Archive for March, 2007

INMAN SAYS STATE WORKER E-MAILS WERE REVIEWED

Saturday, March 24th, 2007

In a news story published in the Herald Leader by reporter Ryan Alessi, Ex-Commissioner of Technology Michael Inman is quoted as saying that after he was called to testify before a special grand jury investigating improper hirings by the administration, former Deputy Finance Secretary John Farris, who now is head of the cabinet, told him not to testify.
“He said, ‘Just take the Fifth,’” Inman recalled. “Did he order me to do it? I don’t know.”
Inman now supports Ann Northup in her race against Gov. Ernie Fletcher in this May’s primary election.
 

Inman also reported that Administration officials regularly called up and read the personal e-mails of state workers, and discussed their personal affairs revealed in their e-mails.  
“I know that there were routine calls from cabinet secretaries, particularly from within the Finance (Cabinet) to Mark Rutledge to look at peoples’ e-mails,” Inman said. “I think some of it was to find out if they were communicating with the press outside of state government –and find the source of leaks.”

He also discusses efforts by the administration to blacklist BluegrassReport.org., a political blog which has been critical of the Fletcher Administration.

Last summer, the administration blocked state workers from viewing that blog and others, prompting Nickolas to file a federal lawsuit.
Inman said he first heard about the move when Rutledge bragged to him, “Well, we finally blocked bluegrassreport.org.”
“He said, ‘It’s perfectly legal.’ He got defensive about it, and said, ‘Well they wouldn’t ever know we did it because we hid it in a bunch of other stuff,’” Inman recalled Rutledge saying. “I said, ‘There will be a lawsuit about this.’”
Inman said he later told Farris about his concern about a lawsuit.
“We’ll probably win because you can do this, but I will tell you what you’re doing is wrong politically and will hurt the governor,” Inman said he told Farris.
“That’s fact, and I’ll raise my hand and swear to that under oath,” Inman said.
The Herald-Leader article quotes former U.S. Attorney Joe Whittle as saying “state officials shouldn’t have instructed subordinates how to handle the grand jury.?
“If someone other than a lawyer tells someone not to cooperate, that’s technically obstruction of justice,” said Whittle, who added that pursuing such a violation is generally difficult and up to the prosecutor’s discretion.?

The full text of the Herald Leader article can be read at: http://www.kentucky.com/454/story/25181.html

NEW LEGISLATION INCREASES OPTIONS OF COUNTY LAW LIBRARIES and ALLOWS THEM TO COMPLY WITH EXISTING LAW RE: ACCESS

Saturday, March 24th, 2007

   The legislature increased County Law Library funding in 2005, and has now added Public Libraries to the list of locations at which County Law Library resources may be placed. The new law also authorizes the use of online legal research services.
 

   The legislature has approved HB 273 (see below) that expands the locations in which County Law Libraries, created under KRS Chapter 172, may place their resources. HB 273 also authorizes the use of online legal resources, a technology that was not even conceived of when the original law was adopted. 

 

The original statute, KRS 172.100(1) which was adopted in 1942, only allowed the County Law Library to be located in the “courthouse? or a “building of good construction adjacent to the courthouse.  At the time of the passage of KRS 172.100(1) the judiciary was housed in the County Courthouse.  But in the last twenty years many of the trial courts have been moved out of the County Courthouse to halls of justice or justice centers.  This placed the authorization for the location of County Law Libraries in technical violation of the 1942 law.  HB 273 recognizes this structural change, and allows County Law Libraries to now be located in buildings housing the District and Circuit courts or at a public library, or in a combination of these facilities.

 

This bill allows the resources of the County Law Library to be placed at more than one location.  Counties may now place some or all of their resources in the local Public Library.  Some County Law Libraries are located in locked rooms in the court facility and are not readily accessible to the public or to the officials who are entitled to have access to library resources.   This new amendment to KRS 172.100 will allow the Trustees of the Law Library to determine the best location for their resources and to better serve the public and the attorneys and officials who use legal research materials.

 

   Most Circuit Clerks offices are currently closed on Saturdays, and therefore access required by KRS 172.100(1) is being ignored.  One benefit of the new law is to allow Law Libraries who are in violation of Section (1) of KRS 172.110 , to place an online legal research resource such as those provided by LawReader.com, in the local Public Library. This makes the County Law Libraries resources available “six days a week? and brings them into full compliance with existing law.  While there may be some County Law Libraries currently in compliance with this law, we have not discovered even one. The two largest and best funded County Law Libraries, are the Jefferson County Law Library and the Fayette County Law Library, and both are open only five days a week. Their duty to provide access six days a week is being ignored.
 

See KRS 172.110(1) which states:
 

“(1) The circuit clerk shall be ex officio librarian of the county law library, and he shall
see that county and state officials have access to the library at reasonable hours each
day except Sunday and holidays…?
 

They can easily solve this problem by purchasing a license for LawReader.com and placing it in the local public library, which is almost universally open to the public six days a week.

 

Under a suggested arrangement between the Public Library and a County Law Library, the Public Library provides the public computers and internet access, and the County Law Library purchases the site license from the online service provider.

 

        LawReader.com provides the largest collection of Kentucky law that is available online.  Over 1,000 Kentucky lawyers and 12 libraries currently use LawReader.com for their legal research needs. LawReader is a Kentucky corporation situated in Carrollton, Kentucky.  This makes LawReader an easy choice as no one else provides a complete Kentucky Law Library online.

 

LawReader provides a complete 50 state case law data base, a complete annotated version of the KRS, Rules of Court, Administrative Regulations, and a Legal Digest of Kentucky Law.  By making this resource available in the local Public Library, the County Law Library can provide a public service to their community, and in doing so they make their resources available the required six days a week. Counties that purchase a site license from LawReader.com can provide more resources than is usually found in any existing County Law Library. The savings in floor space is another consideration that makes an online law digest like LawReader the obvious solution for County and Public libraries. Circuit Clerks will appreciate the use of LawReader as it virtually eliminates their statutory duties of signing books in and out and accounting for them.

 

    In 2005, the legislature adopted an amendment to KRS 453.060 which has resulted in an increase of funding for County Law Libraries by almost 300%.  The Treasurer of each Law Library is required to file an annual report of the receipts and expenditures of the library with “the Circuit Judge?. The fee is derived from new court costs being imposed on appeals, and civil and criminal cases filed in the various courts.
 

   Some Law Libraries are considering providing a subscription to online legal resources to the Judges and prosecutors in their judicial district with funds provided by KRS 453.060 to maximize the availability of legal research resources. These new funds being generated by KRS 453.060, provide libraries the ability to easily afford a license for their courthouse site and the public library without limiting their traditional holdings. Such a license arrangement also allows the County Law Library to get into compliance with the mandate of  KRS 172.100(1) which imposes the duty of the County Law Library to provide access to “state and county officials.?
 

   The increased funding of the County Law Libraries in 2005, and the increase in locations allowed with a nod to the Public Libraries during the 2007 session of the Legislature, demonstrates their interest in the operation of County Law Libraries.  They can be expected to be watching to see how well the County Law Libraries make use of these funds, and how well they work with local Public Libraries to fulfill their statutory duties and to serve the needs of the public. 

 

                                                           ****

 

      WORDING OF HB 273 as adopted by the 2007 session of the legislature.
 

AN ACT relating to county law libraries.
 

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

Section 1.   KRS 172.100 is amended to read as follows:

 

(1)        A county law library shall be established in each county seat and the fiscal court of each county shall designate sufficient room in the courthouse,[ or] in a building of good construction adjacent to the courthouse, in the local public library, or in a building where sessions of the District or Circuit Court are regularly held, or a combination of the foregoing, where such library shall be located and where the books and materials of the library may be safely kept.

(2)        The books of the county law library shall consist of all volumes belonging to the state heretofore sent to the various county officials directed by law to receive such books, and all volumes hereafter sent to such library by the state, and all books now owned or hereafter acquired by the county for the library. The counties may provide on-line legal resources, and may acquire books, maps, or other articles for the library by purchase, gift or devise.

 

Section 2.   KRS 172.200 is amended to read as follows:

 

(1)        Upon the adoption of this optional plan, in counties other than those containing a city of the first class or consolidated local government, the Circuit Judge shall appoint one (1) member of the county’s bar, and the members of the county’s bar shall, by majority vote, elect another of their number, which two (2) attorneys shall, with the county attorney of the county, constitute and be designated as “Trustees, …. County Law Library.” In counties containing a city of the first class or consolidated local government, the Chief Circuit Judge shall appoint one (1) member of the county’s bar; the members of the county’s bar shall, by majority vote, elect another of their number; the fiscal court or consolidated local government pursuant to the provisions of KRS 67C.139 shall appoint one (1) member, and one (1) member shall be appointed by the Commonwealth’s attorney, which four (4) attorneys shall, with the county attorney of the county, constitute and be designated as “Trustees, …….. County Law Library” or in a county containing a consolidated local government, “Trustees, ……../……….County Law Library,” which shall be a combination of the names of the largest city in existence on the date of the approval of the consolidated local government and the county.

 

(2)        The trustees shall serve for a term of two (2) years or until their successors are elected or qualified.

 

(3)        The trustees shall be in charge of the county law library, and they shall make purchases of the various state and federal case reports, textbooks, legal encyclopedia, and all other books usually incident to or customarily found in law libraries, or necessary to the protection of the rights of litigants, and they shall cause same to be properly arranged in the county law library, directing the ex officio librarian in the exercise of his duties. The trustees may also provide on-line legal resources for the use of library patrons.
 

(4)        The trustees shall exercise their absolute discretion in the purchase of books, pamphlets, periodicals, and other materials, and in the appointment and compensation of personnel to assist the ex officio librarian in the handling of materials and in the maintenance of the library, but the trustees shall not contract for any such purchases and appointments so as to create an indebtedness greater than the anticipated revenue for the following eighteen (18) months, the anticipated revenue being based upon the preceding eighteen (18) months’ revenue, and any indebtedness of the county law library fund shall not be considered in any way an indebtedness of the county, but shall be an indebtedness of the county law library fund only, and all creditors must look only to the county law library fund for satisfaction of their indebtedness.

 

(5)               The trustees shall designate one (1) of their number as treasurer and he shall be accountable for the receipt, deposit, and disbursement of all sums received for the operation of the county law library. He shall be bonded by a corporate bond, the cost of which shall be paid out of the receipts of the library fund. He shall deposit all sums received by him as treasurer in a regular banking depository, and he shall pay for all purchases made by the trustees by check or draft, keeping a true and accurate account of all sums received and expended by him. He shall annually file a written report with the Circuit Judge of the county showing all sums received by him, together with the court from which they were received, and an itemized statement of all expenditures made by him. The treasurer shall turn all funds over to his successor, together with a full inventory of the county law library, and together with a full and complete itemized statement of all outstanding accounts.

 

Also see:

 

KRS 172.110 Circuit clerk is librarian — Duties — Salary — Inventory.
(1) The circuit clerk shall be ex officio librarian of the county law library, and he shall see that county and state officials have access to the library at reasonable hours each day except Sunday and holidays,….
 

VENUE LIMITATION LAW BATTLE CONTINUES IN WEST VIRGINIA

Friday, March 23rd, 2007

 Courts have thrown out a law that says- nonresidents could not sue in West Virginai “unless all or a substantial part of the acts or omissions giving rise to the claim asserted occurred in this state.”
CHARLESTON – A battle is brewing over a bill that would limit lawsuits filed by out-of-state residents.

The U.S. Chamber of Commerce and West Virginia Citizens Against Lawsuit Abuse are urging Gov. Joe Manchin to veto the so-called venue bill. The state Chamber of Commerce and the West Virginia Trial Lawyers Association, meanwhile, are pushing for the bill’s passage. The U.S. Chamber owns The West Virginia Record.

The U.S. Chamber says House Bill 2956, which was unanimously passed by both chambers of the Legislature during the just-ended regular session, say the proposal isn’t strong enough.

“The West Virginia Legislature passed strong venue reform in 2003, which courts have subsequently thrown out,” said Larry Akey, spokesman for the U.S. Chamber’s Institute for Legal Reform. “The legislation that has just passed is not as strong as the 2003 law.”

If it becomes law, the bill would allow defendants sued in civil cases to seek to have the suit removed to another more appropriate venue. The judge then would decide if such a move was warranted.

Manchin spokeswoman Lara Ramsburg said Thursday that the governor won’t make a decision on the bill until he has thoroughly reviewed it.

The case at the heart of this issue — Morris vs. Crown Equipment and Jefferds — centered on a plaintiff who lived and worked in Virginia. He filed suit in 2004 in Kanawha Circuit Court claiming he suffered an injury operating a forklift at work.

Morris claimed damages from Crown Equipment as the forklift manufacturer and Jefferds Corporation as the distributor responsible for service. Crown Equipment and Jefferds Corporation moved to dismiss, relying on a law the Legislature passed in 2003 that provided that nonresidents could not sue “unless all or a substantial part of the acts or omissions giving rise to the claim asserted occurred in this state.”

Akey said several attorneys think the just-passed legislation, which is on Manchin’s desk, will open up West Virginia courts to out-of-state suits that would not otherwise be admitted.

“In addition, we think this legislation gives undue deference to the plaintiff’s choice of venue that the current statute does not give,” he said. “In short, this may be worse than no bill at all.”

Akey said the true result of the bill wouldn’t be known until the courts had a chance to rule on it.

“But that’s a risk not worth taking,” he said. “A better alternative is to reject this legislation and start again next time the legislature meets.

WV CALA Executive Director Steve Cohen also is pushing for a veto.

“The bottom line is that West Virginia taxpayers should not have to pay for out-of-state lawsuits,” he said. “The bill that passed doesn’t fix the venue problem. West Virginia cannot be a favorite place to sue for out-of-state personal injury lawyers. We need a bill that effectively deals with liberal judges and jackpot juries.

“As Justice (Spike) Maynard said, we need to give West Virginia residents, ‘who after all pay for our courts, ready access to them when needed.’ Higher court costs from these out-of-state lawsuit s will be paid by West Virginia taxpayers. We must stop this abuse.”

Meanwhile, the president of the state Chamber of Commerce says his group also would like a stronger bill.

But Steve Roberts also says the state Chamber is standing behind the bill because it the product of negotiations between the Chamber, the Trial Lawyers Association and legislators.

“We are very quick to say we wanted more,” he said. “This was all the Legislature was wiling to negotiate. It was, at the time, was our belief that this was an acceptable bill.

“And having participated in the negotiations, we are sticking by the bill. We’re doing that because it’s the bill we and the other parties agreed to.”

Roberts said he understands that the U.S. Chamber has a different stance, but said he wouldn’t call the relationship between the state Chamber and the national Chamber a rift.

“I just hope they understand why we’re taking the stance we’re taking on this,” he said. “But the bottom line is that our relationship with the U.S. Chamber is that we are dues paying members” and not an affiliate of the national group.

Roberts also said the legislative process lends itself to smaller changes rather than one major one.

“You tend to do these things incrementally,” he said. “The system pushes you toward steady adjustment until you get it right.

“We understand where they (the U.S. Chamber) are coming from. But we’re driven by the fact that we gave our word.”

The president of the West Virginia Trial Lawyers Association praised the state Chamber’s work in the negotiations on the bill.

But Jeff Jones had harsh words for the national Chamber.

“First, the U.S. Chamber agreed to this bill twice,” he said. “It was their bill, their roadmap.”

Jones said the U.S. Chamber wants the 2003 bill that was declared unconstitutional last year.

“What we did was look at how the law is in West Virginia, and we took into consideration Justice (Joseph) Albright’s opinion in the Crown Equipment case,” he said.

Jones said the U.S. Chamber has been putting pressure on the state Chamber on this issue.

“If this bill gets signed, what this is going to do is going to take away an issue for the U.S. Chamber to bash us on,” he said, referring to the Chamber’s long-held stance about the state’s court system.

In the Morris case, he hooked his claim to West Virginia by suing the distributor of the forklift as well as the manufacturer. Jefferds does business as Homestead Materials Handling Company. A phone book shows numbers for Jefferds in Nitro, St. Albans and Cross Lanes. He filed the suit over a leg injury he suffered at an Alcoa factory in Virginia.

Kanawha Circuit Judge Tod Kaufman dismissed the defendants in 2004. Morris appealed under the Privileges and Immunities Clause.

Last June, the state Supreme Court of Appeals ruled that the 2003 law was unconstitutional, saying restrictions on out-of-state plaintiffs were unconstitutional. In December, the United States Supreme Court refused to review an appeal of the state Supreme Court decision.

That means Jeremiah “Bart” Morris of Virginia can continue to pursue his injury claim against Crown Equipment and Jefferds Corporation in West Virginia.

In the state Supreme Court ruling in June, West Virginia Chief Justice Robin Davis and Justices Larry Starcher and Joseph Albright agreed that the 2003 law was unconstitutional.

“There is a strong constitutional disfavoring of the categorical exclusion of nonresident plaintiffs from a state’s courts under venue statutes when a state resident would be permitted to bring a similar suit,” Starcher wrote in the majority opinion.

Justice Brent Benjamin found no constitutional violation but agreed that Morris could pursue his claim in West Virginia. Justice Spike Maynard dissented, declaring that the majority eviscerated a statutory safeguard against abuse of West Virginia courts.

FEDERAL COURT RULES THAT GOVERNMENT MAY NOT CENSOR THE INTERNET

Friday, March 23rd, 2007

NEW YORK – A federal district court today ruled in favor of the American Civil Liberties Union’s longstanding challenge to an Internet censorship law, ACLU v. Gonzales.  Although the law was enacted in 1998, courts immediately forbade the government from enforcing it because it suppressed a substantial amount of constitutionally protected speech.

“After nearly a decade of legal proceedings, the First Amendment has emerged victorious from the government’s illegal attempt at online censorship,? said Anthony D. Romero, Executive Director of the ACLU.  “The courts have ruled, once again, that speech on the Internet is protected.?

At issue was the ACLU’s challenge to the “Child Online Protection Act” (COPA), which would impose draconian criminal sanctions, with penalties of up to $50,000 per day and up to six months imprisonment, for online material acknowledged as valuable for adults but deemed “harmful to minors.”

Last October, the ACLU presented evidence at trial from a broad range of Internet speakers including online magazines, an online dictionary, rap artists, painters and video artists, providers of safer sex information, and writers. Attorneys argued that the censorship law directly violates the First Amendment rights of the ACLU’s plaintiffs, their members, and tens of millions of other speakers to communicate protected expression on the Internet.

“Technology evolves at an incredibly rapid pace, and our laws face the challenge of trying to keep up,? said ACLU Senior Staff Attorney Chris Hansen, who was lead counsel on the case. “Americans have the right to participate in the global conversation that happens online every moment of every day, and Congress does not have the right to censor that conversation.”
 
Joan Walsh, editor in chief of Salon.com who was a plaintiff in the case, said that parents, not the government, should control children’s access to information and ideas. “Whether minors should read Salon is a question for their parents, not the government.?

COPA “would essentially abolish visitors’ free, easy and anonymous access to life enhancing, empowering and even life saving public health information in the name of protecting children from harm,? said Mitch Tepper, who was a plaintiff in the case and is the founder and president of the Sexual Health Network, which provides sexual health information for individuals with disabilities.  

Previously, a federal district court in Philadelphia and a federal appeals court found the online censorship law unconstitutional, and the Supreme Court upheld the ban on enforcement of the law in June 2004. The Justices, however, also asked the Philadelphia court to determine whether there had been any changes in technology that would affect the constitutionality of the statute, such as whether commercially available blocking software was still as effective as the banned law in blocking material deemed “harmful to minors.”

Judge Lowell A. Reed Jr. of the U.S. District Court for the Eastern District of Pennsylvania held today that the government’s “own study shows that all but the worst performing filters are far more effective than COPA would be at protecting children from sexually explicit material on the Web.?  He continued that “[t]he fact that Web publishers are faced with criminal prosecution for an alleged violation of COPA only serves to exacerbate the chilling effect resultant from the vagueness of the terms employed in COPA.? 

COPA represents Congress’ second attempt to impose severe criminal and civil sanctions on the display of protected, non-obscene speech on the Internet. A first attempt, the Communications Decency Act of 1996, was declared unconstitutional by all nine justice of the Supreme Court in Reno v. ACLU.

The legal team in the case includes Hansen, Aden Fine, Ben Wizner and Catherine Crump of the national ACLU and attorneys with the law firm Latham & Watkins, which has been working with the ACLU on Internet censorship battles since 1998.

More information, including a full list of plaintiffs, legal documents and the history of Congress’ attempts to censor the Internet, is available online at: www.aclu.org/onlinefreespeech
 

APPOINTMENT OF JUDGE DYCHE TO WORKERS COMP. BOARD IN DOUBT AS SENATE WITHOLDS THEIR CONSENT

Wednesday, March 21st, 2007

  Reports to LawReader suggest that the Senate has purposefully withheld approval of Judge Dyche for appointment to the Worker’s Compensation Board. After Dyche retired from the Court of Appeals in January, he was nominated by Gov. Ernie Fletcher to the Board.  As of March 22, the Senate had not sent the required Resolution to the Governor expressing the consent of the Senate to the appointment.
  While they have two more legislative days (March 36-27) to give their consent, the story goes that Sen. David Williams is not favorable to the appointment and will issue a statement condemning the appointment as service on the Board would allow Judge Dyche to “double dip? by drawing a salary as a member of the Worker’s Compensation Board and as a retired judge.  The combined salary for which he would be eligible is approximately $220,000 a year.
 Former Court of Appeals Robbie Dyche was nominated by Gov. Ernie Fletcher for appointment to the Worker’s Compensation Board under authority granted to him by KRS 342.215.
 KRS 342.213 requires that such appointment obtain the “consent of the Senate?.
 See relevant statutes:
  KRS 342.213 Workers’ Compensation Nominating Commission — Membership – Duties with respect to appointments.
(1) The Governor shall make all appointments to the board, and appoint the
administrative law judges and the executive director of the Office of Workers’
Claims, subject to the consent of the Senate in accordance with KRS 11.160, and in
accordance with this section, KRS 342.215, 342.228, and 342.230 by choosing from
names presented to him by the Workers’ Compensation Nominating Commission.
 KRS 342.215 Workers’ Compensation Board — Authority — Appointment –
Qualifications — Term — Vacancies — Retirement system coverage.
 (1) The Workers’ Compensation Board is hereby created and established. The board
shall rule on appeals of decisions rendered by administrative law judges under this
chapter. The board shall rule on an appeal of a decision of an administrative law
judge no later than sixty (60) days following the date on which the last appeal brief
was filed.
 
(2) The Workers’ Compensation Board shall consist of three (3) members appointed by the Governor. Each member shall hold no other public office and shall devote his
full time to the duties of his office.
 
(3) Of the members of the board appointed under this section, one (1) shall serve a term
that shall expire on January 4, 2002; one (1) shall serve a term that shall expire on
January 4, 2003; and one (1) shall serve a term that shall expire on January 4, 2004,
as designated by the Governor at the time of appointment. Thereafter, each term of a board member shall run for four (4) years from the date of expiration of the term for which the member’s predecessor was appointed, except that a person appointed to fill a vacancy prior to the expiration of a term shall be appointed for the remainder of the term.

 The Governor shall not appoint a member of the board to fill the
unexpired term of another board member, nor shall the Governor reappoint a
member of the board who has been removed from his position prior to the
expiration of his term.  The members of the board shall have the qualifications
required of appeals court judges, except for residence in a district, and shall receive
the same salary and shall be subject to the same standards of conduct. The Governor
shall designate a member of the board to serve as chairman. Any vacancy in the
chairmanship shall be filled by the Governor. The Governor may at any time
remove any member for cause after furnishing him with a written copy of the
charges against him and giving him a public hearing if he requests it.
 (4) A decision concurred in by any two (2) of the three (3) members shall constitute a
decision of the board.
 (5) Members of the Workers’ Compensation Board and the administrative law judges
shall be members of the Kentucky Employees Retirement System.
 (6) The Workers’ Compensation Board shall be attached to the Office of the Secretary
in the Environmental and Public Protection Cabinet.
Effective: July 14, 2000
History:Amended 2000 Ky. Acts ch. 514, sec. 11, effective July 14, 2000. — Amended
1996 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 8, effective December 12, 1996. –
Amended 1994 Ky. Acts ch. 181, Part 3, sec. 10, effective April 4, 1994. — Amended
1987 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 23, effective January 4, 1988. — Amended
1984 Ky. Acts ch. 414, sec. 36, effective July 13, 1984. — Amended 1972 Ky. Acts
ch. 78, sec. 29. — Amended 1964 Ky. Acts ch. 192, sec. 15. — Amended 1956 Ky.
Acts ch. 3, sec. 1; and ch. 77 sec. 15. — Recodified 1942 Ky. Acts ch. 208, sec. 1,
effective October 1, 1942, from Ky. Stat. secs. 4618-112, 4920.
Legislative Research Commission Note (6/20/2005). 2005 Ky. Acts chs. 11, 85, 95, 97,
98, 99, 123, and 181 instruct the Reviser of Statutes to correct statutory references to
agencies and officers whose names have been changed in 2005 legislation confirming
the reorganization of the executive branch. Such a correction has been made in this section.

Governor has now signed 68 bills submitted to him byLegislature

Wednesday, March 21st, 2007

 

On March 21, 2007 the LRC posted the following 68 bills which have been recently signed by the Governor:

 

Signed by Governor: SB 23, 26, 29, 43, 47, 56, 60, 65, 68, 69, 74, 76, 79, 83, 91, 92, 98, 104, 125, 153, 171, 185, 186, 187; SJR 6, 16, 48; HB 32, 46, 66, 71, 107, 108, 114, 115, 130, 144, 215, 243, 244, 258, 259, 273, 312, 316, 321, 370, 374, 386, 390, 443, 468, 509, 514; HCR 25, 26, 29, 30, 31, 32, 33, 75, 120, 141, 154; HJR 23, 84, 137 

Supreme Court has rejected claim of ABSOLUTE EXECUTIVE PRIVILEGE. They say the judiciary, not the President, (is) the final arbiter of a claim of executive privilege.

Wednesday, March 21st, 2007

LawReader Special Report by Senior Editor Stan Billingsley
  The White House this week announced that it would contest in the courts any attempt by Congress to subpoena White House staffers to testify before Congress or to release certain documents to Congress, using the doctrine of “executive privilege? as its authority.
 Just how threatening is that threat?   Just how do the courts view the President’s claim of absolute executive privilege?   
 We have examined the following cases in which the Supreme Court has discussed the exercise of Executive Privilege.   The first case involves Richard Nixon and the Watergate Tape Recordings.   The second and more recent case -involved Vice President Richard Cheney secret meetings with energy industry officials to discuss and write energy policy for the United States.
 Most attempts to exert executive privilege have resulted in something less than a stellar record of success for the Executive.

The U.S. Supreme Court in 1974 rejected Nixon’s claim of executive privilege in the Watergate scandal and ruled that he must comply with a federal grand jury subpoena for the Watergate tapes. In Cheney the court permitted limited discovery but later dismissed the claim on the basis that  the claimants failed to show sufficient necessity for the material which was sought.  This case resulted in Cheney not having to disclose certain documents but cannot be said to have come even close to creating a precedent for any belief that the Executive Branch has an unlimited right to refuse to disclose all information.In the Monica Lewinsky scandal, Clinton asserted executive privilege in 1998 in an attempt to block two of his White House advisors from testifying before a grand jury.
But a federal judge rejected the request, and Clinton then abandoned the claim before the dispute reached the Supreme Court.After reviewing these decisions of the U.S. Supreme Court, one must conclude that unless the documents and testimony that the White House seeks to protect by assertion of the doctrine of Executive Privilege, involve  “military or diplomatic secrets? and
if the claim of Executive Privilege “is  merely on the ground of a generalized interest in confidentiality, the President’s generalized assertion of privilege must yield to the demonstrated, specific need for evidence..?
                                            OUR CONCLUSION
 The courts can be expected to recognize that Congress has law making and oversight functions that must be honored by the Executive Branch.  The Executive must prove some national interest and necessity for limiting the information sought by Congress. 
 The Court might limit the testimony of the White House Aides to issues germane to Congress’s task, and it may conduct in camera reviews of the documents to determine their relevance, but in the end it is likely that the Courts will order some degree of compliance with the subpoena power of Congress.
 It is obvious from the Nixon and Cheney rulings, that there is no such doctrine recognized by the courts as an absolute Executive Power to refuse to disclose information.  In Nixon, the Supreme Court clearly rejected the President’s claims of “absolute executive privilege?.
  The court said in Nixon: “…the judiciary, not the President, (is).. the final arbiter of a claim of executive privilege. “
 We provide below a synopsis of all leading Executive Privilege cases heard by the U.S. Supreme Court.
 *****************
 United States v. Nixon -  Nixon v. United States 8212 1766, 73 8212 1834, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)
   5. Although the courts will afford the utmost deference to presidential acts in the performance of an Art. II function, United States v. Burr, 25 F.Cas. pp. 187, 190, 191—192 (No. 14,694), when a claim of presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President’s generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice. Pp. 707—713.
          6. On the basis of this Court’s examination of the record, it cannot be concluded that the District Court erred in ordering in camera examination of the subpoenaed material, which shall now forthwith be transmitted to the District Court. Pp. 713—714.
          7. Since a President’s communications encompass a vastly wider range of sensitive material than would be true of an ordinary individual, the public interest requires that presidential confidentiality be afforded the greatest protection consistent with the fair administration of justice, and the District Court has a heavy responsibility to ensure that material involving presidential conversations irrelevant to or inadmissible in the criminal prosecution be accorded the high degree of respect due a President and that such material be returned under seal to its lawful custodian. Until released to the Special Prosecutor no in camera material is to be released to anyone. Pp. 714—716.
…The subpoena directed the President to produce certain tape recordings and documents relating to his conversations with aides and advisers. The court rejected the President’s claims of absolute executive privilege, of lack of jurisdiction, and of failure to satisfy the requirements of Rule 17(c). The President appealed to the Court of Appeals. We granted both the United States’ petition for certiorari before judgment (No. 73—1766),1 and also the President’s cross-petition for certio-
Page 687
rari before judgment (No. 73—1834),2 because of the public importance of the issues presented and the need for their prompt resolution 417 U.S. 927 and 960, 94 S.Ct. 2637 and 3162, 41 L.Ed.2d 231 (1974).
          On March 1, 1974, a grand jury of the United States District Court for the District of Columbia returned an indictment charging seven named individuals 3 with various offenses, including conspiracy to defraud the United States and to obstruct justice. Although he was not designated as such in the indictment, the grand jury named the President, among others, as an unindicted coconspirator.
 … The District Court held that the judiciary, not the President, was the final arbiter of a claim of executive privilege.
 The court concluded that under the circumstances of this case the presumptive privilege was overcome by the Special Prosecutor’s prima facie ‘demonstration of need sufficiently compelling to warrant judicial examination in chambers . . ..’ 377 F.Supp., at 1330. The court held, finally, that the Special Prosecutor had satisfied the requirements of Rule 17(c). The District Court stayed its order pending appellate review on condition that review was sought before 4 p.m., May 24. The court further provided that matters filed under seal remain under seal when transmitted as part of the record.
 …  Having determined that the requirements of Rule 17(c) were satisfied, we turn to the claim that the subpoena should be quashed because it demands ‘confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce.’ App. 48a. The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President’s claim of privilege. The second contention is that if he does not prevail on the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena duces tecum.
          In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President’s counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60 (1803), that ‘(i)t is emphatically the province and duty of the judicial department to say what the law is.’ Id., at 177, 2 L.Ed. 60.
          No holding of the Court has defined the scope of judicial power specifically relating to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution, but other exercises of power by the Executive Branch and the Legislative Branch have been found invalid as in conflict with the Constitution. Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Youngstown, Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952).
 In a series of cases, the Court interpreted the explicit immunity conferred by express provisions of the Constitution on Members of the House and Senate by the Speech or Debate Clause, U.S.Const. Art. I, § 6. Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972); United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966). Since this Court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers.
          Our system of government ‘requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch.’ Powell v. McCormack, supra, 395 U.S., at 549, 89 S.Ct., at 1978. And in Baker v. Carr, 369 U.S., at 211, 82 S.Ct., at 706, the Court stated:
          ‘(D)eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.’
          Notwithstanding the deference each branch must accord the others, the ‘judicial Power of the United States’ vested in the federal courts by Art. III, § 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto.
Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47, p. 313 (S. Mittell ed.
Page 705
1938). We therefore reaffirm that it is the province and duty of this Court ‘to say what the law is’ with respect to the claim of privilege presented in this case. Marbury v. Madison, supra, 1 Cranch. at 177, 2 L.Ed. 60.
… However, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President’s need for complete candor and objectivity from advisers calls for great deference from the courts.
However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.
 Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.
Page 707
          The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.
          ‘While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.’ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S., at 635, 72 S.Ct., at 870 (Jackson, J., concurring).
          To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of ‘a workable government’ and gravely impair the role of the courts under Art. III.
C
          Since we conclude that the legitimate needs of the judicial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch. The right and indeed the duty to resolve that question does not free the Judiciary from according high respect to the representations made on behalf of the President. United States v. Burr, 25 F.Cas. pp. 187, 190, 191 192 (No. 14,694) (CCVa.1807).
Page 708
 Cheney v. United States Dist. Court for D.C., No. 03-475 (S.Ct. 6/24/2004) (S.Ct., 2004)
 
Decided June 24, 2004.
        Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C.J., and Stevens, O’Connor, and Breyer, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Parts I, II, III, and IV. Stevens, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Scalia, J., joined. Ginsburg, J., filed a dissenting opinion, in which Souter, J., joined.
        Justice Kennedy delivered the opinion of the Court.
        The United States District Court for the District of Columbia entered discovery orders directing the Vice President and other senior officials in the Executive Branch to produce information about a task force established to give advice and make policy recommendations to the President. This case requires us to consider the circumstances under which a court of appeals may exercise its power to issue a writ of mandamus to modify or dissolve the orders when, by virtue of their overbreadth, enforcement might interfere with the officials in the discharge of their duties and impinge upon the President’s constitutional prerogatives.
I
        A few days after assuming office, President George W. Bush issued a memorandum establishing the National Energy Policy Development Group (NEPDG or Group). The Group was directed to “develo[p] . . . a national energy policy designed to help the private sector, and government at all levels, promote dependable, affordable, and environmentally sound production and distribution of energy for the future.” App. 156-157. The President assigned a number of agency heads and assistants — all employees of the Federal Government — to serve as members of the committee. He authorized the Vice President, as chairman of the Group, to invite “other officers of the Federal Government” to participate “as appropriate.” Id., at 157. Five months later, the NEPDG issued a final report and, according to the Government, terminated all operations.
 The District Court deferred ruling on the Government’s contention that to disregard the exemption and apply FACA to the NEPDG would violate principles of separation of powers and interfere with the constitutional prerogatives of the President and the Vice President.
Instead, the court allowed respondents to conduct a “tightly-reined” discovery to ascertain the NEPDG’s structure and membership, and thus to determine whether the de facto membership doctrine applies. Judicial Watch, Inc. v. National Energy Policy Dev.
Group, 219 F. Supp.2d 20, 54 (DC 2002). While acknowledging that discovery itself might raise serious constitutional questions, the District Court explained that the Government could assert executive privilege to protect sensitive materials from disclosure.
In the District Court’s view, these “issues of executive privilege will be much more limited in scope than the broad constitutional challenge raised by the government.” Id., at 55.
The District Court adopted this approach in an attempt to avoid constitutional questions, noting that if, after discovery, respondents have no evidentiary support for the allegations about the regular participation by lobbyists and industry executives on the NEPDG, the Government can prevail on statutory grounds. Furthermore, the District Court explained, even were it appropriate to address constitutional issues, some factual development is necessary to determine the extent of the alleged intrusion into the Executive’s constitutional authority. The court denied in part the motion to dismiss and ordered respondents to submit a discovery plan.
        In due course the District Court approved respondents’ discovery plan, entered a series of orders allowing discovery to proceed, see CADC App. 238, 263, 364 (reproducing orders entered on Sept. 9, Oct. 17, and Nov. 1, 2002), and denied the Government’s motion for certification under 28 U.S.C. § 1292(b) with respect to the discovery orders.
Petitioners sought a writ of mandamus in the Court of Appeals to vacate the discovery orders, to direct the District Court to rule on the basis of the administrative record, and to dismiss the Vice President from the suit. The Vice President also filed a notice of appeal from the same orders. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949); United States v. Nixon, 418 U.S. 683 (1974).
        A divided panel of the Court of Appeals dismissed the petition for a writ of mandamus and the Vice President’s attempted interlocutory appeal. In re Cheney, 334 F.3d 1096 (CADC 2003). With respect to mandamus, the majority declined to issue the writ on the ground that alternative avenues of relief remained available.
Citing United States v. Nixon, supra, the majority held that petitioners, to guard against intrusion into the President’s prerogatives, must first assert privilege.
Under its reading of Nixon, moreover, privilege claims must be made “`with particularity.’” 334 F.3d, at 1104.
 In the majority’s view, if the District Court sustains the privilege, petitioners will be able to obtain all the relief they seek.
If the District Court rejects the claim of executive privilege and creates “an imminent risk of disclosure of allegedly protected presidential communications,” “mandamus might well be appropriate to avoid letting `the cat . . . out of the bag.’” Id., at 1104-1105.
 ”But so long as the separation of powers conflict that petitioners anticipate remains hypothetical,” the panel held, “we have no authority to exercise the extraordinary remedy of mandamus.” Id., at 1105.
The majority acknowledged the scope of respondents’ requests is overly broad, because it seeks far more than the “limited items” to which respondents would be entitled if “the district court ultimately determines that the NEPDG is subject to FACA.” Id., at 1105-1106; id., at 1106 (“The requests to produce also go well beyond FACA’s requirements”); ibid. (“[Respondents'] discovery also goes well beyond what they need to prove”).
It nonetheless agreed with the District Court that petitioners “`shall bear the burden’” of invoking executive privilege and filing objections to the discovery orders with “`detailed precision.’” Id., at 1105 (quoting Aug. 2, 2002, Order).
        For similar reasons, the majority rejected the Vice President’s interlocutory appeal. In United States v. Nixon, the Court held that the President could appeal an interlocutory subpoena order without having “to place himself in the posture of disobeying an order of a court merely to trigger the procedural mechanism for review.” 418 U.S., at 691.
The majority, however, found the case inapplicable because Vice President Cheney, unlike then-President Nixon, had not yet asserted privilege. In the majority’s view, the Vice President was not forced to choose between disclosure and suffering contempt for failure to obey a court order. The majority held that to require the Vice President to assert privilege does not create the unnecessary confrontation between two branches of Government described in Nixon.
 
100%   1. Cheney v. United States Dist. Court for D.C., No. 03-475 (S.Ct. 6/24/2004) (S.Ct., 2004)
June 24, 2004
Contrary to the District Court’s and the Court of Appeals’ conclusions, Nixon does not leave them the sole option of inviting the Executive Branch to invoke executive privilege while remaining otherwise powerless to modify a party’s overly broad discovery requests. Executive privilege is an extraordinary assertion of power “not to be lightly invoked.” United States v. Reynolds, 345 U.S. 1, 7 (1953). Once executive privilege is asserted, coequal branches of the…         0
                       
50%     3. United States v. Nixon Nixon v. United States 8212 1766, 73 8212 1834, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)
July 24, 1974
Following indictment alleging violation of federal statutes by certain staff members of the White House and political supporters of the President, the Special Prosecutor filed a motion under Fed.Rule Crim.Proc. 17(c) for a subpoena duces tecum for the production before trial of certain tapes and documents relating to precisely identified conversations and meetings between the President and others. The President, claiming executive privilege, filed a motion to quash the subpoena. The District…           0
30%     4. Federal Open Market Committee of Federal Reserve System v. Merrill, 443 U.S. 340, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979)
June 28, 1979
case law in the pretrial discovery context”). Heretofore, however, this Court has recognized only two privileges in Exemption 5, and, as NLRB v. Sears, Roebuck & Co., 421 U.S., at 150-154, 95 S.Ct., at 1516-1518, emphasized, both these privileges are expressly mentioned in the legislative history of that Exemption.15 Moreover, material that may be subject to some other discovery privilege may also be exempt from disclosure under one of the other eight exemptions of FOIA, particularly…     1
28%     5. Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988)
June 29, 1988
ments, see Memorandum of November 30, 1982, from President Reagan for the Administrator, Environmental Protection Agency, reprinted in H.R.Rep. No. 99-435, pp. 1166-1167 (1985), and by having the Attorney General notify the congressional Subcommittees of this assertion of executive privilege, see Letters of November 30, 1982, from Attorney General William French Smith to Hon. John D. Dingell and Hon. Elliott H. Levitas, reprinted, id., at 1168-1177. In his decision to assert executive…  
            28%     6. Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977)
June 28, 1977
the Court addresses separately, it seems to me that the Court is too facile in separating appellant’s ‘privacy’ claims from his ‘separation of powers’ claims, as if they were two separate and wholly unrelated attacks on the statute. The concept of ‘privacy’ can be a coat of many colors, and quite differing kinds of rights to ‘privacy’ have been recognized in the law. Property may be ‘private,’ in the sense that the Fifth Amendment prohibits the Government from seizing it without paying just…   355
                       
 25%     8. Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985)
March 19, 1985
Petitioner moved to dismiss the indictment on the ground of selective prosecution. He contended that he and the other indicted nonregistrants 3 were “vocal” opponents of the registration program who had been impermissibly targeted (out of an estimated 674,000 nonregistrants 4) for prosecution on the basis of their exercise of First Amendment rights. After a hearing, the District Court for the Central District of California granted petitioner’s broad request for discovery and directed the…               649
           
25%     9. National Labor Relations Board v. Sears, Roebuck Co, 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975)
April 28, 1975
17. Our remarks in United States v. Nixon were made in the context of a claim of ‘executive privilege’ resting solely on the Constitution of the United States. No such claim is made here and we do not mean to intimate that any documents involved here are protected by whatever constitutional content the doctrine of executive privilege might have. 18. Our emphasis on the need to protect pre-decisional documents does not mean that the existence of the privilege turns on the ability of an agency to…      0
25%     10. United States v. Weber Aircraft Corporation, 465 U.S. 792, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984)
March 20, 1984
cluded. Moreover, the Merrill dictum upon which respondents rely merely indicates “that it is not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery.” Id., at 354, 99 S.Ct., at 2809. It is one thing to say that recognition under Exemption 5 of a novel privilege, or one that has found less than universal acceptance, might not fall within Exemption 5 if not discussed in its legislative history. It is quite another to say that the…              2
21%     11. Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979)
April 18, 1979
Judgment is also required to accommodate the tension between society’s “pervasive and strong interest in preventing and redressing attacks upon reputation,” Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966), and the First Amendment values that would be served by an editorial privilege. In my view this tension is too fine to be resolved in the abstract. As is the case with executive privilege, there must be a more specific balancing of the particular interests…               329
20%     12. Environmental Protection Agency v. Mink 8212 909, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973)
January 22, 1973
These same sources make untenable the argument that classification of material under Executive Order 10501 is somehow insuficient for Exemption 1 purposes, or that the exemption contemplates the issuance of orders, under some other authority, for each document the Executive may want protected from disclosure under the Act. Congress could certainly have provided that the Executive Branch adopt new procedures or it could have established its own procedures—subject only to whatever…       0
14%     13. Pennsylvania Railroad Company v. Day, 360 U.S. 548, 79 S.Ct. 1322, 3 L.Ed.2d 1422 (1959)
June 29, 1959
But what of the executive privilege? Apparently, the earliest English case presenting the problem of immunity outside the legislative and judicial branches of government is Sutton v. Johnstone, 1 T.R. 493, decided in 1786. There, the plaintiff, captain of a warship, sued the commander-in-chief of his squadron for charging plaintiff, maliciously and without probable cause, with disobedience of orders and putting him under arrest and forcing him to face a court-martial. The Court of Exchequer…     0
10%     15. Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988)
June 15, 1988
ent case that he was dismissed because he was a homosexual, how can a court possibly resolve the dispute without knowing what other good, intelligence-related reasons there might have been? I do not see how any “latitude to control any discovery process,” ante, at 604, could justify the refusal to permit such an inquiry, at least in camera. Presumably the court would be expected to evaluate whether the agent really did fail in this or that secret mission. The documents needed…       308
6%       18. Federal Trade Commission v. Grolier Incorporated, 462 U.S. 19, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983)
June 6, 1983
3. But see Federal Open Market Committee v. Merrill, 443 U.S. 340, 354, 99 S.Ct. 2800, 2809, 61 L.Ed.2d 587 (1979): “[I]t is not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery.” Of course, it is settled that the Exemption does incorporate the work-product doctrine. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154-155, 95 S.Ct. 1504, 1518, 44 L.Ed.2d 29 (1975). 4. We held in Sears that Exemption 5 does not apply to “final…               0
6%       19. United States v. Gillock, 445 U.S. 360, 100 S.Ct. 1185, 63 L.Ed.2d 454 (1980)
March 19, 1980
We conclude, therefore, that although principles of comity command careful consideration, our cases disclose that where important federal interests are at stake, as in the enforcement of federal criminal statutes, comity yields. We recognize that denial of a privilege to a state legislator may have some minimal impact on the exercise of his legislative function; however, similar arguments made to support a claim of Executive privilege were found wanting inUnited States v. Nixon, 418…     83
6%       20. 45 164 Administrator, Federal Aviation Administration v. Robertson, Iii 8212 450, 422 U.S. 255, 95 S.Ct. 2140 (1975)
June 24, 1975
This case involves no constitutional claims, no issues regarding the nature or scope of ‘executive privilege,’ but simply the scope and meaning of one of the exemptions of the Freedom of Information Act, 5 U.S.C. § 552. Environmental Protection Agency v. Mink, supra, 410 U.S. at 94, 93 S.Ct. at 839 (Stewart, J., concurring). The Act has two aspects. In one, it seeks to open public records to greater public access; in the other, it seeks to preserve the confidentiality undeniably essential…               0
5%       21. Harlow v. Fitzgerald, 457 U.S. 800, 73 L.Ed.2d 396, 102 S.Ct. 2727 (1982)
June 24, 1982
The Court today decides in Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349, what has been taken for granted for 190 years, that it is implicit in the Constitution that a President of the United States has absolute immunity from civil suits arising out of official acts as Chief Executive. I agree fully that absolute immunity for official acts of the President is, like executive privilege, “fundamental to the operation of Government and inextricably rooted in the…     7,820
           
 5%       22. Nixon v. Warner Communications, Inc, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978)
April 18, 1978
On December 5, 1974, Judge Gesell held that a common-law privilege of public access to judicial records permitted respondents to obtain copies of exhibits in the custody of the clerk, including the tapes in question. United States v. Mitchell, 386 F.Supp. 639, 641. Judge Gesell minimized petitioner’s opposition to respondents’ motion, declaring that neither his alleged property interest in the tapes nor his asserted executive privilege sufficed to prevent release of recordings already…               1
                       
  5%       23. Public Citizen v. United States Department of Justice Washington Legal Foundation v. United States Department of Justice, 491 U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989)
June 21, 1989
quiry focuses on the extent to which [the congressional restriction] prevents the Executive Branch from accomplishing its constitutionally assigned functions,” and that we would invalidate the statute only if the potential for disruption of the President’s constitutional functions were present and if “that impact [were not] justified by an overriding need to promote objectives within the constitutional authority of Congress.” 433 U.S., at 443, 97 S.Ct., at 2790. See also United States v…               0
                       
 5%       24. Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987)
February 24, 1987
2. It is not clear to what extent counsel for the Commonwealth in this case represents CYS, or whether he only represents the Office of the District Attorney of Allegheny County. CYS is certainly not a party to this case; in fact it has filed an amicus curiae brief expressing its views. That CYS is not a party to the case makes it all the more inappropriate for the Court to relax the rule of finality in order to spare CYS the need to appeal a contempt order if it fails to produce the…      891
                       
 4%       25. Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982)
June 24, 1982
Fitzgerald’s job was abolished.11 But the Secretary declined to be more specific. He responded to several questions by invoking “executive privilege.” 12…        350
                       
 

Court fight over aide testimony would be risky 

Both Bush and Congress could see power limited 

March 23, 2007 

BY MATT APUZZO 

ASSOCIATED PRESS 

WASHINGTON — President George W. Bush has tried for years to reassert a White House right to keep secrets from Congress. Now, he must decide how far he wants to go to keep aides from testifying about the firing of prosecutors. 

If he claims executive privilege and the dispute ends up in court, the fight with Congress will be refereed by a judicial branch that recently hasn’t been kind to the presidency in fights over subpoenas. 

Lawmakers, meanwhile, risk having a judge permanently curtail their power to summon presidential aides. 

“I don’t think anyone would want this in court. If anything is to be politically settled, it’s this one,” said Louis Fisher, a Library of Congress specialist on constitutional law and an expert on presidential powers. 

Democrats want White House aides, including political adviser Karl Rove and former White House counsel Harriet Miers, to testify about their roles in the ousters of eight U.S. attorneys last year. 

The White House says the aides may meet with lawmakers, but not under oath or in public. Democrats, who say the firings were politically motivated, want the testimony under oath and in a congressional hearing room. 

The Bush administration has characterized its resistance as an effort to preserve presidential prerogatives. Officials have stopped short of mentioning executive privilege — an assertion designed to protect executive branch deliberations from disclosure. 

No president has mounted a court fight to keep aides from testifying on Capitol Hill, Fisher said, but courts have gotten involved in criminal disputes. 

The Supreme Court ordered President Richard Nixon to provide the Watergate tapes to prosecutors and rejected a request by President Bill Clinton to withhold notes from the Whitewater grand jury. A federal appeals court also ordered Clinton’s legal counsel to testify before a grand jury investigating his relationship with Monica Lewinsky. 

Fights over congressional testimony normally are resolved politically. 

The law on executive privilege is murky, which allows lawmakers to threaten subpoenas as a bargaining chip. If the Supreme Court were to rule in Bush’s favor, that would remove future subpoena threats and significantly weaken Congress’ ability to seek information from the White House. 

Many hearings during the Clinton administrations involved allegations of misconduct, but those disputes didn’t involve executive policy, as the prosecutor dismissals case does. Courts likely will be hesitant to give Congress broad authority to delve into such areas, said Steven Reich, a former associate counsel to Clinton. 

“Part of me thinks, maybe Bush wants it,” said Mark Rozell, a George Mason University professor who studies executive privilege. “Bush probably believes if he stands his ground and goes all the way to court, he’ll win and he’ll preserve presidential prerogative.” 

Supreme Court Justices Samuel Alito, Antonin Scalia and Chief Justice John Roberts served in the Justice Department. Justice Stephen Breyer advised the Senate Judiciary Committee. 

 

BASKETBALL CHANGES DRAMATICALLY. NEW CROP OF YOUNG COACHES TRANSFORMS NCAA TOURNEY LANDSCAPE

Tuesday, March 20th, 2007

Opinion by Greg Hansen  Tucson, Arizona | Published: 03.20.2007

 Notice anything missing from this week’s Sweet 16? No? Here’s what: the senior class of coaches, nine of the game’s 10 most successful veteran coaches.

 

 Lute Olson, Arizona, 72.

Bob Knight, Texas Tech, 66.

Jim Calhoun, UConn, 64.

Jim Boeheim, Syracuse, 62.

Gary Williams, Maryland, 62.

Mike Krzyzewski, Duke, 60.

Rick Pitino, Louisville, 54.

Tubby Smith, Kentucky, 55.

Tom Izzo, Michigan State, 52.

 

All nine of them have won a national championship. None advanced to the Sweet 16.

 

It’s like watching a U.S. Open that doesn’t have Tiger Woods or Phil Mickelson on the leader board.

 The 16 teams standing are represented by just two coaches who have won national titles: North Carolina’s Roy Williams and Florida’s Billy Donovan.  Of the 16 coaches remaining, Williams, 56, is the only man receiving AARP’s monthly magazine.

 

 College basketball is becoming — has become — a Kid’s Club.

 

 Donovan is 41. Ohio State’s Thad Matta is 39. Kansas’ Bill Self is 44. Georgetown’s John Thompson III is 41.

 

 The (ahem) oldest coaches to steer their clubs to the Sweet 16 are Oregon’s Ernie Kent, who is 52, and USC’s Tim Floyd, who is 53 but looks 43.

 Combined with the recent retirement of Purdue’s Gene Keady, Temple’s John Chaney, Oklahoma State’s Eddie Sutton and the departure of Stanford’s Mike Montgomery, college hoops introduced a new tier of future Hall of Fame coaches while we were sleeping.

 

 It does not speak well for the abilities of UConn, Duke, Kentucky, Maryland, Michigan State and Arizona, among others, to maintain their grip at the top of the game.

 

 Here’s how rare this is: Across the last 10 NCAA tournaments, 1997-2006, the Senior Class of coaches mentioned has produced an astonishing 45 berths in the Sweet 16. That’s five per year, almost a third of the field, from just nine coaches.

 

 A fluke, you say?

 

 Last season, a 10-year low from that coaching group, Krzyzewski and Calhoun, reached the Sweet 16.

 

 The changes are obvious.

 

 Perhaps you noticed UCLA’s halftime lead over Indiana in Saturday’s second-round NCAA game. The Bruins led 20-13. Yes, 13 points! A year ago, in the Elite Eight, UCLA beat top-seeded Memphis 50-43.

 

 The game is more physical and more deliberate. ESPN’s “Cold Pizza” program last week produced a stat whiz who announced that the average winning score of NCAA tournament games in 1997 was 82 points. Last year it had dropped to 71.

 

 There remain up-tempo giants, none faster than North Carolina, joined by Memphis, Florida and Kansas, but mostly the game has become defensive with elements of rugby.

 

 ”In our league,” UA associate head coach Jim Rosborough said after the Wildcats were bullied 72-63 by Purdue last week, “you’re going to have to get down and play defense and be more physical than ever before. That’s the way UCLA is playing, and we’re going to have to do that, too.”

 This cycle of change is part of college basketball’s nature.

 

 Before Olson, Knight, Boeheim and Calhoun ascended to the elite tier, they watched — and played a part in — the inevitable evolution of the game.

 Out of power went DePaul’s Ray Meyer, Oregon State’s Ralph Miller, Louisville’s Denny Crum and St. John’s Lou Carnesecca. The 35-second clock and three-point shot flourished.

 

 Few took advantage of the changes more quickly than Olson, Pitino, Boeheim and Calhoun.

 

 Now the game is changing again. How well each member of the Senior Class adapts will define how long he can stay near the top.

 For his part, Olson on Monday acknowledged that “the way the league is going, you have to play (more) physically. The game is a lot more physical than I’ve seen it in my 34 years of coaching.”

 

 Arizona has won 11 Pac-10 titles and been to four Final Fours by deploying slick, sleek and swift teams. It has had its share of bruisers — Ben Davis, Luke Walton and Jud Buechler come to mind — but mostly, the Wildcats became an elite program by out-scoring the other guy.

 Olson is so adamant about changing the dynamics of his club, adding muscle and a more tough-minded approach, that he is researching the resources of USA Basketball’s 19-under team for its summer Global Games tour to Europe.

 

 Because Chase Budinger is expected to be part of that team, Olson said, “I want to make sure that team has a really good strength coach at the trials and on their tour” on a daily basis.

 

 Three days after being bumped out of the NCAA tournament by a more physically challenging team, Olson vows to change. The Wildcats will err on the side of muscle and, hallelujah, perhaps display a mean streak.

 

 Never say never, right?

 

 

 

INDEPENDENT CANDIDATE DEADLINE APRIL 2ND. FOR STATEMENT OF CANDIDACY APPROACHING

Tuesday, March 20th, 2007

(Frankfort, KY) Candidates seeking public office as an independent or political group candidate for a partisan office must file their Statement-of-Candidacy form with the Secretary of State by Monday, April 2, 2007 in order to be placed on the ballot for the November 6th general election.  The Statement-of-Candidacy form for independent candidates is required by KRS 118.365(5) which was enacted by the 2003 General Assembly.
 

“This is only the third election, and the first for statewide constitutional offices, in which independent candidates have been required to file a Statement-of-Candidacy form,? said Secretary of State Trey Grayson.  “Candidates are encouraged to contact our office to receive the necessary paperwork in order to be eligible for candidacy or if they have any questions.?
 

There is no filing fee for the filing of the Statement of Candidacy, but the failure of candidates required to file the Statement of Candidacy shall result in the rejection of any nominating petition submitted to the appropriate filing official by the August 14, 2007 deadline for attaining ballot access in the November 6, 2007 general election.
 

The following offices are scheduled for a regular election in 2007:
Governor/Lt. Governor Slate
Secretary of State
Attorney General
Auditor of Public Accounts
State Treasurer
Commissioner of Agriculture
 

In order to help candidates seeking political office, the Office of the Secretary of State previously developed a ballot access procedural manual titled: Declaring Your Candidacy.  This publication provides Kentuckians with a quick guide to filing for political office.
 

Although the manual focuses primarily on candidate filing procedures, sample forms for attaining ballot access, and qualifications for each elective office, it also includes other important and pertinent election information that may affect candidates.  The publication contains an election schedule, sample filing forms of various types, contact information for state election agencies, and answers to candidates’ most frequently asked questions.
The filing deadline for candidates’ names to appear on the ballot for nonpartisan judicial positions has already passed.
For more information, please visit the Office of the Secretary of State’s website at: www.sos.ky.gov.
 

GOVERNOR FLETCHER, BUSY ON CAMPAIGN TRAIL, ALLOWS BILLS TO BECOME LAW WITHOUT HIS SIGNATURE

Tuesday, March 20th, 2007

 

A number of bills have apparently been allowed to become law without the Governor’s signature. We have been closely following the postings of the Legislative Research Commission official site which reports the progress of legislation adopted by the Ky. General Assembly and sent to the Governor for his signature. On Wednesday the LRC site posted some 58 additional bills which had been signed by the Governor.

The Kentucky Constitution directs that all bills approved by the House and Senate and sent to the Governor will automatically become law if the Governor has not vetoed them and sent them back to the legislature within ten days. 
 A reader has suggested that in calculating the ten day period that one is not supposed to county sundays, if that is correct then it would mean the gov. has eleven days in which to sign or veto a bill.
We are aware of a number of bills that were passed on or before March 9, 2007 and sent to the Governor.  As of midnight March 19, any bill that was sent to the Governor on March 9th.  became approved.  A number of bills were sent to the Gov. on March 12th. and they will become law, unless vetoed, at midnight on March 22nd.  It this provision is interperted so as not to county any sunday in the ten day period, then the deadline for bills passed on Monday the 12th, would be midnight on the 23rd.
The press releases issued by Ky. State Government offices indicate that Gov. Fletcher has been extensively traveling the state during the last ten days. Fletcher is involved in a close election with challenger Ann Northup of Louisville in the May Republican primary election.
See procedures for approval or veto of bills:

Procedure for approval of bills.

 The Kentucky Legislature is in a veto holding period.  Legislators will return on March 26-27 to consider any bills they have sent to the Governor and which he has vetoed.  They may also pass bills during these last two days of the legislative session, and any bills thus passed will become law 10 days after the session ends, unless vetoed by the Governor.  A veto of a bill by the Governor can be overridden by a majority vote of each house.
 
The procedure for the approval or veto of legislation is found in the Ky. Constitution at Section 88:
 
Section 88Signature of bills by Governor — Veto — Passage over veto — Partial veto.
Every bill which shall have passed the two Houses shall be presented to the Governor.
If he approve, he shall sign it; but if not, he shall return it, with his objections, to the House in which it originated, which shall enter the objections in full upon its journal, and proceed to reconsider it.
 If, after such reconsideration, a majority of all the members elected to that House shall agree to pass the bill, it shall be sent, with the objections, to the other House, by which it shall likewise be considered, and if approved by a majority of all the members elected to that House, it shall be a law; but in such case the votes of both Houses shall be determined by yeas and nays, and the names of the members voting for and against the bill shall be entered upon the journal of each House respectively.
If any bill shall not be returned by the Governor within ten days (Sundays excepted) after it shall have been presented to him, it shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which case it shall be a law, unless disapproved by him within ten days after the adjournment, in which case his veto message shall be spread upon the register kept by the Secretary of State.
 The Governor shall have the power to disapprove any part or parts of appropriation bills embracing distinct items, and the part or parts disapproved shall not become a law unless reconsidered and passed, as in case of a bill.
Text as Ratified on: August 3, 1891, and revised September 28, 1891.
History: Not yet amended.

LRC REPORTS THE FOLLOWING BILLS AND RESOLUTIONS WHICH HAVE BEEN SENT TO THE GOVERNOR. OF THE 109 BILLS AND RESOLUTIONS ONLY 19 HAVE BEEN SIGNED AS OF MARCH 20, 2007.  BILLS SENT TO THE GOV. ON MARCH 12, WILL BECOME LAW WITHOUT HIS SIGNATURE ON MARCH 22 UNLESS VETOED.
Enrolled, Delivered to Governor: SB 10, 23, 26, 29, 43SIGNED BY GOV., 47, 56SIGNED BY GOV., 60SIGNED BY GOV., 65, 68, 69, 74, 76, 79, 82, 83, 91SIGNED BY GOV., 92, 98, 104, 105, 111, 125, 134, 144, 153, 171, 175, 185, 186, 187, 196; SJR 6, SJR48SIGNED BY GOV.; HB 32, 46SIGNED BY GOV., 50, 66, 69, 71SIGNED BY GOV., 78, 82, 83, 94, 102, 107, 108SIGNED BY GOV., 114, 115SIGNED BY GOV. 120, 128, 130, 137, 138, 144, 177, 192, 207, 215, 225, 243, 244SIGNED BY GOV., 258, 259, 273, 280, 285, 287, 296, 305, 312SIGNED BY GOV, 316, 321SIGNED BY GOV, 337, 355, 367, 370, 374, 378, 383, 386, 390, 394, 443, 462, 468SIGNED BY GOV, 509, 514, 536, 540, 549; HCR 25SIGNED BY GOV, 26SIGNED BY GOV, 28, 29SIGNED BY GOV, 30, 31SIGNED BY GOV, 32SIGNED BY GOV, 33, 75SIGNED BY GOV, 120, 141 SIGNED BY GOV, 154; HJR 23, 84, 137

RAIN TAX FOES APPEAL JUDGE BILLINGSLEYS RULING TO SUPREME COURT

Tuesday, March 20th, 2007

The Ky. Court of Appeals upheld Boone Circuit Court ruling allowing projects to remove stagnant storm run off waters.

BY MIKE RUTLEDGE |Cincinnati Enquirer, March 20, 2007

Northern Kentucky Sanitation District No. 1 won a strong opinion from the Kentucky Court of Appeals in favor of its storm-water surcharge, but opponents who deride it as a “rain tax” plan to appeal.

“The opinion was very succinct, directly to the point, went to the heart of the matter, and in my opinion made it very clear what we contended all along,” said attorney Gerald Dusing, representing the sanitation district.

“There’s a very solid basis for the sanitation district’s authority to manage storm water, and to pass a surcharge to fund what’s been mandated by the federal Environmental Protection Agency,” he said.

The Wessels Co. LLC and Thomas Seiter argued that the sanitation district lacked the legal state authority to do either. Within a month, they will appeal to the Kentucky Supreme Court, their lawyer, Todd McMurtry, said.

“I think the decision is flawed,” McMurtry said. “After nearly 100 pages of briefing, the court issued an opinion, only seven business days after the oral argument, endorsing the rain tax.”

The unanimous March 9 ruling upheld then-Boone Circuit Judge Stan Billingsley’s October 2005 decision on both points.

Since its creation in 2003, the storm-water program has collected about $25 million.

Opponents argued that neither state law nor interlocal agreements among Boone, Campbell and Kenton counties, 32 cities and the Kentucky Transportation Cabinet provides the taxing authority.

McMurtry said: “This case presents a major public policy question: Can governmental entities like SD1 create a multimillion-dollar user fee under suspect legislative authority?

“We hope that the Supreme Court will give us an opportunity to present our arguments one more time. The 300,000-plus citizens of Northern Kentucky deserve the opportunity to present this grievance to the highest court in this state.”

The appeals-court decision had no wavering.

“In its thorough and well-reasoned opinion, the trial court found specific statutory authority for the district’s implementation of a storm water drainage plan, for its contractual agreements with various local governments within its boundaries, and for the assessment of a surcharge for its storm water management services,” appeals judges wrote.

“We concur in the opinion of the Boone Circuit Court,” the judges added. “A plain reading of the statutes makes clear the legislature’s intent that the management, treatment and disposal of storm water runoff is a matter to be addressed by sanitation districts.”

The district in recent months lifted somewhat its moratorium against spending money on storm-sewer projects. Under new agreements with cities, the district is funding 50 percent of repairs. But if the district ultimately loses the appeal, the cities must reimburse the district for that spending so it could be refunded to rate-payers, under the agreements

 

 

 
 

KBA PRESIDENT RECOGNIZES DIFFICULTIES JUDGES FACE

Tuesday, March 20th, 2007

In a letter to the editor of the Courier-Journal, KBA President Robert Ewald writes:

 

Judges Difficult Tasks 

 

Andrew Wolfson’s excellent article abut the thorny questions of paternal rights (“Ken. Cases ;pose questions: What defines a father?? March 18) well demonstrates the extraordinarily difficult issues our judges face when resolving disputes that have such an enormous effect on the litigants involved.

 

In a time when it seems to be accepted sport to condemn judges, for their ?activist? decisions, perhaps the article will help those would-be critics understand how difficult some judicial determinations are and how decent and honorable are the women and men who must decide these complex cases.

 

/s/ Robert Ewarld, President, Kentucky Bar Association, Louisville 40202

STATE OF KENTUCKY LAUNCHES NEW WEB SITE TO DETAIL QUALITY OF HEALTH CARE OFFERED BY KY. HOSPITALS.

Tuesday, March 20th, 2007

The Health Care Information Center may be accessed at: http://chfs.ky.gov/ohp/healthdata/ 

 

“The center provides both performance and outcome information on hospitals in Kentucky, as well as information about quality of care. Additionally, we will provide measurements of how well preventive care efforts are working to reduce the number of inpatient stays in Kentucky hospitals.? 

 

Quality Measures 

Quality indicators provide hospital-by-hospital comparisons on selected, nationally-recognized measures from the Agency for Healthcare Research and Quality (AHRQ). AHRQ Inpatient Quality Indicators (IQIs) measure the quality of care provided by hospitals by summarizing the frequency and outcome of selected inpatient procedures. These indicators are risk-adjusted to more fairly compare performance across hospitals serving patients of differing risk mixtures. 

Download the Agency for Healthcare Research and Quality Fact Sheet. 

 

Hospital Charge Information 

The Kentucky Hospital Association provides hospital charge information by the top Diagnosis Related Groups (DRGs). DRG is a classification of hospitalization types based on the patient’s medical condition, procedures performed (if any), and, in some cases, the age and/or sex of the patient. Other information includes average length of stay, median age of patient and number of discharges by DRG. 

Kentucky Hospital Association Hospital Charge Information 

 

To learn more about inpatient quality indicators and to access the reports, please click here.

 

Find a hospital in your area.

Download the hospital list in Acrobat format

Download the hospital list in Excel format

 

SENATOR WILLIAMS: SENIOR STATUS PROGRAM EXTENSION BILL APPEARS DEAD IN THIS SESSION.

Tuesday, March 20th, 2007

 

   The Ky. Post quotes Senate President David Williams as saying, “There’s just not very much support in the Senate for the senior judge program,” he said. “I don’t see the Senate doing anything with the senior judge program in the remaining days.”  Williams admits that he dislikes Chief Justice Joseph Lambert, and that they don’t see “eye to eye? and  “I just don’t like the chief justice, and I don’t appreciate some of his actions. … But I would never take any retribution on the judges because of my relationship with the chief justice.”
 

Rumors persist in Frankfort, that Williams is cool to the extension of the Senior Status Judges program, as the termination of the program would put pressure on Justice Lambert to retire earlier than he otherwise might plan.  Williams is a resident of the same Supreme Court district as Lambert, and he would be eligible to be appointed to the Supreme Court if a vacancy was created by a Lambert retirement.  Williams denies that he would like to be an appellate judge.

 

Paul A. Long, Ky. Post, March 20, 2007  
 

HOW IT WORKS
 
Senior judges fill in for district and circuit judges who are ill, on vacation, or otherwise unavailable. They are required to work 120 days a year for five years. They are not paid a salary, although they do get expenses.
 

But at the end of the period, the judges’ annual pension is increased greatly.
 
With a bill to extend the senior judge program until 2012 apparently dead in the state Senate, court officials have yet to clear up a debate over when the program – which allows retiring judges to temporarily fill vacancies in return for a big boost in their pensions – will end.
 

The original program was set to expire in July 2007, but a 2003 amendment extended that to February 2009. That amendment, however, never repealed the 2007 expiration date, and the bill’s title conflicts with the language.
 

The result is that at least 20 judges across the state – including three from Northern Kentucky – may decided to retire in four months to ensure their entrance into the program.
 

“I just don’t know,” said Kenton Circuit Judge Steve Jaeger, one of those considering early retirement. “I’m not going to say anything until the session ends.”
 

It’s even unclear as to who will determine the end date for entrance into the program. Leigh Anne Hiatt, spokeswoman for the Administrative Office of the Courts, declined to comment when asked about the expiration date.
 

Jaeger said he thinks the Judicial Form Retirement System may have the final word. Senate President David Williams said it’s up to the courts, whether through the administration process or a lawsuit.
 

Stan Billingsley, a retired district judge who has completed the senior judge program and has been watching the legislation for his Web site, Kentucky Law Reader, thinks the argument is a non-issue. The legislature extended the program in 2003, and what Billingsley called a mere technical glitch does not negate that action.
 

“That’s what the legislation says,” Billingsley said.
 

“That’s what the General Assembly meant. The heading of the bill cannot overrule the legislation the General Assembly passed.”
 

A number of judges and politicians said the program has been caught up in what they call a feud between Chief Justice Joseph Lambert and Williams. Indeed, some say, Williams has bottled up the program to force Lambert to take early retirement, opening up the Supreme Court seat for Williams.
 

Williams laughed at that scenario, saying he has “no desire to be on the appellate bench.” But he agreed that he and Lambert – both Republicans – don’t see eye-to-eye.
 

“I wouldn’t refer to it as a feud,” said Williams, who is a lawyer and whose wife is a district judge.
 

“I just don’t like the chief justice, and I don’t appreciate some of his actions. … But I would never take any retribution on the judges because of my relationship with the chief justice.”
 

Hiatt said Lambert declined comment for this story.
 

Still, Williams said, he doesn’t see the extension happening during this session, which in now is recess until March 26 and has only two more days to pass any legislation.
 

The bill passed in the House and then was sent to the Senate, where it was assigned to the Appropriations Committee. It never had a hearing or a vote there.
 

“There’s just not very much support in the Senate for the senior judge program,” he said. “I don’t see the Senate doing anything with the senior judge program in the remaining days.”
 

The bill to extend the program has come at a time when it has started to gain some high-profile detractors. David Stengel, the commonwealth attorney in Jefferson County, has said it’s unconstitutional because it allows unelected judges to routinely and continually serve in the place of elected judges.
 

Others have questioned its costs, noting that the budget for it has grown to four times its intended size. The original budget was $420,000 for a pool of about 25 retired judges.
 

There are now 45 senior judges, and the Judicial Form Retirement System will pay out at least $1.57 million for the senior status program this year, according to an analysis by the Lexington Herald-Leader.
 

Supporters said it fills a need, and is cheaper than any alternative. A full-time circuit judgeship costs about $350,000 annually, court administrators say.
 

 
 

Pub

SOME FEDERAL PROSECUTOR FIRINGS MAY VIOLATE OBSTRUCTION OF JUSTICE STATUTE BY INFLUENCING EXISTING INVESTIGATIONS

Tuesday, March 20th, 2007

Excerpt from a New York Times article by  By ADAM COHEN, March 19, 2007

 

The New York Times has suggested that at least some of the firings of U.S. prosecutors may be basis for obstruction of justice investigation. See Obstruction of Justice statute at bottom of this article.  They don’t go as far as to say that a crime has been committed, but they suggest that Carol Lam and Fred Black were investigating administration friends, and their firings may have resulted in the termination of those investigations.  If that is true, it will likely be revealed in future Congressional hearings.  
 

“It is true, as the White House keeps saying, that United States attorneys serve “at the pleasure of the president,? which means he can dismiss them whenever he wants. But if the attorneys were fired to interfere with a valid prosecution, or to punish them for not misusing their offices, that may well have been illegal.
 

In law schools, it is common to give an exam called the “issue spotter,? in which students are given a set of facts and asked to identify all the legal issues and possible crimes. The facts about the purge are still emerging. But based on what is known — and with some help from Congressional staff members and Stephen Gillers, a law professor at New York University — it was not hard to spot that White House and Justice Department officials, and members of Congress, may have violated 18 U.S.C. §§ 1501-1520, the federal obstruction of justice statute.
 

Some crimes that a special prosecutor might one day look at:
 

1. Misrepresentations to Congress. The relevant provision, 18 U.S.C. § 1505, is very broad. It is illegal to lie to Congress, and also to “impede? it in getting information. Deputy Attorney General Paul McNulty indicated to Congress that the White House’s involvement in firing the United States attorneys was minimal, something that Justice Department e-mail messages suggest to be untrue.
 

Attorney General Alberto Gonzales made his own dubious assertion to Congress: “I would never, ever make a change in a United States attorney position for political reasons.?
 

The administration appears to be trying to place all of the blame on Mr. Gonzales’s chief of staff, Kyle Sampson, who resigned after reportedly failing to inform top Justice Department officials about the White House’s role in the firings. If Mr. Sampson withheld the information from Mr. McNulty, who then misled Congress, Mr. Sampson may have violated § 1505.
 

But Mr. Sampson’s lawyer now says other top Justice Department officials knew of the White House’s role. Senator Charles Schumer, Democrat of New York, said last week that “Kyle Sampson will not be the next Scooter Libby, the next fall guy.? Congress will be looking for evidence that Mr. Gonzales and Mr. McNulty knew that what they told Congress was false or misleading.
 

Convictions of this kind are not common, but they happen. Just ask former White House aide David Safavian, who was convicted last year of making false statements to a Senate committee.
 

2. Calling the Prosecutors. As part of the Sarbanes-Oxley reforms, Congress passed an extremely broad obstruction of justice provision, 18 U.S.C. § 1512 (c), which applies to anyone who corruptly “obstructs, influences, or impedes any official proceeding, or attempts to do so,? including U.S. attorney investigations.
 

David Iglesias, the New Mexico United States attorney, says Senator Pete Domenici, Republican of New Mexico, called him and asked whether he intended to bring indictments in a corruption case against Democrats before last November’s election. Mr. Iglesias said he “felt pressured? by the call. If members of Congress try to get a United States attorney to indict people he wasn’t certain he wanted to indict, or try to affect the timing of an indictment, they may be violating the law.
 

3. Witness Tampering. 18 U.S.C. § 1512 (b) makes it illegal to intimidate Congressional witnesses. Michael Elston, Mr. McNulty’s chief of staff, contacted one of the fired attorneys, H. E. Cummins, and suggested, according to Mr. Cummins, that if he kept speaking out, there would be retaliation. Mr. Cummins took the call as a threat, and sent an e-mail message to other fired prosecutors warning them of it. Several of them told Congress that if Mr. Elston had placed a similar call to one of their witnesses in a criminal case, they would have opened an investigation of it.
 

4. Firing the Attorneys. United States attorneys can be fired whenever a president wants, but not, as § 1512 (c) puts it, to corruptly obstruct, influence, or impede an official proceeding.
 

Let’s take the case of Carol Lam, United States attorney in San Diego. The day the news broke that Ms. Lam, who had already put one Republican congressman in jail, was investigating a second one, Mr. Sampson wrote an e-mail message referring to the “real problem we have right now with Carol Lam.? He said it made him think that it was time to start looking for a replacement. Congress has also started investigating the removal of Fred Black, the United States attorney in Guam, who was replaced when he began investigating the Republican lobbyist Jack Abramoff. Anyone involved in firing a United States attorney to obstruct or influence an official proceeding could have broken the law.?
 

“It is far too soon to say that anyone committed a crime, and it may well be that no one has.?

 

SEE: THE U.S. CODE PROVISION RE: OBSTRUCITON OF JUSTICE
 

From the U.S. Code Online via GPO Access
[wais.access.gpo.gov] [Laws in effect as of January 20, 2004]
[Document not affected by Public Laws enacted between
  January 20, 2004 and December 23, 2004] [CITE: 18USC1512]
 

                 TITLE 18--CRIMES AND CRIMINAL PROCEDURE

                             PART I--CRIMES

                   CHAPTER 73--OBSTRUCTION OF JUSTICE

Sec. 1512. Tampering with a witness, victim, or an informant
    (a)(1) Whoever kills or attempts to kill another person, with intent
to--
        (A) prevent the attendance or testimony of any person in an
    official proceeding;
        (B) prevent the production of a record, document, or other
    object, in an official proceeding; or
        (C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending
    judicial proceedings; shall be punished as provided in paragraph (3).
    (2) Whoever uses physical force or the threat of physical force
against any person, or attempts to do so, with intent to--
        (A) influence, delay, or prevent the testimony of any person in
    an official proceeding;
        (B) cause or induce any person to--
            (i) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
            (ii) alter, destroy, mutilate, or conceal an object with
        intent to impair the integrity or availability of the object for use in an official proceeding;
            (iii) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
            (iv) be absent from an official proceeding to which that
        person has been summoned by legal process; or
        (C) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, supervised
    release, parole, or release pending judicial proceedings; shall be punished as provided in paragraph (3).
    (3) The punishment for an offense under this subsection is--
        (A) in the case of murder (as defined in section 1111), the death penalty or imprisonment for life, and in the case of any other killing, the punishment provided in section 1112;
        (B) in the case of--
            (i) an attempt to murder; or
            (ii) the use or attempted use of physical force against any person;
    imprisonment for not more than 20 years; and
        (C) in the case of the threat of use of physical force against any person, imprisonment for not more than 10 years.
    (b) Whoever knowingly uses intimidation, threatens, or corruptly
persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to--
        (1) influence, delay, or prevent the testimony of any person in
    an official proceeding;
        (2) cause or induce any person to--
            (A) withhold testimony, or withhold a record, document, or
        other object, from an official proceeding;
            (B) alter, destroy, mutilate, or conceal an object with
        intent to impair the object's integrity or availability for use
        in an official proceeding;
            (C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in
        an official proceeding; or
            (D) be absent from an official proceeding to which such
        person has been summoned by legal process; or
        (3) hinder, delay, or prevent the communication to a law
    enforcement officer or judge of the United States of information
    relating to the commission or possible commission of a Federal
    offense or a violation of conditions of probation \1\ supervised
    release,,\1\ parole, or release pending judicial proceedings;
---------------------------------------------------------------------------
    \1\ So in original.  shall be fined under this title or imprisoned not more than ten years,
or both.
    (c) Whoever corruptly--
        (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official   proceeding; or
        (2) otherwise obstructs, influences, or impedes any official
    proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.
    (d) Whoever intentionally harasses another person and thereby
hinders, delays, prevents, or dissuades any person from--
        (1) attending or testifying in an official proceeding;
        (2) reporting to a law enforcement officer or judge of the
    United States the commission or possible commission of a Federal
    offense or a violation of conditions of probation \1\ supervised
    release,,\1\ parole, or release pending judicial proceedings;
        (3) arresting or seeking the arrest of another person in  connection with a Federal offense; or
        (4) causing a criminal prosecution, or a parole or probation
    revocation proceeding, to be sought or instituted, or assisting in
    such prosecution or proceeding; or attempts to do so, shall be fined under this title or imprisoned not more than one year, or both.
    (e) In a prosecution for an offense under this section, it is an
affirmative defense, as to which the defendant has the burden of proof
by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the other person to testify truthfully.
    (f) For the purposes of this section--
        (1) an official proceeding need not be pending or about to be instituted at the time of the offense; and
        (2) the testimony, or the record, document, or other object need not be admissible in evidence or free of a claim of privilege.
    (g) In a prosecution for an offense under this section, no state of
mind need be proved with respect to the circumstance--
        (1) that the official proceeding before a judge, court,
    magistrate judge, grand jury, or government agency is before a judge or court of the United States, a United States magistrate judge, a  bankruptcy judge, a Federal grand jury, or a Federal Government  agency; or
        (2) that the judge is a judge of the United States or that the
    law enforcement officer is an officer or employee of the Federal
    Government or a person authorized to act for or on behalf of the
    Federal Government or serving the Federal Government as an adviser
    or consultant.
   

 

10 OHIO MAYORS COURTS OPERATING IN VIOLATION OF STATE FILING LAW- IF YOU HAVE AN OHIO TRAFFIC TICKET TAKE A LOOK AT THIS

Monday, March 19th, 2007

By Randy Ludlow  The Columbus Dispatch   Monday, March 19, 2007
Three tiny-town mayor’s courts in central Ohio ended up on the wrong side of the law.
They should not have been collecting traffic fines and hearing misdemeanor cases because the Ohio Supreme Court had not heard from them in nearly a year.
State law forbids mayor’s courts from operating if they fail to file quarterly caseload reports with the Supreme Court.
New Holland, Laurelville and Edison ran afoul of the law by not filing reports since the first quarter of 2006.
Edison Mayor Sandra Ackerman was alarmed by the news that her mayor’s court was cited last week by the high court as one of 10 in violation.
“Oh no!” exclaimed Ackerman, mayor of the Morrow County village of 452 residents. “I suppose we better not have court and get this paperwork sent in.”
The court, which handles about 160 cases in a “good year,” last was in session two weeks ago, Ackerman said. Revenue from the cases pay the wages of the village’s part-time police officer.
Ackerman, who has been mayor for a year, said she was unaware of the reporting requirements until a few weeks ago.
In Laurelville, Police Chief James Taylor said the reports from his village of 555 residents were submitted to the court last week. Laurelville heard 211 mayor’s court cases in 2005.
A change of mayors and other factors led to the delay in submitting reports, but a new court clerk will help ensure they are filed on time, Taylor said.
New Holland Mayor Joe Stuckey declined to comment about the problems in his town of 782. New Holland had 12 cases in mayor’s court in 2005.
Columbus lawyer Cleve Johnson, who specializes in traffic cases, said persons cited before tardy-reporting mayor’s courts could have an argument.
They could argue the court had no jurisdiction to hear their case and that any conviction was void, he said. But, as a practical matter, minor cases are unlikely to be appealed, Johnson said.
While law requires the filing of reports and forbids courts from operating if they don’t, there is no mechanism in the law to enforce the requirement.
Chief Justice Thomas Moyer, a long-time critic of mayor’s courts, used the news to renew his call to reform the “quasi-judicial” bodies and make them part of the judicial branch.
The 6th Circuit U.S. Court of Appeals, which includes Ohio, declared mayor’s courts an unconstitutional conflict in 1999 because mayors feed fines into budgets they control.
Most cities and villages addressed the decision by removing mayors from the bench and hiring lawyers to act as magistrates and preside over court sessions.
rludlow@dispatch.com
 

Nick Clooney got it wrong. Capt. Jesse Billingsley coined the battle cry, REMEMBER THE ALAMO, not Kentuckian Syndey Sherman.

Sunday, March 18th, 2007

By LawReader Senior Editor Stan Billingsley

In a Cincinnati Enquirer feature on March 11, 2007 Nick Clooney wrote:

“As the Kentucky soldiers charged Mexican troops at San Jacinto, historians credit (Capt. Sydney)  Sherman of Newport, Ky.  with first shouting that famous battle cry: “Remember the Alamo!?

It is a long tradition in my family that one of our ancestors, Capt. Jesse Billingsley, was the creator of the battle cry Nick Clooney ( he cites other historians) credit to a Ky. Colonel at the battle of San Jacinto on April 21st, 1836.    That battle was the Texas payback to the Mexican capture of the Alamo and the slaughter of Texas prisoners at the battle of Goliad..

I respectfully disagree with Clooney and the historians he relies upon for his claim.

My family has long claimed that it was our Capt. Jesse Billingsley who coined the battle cry, “Remember the Alamo?.  As documented by the record, Billingsley was a close friend of Davy Crockett, and in remembrance of Crocket coined the battle cry to rally his men in honor of Davy Crockett.

Further history, as certified by the Texas State Senate, credits Capt. Billingsley with rescuing Colonel Sydney Sherman and his men at that battle. Not only does Colonel. Sherman owe it to Billingsley to properly credit the battle cry to Billingsley, he is indebted to Billingsley for saving his life.

Please permit me to document my family’s claim to this famous rallying call.

We recognize no lesser authority than the Texas State Senate which adopted the following resolution in l999:

OFFICIAL RESOLUTION ADOPTED BY THE TEXAS STATE SENATE ON Tuesday April 20, 1999
 

The Senate met at 10:00 a.m. pursuant to adjournment and was called to order by the President.

The roll was called and the following Senators were present: Armbrister, Barrientos, Bernsen, Bivins, Brown, Cain, Carona, Duncan, Ellis, Fraser, Gallegos, Harris, Haywood, Jackson, Lindsay, Lucio, Madla, Moncrief, Nelson, Nixon, Ogden, Ratliff, Shapiro, Shapleigh, Sibley, Truan, Wentworth, West, Whitmire, Zaffirini.  Absent-excused: Luna.

The President announced that a quorum of the Senate was present.

SENATE RESOLUTION 671
Senator Bernsen offered the following resolution:

WHEREAS, The Senate of the State of Texas takes pride in paying tribute to the
life of Captain Jesse Billingsley and in recognizing the role he played in our state’s  history on April 21, 1836; and

WHEREAS, Born October 10, 1810, in Warren County, Tennessee, Jesse Billingsley moved to Missouri in 1817 and later settled near David Crockett in Gibson County, Tennessee, in 1828; and

WHEREAS, On May 5, 1835, he arrived in Bastrop County and settled in Cedar Creek, Texas; he joined the Texas Army under the command of General Edward Burleson and became captain of the Mina Volunteers; and

WHEREAS, Upon hearing that his friend and role model Davy Crockett had been killed at the Alamo, Captain Billingsley reorganized the Mina Volunteers and is
credited with being the first man to proclaim the famous battle cry, “Remember the Alamo!”; and

WHEREAS, As commander of Company C, Captain Billingsley ignored orders to
countermarch and courageously proceeded to San Jacinto to assist Colonel Sidney
Sherman and his men who were outnumbered by Santa Anna’s army; and
WHEREAS, Captain Billingsley’s men suffered severe casualties from the blast of the enemy’s cannon fire, and Captain Billingsley sustained a wound to his left hand, leaving it crippled for life; however, he and his regiment saved the lives of many of
Colonel Sherman’s men and helped them to be victorious in that famous battle on

April 21, 1836; and

WHEREAS, Captain Billingsley was honored for his valor by artist William H.
Huddle who placed Captain Billingsley behind Santa Anna in his painting of the
historic moment of “The Surrender of Santa Anna”; and
WHEREAS, After the Battle of San Jacinto, Captain Billingsley represented

Bastrop County in the First and Second Congress and the Fifth and Eighth legislatures of Texas; he then sacrificed his public career by taking a stand against secession from the Union and by becoming an advocate for the literacy of slaves; and

WHEREAS, In 1874, Captain Billingsley stepped forward to insist that the name
of a black soldier, Maxlin “Mack” Smith be inscribed on the San Jacinto honor role after his name had been omitted from the bronze plaque listing those who fought in the Battle of San Jacinto; and 1078 76th Legislature — Regular Session 53rd Day

WHEREAS, Captain Billingsley died quietly on October 1, 1880, and was buried in his front yard in McDade, Texas, beside his faithful white horse, Gopher; his body was exhumed under the direction of L. W. Kemp in 1929 and was reinterred in the State Cemetery in Austin near his fellow patriot Stephen F. Austin, “the Father of Texas”; and

WHEREAS, Captain Billingsley’s great-great-grandson is Randy Billingsley, who is visiting the Capitol on April 21, 1999, and is joining other descendants of Captain Billingsley’s men in paying tribute on San Jacinto Day to the Battle of San Jacinto and to Captain Jesse Billingsley; now, therefore, be it

RESOLVED, That the Senate of the State of Texas, 76th Legislature, hereby honor the memory of Captain Jesse Billingsley and pay tribute to all Texans who participated in the Battle of San Jacinto; and, be it further

RESOLVED, That a copy of this Resolution be prepared for Randy Billingsley as an expression of esteem for Captain Billingsley from the Texas Senate.

The resolution was read.

On motion of Senator Truan and by unanimous consent, the names of the Lieutenant Governor and Senators were added to the resolution as signers thereof.

On motion of Senator Bernsen, the resolution was adopted by a viva voce vote.

GUESTS PRESENTED
Senator Bernsen was recognized and introduced to the Senate Randy Billingsley, great-great-grandson of Captain Jesse Billingsley, accompanied by friends of the family.

The Senate welcomed its guests.

CONCLUSION OF MORNING CALL
The Presiding Officer, Senator Ogden in Chair, at 10:25 a.m. announced the conclusion of morning call.

A famous painting displayed in the state capitol at Austin, Texas is titled “The Battle of San Jacinto? “Retributive Justice – the Triumph of Texas Independence?. This illustration shows both Capt. Billingsley and Capt. Sherman. The picture may be viewed online at: http://www.tsl.state.tx.us/mcardle/sanjac/sanjac007.html .
  Capt. Billingsley was honored by the artist, by being placed next to Gen. Sam Houston.

We have found references credited to Sam Huston of the actual battle which says:

 and the whole line, led by Sherman’s men, sprang forward on the run with the cry, “Remember the Alamo!” “Remember Goliad!” The battle lasted but eighteen minutes
 Capt. Billingsley was in Colonel Sherman’s regiment.  It should be noted that Sam Houston does not credit Sherman with the shouting the battle cry…but “Sherman’s men?.
 See: http://www.tsha.utexas.edu/handbook/online/articles/SS/qes4.html
 

Some historical notes about Capt. Jesse Billingsley:

Therefore, we will credit Colonel Sherman of Newport as having been the regimental commander of Capt. Billingsley, but he did not create the battle cry.  As Highsmith, Kige.  “Biographical Sketch of Jesse Billingsley,” in Jesse Billingsley Papers, Archives Collection, University of Texas Library.

Full Name: Jesse    Billingsley
Location: Section:Republic Hill, Section 1
Row:K  Number:24
Reason for Eligibility: Republic of Texas Veteran; Texas Ranger; Member, Republic of Texas House of Representatives; and Member, Texas State Senate. 
Birth Date: October 10, 1810 
Died: October 1, 1880 
Buried: Reinterred September 3, 1929 
Biography:
BILLINGSLEY, JESSE (1810-1880). Jesse Billingsley, San Jacinto soldier, ranger, and legislator, was born on October 10, 1810, in Rutherford County, Tennessee, the son of Jeptha and Miriam (Randolph) Billingsley. In 1834 he moved to Mina, Texas. On November 17, 1835, he joined Capt. Robert M. Coleman’s company of Mina Volunteers forty-nine Bastrop County men, including George B. Erath. Billingsley served until December 17. When this unit mustered into Sam Houston’s army at the beginning of the Texas Revolution, it was designated Company B of Col. Edward Burleson’s First Regiment, and on March 1, 1836, Billingsley was elected its captain. He commanded the company at the battle of San Jacinto, where he received a wound that crippled his left hand for life. The company disbanded at Mina on June 1. Billingsley thereafter served as a private in John C. Hunt’s ranger company, from July 1 through October 1, 1836. 

He was elected from Bastrop County to the House of Representatives of the First Congress of the Republic of Texas and is said to have “furnished his own grub, slept on his own blanket, and wor[n] a buckskin suit that he took from a Comanche Indian whom he killed in battle.” Billingsley was reelected to the House of the Second Congress in 1837. In February 1839 he commanded a company of volunteers under Edward Burleson that pursued and engaged the band of Comanche raiders who had killed the widow of Robert Coleman and their son Albert and kidnapped their five-year-old son, Thomas. In 1842 Billingsley recruited volunteers to aid in the repulse of the invasion of Adrian Woll and fought with John C. Hays at the battle of Salado Creek. After annexation he served as a senator in the Fifth (1853-54) and Eighth (1859-61) legislatures. Billingsley died on October 1, 1880, and was buried in the front yard of his house near McDade. On September 3, 1929, he was reinterred in the State Cemetery at Austin.

BIBLIOGRAPHY: John Henry Brown, Indian Wars and Pioneers of Texas (Austin: Daniell, 1880; reprod., Easley, South Carolina: Southern Historical Press, 1978). Daughters of the Republic of Texas, Muster Rolls of the Texas Revolution (Austin, 1986). Andrew Jackson Sowell, Early Settlers and Indian Fighters of Southwest Texas (Austin: Ben C. Jones, 1900; rpt., Austin: State House Press, 1986). Texas House of Representatives, Biographical Directory of the Texan Conventions and Congresses, 1832-1845 (Austin: Book Exchange, 1941). Vertical Files, Barker Texas History Center, University of Texas at Austin.

Thomas W. Cutrer

“BILLINGSLEY, JESSE.” The Handbook of Texas Online. [Accessed Mon Feb 17 10:11:10 US/Central 2003].

   


Captain Jesse Billingsley hero of Battle of San Jacinto, and credited with first saying, “Remember the Alamo!?
 His tombstone reads:
Capt. Jesse Billingsley

A Soldier in the army of Texas,
1835
Commander of Company C,
First Regiment, Texas Volunteers
at San Jacinto
Member of the 1st and 2nd
Congresses of the Republic
Participated in the Woll
Campaign, 1842
Member of the Senate, 5th and 8th
Legislatures of the State
Born in Tennessee
October 10, 1810
Died in Bastrop County, Texas
October 1, 1880

Erected by the State of Texas
1936
Burial site of Jesse Billingsley:
Texas State Cemetery
Austin
Travis County
Texas, USA
Plot: Republic Hill Section 1 Row K Plot 24
GPS (lat/lon): 30.15914, -97.43631
 
 

Jesse Billingsley.  Account of the San Jacinto campaign from the Galveston News (Tri-Weekly, Galveston, Texas Saturday, September 19, 1857).  Correspondence on the role of General Houston.

Among many others of those who participated in our early struggle, to whom we have applied for reliable information with a view to get at the truth of our past history, is Capt. Jesse Billingsley, who has kindly furnished us with the following narrative of the campaign and retreat immediately preceding the battle of San Jacinto. It will be seen that Capt. B. confines himself to a statement of such facts as came within his own observation, and having command of the first company raised to meet the enemy on that occasion, he naturally became acquainted with many facts unknown perhaps to officers higher in command. In his private note to us, Capt. B. Says: “A press of business has delayed my compliance with your request, but with the leading incidents attending Gen. Houston’s retreat and the glorious struggle on San Jacinto, I am probably as well acquainted as any other man who participated in that campaign, for, as you will see from the accompanying communication, I commanded the first company enrolled to meet the foe. But with the minor details others may probably be better informed, as I kept no record of the passing events, which I now deeply regret, for a true history of our early struggle has not yet been laid before the public. But what I do state may be depended upon, as substantially correct, in every particular.”

Retreat Of the Texas Army previous to the Battle of San Jacinto

On the 28th of February, 1836, I had the honor of leaving Bastrop in command of the 1st company, in order to meet the invader of our country; our destination was the left bank of the Guadeloupe to form, as it were, a nucleus for the Texan Army. Arriving there on the second day, we learned, through Capt. Manchac, that the Alamo must inevitable fall on a certain day, being besieged, as was generally estimated by 8 or 10,000 men. On the arrival of Gen. Houston, (11th March) who had lately been appointed Commander-in-Chief of the patriot army by the Convention, thereby superseding Fannin of immortal memory, (who had been the choice of the army) the troops were ordered on the east bank of the river, and the following night having received intelligence from Colonel Travis’s negro and Mrs. Dickenson (the only survivors) of the fall of the Alamo, Houston issued orders for a retreat eastward. This order, I, as Captain of the 1st Company, considering a very unadvised one, strongly objected to, asserting that we would be compelled to leave our horses, oxen, provisions (which the citizens of Bastrop had so generously furnished us with), in fact, all our camp equipage. Upon this, Gen. Houston came to me in person, and assured me that we would move only two miles or so, to a place more convenient for fighting, should an engagement ensue; and that, in the morning, we could have an opportunity to send back for what had been left behind: but to our astonishment, we were kept marching all night until about half an hour before day, when we rested on our arms until daybreak. About this time our ears were saluted with the noise of barrels of powder, spirits, &c, exploding in the burning of Gonzales. All the stores for the supply of the Army had been placed there, and our sudden retreat in the night left all the property and worse than this — left all the families in the neighborhood at the mercy of our implacable enemy, none being aware of our sudden, and, to them, inexplicable move.

After a hurried repast we again took up our forced march, and were then destined to see a sight horrowing to our very souls — a sight that beggars all description — a sight I trust I may never see again — families flying in terror from a foe well known as paying no regard to age or sex, striving to come up with those they regarded as defenders, but who, by their hurried midnight march, seemed about to leave them exposed to all they so much dreaded — mothers carrying one, some two children, all flying in terror and agony, and nearly all on foot. There were no vehicles in the country, even if they had time to avail themselves of them (for at that day all had come to the country by water.) There were also rivers to cross; and, for tender females with children, that was almost impossible. Men were flying bareheaded in every direction, spreading terror and dismay all over the country — houses and property of all kinds unprotected — nay, they even left the tables spread out for the morning meal and fled leaving the food untasted. Onward they held their distracted course until they reached the left bank of the Colorado at Burnham’s. Here the Army halted about two days, giving the families to cross. We then also crossed, and, bearing some distance down the river, camped in a cane brake almost inaccessible to the foe.

While encamped here, we learned from our spies and several prisoners we had taken, that Gen. Sesma was encamped on the opposite side of the river, not more than three miles from us, with force of about 700, or at most, 800 men, our force amounting, at this time to about 1300 strong, according to the statements of Maj. B. F. Smith, the acting Adjt. General. Upon receiving this information the Army earnestly besought Gen. Houston to come to an engagement. This Houston declined, and commenced making preparations, as it seemed, for a permanent camp, to the surprise of all, and truth compels me to add, to the disgust of many a galland soldier, as the apparent salvation of the country depended on the successful issue of an immediate engagement. Eventually, however, Gen. Houston determined to send Capt. Karnes across the river with one hundred and fifty troops, fifty of whom were mounted, with orders to station the foot in a ravine parallel to the route to the Mexican camp, then to proceed with the mounted force to draw out the enemy and retreat. The orders were obeyed. The Mexican fired a discharge of grape at the Tex’n cavalry, but did not advance. Karnes not deeming it prudent to march nearer against so large a force, recrossed the river without effecting anything. The General then determined to take up his line of march to the Brazos, assuring the Army that he would not pass over that river without coming to an engagement with the foe. After a hurried march he halted the army in the Brazos bottoms at a place inaccessible to the foe. While encamped here we learned that Santa Anna was bout to cross the river near San Felipe and that Capt. Mosley Baker, who commanded the Brazos troops (and gallant troops they were) was determined to oppose his passage. I, in common with others, earnestly entreated the General to give us permission to aid Baker, but he refused to the great grief of a large portion of the army. He then took up his line of march eastward, the army growing less and less every day, many leaving the ranks imagining that Houston would not come to an engagement with the enemy. And in truth, the majority were induced to remain and continue the retreat from unfounded statements made to them by Gen. Houston, to the effect that he was in receipt of letters from different States promising aid, &c., and that continuing our retreat, we would fall in with them. These statements, and the promise of finally coming to an engagement with the foe, could alone have induced men, situated as we were, to retreat from a foe inferior to numbers.

Having but scanty clothing and many of us without shoes, and our property gone, we were naturally eager for the fight, knowing that nothing but victory could save us, end the chance of that was diminishing every day and feeling that we must soon give out; and to crown the whole, our confidence in Gen. Houston’s intention of coming to an engagement, was becoming weaker every day. There false statements could therefore alone have induced the majority of us to follow Houston’s retreating policy as long as we did. But all things have an end, and then it transpired on the line of march that when we should come to a certain part of our route where the road parted in the right and left; (the right leading to Harrisburg, where we would in all probability meet the foe, and the left leading to Nacogdoches away from the enemy) that the army would be ordered to take the left hand road, so great became the excitement among the Captains commanding companies, that many of us signed an agreement to support each other and take the road leading in the direction of the foe, whatever the order might be. The vanguard under the command of Capt. W. Martin, took the Nacogdoches road and never came up with the army any more. True to our engagement, we took the road leading in the direction of the foe, and after a toilsome march encamped not far from Harrisburg, on the opposite side of the bayou. From an intercepted courier of Gen. Santa Anna’s, we learned that Santa Anna was encamped near Harrisburg, having burned the city. Our men now became so eager to fight, that Gen. Houston found his retreating policy must give way before the united voice of the army for in plain terms they declared that fight they would. One effort more he did make: he issued the strange order that about 400 men should remain in camp; to guard what? an old baggage wagon; doubtless imagining that thus weakened, we never would venture to cross such a streat, as we had no boat suitable for carrying horses over, and would be compelled, if we made the attempt, to extricate them by means of ropes. But if such was his idea, he was doomed to be disappointed. No difficulty could now restrain the long pent up ardor of our gallant band. Water and fire combined could scarecely have deterred them then. They crossed, but on arriving at Santa Anna’s Camp, found that he had set out for the junction of San Jacinto and Buffalo Bayou, and, lest he should get in the advance, the army marched all night and a short time before day we rested on our arms. At day break we resumed our march, and after marching some distance, commenced making some preparations for breakfast. But learning that Santa Anna was pushing on to the ferry, we immediately dropped the preparations for breakfast, seized our arms and hastened on. We had just fairly struck camp when Santa Anna came up and (to do him justice as a soldier ought) in a gallant manner opened a smart fire with artillery — We promptly replied, when finding we were likely to gain the advantage, he withdrew his forces to the adjacent bank of the San Jacinto — one wing of his army being thus protect – and the other stretching out into the prairie and commenced fortifying about three-fourths of a mile from our camp. We now made some preparation for taking refreshment (for the first time since leaving the upper encampment near Harrisburg) Some time during the day, Sherman was sent out, as we presumed, by order of Gen. Houston, to bring on an engagement; seeing him under a heavy fire and receiving no orders from Gen. Houston to go to his support, I determined to go voluntarily and accordingly led out the first Company of the first Regiment, to which I was attached, and was immediately followed by the entire Regiment, under command of its gallant leader, Col. Burleson. On passing the place where Gen. Houston and his Aide-de-Camp were standing he ordered us to countermarch. This order the men treated with derision, requesting him to countermarch himself, if he desired it, and steadily held on their way to the support of Col. Sherman, and succeeded in driving the enemy behind their breastworks. Gen. Houston, however, kept back the second Regiment, and thus prevented us bringing on a general engagement, which, in the then state of things, would have been synonymous with victory, and that without any aid from Gen. Houston. But finding ourselves unsupported, we deemed it prudent to retire to our camp for better concert of action — Many now became convinced that Houston would not fight, consequently I was not surprised at receiving, on my return to camp, from the hands of Capt. M. Baker, (a tried and gallant soldier) a paper setting forth the convictions of many of the most experienced officers of the army, that Houston did not intend to fight, but that his object was to procrastinate until Santa Anna would receive such reinforcements, as would render it an act of madness to engage with him with the small force now at our command. This conviction he assured me was also endorsed by John A. Wharton who was afterwards called “The keenest blade on San Jacinto.” And further, in this same instrument of writing, the officers entered into a solemn engagement to fight the enemy on the next day, General or no General!
During that night, Santa Anna was reinforced by Col. Kos’ division, as we learned early next day. As the day wore on, Gen. Houston still procrastinating, finally called a council of war. After finding all unanimously determined to fight, he repeatedly asked Col. Burleson if his men fight. — The Col. again and again assured him that he knew his men and that they would fight! At last, losing patience at the repeated insinuations as to the courage of his gallant regiment, he emphatically declared that if there was a coward in his regiment he would shoot him down. Gen. Houston, however, still continued to assert that raw militia like ours, could not be depended on in an engagement with such regular and well disciplined soldiers as Santa Anna commanded. But finding the officers and men all determined to fight, he finally proposed to build a floating bridge across the stream, in order to retreat, if necessary. Now, no idea could be more repugnant to our men than that of retreating or preparing any way for a retreat: for well they knew the ruthless and merciless foe they had to deal with, and they were fully determined to cut their way through the enemy — to conquer or die. The day was wearing apace; the men were growing more and more excited, when finding that in my capacity of officer in charge of the guard, I was likely to receive no order from Gen. Houston to dismiss the various guards, in order that they might join their companies and prepare for the coming strife, I (on my own authority, and in consequence of my agreement with several of my brothers officers, on the previous day,) relieved them for that purpose. Almost immediately afterwards, I learned, to my inexpressible joy, that Gen. Houston had at length agreed to fight. The companies were paraded in battle order, and marched out in gallant array, under command of Gen. Houston. Then, gallantly did they redeem their noble pledge, to conquer or to die. In vain did Santa Anna’s disciplined veterans endeavor to sustain the assault of our gallant army, as with the cry of “Remember the Alamo!” “Remember Fannin and Goliad!” they rushed to the charge. The resistless onslaught of our patriot soldiers was too much even for them to withstand, well tried though they had been, on many a tented field. They fled, and now, on the very eve of victory, was heard the command of Gen. Houston, (who had been wounded during the engagement) ordering the Texas troops to cease firing and give over the pursuit, exclaiming, “glory enough for one day!” But Gen. Rusk dashed among the men, and crying, “No, it is not enough, while the enemy is in sight” cheered on the troops in pursuit of the flying foe. Well and truly did they respond to his encouraging voice. The hour, so long delayed, had at length come, for vengeance and the memory of unnumbered wrongs urged each patriot arm to avenge the wrongs with a determination deadly sure. Down, and down forever, went the baneful meteor of Mexican despotism; and then up rose the fair star of Texas Liberty, destined never to pale or dim. On that day was born a nation of freemen. Who was instrumental, mainly instrumental, in producing so glorious an event, let a discerning world say.

JESSE BILLINGSLEY
Capt. 1st Com., 1st Reg’t, Tex. Army.  sdct



Correspondence on the role of Houston in the San Jacinto campaign (From the Kemp Papers,Center for American History, University of Texas)

Jesse Billingsley to Col. Sidney Sherman. Cedar Creek, Bastrop County Texas September 27th 1859.  Col. Sidney Sherman

Dear Old Friend:  I designed trying to make some remarks this winter upon General Houston’ s valedictory, in which he attempts to vindicate the truth of history; that attempt to answer that part of his speech commencing with the retreat of the army from Gonzales to the fighting of the Battle of San Jacinto, and I now call upon you for certificates as you were an eyewitness of the campaign of 1836.

1st. Houston says that he gave up all his public wagons at Gonzales to help the families off in advance of the Army. Please certify how many public wagons that he had at Gonzales and how many he gave to the families. Also certify whether or not that all the families had left in advance of our Army. Also certify if you heard of the poisoned liquor that Houston spoke of.  Please certify what you know about T. J. Rusk being Secretary of War, when he came to the Army. Houston denies that he was Secretary of War.   Certify what you know about Rusk ordering Houston to take the Harrisburg Road and fall in with the Enemy.  Please state all that you know about Captain Wily Martain leaving the Army. Please state whether he took the Nacogdoches road as Capt. of the vanguard of our Army. Houston says that he dismisssed him for his refractory conduct.   Please state what place Rusk came to our Army. Please state how many men was left at what was called the upper encampment near Harrisburg and how many public wagons were there. Please state if Houston crossed over in the first boat or not. Please state who was the cause of calling the Council of War at our camp near the battleground; state at what time it was called and how many Councils were called before the battle was fought. Please state who was in the Councils and who presided over them. State if Rusk was at that time Secretary of War. Please state if those who composed the different Councils were opposed to fighting, all or any of them and who they were. State what you know about the Junior officers Council and who presided over it. Please state who it was that wanted to build a floating bridge across the San Jacinto. Please state if you believe that the Army was opposed to attacking Santa Anna on the 20th or 21st and also if you believe that Rusk was opposed to fighting at the time that we did fight. 

I see in your defense that you quote from a short sketch of the Campaign that I wrote some years since; if you have a copy please send it to me. If you have a copy of pamphlet styled “Houston Displayed, or Who Won the Battle of San Jacinto”, please send it to me. It contains charges and specifications against Houston upon which John A. Wharton drew a Bill of Impeachment. Please send me a copy of the Galveston Almanac as soon as soon as it comes from the press. 

It seems hard to trouble an old friend with answering so very many questions, but if you will read Houston’s speech closely you will see the propriety of it. I can answer those questions myself but I want additional proof and as you are the only field officer now living that I know of, I sincerely hope the you will answer them at your earliest convenience. I have written a long letter to the Hon. David G. Burnet and addressed him at Oaklin, Lavaca County. Please inform me if that is where he lives. Should you ever come through this country, you will do me a great kindness coming to my home and letting me have the honor of dividing my meat and bread with you and if I should have the good fortune to be in Galveston, I will call upon you. So no more, but remain

Ever your old friend, Jesse Billingsley.

Sherman to Billingsley in answer to above:

Question 1st. I do not recollect how many wagons there were at Gonzales. I know of none that was given up to families; some I think were left for the want of horses.

2nd. I know nothing about poisoned liquors, except that I heard Genl. Houston say at the time we heard the explosion at Peach Creek, that the liquors were poisoned.

3rd. Genl. Rusk was Secy. of War at the time he came to the Army and was so acknowledged by Genl. Houston, as he expressed much regret to me in not being made aware of the approach to the Army of the Secty. of War, that he might be received with the honors due his rank.

4th. Genl. Houston told me that Rusk had given him orders to take the Harrisburg road, and he was bound to obey him as his superior officer and requested me to inform my regiment to that effect. (See my pamphlet).

5th. I know nothing as regards Capt. Martin except report — namely, that he had been ordered to the Trinity to stop all troops from advancing further west than that stream.

5th. Rusk joined the Army in the Brazos bottoms opposite of Grocus [Groces].

6th. I think from 300 to 350 men were left at the upper camp opposite of Harrisburg.

7th. Houston did not cross over Buffalo Bayou in the first boat nor until a large number of troops had crossed.

8th. I do not know who suggested the Council of War. I knew nothing of it previous to my being summoned to attend.

9th. The council was composed of Field officers only. Genl. H. presided. (See my reply to Genl. H. San Jacinto speech).

10th. They were not opposed to fighting, either one of the councils. It was merely a question whether we should attack them behind their works, or give them a reasonable time to attack us. I recollect that Major Wells was for attacking immediately, the balance of us were in favor of waiting a reasonable time for the enemy to attack, but all were determined to fight that day.

11th. Rusk was Secty. of War at the time the council was held and afterwards.

12th. I do not know of any one wishing a bridge built, – that question was not mooted in Council. I heard afterwards that Genl. Houston took some steps to ascertain the possibility of constructing one across Buffalo Bayou – not the San Jacinto. (See Capt. John Duncan’s letter in my defense.)

13th. I know the army was not averse to attacking the enemy on the 20th and 21st – but on the contrary were anxious to do so.

14th. I do not believe Rusk was opposed to fighting.

(Signed) C. S. Sherman

Burnet to Billingsley

Galveston, Oct. 24th 1859,
Hon. Jesse Billingsley, Dear Sir:

I address you by the special request of our mutual friend Genl. Sherman. His time is so incessantly occupied just now that it is impossible for him to do more than hastily respond to your interrogatoried — his answers you will find enclosed herewith.  And beside this I wish to say a word or two to you — That Gen. Houston’s last Senatorial speech is a tissue of shameless misrepresentations. I presume no respectable officer or soldier engaged in the Campaign of 1836 will venture to deny — that they ought to be corrected and the truth presented before the public is equally incontrovertible. The history of our late revolution has never yet been fairly and truthfully published – it is high time something of the kind was done or time itself will sanctify the many falsehoods that have issued from the press under the title of “Sam Houston and His Republic” and “Life of Gen. Sam Houston” and some other equally fulsome and ridiculous publications. I have made a small effort in this direction in the “Compendium of History” which you will find in the forthcoming Almanac. I prepared it under some disadvantages, having collected but few materials to sustain my statements. I believe I am generally correct and at least intended to be so. You have been in the army throughout the campaign, will detect any errors I may have committed. If there are any of importance, will you be good enough to inform me of them and of the truth in relation to them. If I have done injustice to anyone I would gladly acknowledge it and give the true version of the relative facts. If my life is spared, it is possible I may prepare the historical compend for the Almanac of 1861 — but whether or not, I can correct the errors of the one now in press, through the Galveston News and it may be transferred to the next Almanac. There are many little points in the events of ’36 that are still unexplained and I think it is the duty of every survivor of that interesting period to put on record such fact as may be within his own knowledge and are of sufficient importance to be noted.

There is one little transaction which I have never heard explained — it has figured in several publications and sounds pleasantly in Houston’s last speech in the U. S. Senate, but the authority is somewhat equivocal. I allude to “the blind woman with six children at the Navadad”. Major Hare (?) of the Colorado once made remarks in relation to this event but I cannot now lay my hand upon his letter and it was not a full account of the matter. Can you learn anything in detail from Parson Kinney (or Kinnsy), who I understand assisted the distressed family in escaping from the enemy. I would be pleased to get an authorized and minute account of that affair. A it now stands before the public it reflects credit on the conduct of the General and if the statements be true, in all conscience, let him have the credit in its fullest sense — but statements from himself are not always reliable.

The “Compendium” was finished and out of my hands before Gen. Sherman had received the many certificates contained in his pamphlet — if I had had them, I could have made a more satisfactory article, but it had to go with all its imperfections, as it was printed in New York and therefore I had no access to the manuscript afterwards. In your letter to Gen. Sherman, you say you had written a long letter to me and directed it to Oakland, Lavaca County. I regret not having received it — Oakland was the little home style of my late residence in Harris Cy., near the San Jacinto. This letter may be at Col. Turner’s Postoffice which is styled Oakland — but I should suppose the Colonel, an old friend, would have forwarded it to me.  Well, it is time for me to close – your patience will tire in the reading of my long epistle.

Very respectfully yours etc. (Signed) David G. Burnet

Sherman to Billingsley

Galveston, Jany 2, 1860
Capt. Jesse Billingsley, My dear Sir:

I requested Judge Burnet some time since to say to you that I would endeavor to find a copy of your account of the Campaign of 1836 and send it to you, but I find it impossible to procure one. I have it, but it is, like many other such documents which I value, pasted in a scrap-book and I cannot cut – without taking out an important article on the other side of the sheet. I trust you will be able to find it in the hands of some one who keeps a file of the News. You say you intend showing up “Old Sam” in his true colors before the Legislature adjourns. I most heartily wish you all success; you are so will posted, I know you can do it. I am not done with Houston yet. If I am not mistaken, he will hear from me, through a channel which he little dreams of. He was under the impression, when he made his speech in the U. S. Senate, he was beyond my reach, but time will show whether he was or not. Permit me, Captain, to ask you to look into the merits of the case of my old friend Genl. L. Combs, of Kentucky, and if you can, after examining it, find it consistent with your ideas of justice to aid him in getting his claim through the Legislature, it would make me extremely happy. The General at an early day, and up to the present time, has been a true friend to Texas, and I would like to see justice done him. In great haste, I remain,

Truly you friend, C. S. Sherman  sdct

The San Jacinto Trip

by Norman Murphy
While flannelled fools disported themselves in Houston, those of more serious purpose took ourselves off to the San Jacinto battlefield, some twenty miles away.
The obelisk on the site is 570-feet high, 15 feet higher than the Washington monument but, as the local guidebook says, ‘this IS Texas’.
The battle of San Jacinto, which finally won Texan independence from Mexico, took place here on 21 April 1836, when Sam Houston’s small force routed the army of Santa Anna, the Mexican dictator.
We enjoyed the film show and the exhibits in the glass cases around us but the highlight was the expert Bill Rudersdorf had organised for us. A direct descendant of Captain Jesse Billingsley, a hero of the battle, he arrived wearing the uniform of a Texan soldier from the period. He looked magnificent. Slouch hat, full suit of fringed buckskin, long flintlock rifle, foodbag slung over his shoulder, enormous Bowie knife, large and small powder flasks – the full regalia. He took us through the background of the period and the battle itself, pointing out where the opposing forces had camped and the route of the Texan advance.
What enthralled us most was his demonstration of what he wore and carried. Selecting a sharp pointed stick, he asked one of our number to try and force it though the buckskin he wore. A tentative embarrassed prod turned into a less reluctant good hard push but the buckskin resisted them both. (Unable to believe my eyes, I tried as well but to no avail. The British army has been looking for material like this for centuries!) He showed us the fearsome Bowie knife, the contents of his small pack and demonstrated the loading drill of his long flintlock (fine powder from the small powder-horn for the flash-pan; coarser powder, wadding and ball for the barrel). With a rifled bore, and a surprisingly good balance for its length, it was far more accurate than the smooth-bore muskets used by the Mexicans and was lethal at four times their range.
It was a splendid trip and one Wodehousean at least went back to the UK with a note to amend his various dictionaries of quotations. I have known the famous battle-cry “Remember the Alamo” all my life but none of my dictionaries could tell me who said it first. At San Jacinto, I learned the answer – Captain Jesse Billingsley. A long way to go to verify a reference, but worth every mile.
Norman Murphy

THE HORIZONTAL DOUBLE DUMMY. HOW TO MINIMIZE TAX EFFECT OF SALE OF BUSINESS

Sunday, March 18th, 2007

How did McClatchy get that $160 million tax break when it sold the Minneapolis Star-Tribune last week? Turns out it’s thanks to a little-used type of merger that’s pretty smart. 

 

 

TEXT OF INTERVIEW 

 

SCOTT JAGOW: Last week, the McClatchy newspaper chain sold the Minneapolis Star-Tribune to a private equity firm. McClatchy’s getting a lot less than it paid for the paper a few years ago, but it’s also getting an unusual tax break. Newsweek’s Allan Sloan has been snooping around trying to figure out how McClatchy did it. Alright, Allan, what’d you find out? 

 

ALLAN SLOAN: I found out it’s because of something called a horizontal double dummy. 

 

JAGOW: I’m sorry, horizontal double dummy? 

 

SLOAN: Yes. I can see that you are not into tax law Scott. More the pity . . . 

 

JAGOW: No that could be safely said. OK. 

 

SLOAN: A horizontal double dummy is a term of tax art for a transaction where company A takes control of company B but instead of using a standard thing where the companies merge, you keep the companies separate and you have two, I guess, double companies and it’s what’s called in the trade a horizontal merger. So you have a horizontal double dummy which allowed McClatchy to add a billion dollars to the cost of the Star-Tribune for tax purposes, whereas had it done a normal transaction back in 1998 when it bought the Star-Tribune it wouldn’t be able to get a tax loss. 

 

JAGOW: So is this a common thing? Do a lot of companies use this or no? 

 

SLOAN: It’s not common. And the more I look into this, the more surprised I am that it’s not common because if you’re doing a corporate takeover transaction where you’re paying any significant amount of cash as part of what you’re paying, the double dummy gives you much more flexibility around certain problems. It’s just very interesting that years and years ago when almost nobody was paying attention, McClatchy did this double dummy thing which now saves them $160 million and I just found it because I was frustrated. I couldn’t understand why it was that McClatchy was getting a big tax deduction when I knew if the New York Times sold the Boston Globe, which is now worth maybe half of what it paid, it wouldn’t get a tax deduction and if Tribune sold the L.A. Times, they wouldn’t get a tax deduction. And you know I looked at the contract and I asked a fellow at Lehman Brothers, Bob Willens, why this was and he looked at it and in about 12 seconds said, ‘well it’s a horizontal double dummy.’ 

 

JAGOW: Of course! 

 

SLOAN: Everybody knows that. 

 

JAGOW: Thanks a lot Allan. 

 

SLOAN: You’re welcome, Scott. 

 

JAGOW: Allan Sloan is the Wall Street editor for Newsweek Magazine. In Los Angeles, I’m Scott Jagow. Thanks for listening and have a great Monday. 

 

CAMERA ANGLE OF TAPED CONFESSION CAN INFLUENCE VIEWERS OPINION. STUDY RECCOMENDS TAPING BOTH SUSPECT AND INTERROGATOR

Sunday, March 18th, 2007

TIME MAGAZINE ARTICLE: March 19, 2007-

Researchers have noted that Criminal Justice has a spotty record when rating sound science. Most cops stick to traditional lineups, for instance, despite studies showing that they lead witnesses to make more mistaken ID’s than line ups showing suspects and ringers one at a time. Now officials have a chance to adopt a better way to tape confessions—but aren’t exactly seizing it.

Just over 500 police and sheriff’s departments now record confessions, says Steven Drizin, Director of the Center on Wrongful Convictions at Northwestern University School of Law, with all those in Alaska, Minnesota and several other states requiring it at least for felonies, but according to a growing body of research, not all recording is of equal value.

When a camera shows only a suspect face, studies show potential jurors are more likely to believe the confession was voluntary and the suspect guilty than when it shows the faces of both suspect and interrogator. Now there is even more bad news. Even judges with years of experience can be biased by camera angle, deeming confessions voluntary that were actually coerced.

Since a confession can be introduced at trial only if a judge rules it voluntary, taping may not reduce the use of false confessions as much as hoped.

In the latest study, psychologist G. Daniel Lassiter and his colleagues at Ohio University showed mock confessions to 21 judges. The judges assed the mea culpas as more voluntary when the camera focused on the suspect alone. “Expertise provides no defense against the influence of camera perspective?, the scientists concluded in a paper in Psychological Science.

U.S. NOW HAS 54 IMMIGRATION COURTS

Sunday, March 18th, 2007

See a listing of addresses at:  http://www.usdoj.gov/eoir/sibpages/ICadr.htm
The U.S. Department of Justice says the United States now has 54 immigration courts.
“.. (we wish) to make this easier for those individuals who have notices to appear before immigration judges? to get to the hearings.?
An immigrant ends up in immigration court if the Department of Homeland Security accuses the person of violating immigration law.
Homeland Security gives the immigrant a notice to appear in immigration court. There, a judge decides whether the immigrant should be removed from the country.
. About 220 judges decide cases at the 54 courts.
The courts closest to Kentucky are in Cleveland, Memphis, Chicago, and Arlington, Virginia