidates, and that it didn’t seem reasonable for the Judge not to be able to personally hold out his hand. 

  Judge Caldwell noted in her decision that a Judge under the current system could learn the names of the donors anyway…and she sees no harm in allowing the judge to personally impose on the attorneys who appear before him (and whose livelihood might depend on the good will of the judge with regard to future cases that attorney might have with the requesting judge) the direct solicitation of campaign funds.

   We have always believed that the appellate courts when reviewing a legislative act, should not concern themselves on whether or not they could have written a better law.  The judge has only to consider if the prohibited act is a violation of a constitutional or statutory right of the party seeking relief.  Further, there should be some respect by the Federal Courts for the case law of the states. Judge Caldwell walks on dangerous legal ground when she justifies a ruling on the basis of the presumed weakness of a law as opposed to some other method the legislatue might have applied.

    Will this theory be advanced in the future to remove the prohibition of a judicial candidate from campaigning in the courtroom?  Can a judge now sit on the bench and announce that he will take ten minutes for all attorneys present to file up to the bench and make their contributions to his campaign? 

    We can see a definite appealable issue has been left on the table on this issue.
 
Judge Caldwill did not grant the relief requested  on other issues raised by Candidate Carey.

a. She did not approve Carey’s request for permission to announce his views on certain issues.  The Code prohibits the candidate from announcing his personal views on issues that may likely come before his court.   Carey is said to want to advance a pro-life agenda even though abortion related issued do come before the Supreme Court from time to time.

b. She did not approve Carey’s request that he be allowed to seek endorsements other elected officials, an act that is prohibited by the Code of Conduct.  Carey apparently wants to seek the endorsement of the Governor or members of the legislature and announce this in his advertising. When the candidate for a judicial office accepts the endorsement of local elected officials, he tacitly aligns himself with those officials.  The message sent is that these people are my friends and I will back them when they come before the court.

c. Carey also sought and was denied at this time, a prohibition in the current Code of Conduct that requires a judge to recuse (remove) himself from any case in which he may have a potential bias.  The current Code prohibits even creating the appearance of impropriety with regard to a judge sitting on a case in which they may have a bias or the appearance of bias regarding the issues or parties coming before his court.

Let us consider the confirmation hearings of Alito and Roberts.

    We observe that the confirmation hearings of Supreme Court Justice Alito and Chief Justice Roberts, which have just recently this summer been concluded, demonstrated a standard of conduct for the judges seeking confirmation from the U.S. Senate that appear to be in direct conflict with the procedures which Carey advances.

In both the Alito and Roberts confirmation hearings, these judges conducted themselves in a way contrary to the type of conduct that Carey advances in his lawsuit.

Alito confirmation hearing:

a. When asked if he believed that Congress had the right to remove the jurisdiction of the courts to -eliminate all federal court jurisdiction over First Amendment cases. Playing his cards close to his vest, he said that he had not given sufficient thought to the question to opine an answer.

Alito stated in his opening statement to the Senate Judiciary Committee:

-Good judges are always open to the possibility of changing their minds based on the next brief that they read, or the next argument that’s made by an attorney who’s appearing before them, or a comment that is made by a colleague during the conference on the case..-

In his questioning by the Committee Judge Alito said:

-The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand,..But a judge can’t think that way. A judge can’t have any agenda . . . and a judge certainly doesn’t have a client. The judge’s only obligation — and it’s a solemn obligation — is to the rule of law.-

Republicans also said the Senate should apply what Sen. Orrin G. Hatch (R-Utah) called -a judicial, not a political, standard- to Alito’s record.

Sen. Sam Brownback (R-Kan.) said: -The idea that there are spots on the Supreme Court reserved for certain ideologies is a falsehood. Seats on the bench are not reserved for causes or interests.-

   We would submit that if a judges only obligation is the rule of law, why should be out leading the public to believe that he has a political agenda which he plans to advance once he is seated on the bench.

Chief Justice Roberts:

In the nomination proceedings for Chief Justice Roberts, the same procedure of refusing to announce his views on controversial questions that are likely to come before his court were practiced by Judge Roberts.  He stated in the transcript in response to questioning from Senator Arlen Spector:

SPECTER: Well, do you see any erosion of precedent as to Roe?
ROBERTS: Well, again, I think I should stay away from discussions of particular issues that are likely to come before the court again. And in the area of abortion, there are cases on the courts docket, of course. It is an issue that does come before the court.
So while I’m happy to talk about stare decisis and the importance of precedent, I don’t think I should get into the application of those principles in a particular area.

… SPECTER: The joint opinion (inaudible) after the statement as to sexual activity to come to the core issue about women being able to plan their lives, quote, the joint opinion says, “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.”
Do you agree with that statement, Judge Roberts?

ROBERTS: Well, yes, Senator, as a general proposition, but I do feel compelled to point out that I should not, based on the precedent of prior nominees, agree or disagree with particular decisions. And I’m reluctant to do that.
That’s one of the areas where I think prior nominees have drawn the line when it comes to, “Do you agree with this case or do you agree with that case?” And that’s something that I’m going to have to draw the line in the sand.
                                                ***************
    We believe that the standards argued before the Judiciary Committee, if good enough for Federal appellate judges, should likewise apply to State appellate judges. 

Judge Caldwell has not stricken the Code of Conducts prohibition against a judicial candidate announcing his views on issues that are likely to come before the court. 

We would suggest that any candidate that assumes that the temporary injunctions issued by Judge Caldwell are correct, and will not be later overruled, then by ignoring the Code of Conduct, they may be buing a ticket to appear before the Judicial Conduct Commission in the future.

One observation seems obvious.  The complaint filed against Judge McAnualty alleging he violated the Code of Conduct by allowing a person in his office to solicit campaign contributions, instead of having his Campaign Committee solicite the contribution, is for the moment a moot point.   The Commission is absolutely stayed from proceeding on that complaint as long as the Caldwell order is upheld.

The Ky. Judicial Campaign Conduct Committee recently issued this press release:

Committee cautions judicial candidates against making statements that erode the independence, integrity and dignity of the courts
             The Kentucky New Era of Hopkinsville performed a service of statewide importance last week by highlighting a key principle in the many Kentucky judicial elections on the ballot next month.
            The principle is that unlike candidates running for political office, those running to be a judge must demonstrate to voters their readiness to be impartial — rather than to court votes by announcing their opinion on hot-button issues.
            New Era reporter Joe Parrino’s story described the application of this principle to the race for the state Supreme Court in the 1st District, between Circuit Judge Bill Cunningham and Court of Appeals Judge Rick Johnson.
            The article noted Johnson’s speech at the Fancy Farm Picnic in August, in which he said “I oppose abortion except in case of serious endangerment to the life of the mother,? noted that he is endorsed by Right to Life, and said he supports display of the Ten Commandments, “the right to pray freely at school,? the right to bear arms, the death penalty, marriage limited to one man and one woman, and property rights, disagreeing with last year’s condemnation ruling of the U.S. Supreme Court.
            “My judicial record is conservative, consistent with West Kentucky values,? Johnson concluded. “Our values shape our judgment. And people want judges who shape their values. ?
            The New Era story quoted Johnson as saying in an interview that the only “off-limits? topics in judicial campaigns are those in current court cases.
            We disagree.
            We are the Kentucky Judicial Campaign Conduct Committee, the independent, non-partisan group monitoring this fall’s judicial elections. We think Judge Johnson’s view of judicial campaigns is off the mark, and not in keeping with the campaign agreement that we offered to candidates this summer – an agreement that he signed.
            Among other things, those signing the document agreed to abide by the Canons of Judicial Conduct, which say a judicial candidate “shall not intentionally or recklessly make a statement that a reasonable person would perceive as committing the judge or candidate to rule a certain way on a case, controversy, or issue that is likely to come before the court.?
            We believe that many voters who hear judicial candidates take sides about disputed public issues would reasonably expect those candidates to rule on the same side if some facet of the issue came before them. Likewise, candidates who make such declarations may feel an obligation to rule that way, especially if they have received a lobbying group’s endorsement.
            Judge Johnson may have a First Amendment right to make such statements, under recent federal court decisions that struck down former canons of judicial campaign conduct in Kentucky and other states. But while candidates now enjoy broader rights to comment, they should couple that with the responsibility to uphold the independence and integrity of the judicial system, in order to maintain respect for it. Judicial candidates who publicly state their views on disputed issues inevitably create the impression that such views would affect how they would rule from the bench, and that runs counter to the principle of judicial independence.
            Judge Cunningham did not sign our agreement, saying it offended him, but his view of judicial campaigns is closer to ours. He told the New Era that the only statements appropriate to a judicial campaign should be about the candidate’s credibility and character and readiness to be fair and impartial. He said at Fancy Farm, “I am not a Republican, I am not a Democrat, I am not a liberal, I am not a conservative. I am a judge.?
            Judges are supposed to be impartial and independent, and uphold the integrity and dignity of the judiciary. Those are the principles that the Kentucky Judicial Campaign Conduct Committee – a bipartisan group of attorneys, former judges, educators and civic leaders – was formed to protect.
            If judges base decisions on their personal beliefs or campaign commitments — real or perceived — why bother with the process of hearing evidence and reaching a decision? Judges may share “your values,? but when it comes to deciding disputed issues, they must demonstrate that they can step back and judge an issue on its own merits.
            The Kentucky Judicial Campaign Conduct Committee recommends that candidates and voters bear in mind that unlike all other public officials whom we elect, we do not elect judges to “represent? us. We elect them to make decisions impartially and independently, based on the facts and the law.
            In this expression of opinion about campaign tactics, the Committee is in no way endorsing any candidate. Voters have many considerations other than campaign tactics as they prepare to choose their judges on Nov. 7. However, we believe that tactics are among the things voters should consider, because of the possible effects those tactics might have on candidates’ service if they are elected.
 
–end–
 
 

 

 

Federal Judge rules on Judicial Candidate Careys lawsuit regarding campaign speech rights for judicial candidates.

Wednesday, October 11th, 2006

 

Supreme Court candidate Marcus Carey has apparently won a partial victory in his effort to disclose his membership in the Republican Party, and his stance on a number of hot button issues.  

Lexington Herald-Leader FRANKFORT, Ky. – Judicial candidates in Kentucky can tell voters which political party they belong to and can even personally solicit contributions from attorneys who might later argue cases before them, a federal judge ruled Tuesday.

However, U.S. District Judge Karen Caldwell said judicial candidates in the state can’t promise how they will rule on particular issues, including hot button topics like abortion or public postings of the Ten Commandments.

The ruling was in response to a lawsuit filed by Marcus Carey, a northern Kentucky lawyer running for the 6th District seat on the Kentucky Supreme Court in the November election against Court of Appeals Judge Wil Schroder.

“Our goal in filing this lawsuit was to provide a level playing field for all candidates,” Carey said Tuesday. “This is a great day for free speech in Kentucky. It’s a great day for those of us who believe in the Constitution.”

Carey, a resident of Erlanger, had challenged a rule that says judicial candidates can’t “intentionally or recklessly” make statements that could be seen as a commitment to decide a certain way on any issue. Many legal officials have said the new rule gives judicial candidates more leeway in what they can say, but Carey claims the rule is too vague.

In her ruling, Caldwell also granted a preliminary injunction to prevent the Judicial Conduct Commission and the Kentucky Bar Association from enforcing rules that forbid candidates from announcing their political affiliation or personally seeking campaign contributions from attorneys.

Caldwell said Carey has established a “strong likelihood” that he will win on those two issues as the lawsuit progresses.

George Rabe, a Lexington attorney who represents the Judicial Conduct Commission, couldn’t immediately be reached for comment on Tuesday evening.

Carey argued that the rules on judical conduct put a chilling effect on judicial candidates’ free-speech rights.

Had he won the right to discuss specific issues, Carey could have added spark to the traditionally low-key judicial campaigns by allowing candidates to more fully discuss their views on a variety of issues.

In the lawsuit, Carey contends judicial candidates are required to “withhold essential information” from the voters.

Carey said he was pleased with Caldwell’s ruling.

“I believe she has made it very clear that in areas of great concern to judicial candidates across Kentucky that their First Amendment rights to political speech will not be surpressed,” he said.

 

Essay on the High Cost of Tax Exemptions for Churches

Tuesday, October 10th, 2006

God Doesn’t Follow the Law  BY CHRISTOPHER KETCHAM -  RELIGION

Author’s Note: The New York Times this week is running a four-part front-page series on what I call religious exceptionalism — the art and artifice of religionists who freely break the law — a topic in which I have tried to interest editors from at least a dozen magazines and websites over the last year. Alas, the effort was in vain. One of my editors at Salon.com told me, for example, that he wanted more “fun reporting” and that an exploration of the organized criminality of religion in the U.S. was “just not my thing.” Ditto, as noted, editors across the country (even, strangely, The New York Times Magazine, to whom I pitched the idea). Anyway, kudos to The New York Times for coming around and taking the time to smack down the tax-thieving, law-breaking religionists in our midst. Below is my essay on the matter.

“History. . . furnishes no example of a priest-ridden people maintaining a free civil government.” — Thomas Jefferson.
It is a certainty in the United States that no one knows or cares to know the exact value of the ecclesiastic demesne. We can, however, guess. In 1875, President Ulysses S. Grant said that taxable church property amounted to $1 billion. One hundred and one years later, in a 1976 study that has never been replicated or updated, researchers Martin A. Larson and Rev. C. Stanley Lowell found that total ecclesiastical property by 1906 came to about $1.3 billion. According to Larson and Lowell, by 1936 it was $3.8 billion. By 1964, it had risen to a spectacular $79.5 billion. When Larson and Lowell tallied their figures for 1976, real church wealth amounted to at least $158 billion, with churches the owners of an estimated 10 percent of all U.S. property. The figure adjusted for inflation today comes to at least $560 billion, likely the greatest non-profit wealth expansion in history (with the real value likely much greater). The reason for the accumulation transcends the giving of the flock: It is due, rather, to a systemic political bias in the form of the generous tax exemption traditionally afforded religious property and income, an arrangement that in Western history is as old as the Sumerian kings and the pharaohs of Egypt.
At what rate this heaping fortune would be taxed is unknowable, and in any case the numbers themselves are largely suspect, given that churches refuse to disclose their finances, as they are not asked to. The Internal Revenue Service allows religion a freedom from regulation that exists nowhere else in American monetary life. Religious entities, an IRS spokesman assures, are the only non-profits not required to report their finances, nor are they even asked to file for a tax exemption, and thus there is no figure for the number and kind of entities receiving exemptions. The popular understanding of the First Amendment would appear to render this approach an absolute: If taxation be the power to destroy, then its application to religion, it is argued, is the incipient abridgement of free exercise.

Not every one agrees, of course, including James Madison, the chief architect and prime mover of the religion clauses in the First Amendment, which, in addition to securing free exercise, also enjoined government from enacting laws “respecting the establishment of religion.” Madison as early as 1784 came to regard church tax exemptions as a kind of subsidy — in effect an act of establishment. As early as 1817, he was already cautioning that “the danger of silent accumulations & encroachments by Ecclesiastical Bodies have not sufficiently engaged attention in the U.S.” What Madison feared was not so much theocracy but what we might term theoligarchy, a creeping rule of the religious rich and few. “[T]here is an evil which ought to be guarded against,” he wrote, “in the indefinite accumulation of property. . . by ecclesiastical corporations.” His warnings were prompted, in part, by his disgust with the growing fashion in the 1810s of federal prayer days and days of thanksgiving and the presence of paid clergy in the halls of Congress, all of which he saw as regressive and which he lobbied to abolish, without success, toward the end of his presidency.

Madison in his concern was not alone. In 1875, President Grant, on the receiving end of a 900-foot petition of 35,000 signatories demanding the end of church tax exemptions, warned the nation in his state of the union that “so vast a property as here alluded to, without taxation, may lead to sequestration, without constitutional authority.” Grant also worried, on a typically practical tack, as to the fairness of religious entities “receiving all the protection and benefits of Government” without bearing any of the cost. Less than a hundred years later, in 1959, the executive secretary of the World Council of Churches, Dr. Eugene Carson Blake, warned that “[w]ith reasonably prudent management the churches ought to be able to control the whole economy of the nation” within a century. Blake, a thoughtful clergyman and believer in the church/state wall, was not pleased at the idea.

The IRS today likes to pretend it maintains at least a few regulatory brickbats to bar the “ecclesiastical corporations” from direct influence in the halls of power. Chief among the rules is that churches shall not endorse candidates or otherwise engage their flocks in electoral efforts. This unfortunately did not sit well with certain congregants or their leaders in the run-up to the re-election of George W. Bush, whose victory arguably rested more than any other factor on the singular purpose and organization of an evangelical franchise. Mobilizing the faithful, Bush’s arch-fixer Karl Rove conducted weekly conference calls with the priests of the movement, who handed over membership lists for registration drives, while the Rev. Pat Robertson counseled at least 45,000 churches on the mechanics of working to re-elect the born-again president. All of this was in frank violation of IRS law.

* * *

Lack of oversight and disclosure coupled with timidity in regulation (or outright impotence) predictably leads to opportunity for fraud, or, at least, to generous allowances in the definition of “religious institution.” The village of Fleischmanns, New York, like all small towns a dependency of property tax, last year went bust after the majority Hasidic community declared their summer cottages “religious institutions.” Wiccan covens, brothels operating as churches of love, whole towns of New Ageists have received similar tax exemptions over the years. In Florida, a Biblical theme park, featuring live Jesus acts, demanded exemptions in a lawsuit that remains snagged in the courts, while in West Virginia a white supremacist group that worshiped, among other divinities, white people, received an exemption for land dedicated to prayer services (so did the Klu Klux Klan in Harrisburg, Penn.). The thieving psychobabble cult of Scientology retained its tax exemption by a simple name change: it became the Church of Scientology.

Meanwhile, the Austin, Texas chapter of Ethical Society, the secular humanist group, fought bitterly in the regional federal appellates to win tax exemptions in 2004 for its atheist “ceremonies.” The Ethical Society victory, in retrospect, appears to dispel any meaningful curb on religious tax exemption claims. It makes hash of the Supreme Court’s only key ruling on property exemptions for churches, the Walz case of 1970. The Walz court offered that the religious tax exemption must be upheld primarily because it serves the social good of furthering the charitable function associated with religion — a function then as now purely ostensible and almost entirely taken up by social security for the disabled, county shelters for the homeless, state schools for the blind and deaf, etc. (The majority’s argument in Walz, it should be noted, is predicated on a delusion: Researchers at the University of Arizona concluded that just 3 percent of an average congregation’s total budget is spent on social services; only 6 percent of congregations have a staffer who devotes at least a quarter of his time to social services. “The bottom line,” said study author Mark Chaves, “is that most congregations are involved in social service activity in only a minor and peripheral way.”)

Anyway, charitable purpose was not a factor in the Ethical Society decision: Now it appeared that any group, charitable or not, that appears to worship just about anything — a newt’s tail, <>Mein Kampf, godlessness — presumably gets a tax exemption, or, at the very least, can tie up the courts demanding one. The prevailing thought is that the First Amendment (rightly) bars government from distinguishing between traditional religion and those beliefs that take the place of traditional religion — meaning that the only challenge to the tax exemption claim, under this interpretation, is to the sincerity of the belief, with state inquisitors left to invent new and exciting means for extorting these matters from the believing mind.

If verification and regulation are thus deemed illegal, and widespread fraud is therefore a given, the simplest way out of the morass, perhaps, is to tax the churches across the board, much as that similarly cherished creature of the First Amendment, the press, has been taxed and has not suffered for it, except to become more competitive (though the exemption might be retained for those elements of a church — schools, soup kitchens, shelters — that actually serve the charitable function). Indeed, why should a righteous free market fund believers over non-believers? As Ben Franklin noted, “When a religion is good, I conceive it will support itself, and when it does not support itself, and God does not take care to support it. . . ’tis a sign, I apprehend, of its being a bad one.”

But don’t wait up nights for this eventuality, for in a society that boasts 325,000 houses of worship, roughly one for every 860 persons, in which church-going is the highest in our history (and the highest in the world), in which 83 percent of people take the Bible to be the “actual” word of God, half fear the devil, three-fourths believe in religious miracles, and a mere 9 percent swallow whole the concept of Darwinian evolution, there is no reason to expect the narcotizing effect of religion to cease its sway over presidencies, legislatures, and, most dangerously, over the high courts of the land, all of whom must in one forum or another answer to a public jealous of its hypnotic totems. Religion in the United States is more than simply respected. It is adored, petted, drooled over; it can do no wrong. This irrational consideration has catalyzed a silent but tectonic rifting not simply of the tax system but of the American legal system itself. Two separate and unequal set of laws now exist unquestioned: one for believers; and one, unbelievably, for everyone else.

One can date the beginnings of the change to the late 1960s, in the activist court of Warren Burger that brought the passion for civil rights to also bear, erroneously, on “equalizing” the field for religion. When in 1973 a group of Wisconsin Amish came before the Supremes demanding the right to remove their children from school in violation of the state’s compulsory child education laws (but in keeping with Amish practice), the court’s language, as penned by Chief Justice Burger, was unequivocal: the believer, by the inherent purity and goodness of belief, required special treatment. If, for example, the court could find a better means of applying the law in favor of the free exercise of belief, then it had better do so. Thus compulsory education, while important for the rest of Wisconsin, was not important for the Amish because it was determined the Amish, as believers, had an ideal lifestyle. Religion to the Burger Court was always, everywhere, a good thing. And by that apparent goodness religion stood, in essence, above the law.

The court’s language of course reflects a common and widespread belief among Americans that religion is a net benefit for society, anchoring a functional moral order, and that godless societies — morally adrift, spiritually bankrupt — would therefore tend to suffer worse social problems. It is a belief unsupported by the facts. A recent study in the Journal of Religion & Society found, in fact, that the inverse may be the case. Key indicators of social distress — such as homicide and suicide rates, mortality, STDs among juveniles, youth pregnancy, abortion and divorce rates — are less prevalent in developed democracies where people attend church less or are less inclined to believe in a divine creator.  According to the report, “[the] data examined in this study demonstrates that only the more secular, pro-evolution democracies have, for the first time in history, come closest to achieving practical ‘cultures of life’ that feature low rates of lethal crime, juvenile-adult mortality, sex related dysfunction and even abortion.” Study author Gregory S. Paul notes that Japan, France and Scandinavia have been most successful in fostering this “culture of life,” while noting that these three comprise some of the most godless developed democracies on the planet. By contrast, the highly religious, anti-evolution U.S. — the only prosperous first world nation to retain rates of religiosity “otherwise limited to the second and third worlds” — is almost always “the most dysfunctional” of the developed democracies, sometimes “spectacularly so.” The evidence, writes Gregory Paul, thus appears to “contradict the dictum that a society cannot enjoy good conditions unless most citizens ardently believe in a moral creator.

The 1973 Wisconsin Amish decision, by linking this fabled “goodness” to an overarching privilege of legal exceptionalism, opened the gates to a flood of abuse. States keen on protecting the sanctity of free exercise — and feeling the pressure of a newly energized religion lobby, which saw opportunity in the Wisconsin decision — now passed laws that astonished common sense. Washington State, for example, exempted Catholic priests from reporting child abuse, with the full understanding, never spoken, that priests were particularly privy to such knowledge. Some states made it prohibitively difficult to prosecute clergy, to the point that prosecutors in Springfield, Massachusetts, who uncovered evidence that a priest had murdered an altar boy, were unable to compel discovery for an investigation. At least 30 states, including Alabama, California, Florida, New Jersey, Ohio, Oregon and Vermont, passed laws freeing “faith-healer” parents from civil and criminal penalty if their children suffered or died from medical neglect. In 1998, Followers of Christ Church in Oregon allowed three infants to perish through faith’s medicine, prompting an investigation that uncovered a sprawling cemetery of children on the church property. But prosecutors were impotent under the exemption laws, and even when the Oregon legislature sought to amend its original foolishness, the faith-healing lobby stepped in to crush the bill with the usual bludgeon in these matters: the law that applies to everyone else, the faith-healers said, violates a believer’s right to choose God over the secular cure.

Under Bill Clinton’s enthusiastic touch, similar acts of ecclesiastic establishment reached a breakneck pace in the federal branch. Marci A. Hamilton, author of the recently published God vs. the Gavel and a professor at Cardozo Law School, writes that Clinton, more than any other president before him, “fostered an accumulation of religious power, and a union of church and state power, that threaten[ed] to undermine the Madisonian separation-of-power principle at the heart of the Constitution.” Bankruptcy laws were skewed to churches, the Church Arson Prevention Act skewed arson laws, the Parsonage Tax Exemption widened tax exemptions, and the International Religious Freedom Act made federal establishment a global affair. Against the Clinton crush of religiosity, his successor’s “faith-based initiatives” only appear as a furtherance of Democratic policy.

Perhaps most disturbing to proponents of disestablishment like Professor Hamilton — who, it should be noted, prays “every day,” being a devout Presbyterian — was the passage in 1993 of the Religious Freedom Restoration Act, drafted as the organized response of the religion lobby to the Supreme Court’s “peyote case” of 1990. The peyote case determined, rather reasonably, that religious motivation is no defense to illegal conduct, such as the consumption of hallucinogens (in this case by American Indian peyote cults). The interpretation pushed by the religion lobby was that the peyote case spelled the beginning of the end of religious liberty — because believers would now have to obey the same law as non-believers.

The Religious Freedom Restoration Act restored the allegedly lost religious freedom by expanding the license of religion to in fact break the law. Under the RFRA, believers could challenge the jurisdiction and application of any and all neutrally applicable laws (meaning the statutes that apply to everyone, such as the injunctions against homicide, rape, embezzlement, car theft, etc.). Prosecutors would not be free to apply those neutral laws to believers unless it showed the law was passed for a “compelling interest” with regard to the believer — that it was the most narrowly tailored law possible for the believer. The loopholes under RFRA were such that religious prisoners demanded the right to engage in sex acts before female prison guards; a father on a New England commune demanded exemption from child support because his money went to the benefit of religion on the commune. “Totally nuts,” says Hamilton, who on behalf of the tiny city of Boerne, Texas, challenged the RFRA to the Supreme Court, and got portions of the law thrown out in 1997 as unconstitutional. The religion lobby in answer birthed an ugly cousin of RFRA, the Religious Land Use and Institutionalized Persons Act of 2000, which preserves an important feature of the RFRA. Under the RLUIPA, land use and zoning laws in the nation can be challenged literally because God may be directing the challenge, i.e., God wants that parking lot re-zoned for a 40-foot residential tower etc. The legislation pivotally places the burden of attorneys’ fees in RLUIPA cases on local governments trying to enforce an otherwise equitable law.

There is in all of this a kind of perverse self-satisfaction and narcissism that appears to have jettisoned some pretty basic Judeo-Christian values. “In effect,” writes Marci Hamilton in God vs. the Gavel, “religious entities have lobbied for the right to hurt others without consequences. That is a severe attack on the rule of law, which is supposed to guarantee that no one becomes a rule unto himself.” Havens for economic and social and political outlawry, whether they are hurting township tax rolls or colluding in child rape and murder or illegally abetting the election of a criminal president (who makes war and spies on citizens as a rule unto himself), the ecclesiastical corporations, whose existence Madison so lamented, today are helping to fashion a social order that fetishizes religiosity but also has with no regrets unmoored religion from that strange old notion of loving thy neighbor. Prof. Hamilton calls this achievement a triumph of “possessive individualism” — the secret sidecar to “ownership society” — and a “triumph of the urge to power, in Nietzche’s sense.”

Moreover, that the ecclesiastical corporations have secured and expanded power by the cynical application of law and a creative sympathy in the judiciary indicates their effectiveness indeed as corporate players. It should be remembered that modern American corporations, conceived by lawyers in the Gilded Age as the grotesque offspring of the 14th Amendment, transformed themselves into “legal persons” by similar courtroom machinations. So the corporation gained the rights of a person — among them, due process and equal treatment, the right to sue, hold property, borrow money — but none of the obligations. “Did you ever expect a corporation to have a conscience,” Edward Thurlow, the 18th century lord chancellor of England, remarked, “when it has no soul to be damned, and no body to be kicked?” The history of the business corporation has in fact been the systematic lobbying for the removal of all regulatory constraints to its operations — in effect, as Professor Hamilton writes, “lobbying for the right to hurt others without consequences.”

The greatest corporate successes in this effort, the founding moments in corporate wealth and power, rest in the 50 years of U.S. Supreme Court decisions that enshrined the deranged definition of “legal person” and gave to capital and property the rights of men while relieving the men behind the money of their liabilities. Similarly, the church looks for the fundaments of its own kind of legal exceptionalism in the three pivotal decades of the Burger Court. If corporations are mere business machines that the courts have mistaken for a person, then churches are mere corporations that the courts have mistaken for godliness. Still, corporations must pay their taxes, however they try not to, and, in the end, they must answer to the marketplace. The corporate church answers apparently only to God. Sic itur ad astra.

 

Find the salary of Indiana and Kentucky Government officials.

Tuesday, October 10th, 2006

To find out the actual salary of any government official in Kentucky or Indiana go to:

http://c-jonline.com/government/salaries/index.php

You may be interested in knowing that the Governor of Kentucky only earns $116,000.  Many School Superintendents make more than that.  Check out firemen, fish and wildlife officers, administrators, accountants, etc.

Is Chief Justice Lamberts post as C.J. dependent on outcome of Nov. election?

Tuesday, October 10th, 2006

BluegrassReport.org is reporting a story which speculates on the potential removal of Chief Justice Joe Lambert as Chief Justice depending on outcome of the Nov. election.
 

  Mark Nickolas of BlueGrassReport.org  says he has picked up on a potential plan which goes:  
 the four or five new members on the seven member court may try to change the direction it is headed as soon as they are sworn-in later this year.
 The plan would be subject to whom is elected to the contested seats on the Supreme Court.  Nickolas reports that Wil Schroeder and John Minton would be the two potential candidates to replace Lambert.  Assuming that Schroeder is elected, and is joined by Noble and Cunningham, then the vote of Minton would be sufficient to make a change on the court.  Minton is unopposed in his election.
 
If Roach defeats Noble and McAnulty defeats Ann Shake, this plan would be highly unlikely as Roach and McAnulty are believed to be close to the Chief Justice.

Nickolas opines that Schroeder is likely to defeant Marcus Cary and that Cunninghan is believed to be leading Johnson.   The Roach / Noble race and the McAnulty / Shake race are toss ups in most pundits opinions.

Nickolas reports that:

While law mandates that the high court elect a chief, it does not speak to when elections are to take place or the term of office. Those are governed by internal court rules and can be changed by a majority of the justices at any time. I’m reminded that chief justices not long ago served just one-year terms, and that a similar situation arose around 1980 when Chief Justice Stephens was re-elected by a lame duck court about a month before a new majority was elected and there was talk of a re-vote which eventually came to pass.


There is little doubt that Minton and Schroder are not likely to support Lambert, as both has expressed their serious concerns about Lambert’s actions to close supporters. 
   The Lambert faction on the court would consist of Lambert, Will T. Scott and Roach.  There are seven justices on the Ky. Supreme Court, so a group of four would control the court elections. 

Legislature amends KRS 189A.105 to mandate that police obtain a search warrant for blood, breath or urine testing in fatal accident situations and court is to order defendant to pay for the testing.

Monday, October 9th, 2006

The 2006 session of the Ky. General Assembly made only one change in Ky. DUI laws.  They added a paragraph to KRS 189A.105(3)(b):
This section states:

(3)(b) Nothing in this subsection shall be construed to prohibit a judge or a court of competent jurisdiction from issuing a search warrant or other court order requiring a blood or urine test, or a combination thereof, of a defendant charged with a violation of KRS 189A.010, or other statutory violation arising from the incident, when a person is killed or suffers physical injury, as defined in KRS 500.080, as a result of the incident in which  the defendant has been charged.
The following paragraph has been added to KRS 189A.105(3)(b):

“However, if the incident involves a motor vehicle accident in which there was a fatality, the investigating peace office shall seek such a search warrant for blood, breath, or urine testing unless the testing has already been done by consent.

If testing done pursuant to a warrant reveals the presence of alcohol or any other substance that impaired the driving ability of a person who is charged with and  convicted of an offense arising from the accident, the sentencing court shall require, in addition to any other sentencing provision, that the defendant make restitution to the state for the cost of the testing.?

This amendment places a duty upon the police officer investigating the accident to see that a test is obtained.  Further the sentencing court is required to add a restitution order for the cost of the test, to the sentence upon conviction.

The Military Commission Act of 2006. A short primer. 1st of a 2 part series.

Monday, October 9th, 2006

By JOANNE MARINER
 
Ten days ago, by a vote of 65 to 34, Congress passed the Military Commissions Act of 2006 (MCA). To facilitate the prosecution of detainees that the Bush Administration “disappeared” into secret CIA custody for several years, Congress created a system of justice that is far inferior to that of the federal courts and courts-martial. And not only did Congress give the Administration much of what sought in terms of substandard justice, it also allowed the Administration to pack the bill with a grab-bag of unnecessary and abusive measures.
With ten separate sections, a few hundred provisions, and thirty-eight pages of fine print, the military commissions bill is complicated and, in a few areas, unclear. Its concrete impact will be assessed in what will no doubt be a long series of court cases that will end up in the Supreme Court.
What follows is a first stab at interpreting the scope and meaning of this exceedingly harmful bill.
What the MCA Does Not Do
A number of commentators have criticized the MCA for authorizing the indefinite detention of people deemed to be “unlawful enemy combatants.” Yet, unlike the Administration’s initial proposals, the bill does not explicitly address detention. While it does nothing to stop the Administration from holding people indefinitely on Guantanamo and elsewhere, the bill does not explicitly sanction the practice. And, according to the bill’s text, its definition of “unlawful enemy combatant” only specifically applies to its rules on military commissions.
It is nonetheless utterly predictable that the Administration will seek to use the law for the purpose of justifying its detention practices. In light of the Supreme Court’s ruling in Hamdi v. Rumsfeld (which recognized the government’s power to detain enemy combatants for the duration of wartime hostilities), the Administration will claim that the MCA implicitly grants authority to the government to detain those who fall within the bill’s ridiculously overbroad definition of “unlawful enemy combatant.”
The courts should emphatically reject this argument. Without a clear statement of congressional intent to authorize the indefinite detention of such a broad category of people, such a position should not lightly be presumed. Any court faced with the question should be guided by the long line of Supreme Court decisions that have held that explicit congressional authorization is required when restrictions on basic rights are imposed.
Definition of “Unlawful Enemy Combatant”
With a bill as pernicious as this one, it is difficult to settle on a single worst provision. The restrictions on the right of habeas corpus probably qualify, but the bill’s overbroad definition of “unlawful enemy combatant” runs a close second.
Under the first prong of the provision, an “unlawful enemy combatant” is defined as a person “who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents,” and who is not a lawful combatant. It would cover someone who provided funds to al Qaeda or the Taliban knowing that the funds would be used to fight against the U.S. (including, given the bill’s apparent understanding of terrorism as a form of hostilities, funds that are used for terrorist attacks in the U.S.).
The material support element of the first prong of the definition – which covers people who have purposefully and materially supported hostilities – exceeds the traditionally-accepted legal definition of combatant. Under international humanitarian law – the laws of war – combatants are people who directly participate in hostilities. People who merely support hostilities – such as cafeteria workers at a military base – are considered civilians. Unlike combatants, they cannot be deliberately targeted for attack.
The first prong of the bill’s definition is unjustifiably broad. But the second prong of the definition is far worse. It appears to delegate to the President or Secretary of Defense unrestricted power to deem anyone an unlawful enemy combatant. All it requires is that a “competent tribunal” like a Combatant Status Review Tribunal (CSRT) make the determination. (CSRTs are the administrative boards that review detentions at Guantanamo.) The bill itself says nothing about the substance of the criteria that the tribunal should apply.
The definition as a whole is thus so radically overbroad that one is tempted to attribute its breadth to a drafting error (perhaps it was originally written as a two-part test, not two independent prongs). At any rate, as written, the provision should be struck down as a blatantly unconstitutional delegation of power. And note, in assessing the provision’s scope, that the definition of “unlawful enemy combatant” is not limited to aliens (even though U.S. citizens cannot be tried by military commissions, and are not covered by the bill’s habeas-stripping provisions).
Military Commission Proceedings
The bill provides that alien unlawful enemy combatants (but not U.S. citizens) are subject to trial by military commission. As the text of the bill explains, the military commissions that it authorizes are regularly constituted courts, “affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions.” That is, if saying so is enough to make it so.
The bill’s different treatment of citizens and aliens reflects political calculations, not legal ones. As the U.K. House of Lords found in 2004 in ruling against indefinite detention, such a distinction cannot be justified under international law.
Military commissions consist of at least five commissioned military officers, and are presided over by a military judge. In cases in which death is a possible penalty, the commissions must include at least twelve officers.
The defendant is presumed innocent and his guilt must be proven beyond a reasonable doubt. Convictions require a two-thirds affirmative vote of those commission members present at the time of the vote. Sentences of more than ten years require a three-quarters affirmative vote. The imposition of the death penalty requires a unanimous vote.
The defendant has the right to represent himself. Otherwise, he will have military counsel and, if he chooses, civilian counsel as well. Civilian counsel must be U.S. citizens eligible for access to classified information deemed Secret.
Rules of evidence and procedure
The Secretary of Defense is authorized to prescribe procedures and rules of evidence beyond those that are set out in the bill. These procedures/rules can vary from their courts-martial equivalents as long as the Secretary finds that it is impracticable to abide by courts-martial standards.
Statements obtained under torture are inadmissible as evidence. Yet statements obtained under coercion (including cruel treatment) are admissible under certain circumstances.
Different rules apply for statements obtained pre- and post- December 30, 2005 (the date of the enactment of the Detainee Treatment Act (DTA)). If a coerced statement was obtained before the DTA was enacted, it is admissible if the judge finds it to be “reliable and possessing sufficient probative value,” and if he believes that its admission would serve the interests of justice. Coerced statements taken after the DTA was enacted are, in addition, not admissible if the interrogation methods used to obtain them violate the DTA.
In an important improvement upon the rules that the Administration originally sought, the defendant must be allowed to examine and respond to any evidence seen by the commission. If classified information that the government does not want to reveal to the defendant is needed for prosecution, an unclassified summary can be used. But, in addition, although the defendant’s general right to exculpatory evidence is acknowledged, he is only granted an “adequate substitute” for classified exculpatory information.
Hearsay is admissible as long as the judge finds it to be reliable and the defendant gets advance warning. Evidence obtained without a search warrant is also admissible.
Protecting “Sources, Methods, or Activities”
The bill includes a number of provisions that protect classified “sources, methods, or activities” against being revealed. The likely impact of such provisions is to bar any inquiry into the CIA’s abusive interrogation practices. (For sources, substitute “disappeared” detainees; for methods, substitute torture, and for activities, substitute water-boarding, stress positions, and days without sleep.)
The bill specifies, for example, that during the discovery phase, the judge may protect classified “sources, methods, or activities” from disclosure. It also provides that reliable evidence obtained via classified “sources, methods, or activities” is admissible, even though the sources/methods/activities themselves are protected from disclosure. Finally, it states that the public may be excluded from proceedings in order to protect information whose disclosure would damage national security, including information on “intelligence or bill enforcement sources, methods, or activities.”
Appeals
Guilty verdicts are automatically referred to a Court of Military Commission Review (each panel of which consists of at least three appellate military judges).
The Court of Appeals for the D.C. Circuit has exclusive appellate jurisdiction over the military commission process. The court’s review is limited to examining: 1) whether the decision complied with the procedures, etc., set out in the bill, and 2) whether, “to the extent [they are] applicable,” the decision is consistent with the U.S. Constitution and laws.
“To the extent [they are] applicable” – that’s another kicker.
Crimes Triable by Military Commission
The MCA states that it does not create any new crimes, but simply codifies offenses “that have traditionally been triable by military commissions.” This provision is meant to convince the courts that there are no ex post facto problems with the offenses that the bill lists. In Hamdan v. Rumsfeld, however, a plurality of the Supreme Court (four justices) found that conspiracy–one of the offenses enumerated in the MCA–was not a crime triable by military commission. The bill’s statement that conspiracy is a traditional war crime, does not, by legislative fiat, make it so.
Section 950v of the MCA names and defines 28 specific crimes that are triable by military commission. Besides conspiracy, they include murder of protected persons, murder in violation of the bill of war, hostage-taking, torture, cruel or inhuman treatment, mutilation or maiming, rape, sexual abuse or assault, hijacking, terrorism, providing material support for terrorism, and spying.
Notably, the crime of “murder by an unprivileged belligerent” is not listed, although a number of Guantanamo detainees were charged with that offense during earlier military commission proceedings, and the offense was included in the draft military commissions bill that the Administration circulated in July. Murder by an unprivileged belligerent–in other words, murder committed by someone who does not have the right under international humanitarian law to participate in hostilities–has never been a criminal offense under international law, so Congress was wise not to include it as an offense in the new bill.
The Rest
Unfortunately, the military commissions bill doesn’t end there. In my next column, I’ll describe provisions that attempt to render the Geneva Conventions unenforceable in court, immunize CIA personnel for past abuses, and bar detainees from asserting their right to habeas corpus. Among other things …
Visit this site at: http://writ.news.findlaw.com/mariner/20061009.html

 

A Federal Grand Jury has indicted a candidate for County Attorney in Bath County on charges of vote fraud and obstruction of justice.

Saturday, October 7th, 2006

Democrat Donald Maze, 46, and husband of Bath Circuit Judge Beth Maze, is charged with having paid $100 to have his name added to a list of candidates for whom vote buying was conducted.

Two women had allegedly compiled a list of candidates for whom they were buying votes.  He is also charged with coaching the vote buyers on how to avoid implicating him before the Grand Jury.

In the May primary election Maze defeated the incumbent County Attorney Kim Price. At this point Maze is unopposed in the November general election.

This indictment places this election in jeopardy.  Will he withdraw in time for another nominee to be appointed by his party?  Or will he assume office in January and await trial?  When there is a vacancy in the County Attorney’s office, the County Judge-Executive fills the vacancy.

Ky. District Judge assumes role of Prosecutor and Legislature by jailing immigrants indefinitely. Circuit Judge Tyler Gill blasts her for jailing l7 people without legal reason.

Saturday, October 7th, 2006

LawReader Editorial Note: Sometimes a judge goes off the reservation and just can not resist becoming more of a prosecutor than a Judge. This play for ink in the newspapers is believed by some to be a career enhancing practice.  We call these kind of judges POLICE JUDGES…they forget their role as impartial magistrates and protectors of the Constitution, and set out to prove they are vigorous crime fighters. That appears to be the case in Logan and Todd counties where Judge Sue Carol Browning has taken it upon herself to begin enforcing Federal laws and assuming jurisdiction for enforcing Federal laws.  We would think her next step would be to sentence these immigrants for violating Federal law and sending them to Federal prison. At LawReader we have been unable to find any Ky. Statute that grants Kentucky judges jurisdiction to enforce Federal law.  We expect that she is working hard to be nominated for the Federal District Court by President Bush.

 Browning ordered the men held “pending an investigation” by federal immigration officials, even though she knew there was no investigation pending, Gill’s ruling said. She is also said to have denied them access to legal counsel.

The people of Todd and Logan are fortunate to have a Circuit Judge like Tyler Gill to monitor their out of control Police Judge.  We suggest Judge Browing should chill out a bit and read that old parchment called the CONSTITUTION OF UNITED STATES .  – Senior Editor Stan Billingsley-


 The following article was published By Andrew Wolfson  in The Courier-Journal:


 Judge rebuked for illegal jailing  - Kentucky jurist also tried to have 17 deported
A Western Kentucky judge who ordered 17 Hispanic immigrants held indefinitely without bail or right to counsel has been harshly rebuked for ignoring “concepts known to every first-year law student.”
In freeing the men District Judge Sue Carol Browning had jailed, Circuit Judge Tyler Gill said, “The rule of law has inextricably been ignored or abandoned by the very institution entrusted to withhold it.”
 In a Sept. 18 order, Gill said Browning acted illegally by jailing the men indeterminately and by trying herself to get them deported.
 ”Whether or not legally in the United States, the petitioners are fellow human beings and deserve to be treated as such,” Gill’s order said. “Innocent people have been jailed without reason,” and Logan and Todd counties “have been forced to bear the cost of these incarcerations with no logical goal in sight.”
 All but one of the men appeared before Browning on Aug. 29 on misdemeanor charges or traffic violations. The 17th immigrant was a juvenile charged with a felony for allegedly having forged papers.
 Browning didn’t return calls yesterday, but she had told news outlets in Hopkinsville that she jailed the defendants because she had little information about their residency status or criminal history.
 She also said she’d seen the same defendants repeatedly in court, and that some gave false names when they were arrested.
 Browning ordered the men held “pending an investigation” by federal immigration officials, even though she knew there was no investigation pending, Gill’s ruling said.
“The fact that the detentions are illegal is not subject to reasonable debate,” Gill’s order said. “The initiation and ordering of these detentions by a court of law is especially baffling.”
 Advocates for immigrants this week have been circulating Gill’s order to discourage illegal detention of immigrants elsewhere in Kentucky, if that is occurring, said the Rev. Pat Delahanty, associate director of the Catholic Conference of Kentucky.
“My hope is that, if this is going on in other places, we can put a stop to it because it is so wrong,” Delahanty said yesterday.
 Lili Lutgens, a staff attorney for the American Civil Liberties Union of Kentucky, said the decision sends an important message that immigrants shouldn’t be detained indeterminately just because the debate on immigration reform is stalled in Congress.
Groups that favor restricting immigration, including the Washington-based Federation for American Immigration Reform, didn’t respond to requests for comment yesterday.
In open court, Browning called the Immigrations and Customs Enforcement agency and asked it to investigate and potentially deport the men, who she suspected were in the United States illegally, Gill said. The agency declined to open an investigation, he said.
Gill found that anyone with “knowledge of basic civics” should have known that state judges don’t have the power to enforce federal immigration laws, to initiate a criminal case or to order a defendant held indefinitely without bail.
 Browning “created an ‘in door’ with no ‘out door,’ ” Gill said.
Many of the immigrants had appeared voluntarily in response to summonses. Twelve were from Todd County and five from Logan County. At least one reportedly had papers showing he is in the United States legally, Gill said.
 Browning had previously dealt with illegal immigrants in her court by ordering them to leave Kentucky as a condition of their probation; she gave some 72 hours to do so, according to court records.
 But she announced Aug. 29 that the Administrative Office of the Courts had advised her it was illegal to banish defendants from the state, so she said she was instead jailing them indefinitely, said Paul Witte, a pastoral associate for St. Susan Catholic Church in Elkton, who works with immigrants and was in court that day.
 ”I was appalled that she would be so insensitive to their needs,” Witte said. “These people live hand to mouth, and for many of them, if they don’t work, their families don’t eat.”
 Witte called Delahanty, and a lawyer with the Department of Public Advocacy filed motions asking Gill to release them.
 Gill found that most of the men were indigent and that Browning illegally denied them access to counsel. He said Kentucky law allows only capital defendants to be held without bail.
 And he also noted that, at a Sept. 8 hearing, the county attorneys for Todd and Logan County as well as Deputy Attorney General Pierce Whites agreed that Browning had acted illegally.
 In his eight-page order, Gill said Browning may have grown “frustrated by the problems caused by the failure” of the federal government to enforce immigration laws. “This court and no doubt many other justices across the commonwealth have experienced similar problems.”
 But Gill said while “incarcerating illegal aliens may be politically popular in the community, a judge must maintain neutrality and help uphold the law.” He also said that, while immigration policy may be in debate, “it is unconscionable and absurd to use the innocent and helpless as fodder in this battle.”
 The Hispanic population of Kentucky was 81,783 as of July 2005, according to the U.S. Census Bureau. But Ron Crouch of the Kentucky State Data Center has estimated it is at least two to three times larger when illegal immigrants are considered.
 Public defenders for the incarcerated immigrants couldn’t be reached for comment, but Witte said 15 have been released from jail, while two are still being held on underlying charges.
 Browning is running for re-election with no opposition. Witte said she is considered a “no-nonsense judge” and is very popular in her district.  “She is tough on criminals,” he said.
 

U.S. Judge says judiciary not under attack. Neither Force nor Will, but merely Judgement.

Friday, October 6th, 2006

By JUDGE WILLIAM H. PRYOR JR.  Recently some leaders of the bench and bar — including, on this page last week, retired Justice Sandra Day O’Connor — have decried what they describe as unprecedented threats to the independence of the judiciary. I respectfully disagree. Although the fringes of American politics offer a few disturbing examples of ignorance of the judicial function, I agree with Justice Clarence Thomas, who observed in 1999, “What is truly surprising about today’s judiciary is how strong it really is.” My disagreement with those who say that the independence of the judiciary is under siege is three-fold:

Contemporary criticisms of the judiciary are relatively mild. To charge that the current disappointment regarding judges is unprecedented is to diminish the sacrifices that earlier giants of the judiciary endured. During the civil rights struggle, the ostracism and abuses suffered by federal judges in the Deep South — including Frank Johnson, John Minor Wisdom and Skelly Wright — were far worse than the current criticisms of judicial activism. Other historical moments also provide provocative counterexamples. As Justice Stephen Breyer stated several years ago, “We run no risk of returning to the days when a president (responding to [the Supreme] Court’s efforts to protect the Cherokee Indians) might have said, ‘John Marshall has made his decision; now let him enforce it!’”

Many contemporary criticisms of judicial decisions by politicians are no more heated than the criticisms written by jurists in dissenting opinions. In Roper v. Simmons, Justice O’Connor protested that “the Court [had] preempt[ed] the democratic debate through which genuine consensus might develop.” Justice Breyer warned, in what he called the “highly politicized matter” of Bush v. Gore, that “the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself.” Consider also the harsh words of Justice William Brennan in Oregon v. Elstad: “the Court mischaracterizes our precedents, obfuscates the central issues, and altogether ignores the practical realities . . . that have led nearly every lower court to reject its simplistic reasoning.”

Some who complain about the current climate of criticism point to the bizarre example of Justice Tom Parker of the Alabama Supreme Court, who recently castigated his colleagues for following the ruling of the Supreme Court in Roper, which prohibited use of the death penalty for 16- and 17-year-old murderers, but there is a good ending to this story from my home state. Not only did the other members of the Alabama court faithfully apply Roper, with which many of them disagreed, but Justice Parker’s political gambit failed miserably. He ran for chief justice of Alabama, aligned with his mentor, former Chief Justice Roy Moore, who ran for governor; both were trounced in the Republican primary. Their twisted ideas of opposing activist decisions by defying judicial decrees went nowhere, even in a state with a shameful history of defiance of federal authority. The Alabama justices who did their duty all prevailed in their primary contests. Alabama has come a long way since the days of Governor Wallace standing in the schoolhouse door.

There have been recent and reprehensible incidents of violence and threats against judges, but we should not forget that those kinds of terrible crimes have occurred before. I work, for example, in the former chambers of the late Judge Robert Vance, who was murdered by a mail bomber in 1989. These offenses typically involve disgruntled litigants or dangerous criminals, not harsh critics of the judiciary as a whole. I am grateful that Congress reacted swiftly to these recent threats by providing home security systems for federal judges, which suggests that the public still appreciates the need for an independent judiciary.

The judiciary has rendered some unjust decisions that deserved harsh rebuke. The judiciary is not perfect. The twin evils of slavery and segregation were, to say the least, exacerbated by two decisions of the Supreme Court. Justice John Marshall Harlan’s dissent in Plessy v. Ferguson was prophetic: “In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.” The judgment of history has been equally unkind to the decision in Korematsu v. United States.

Many who complain about criticisms of the judiciary concede that some criticism of judicial decisions is fair. That assessment is too mild. Occasionally criticism of judicial decisions is essential to the progress of our constitutional republic. That was true when Lincoln opposed Dred Scott, and it was true when Thurgood Marshall, as an attorney, urged the court to depart from Plessy.

Many Americans today believe that more recent decisions of the court are also terribly wrong. Some decry the flaws of criminal sentencing systems and the propensity to incarcerate low-risk offenders, while others lambaste sentences that appear to be lenient. On these fronts, citizens are more, not less, likely to respect the rule of law when they know that the law can be criticized and changed by ordinary political processes. Readers of this publication need no reminder about the potential for judicial abuse. Time and again, the business community has turned to Congress and state legislatures to reform tort laws, class actions and securities litigation, to name a few. These efforts are a healthy part of our democratic process and a recognition of the fallibility of the judiciary.

Judges must do more than respond to criticisms; we must exercise restraint. Judges have a unique responsibility to safeguard our independence. It is not too much for us to look in the mirror and ask whether some criticisms are fair. As Justice Harlan explained in Plessy, “[T]he courts best discharge their duty by executing the will of the lawmaking power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives.” Perhaps, even today, we sometimes fail in that limited duty.

Alexander Hamilton explained in Federalist No. 78 that judges exercise “neither FORCE nor WILL, but merely judgment.” Hamilton’s point was that we must depend upon the persuasiveness of our written opinions to command the respect of our fellow citizens. In that way, we have the foremost responsibility of safeguarding our independence.

Mr. Pryor is a member of the U.S. Court of Appeals for the Eleventh Circuit. In 2003, while serving as attorney general of Alabama, he prosecuted and removed Roy Moore from his state judicial office based on his misconduct in defying a federal injunction.
 

Oct. 7th, SSG Kathleen Stafford- No Ammo, No running water, Unit suffers first Casualty

Friday, October 6th, 2006

To read latest posting go to:   Oct. 7 – No Ammo, No running water, Kathleen’s Unit near Tikrit suffers first Casualty.

 

 

Oct. 6th, SSG Kathleen Stafford celebrates a birthday, scores some pizza and makes new friends.  To find this story and past stories from Iraq select the following link:  LawReader’s War Correspondent Kathleen Stafford reports from Iraq