Archive for December, 2007

The most important habeas corpus case in modern history

Sunday, December 23rd, 2007

By Andy Worthington, AlterNet. December 24, 2007.

The Supreme Court’s decision in June 2004 has been undermined twice by Congress in the intervening years.
The recent Supreme Court showdown over Guantánamo was billed as “probably the most important habeas corpus case in modern history,” according to Law.com, and “the most important civil liberties case of the past 50 years,” according to the Center for Constitutional Rights (CCR). This was no understatement. At stake was the validity of the administration’s novel contention, first formulated in November 2001, that it can seize foreigners anywhere in the world, designate them as “enemy combatants” — rather than as criminals or prisoners of war — and hold them indefinitely, without charge or trial.

 

The very fact that the Supreme Court was discussing the detainees’ rights at all was, in itself, astonishing. Three and a half years ago, in June 2004, the court ruled in the case of Rasul v. Bush that Guantánamo — chosen as a base for the prison because it was presumed to be beyond the reach of U.S. courts — was “in every practical respect a United States territory” and that the detainees had the right to challenge the basis of their detention, under the terms of the 800-year-old “Great Writ” of habeas corpus, which prohibits the suspension of prisoners’ rights to challenge the basis of their detention except in “cases of rebellion or invasion.”

 

In spite of this ruling, the detainees were not granted impartial hearings in a U.S. court. Instead, they were subjected to military reviews at Guantánamo — the combatant status review tribunals (CSRTs) — which were a lamentable replacement for a valid judicial challenge. Although the detainees were allowed to present their own version of the events that led up to their capture, they were not allowed legal representation and were subjected to secret evidence that they were unable to see or challenge.

 

In June this year, Lt. Col. Stephen Abraham, a veteran of U.S. intelligence, who worked on the CSRTs, delivered a damning verdict on their legitimacy, condemning them as the administrative equivalent of show trials, reliant upon generalized and often “generic” evidence, and designed to rubber-stamp the detainees’ prior designation as “enemy combatants.” Abraham’s testimony was filed as an affidavit in Al Odah v. United States, one of the cases considered by the Supreme Court last week. It was regarded by legal experts as the trigger that spurred the Supreme Court, which had rejected an appeal on behalf of the detainees in April, to reverse its decision (an event so rare that it last happened 60 years ago) and to agree to hear the cases.

 

To complicate matters, the Supreme Court’s decision in June 2004 has been undermined twice by Congress in the intervening years. In the fall of 2005, the flawed Detainee Treatment Act (DTA) was passed, which, in brief, limited any review of the detainees’ cases to the D.C. Circuit Court (rather than the Supreme Court), preventing any independent fact-finding to challenge the administration’s allegations and mandating the judges to rule only on whether or not the CSRTs had followed their own rules, and whether or not those rules were valid.

 

In the fall of 2006, following a second momentous decision in the Supreme Court, in Hamdan v. Rumsfeld, in which the justices ruled that the proposed trials by military commission for those held at Guantánamo (which also relied on the use of secret evidence) were illegal under domestic and international law, the even more flawed Military Commissions Act (MCA) was passed by a barely sentient Congress.

Instantly reviled by concerned lawyers and human rights activists, the MCA reinstated the military commissions and also comprehensively stripped the detainees of their habeas corpus rights, stating, explicitly, “No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” In a further attempt to stifle dissent, the MCA defined an “enemy combatant” as someone who has either engaged in or supported hostilities against the United States, or “has been determined to be an unlawful enemy combatant by a combatant status review tribunal or another competent tribunal established under the authority of the president or the secretary of defense.”

 

With the justices of the Supreme Court not due to deliver their verdict until spring 2008 at the earliest, working out what happened last week has involved experts — and those less qualified — analyzing their comments during the two-hour hearing, and extrapolating from legal precedents to draw tentative conclusions about which way the judicial axe will fall.

 

A recording of the oral argument is available here, but for those who have neither the time nor the ability to understand references to a bewildering array of ancient precedents, I shall attempt to summarize the main points. One of the clearest analyses was made by Wells Dixon of CCR, who explained in a column for Jurist that the main claims made on behalf of the detainees — delivered by former Solicitor General Seth Waxman — are that they have a constitutional right to habeas corpus because they have “all have been confined for six years without meaningful notice of the grounds for their detention or opportunity to challenge those grounds,” because the DTA, and its interpretation by the District Court, allows them “no prospect of that opportunity,” and because “all of the prisoners claim they are innocent of any wrongdoing.”

 

In Wells Dixon’s opinion, a majority of the nine justices “appeared to agree with Seth Waxman that the threshold question of whether the prisoners in Guantánamo have a constitutional right to habeas” had already been decided in June 2004, a judgment which, if confirmed, will have the knock-on effect of indicating that the habeas-stripping provisions of the MCA — which were supposedly justified through an interpretation of Rasul as a statutory issue, rather than a constitutional one — were in fact unconstitutional.

Dixon explained that, following questions from Chief Justice John Roberts and Justice Antonin Scalia, the government’s representative, current Solicitor General Paul Clement, claimed that the detainees had no rights under the DTA and the MCA, because they were noncitizens held outside the sovereignty of the United States, but that most of the justices “seemed to reject that argument.” Justice David Souter, for example, remarked that the court was “past that point” and that the government was attempting to reargue Rasul, and Justice Ruth Bader Ginsburg “noted that the lease agreement granting the United States exclusive jurisdiction and control over Guantánamo was not something that Congress had changed by enacting the DTA … and MCA.” Specific mention was made of an extraordinary section of the MCA, which sneakily purported to reverse Rasul by excluding Guantánamo from the definition of territory constituting the United States.

 

With the detainees’ constitutional right to habeas corpus apparently established through these exchanges, Waxman declared that the principal question facing the court was whether the DTA’s “limited review” of the CSRTs provides “a constitutionally adequate substitute for habeas.” Waxman argued that it did not, insisting that the CSRTs were “structurally flawed and incapable of being cured through DTA review.” He cited, as an example, the case of Murat Kurnaz, a German resident who was released from Guantánamo in August 2006, but whose detention had been justified because of a claim that he was affiliated with Selçuk Bilgin, an alleged suicide bomber. When Kurnaz was finally allowed access to lawyers, his legal team was able to establish, in just 24 hours, that the “suicide bomber” was actually alive and well and living in Germany, and had, moreover, never been involved with terrorism. This exculpatory evidence was not included in his CSRT, however, and Waxman pointed out that the limited review allowed by the DTA explicitly prevented its disclosure.

 

Waxman could have added that Murat Kurnaz was not the only detainee whose innocence was established by lawyers working outside the narrow parameters of the CSRTs and the DTA review process. To cite just one example, an allegation that the Moroccan chef Ahmed Errachidi (released in April 2007) attended an al Qaeda training camp in August 2001 was dismissed only when his lawyers investigated his story independently and were able to confirm that, as Errachidi had maintained all along, he was working as a cook in a hotel in London’s Bond Street when he was supposed to have been wielding a Kalashnikov in Afghanistan.

 

According to Wells Dixon, several of the justices were as skeptical of the DTA’s “limited review” of the CSRTs as Seth Waxman. Justice John Paul Stevens “questioned the neutrality of CSRT participants and the prisoners’ lack of counsel during the hearings,” and Justice David Souter “questioned whether meaningful DTA review is possible because the CSRT panels were not neutral and had denied prisoners the remedy of release,” Dixon stated. Citing an issue raised by Abraham in his affidavit — and demonstrating quite how significant Abraham’s testimony was — Souter referred to the case of Ali, one of 22 Uyghurs at Guantánamo (Muslims from the persecuted Chinese outpost of Xinjiang province), who was subjected to a second CSRT after his first cleared him of being an “enemy combatant.” He might have added, as I reported here, and as Abraham made clear, that the same thing happened to Abdul Hamid al-Ghizzawi, a Libyan shopkeeper, and that lawyers for the Uyghurs have pointed out that repeat CSRTs were conducted in the cases of two more of their clients.

 

What happened next was reported by NPR’s Nina Totenberg. Focusing on the detainees’ claims that they are innocent, Justice Stephen Breyer asked where, in the current appeals process, a detainee could make this claim. “I’m not sure that he can make that argument,” Clement replied. “If he cannot make that argument,” Breyer continued, “then how does this become an equivalent to habeas, since that happens to be the argument that a large number of these 305 people (the remaining detainees) would like to make?” Clement then said that prisoners of war had never had the right to challenge their detention through a habeas corpus petition in the U.S. courts, prompting Justice Souter to respond, “The problem with your prisoner-of-war point is, the United States is not treating them as prisoners of war. That argument, on the government’s part, is entirely circular.”

 

From here, the justices moved on to discuss, as Wells Dixon described it, “whether DTA review, if found to be a constitutionally inadequate substitute for habeas, could be cured of any defect by the D.C. Circuit.” The issue was raised by Justice Anthony Kennedy, whose vote, as Dixon noted, “will likely be critical to the prisoners’ challenge.” He added that, at this point, the government appeared “almost to abandon its argument” that the detainees “have no constitutional right to habeas,” asking the justices to remand the cases to the D.C. Circuit Court, and to “allow that court to supply any constitutionally required guidance to the CSRTs.”

 

As the prospect of more long years of legal maneuvering loomed, Justice Breyer cut short a potentially meandering discussion by pointing out, “Habeas is supposed to be speedy, and yet people have serious arguments that they’re being held for six years without even having those arguments heard. Is there anything, in your opinion, that this court could say by way of remedy that could get the D.C. Circuit or the others to decide this and the CSRT claims — there are 305 people — [and] to do this quickly in a matter of months rather than six more years?” The Supreme Court, Clement replied, could instruct the lower court to expedite the appeals process, but Justices Kennedy and Souter observed that, according to the statute passed by Congress, they had no jurisdiction in these cases. “How can we say that?” Justice Souter asked. “Your position is that we have no jurisdiction here. If you win, we never get to these issues.”

 

While observers concluded from the hearing that the justices appeared to be split 4-4, with Justices Clarence Thomas and Samuel Alito joining Chief Justice Roberts and Justice Scalia on the government’s side, and Justice Kennedy holding the tie-breaking vote, it seems to me that Kennedy’s opinion about the sidelining of the Supreme Court with regard to its lack of jurisdiction could swing the decision in the detainees’ favor, although whether the administration would respond honorably remains to be seen.

 

A hint of what may come occurred during the hearing after Justice Alito asked, “If the court holds that the DTA is not an adequate substitute for habeas, what will happen? Will these petitioners then have access to all of the procedures that normally apply in habeas proceeding under [Section] 2242 [of the Judicial Code]? The same right to discovery, subpoena, witnesses, access to classified information, presence in court?” In response, Paul Clements stated, “The government will certainly take the position that they are not entitled to those things. Presumably, the petitioners will be arguing that they are entitled to those things. And there will be difficult questions that will need to be worked out.”

Noticeably, however, the warning bells triggered by this comment are nowhere near as disturbing as the implications of a comment made by Justice Breyer, the maverick who gave the go-ahead for the MCA by pointing out, during the Hamdan judgment, that “Nothing prevents the president from returning to Congress to seek the authority he believes necessary” to reinstate the military commissions. Seemingly offering the government another escape route from the self-made hole into which it has dug itself over the last six years, Breyer mentioned on three separate occasions that it might be possible for Congress to enact a law that would provide a rock-solid basis for holding the detainees indefinitely without trial, under “some special statute involving preventive detention and danger, which has not yet been enacted.”

 

While Justice Breyer’s comments seem, pragmatically, to be directed at those detainees — perhaps the 80 proposed for military commissions, perhaps more — whom the administration will he hoping to keep “out of the loop” should the Supreme Court rule in their favor, the very idea that “preventive detention” could be enshrined in law to replace the dictatorial lawlessness of the last six years is enough to send a shiver down the spine of anyone who realizes what its introduction would actually mean: destroying 800 years of law in a manner that is even more chilling than the denial of habeas corpus, by attempting to justify the imprisonment of people not for what they have done, but for what they may do in the future. It doesn’t even bear thinking about.

MANY COUNTY LAW LIBRARYS ARE NOT FULFILLING THEIR DUTIES – Current Law has allowed audit free county law libraries to build large bank accounts instead of providing resources.

Sunday, December 23rd, 2007

 

-The number one rule of all bureaucratic agencies is to not accumulate large accounts of excess funds, because when they are discovered, the Legislature will seize them and put them where they are needed and appreciated-
 

By LawReader Senior Editor Stan Billingsley- Dec. 24, 2007
 

Ky.  law has long mandated the creation of a County Law Library in each Kentucky county. While many counties are doing an excellent job in fulfilling their duties, many others are hoarding their funds, limiting access to their resources, and not accounting for their stewardship of public funds. The County Law Library in most counties is not publicized, is restrictive in allowing public access, and the majority of library committees are ignoring several laws.
 

Each County Law Library is given a check by the Circuit Clerk each month, and the Law Library Committee is free to purchase legal research resources as they choose.  These funds are generated by a case filing fee tax imposed in all cases coming before the states Circuit and District courts.  The only restrictions imposed on the use of county library committees are that they are mandated to make the library resources available six days a week, to the bar and local and state public officials.  The Treasurer is required to annually file a financial report to “the circuit judge? showing their income and expenditures. 
 

Some County Law Libraries have ignored the legal obligation to file an annual accounting report. Circuit Judges are often surprised to learn that the Library Treasurer is required to file with them an annual financial report. Even when these reports are filed, there is no guidance in the law that requires that the report be made public nor is any guidance given to the circuit judge as to his authority to monitor these funds.
 

There is no single source of information regarding the amount of the case fee tax collected, the proper handling of these funds, the expenditure of these funds, or the bonding of the Treasurer.  There is no state body which has the responsibility to audit these funds.  Each county conducts its law library operations pretty much as it wishes and out of the public glare.
 

An anecdotal estimate of excess funds being held by the various county law library committees suggests that over $1,000,000 is being hoarded in the bank accounts of the 120 library committees.  This suggests that in many counties the law library committee has not found a ready use for these new funds, and has no desire to provide resources for the local public library and the general public, even though they clearly have the funds to do so.   The number one rule of all bureaucratic agencies is to not accumulate large accounts of excess funds, because when they are discovered the Legislature will likely seize them and put them where they are needed and will be appreciated.
 

We suggest that the tax does not provide more funding then these libraries need, but it does suggest that the majority of county law library committees have not used these funds as well as they should have.  Even with the increase in funding occurring as the result of the 2005 tax increase, many of the smaller county libraries are unable to fund a first class law library containing hard bound books.  Nevertheless, even the smallest county is able to provide excellent legal research services by use of online legal research resources (such as LawReader provides).
 

One typical judicial district made up of three counties having a combined population of 41,000, has reported $100,000 in their combined bank accounts.  These funds are kept in checking accounts and if they earn any interest it is a minimum amount. Most of these libraries do not have any labor costs, nor do they have to pay for their space in the Courthouse.  The only use designated from these funds is the purchase and maintenance of legal research resources.  It should be noted that the $100,000 retained by those three counties studied, was the amount of funds left over after they had paid all their current bills.
 

These excess funds have been largely collected in 2006 and 2007 and can be expected to continue to grow if current management practices remain in effect.
 

The Law Library statutes (KRS Chapter 172) were passed over fifty years ago and few counties had more than one circuit judge at that time.  The annual financial report does not specify that the report is to be filed with the “Chief? circuit judge, it only requires that the report be filed with “The? circuit judge. There is no requirement in the law that the circuit judge forward this report to anyone or to share this report with anyone, and there is no requirement that the circuit judge review or approve this report.
 

One might logically think that the Administrative Office of the Courts would be empowered by law to monitor and audit the handling of the funds required to be collected by and transferred from the Circuit Clerk to the Law Library committee.  However, the law does not give this authority to AOC.  While the Judiciary collects the law library tax on cases filed in the courts, and the Circuit Clerk is required to pay these funds to the law library committee, and the Circuit Clerk is designated as the Librarian, the Circuit Clerk has no control over the expenditure of these funds, and no statute permits them to audit or question the handling of these funds.
 

The structure of the Law Library statutes provides an argument that the Law Library is an Executive Branch agency and should be audited by the State Auditor.  However the State Auditor’s Office has reported to LawReader that they do not audit the County Law Library when they conduct their county audits.
 

The result is that the law library committees have remained unaudited for the 65 years (since the adoption of Chapter 172 in l942).  Currently, an estimated $3 million dollars a year of tax funds are earmarked to be collected by the Circuit Clerks and turned over to the 120 county law libraries.
Therefore, the current practice throughout the state is that only the committee members handling these tax funds are accountable for their expenditure.   The law does require that the treasurer be bonded, but there is no central registry of these bonds, and no reporting requirement other than a report to the circuit judge.  The financial report required of the Treasurer does not specify that they provide the circuit judge with proof of the their bond. Although nothing would prevent the circuit judge from demanding proof of the existence of the bond.
 

An argument could be made that the Legislature, having designated the Circuit Clerk’s office to collect these taxes, go a step further and mandate that AOC receive the annual financial report and audit the expenditure of funds, and monitor the bonding of Treasurers..
 

Some have advanced a suggestion that AOC should collect these funds, and then parcel them out among the various counties to equalize the resource among the smaller counties. The current structure creates a rags and riches system, where large counties do very well, and the smaller counties just scrape by.  One benefit of the current system is that counties that do a good job in collecting the fees do better than the counties that do a poor job in collecting the fees.
 

The Legislature has recently increased the income for County Law Libraries, then it permitted them to share their resources with the local public library in order to allow more people to benefit from this tax.  It is altogether reasonable to assume that in the future the Legislature will review how well the various library committees have stewarded their resources to benefit the public good.  The need for the legislature to review  the lack of any procedure for auditing the handling of these funds appears obvious.
 

Chapter l72 allows a role for Fiscal Courts to play in the Law Library, but Chapter 172  allows an alternative funding method which removes the Fiscal Court from any specific management responsibilities.  We are not aware of any county that has not elected to be funded through the “alternative? method.  The “alternative? method allows a tax to be collected on each case filed in the local courts, and this method provides that a Law Library Committee is created and that a three person committee manages the library and expends the funds.
 

One source who spoke with us expressed concerns that there may not be proper documentation maintained by many county law libraries which would prove they had properly elected to operate under the “alternative? method of financing.
 

Until 2005, the tax generated by case filing fees was only a few thousand dollars a year for most counties.  Many counties received less than $5000. Only the two largest counties raised enough money to hire an employee or maintain space outside the courthouse.  However, in 2005 the Legislature substantially increased the amount of the tax on case filings, and by 2006 the funds generally tripled in most counties. (Now only Robertson County  receives less than $3000 a year from this tax.) 
 

The legislature followed the 2005 tax increase for law libraries by providing them the option to share some or all of their resources with the local public library.  This new legislation specifically allows use of internet based resources.  The development of the internet now gives every law library the opportunity to provide a complete law library resource.  The cost of this option is only a fraction of the sums now paid to the law library by the Circuit Clerk.  Online services reduce the need to maintain hard bound books, reduces the need for physical space in the courthouse, and eliminates the problem of theft of these books.  LawReader has instituted a pricing system that allows every county in the state (even Robertson County) to maintain a complete online law library within their resources provided by the current tax.
 

A number of libraries have taken advantage of this option and are now funding subscriptions for online legal research resources for the courthouse, the local public library, and also for local judges and prosecutors.  Less than 15% of the County Law Libraries have recognized the opportunity for sharing suggested by the Legislature and chosen to share resources with their local public library. 
 

The use of online services placed in the local public library also allows the law library committee to comply with the provision of Chapter 172 that requires these services to be made available six days a week.  Almost all Circuit Clerk Offices (and courthouses) are currently closed on weekends and those county law libraries  which do not share resources with the local public library, are clearly in violation of this law. 
 

Access to most County Law Libraries is controlled by the user having to go to the Clerk’s office and requesting a key.  We find most counties virtually hide these books from the public. Even lawyers find it sometimes difficult or impossible to access these existing resources.  The Circuit Clerk is responsible for the security of the books, but there is not enough funding for a full time employee to stay in the room designated as the County Law Library. 
 

Most counties provide one locked room, or a conference type room shared by other workers, or sometimes resources are placed in the clerks offices where the public is not welcome behind the front desk.  Some counties place their existing library books inside of jury rooms, and this raises the potential issue of deliberating jurors accessing these books and ignoring the jury instructions.
 

The funding actually provided to each county is a number that is known only by the local law library committee, the circuit clerk (and presumable one of the local circuit judges). There is no central reporting repository.
 

LawReader has reviewed the criteria upon which the tax is calculated (case filing fees) for each county, and applied the applicable tax rates. LawReader then reduced this amount by 20% to reflect uncollectible fees.  That practice suggests that the total income generated from the new case filing tax is $2,950,000.  This amount could vary if the collection efforts of individual counties are greater/lesser than 80% of eligible fees.
 

The LawReader study estimates that in Jefferson County the library funding provided by the 2005 legislation is estimated to exceed $618,000 a year.  Fayette County should be collecting $211,000 a year.
 

Other large counties potential tax income:
 

Kenton County $98,000, Warren County $81,000 Daviess County $58,000, Campbell County $57,000, Boone County $56,000, Hardin County $54,000, Madison County $54,000, Pike County $50,000, McCracken County $44,000, Henderson County $42,000, Harlan $38,000, Pulaski County $38,000.
 

Thirty-five counties receive more than $20,000 a year. 
 

The average tax for all 120 counties is $24,583.
 

The average tax generated for all counties (minus Jefferson and Fayette which are so large they skew the figures) is $17,974 a year. 
 

In thirty-one medium sized counties the average annual income is $10,000 to $15,000  a year. 
 

Forty-one counties receive less that $9000 a year.
 

Only one county receives less than $3000 a year. Robertson County, the states smallest county, with a population of only 2250 receives an estimated $750 a year in library funding.
 

A complete online law library license, based on a counties population, can be purchased for less than the income generated by every county.
 

Authorities:
 

CHAPTER 172 COUNTY LAW LIBRARIES  statutes re: County Law Libraries
 

In 2005 legislation was adopted that increases funding for County Law Libraries. This law is codified at KRS 453.060.
New Legislation adopted in 2007 allowing sharing of Library resources with Public Library:
KRS 172.100 County law library — Location — Books — On-line legal resources.
(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, 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.

 

Effective: June 26, 2007
History: Amended 2007 Ky. Acts ch. 35, sec. 1, effective June 26, 2007. — Recodified
1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2438c-
8.

Attorney General-Elect Conway Names Dana Mayton as Deputy Attorney General

Friday, December 21st, 2007

Dec. 21, 2007

Attorney General-Elect Jack Conway announced that he has named Dana Bynum Mayton to serve as Deputy Attorney General, the top appointed position in his office, effective in early January. 

 Mayton is currently Associate Vice-President for Governmental Relations and Special Assistant to the President at the University of Louisville.  Prior to joining U of L, Mayton was the Secretary of the Revenue Cabinet.  She was appointed to that position by the Governor after serving in various roles at the Revenue Cabinet, including Commissioner of the Department of Law.

 “Dana has a unique set of skills that make her a perfect fit for this particular position,? Conway said.  “She has been a litigator, general counsel, cabinet secretary and university administrator, and she has earned a reputation for working well with members of both political parties.  I feel fortunate that she has agreed to serve the Commonwealth as our Deputy Attorney General.? 

 The position of Deputy Attorney General is created by KRS 15.100, which states that the individual “shall have the same qualifications required of a Circuit Judge except for residence in a district and who shall receive the same salary as a Circuit Judge.?

 Mayton and her family reside in Shelbyville. 

  

Grant County Attorney Ed Lorenz has announced his retirement.

Friday, December 21st, 2007

Dec. 21, 2007

LawReader has received a report from two Grant County sources that confirm that Ed Lorenz has given notice of his retirement to be effective Jan. 6th.  He was re-elected to a four year term a year ago.  Lorenz was quoted by one of his associates as saying he wanted to spend some time traveling and enjoying a “sabbatical?.

The County Judge-Executive is designated by law to fill any vacancies pending a general election to fill the office. Lorenz’s deputy Jack Gatlin is said to have been reccommended by Lorenz to be appointed.

Surrogate mom loses Supreme Court appeal. Provider of eggs wins custody.

Thursday, December 20th, 2007

by Reginald Fields December 20, 2007

A Pennsylvania woman who reneged on a surrogate pregnancy contract does not have parental rights over the triplets she bore, the Ohio Supreme Court ruled Thursday.

In a divided 4-to-3 opinion, the court said the woman, who carried three eggs supplied by another woman and fertilized by a Kirtland father, said parental rights over the children born in November 2003 belong to the man and the woman who provided the eggs.

The surrogate mother, Danielle Bimber, and the father, James Flynn, struck a deal in which he would pay her $20,000 plus expenses to carry three eggs that were supplied by another woman and fertilized in vitro with his sperm.

In return, Bimber would agree to give up custody of the children immediately after birth. If she didn’t, she’d have to repay the money and never hold him responsible for support of the children.

But after delivering the children, Bimber refused to give up custody. Flynn sued in

Summit County Common Pleas Court

for breach of contract.

 

The trial court sided with Bimber saying the contract was unenforceable because state law does not allow a parent to litigate away their parental responsibilities.

An appeals court overturned that ruling, saying Bimber is not a recognized parent for the triplets and that Flynn and the woman who supplied the eggs are.

At issue for the Supreme Court was whether the contract itself was legal and it upheld the appeals court ruling that said it was. A Pennsylvania court last year awarded custody of the children to the father.

Flynn is a professor and chair of the department of Operations and Business Statistics at Cleveland State University.

New Jersey Ends Death Penalty

Thursday, December 20th, 2007

Michael Rispoli  Gannett News Service  Dec. 17, 2007
TRENTON – Gov. Jon S. Corzine signed legislation Monday ending capital punishment in New Jersey, making the state the first to legislatively do so since the U.S. Supreme Court allowed states to restore the penalty in 1976.

Advocates and legislators stood behind Corzine and applauded the new law, which replaces capital punishment with life in prison without parole. Corzine said the new law “best captures our state’s highest values and reflects our best efforts to search for true justice rather than state-endorsed killing.”

“It’s a day of progress for the state of New Jersey and for the millions of people across our nation and around the globe who reject the death penalty as a moral or practical response to the grievous, even heinous, crime of murder,” said Corzine, who said he signed the legislation “with pride.”

The New Jersey Death Penalty Study Commission concluded in a report issued in January that the penalty did not meet evolving standards of decency, that the state could not guarantee an innocent person would not be executed and that the unused law – no one had been executed in the state since 1963, even though it was reinstated in 1982 – was unfair for victims’ families seeking swift justice.

Fifty-two people have been sentenced to death in New Jersey over the last quarter-century, but most times those sentences were overturned. There were eight people on death row – one since 1983 – until Sunday, when Corzine commuted their sentences. Among the death row inmates is Jesse Timmendequas, a repeat sex offender who committed a crime in 1994 that eventually led to the passage of Megan’s Law.

Celeste Fitzgerald, director of New Jerseyans for Alternatives to the Death Penalty, the main grassroots organization pushing for the repeal, said the new law would ensure “justice is swift and certain.”

Both the Senate and Assembly passed the law last week during the lame duck session, although a recent Quinnipiac University poll found New Jersey voters spilt on the repeal. The poll also showed 78 percent of voters supported keeping the death penalty for the most violent of crimes.

Republican lawmakers were mostly opposed to the repeal, but the bill had a small measure of bipartisan support.

Assemblyman Christopher “Kip” Bateman, R-Somerset, a sponsor of the Assembly bill, said there was a push by some Assembly Republicans to make it a party position to vote against the repeal. Bateman said he was “not the most popular guy in my caucus.”

“They obviously didn’t like it, but there are some issues where you have to forget politics and go with your conscience,” Bateman said.

While most opponents of the new law agreed capital punishment in New Jersey was flawed, they criticized the repeal for being soft on murderers and argued to keep the death penalty for cop killers, terrorists and those who murder and rape juveniles.

Assembly Minority Leader Alex DeCroce, R-Morris, said the bill’s signing a week before Christmas is “a cause for shame.”

“At what should be a festive time of the year, I consider it abominable that the governor would repeal the death penalty for cold-blooded killers,” DeCroce said.

The inmates whose sentences were commuted will remain in “close custody” for now and away from the general prison population, said Department of Corrections spokeswoman Deirdre Fedkenheuer, adding that a decision on where to permanently house them has not been finalized.

The prisoners maintain their right to appeal their convictions. They do, however, lose the automatic review process built into New Jersey’s old capital-punishment law, which was put in place to take extra care in handling death sentences.

New Jersey becomes the 14th state without capital punishment. Several states have attempted but failed to abolish the law. New Mexico, Montana and Nebraska got similar bills to floor votes in their legislatures, but failed to pass them.

Shari Silberstein, co-director of Equal Justice USA, a national abolitionist group based in Maryland, said New Jersey’s step could have a domino effect as other states “see that it can be done.”

“To the extent that it is now something that is not a theoretical possibility but it’s actually real because it happened somewhere, that’s going to be a little easier for states that are close or who wanted to do it,” Silberstein said.

New Jersey handed down 60 death sentences to 52 people from 1982 through 2004, the most recent death-penalty verdict. None of those people were executed, though three died while on death row.

From 1907 to 1963, when capital punishment was abolished nationally for a time, New Jersey executed 160 inmates, according to the Department of Corrections.

 

 

A MUST READ LETTER TO THE COURIER-JOURNAL: SILENCING NURSES ENDANGERS PATIENT CARE

Thursday, December 20th, 2007

by Kay Tillow Director of Organization
Nurses Professional Organization/CNA/NNOC
Louisville 40202 reprinted in full and with Ms. Tillow’s permission

The results of the studies have been released and they prove what every hospital nurse knows from experience. Understaffing endangers patients.

For each additional patient assigned to an RN, the likelihood of death within 30 days increases by 7 percent. Four additional patients increase the risk by 31 percent (JAMA, 10/22/02).

In 1989 Louisville nurses formed the Nurses Professional Organization with the goal of organizing their union so that they could win better staffing and conditions for their patients and themselves.

The nurses took on the giants of corporate health care. Staff nurses stood their ground before high salaried CEOs, anti-union consultants, and supervisors who, under threat themselves, threatened the jobs and licenses of nurses who continued to speak up. Nurses threw themselves into the struggle with hope. The hospitals hired consultants to spread fear.

By committing mountains of unlawful actions, Norton Healthcare as well as Columbia/HCA blocked the nurses’ efforts. But these powerful corporations did not violate the law unchallenged. In almost every case in which the NPO filed charges against the hospitals, the nurses won.

NPO nurses have exposed the understaffing, testified on patient care issues in Frankfort, won back the jobs of nurses unjustly dismissed, called in the state inspectors, testified before the JCAHO, spoken to the press, and kept alive the hope that staff nurses can organize and make things better. Bruised but never broken, the NPO has now won another victory.

The turtle’s pace of labor law enforcement in our nation allows employers to delay interminably. First Columbia/HCA, and then Norton Healthcare, stalled the progress for the 13 years since the 1994 election at Audubon. In August, the NLRB turned down Norton Audubon’s appeal of one of NPO’s cases.

In November, Norton Audubon paid over $171,000 to three nurses who were unlawfully denied positions. Nurses at Audubon and in Louisville now have a new opportunity to organize and to win the right to practice under truly professional conditions.

The Nurses Professional Organization has affiliated with the California Nurses Association/National Nurses Organizing Committee. This 75,000 strong organization has empowered nurses to win the best contracts and the best patient protections in the nation. CNA staff nurses used their power to advocate for patients. Now they have minimum staffing ratios in hospitals that are enforceable — written into both California law and into union contracts. No more than five patients per nurse on a medical/surgical floor. No more than two patients per nurse in Intensive or Critical Care. No more than four patients on a step down unit — advancing to no more than three in 2008. No more than four patients per nurse in ER; no more than two ICU patients per nurse in the ER — no more than one ER Trauma patient. No more than five patients per nurse in telemetry moving to no more than four in 2008. In addition, nurses must be increased above these ratios whenever acuity levels require. Plus the ratios apply on all shifts at all times including during lunch and breaks. (www.calnurses.org) Nurse power makes a difference.

Bringing good conditions to patients and nurses ends the nursing shortage. Actively licensed RNs in California increased by more than 60,000 following enactment of the staffing ratio law. Since the ratio law was signed, actively licensed RNs have grown by nearly 10,000 a year, compared to just 3,200 a year prior to the law. (Board of Registered Nursing data).

We cannot solve the nursing “shortage” in Louisville without solving the conditions that force good nurses from the bedside and from their chosen profession. Many can’t sleep after their 12-hour shifts for thinking about what almost happened and what could happen. The lack of organized nurse power to change these conditions and win truly professional standards of care and benefits has stifled health care progress in Louisville.

When Norton Healthcare, called Alliant at the time, purchased Audubon Hospital, there was an NLRB bargaining order in place. Norton Audubon didn’t sit down and bargain with the nurses. Instead Norton Healthcare spent our community’s health care dollars on a nine year oppositional path of challenges to NLRB orders and to nurses’ rights.

Among Norton Healthcare’s numerous unfair labor practices are: unlawful discipline for protected activity, unlawful termination, unlawful denial of a position, unlawful restriction of the right to distribute literature in the cafeteria and non-work areas, unlawful restriction of the right of a nurse to speak about the union in the break room, unlawful institution of a more restrictive distribution policy in response to a union campaign, unlawful attack on a nurse’s license, and unlawful interrogation.

The NLRB overturned the unfair election at Audubon Hospital and has ordered a new election. Audubon nurses are talking and organizing and will move forward to advocate for their patients and to build their union. Nurses across Louisville are once again hopeful. When nurses organize, the patients and the community are the beneficiaries. Silencing nurses endangers patients.

KAY TILLOW
Director of Organization
Nurses Professional Organization/CNA/NNOC
Louisville 40202

Author Don McNay of Richmond Discusses Gambling

Thursday, December 20th, 2007

Making gambling illegal was an attempt to protect people from themselves. It did not stop the tide but pushed it underground. Gambling for rich people, such as options  trading and sophisticated stock market games, have always been allowed.

Dec. 20, 2007   Excerpted from Don McNay’s column

My late father was a professional gambler. Towards the end of his life, he was active in helping at a soup kitchen in Cincinnati, which was run by the Sisters of Charity.

One day, as dad was dishing out food to homeless people, my father was approached by the Sister who ran the program.
“Joe,” she said, “What do you do for a living?”
“I’m a gambler,” replied my father.
“Joe,” she said “This is the first time we ever had a gambler on this side of the table.”

The key to my father’s success was that he was always on the house side of the table. He started in bookmaking, in the glory days of Covington and Newport, and moved into organizing junkets for Las Vegas casinos, when wide open gambling faded from the Northern Kentucky scene.

He understood that if the house has the odds in its favor long enough, the house will eventually and always win out. As he often noted, “You never see them tearing down a casino because people beat them out of money.”

First with lotteries, and now through video slots and casinos, governments realized that a very easy way to gain revenues is by allowing and sponsoring gambling.

The games that have been legalized, especially the lottery, bring in much of their income from those on “the wrong side of the table.”

 

Some European countries limit access to the casinos to those who prove they have sufficient assets. . Various forms of stock and option trading, which can be considered a more elite form of gambling, require that those who invest in those instruments have the net worth to survive a loss.

In my father’s era, bookmakers cut off bettors on losing streaks.  Las Vegas casinos carefully monitored their customers and cuts off their credit when they lose too much.

There have been few, if any, moves by states to monitor the losing of their lottery customers.

Legalized casinos, which have several games of skill and reasonable probability, gear most of their operations to the highly profitable  slot machines and video games.  

Lotteries have evolved from a form of gaming called “numbers,” formerly very popular in poor, urban neighborhoods. If you go into a grocery or liquor store in any poor neighborhood today, you will see people who can’t afford to lose even a few dollars, standing around playing scratch off lottery games until all of their money is gone.

I rarely if ever gamble. I can’t stand to part with my money on something that is such a bad bet.

My few trips to casinos have been bad experiences for the house. I bet very little and I am a terror at the low price buffet. I play high probability games and won’t go near a slot machine. I have a certain profit margin in mind and leave the second that I hit it. In short, I am a person casinos do not want to attract.

Making gambling illegal was an attempt to protect people from themselves.

It did not stop the tide but pushed it underground. Gambling for rich people, such as options  trading and sophisticated stock market games, have always been allowed.

When I passed the stockbroker’s test many years ago, I called my father and asked, “Why is futures trading legal but betting on the Bengals illegal?” There is no logical answer.

States like Kentucky are under a lot of pressure to legalize casinos and slot machines, and just like the lottery, they eventually will.

When casinos opened in nearby states, they started taking revenue from Kentucky’s racetracks and other forms of entertainment. Casinos understand their customers and have been introducing many new people to their games.

When legislators do expand legal gambling in Kentucky, someone must think about and speak out for the person on “the wrong side of the table.”

When I was growing up, my father would go around to the sleeping room hotels and give out bottles of low cost champagne at Christmas. Just like the patrons at the soup kitchen, many of those men were gamblers and often the bottle was the only gift they got.

Legalized state gambling is not responsible for most of these people being in these positions in life, but the state needs to take extreme care that they are not the reason we are keeping them there.

Don McNay is the author of Son of a Son of a Gambler:  Winners, Losers and What to Do when You Win the Lottery.    You can write to him at don@donmcnay.com or read his award winning column at www.donmcnay.com

Governor Beshear Appoints Charles Geveden Deputy Secretary of the Justice & Public Safety Cabinet

Thursday, December 20th, 2007

 

FRANKFORT, KY (December 19, 2007) – Governor Steve Beshear today announced the appointment of Charles Geveden, age 67, as Deputy Secretary for the Justice and Public Safety Cabinet. Geveden has spent the last three years as the Executive Director of the Office of Criminal Appeals at the Attorney General’s Office. 

“Charles’ qualifications and distinguished career in state government will make him a tremendous asset to the Cabinet,? said Beshear. “He has spent most of his career devoted to public service and I know he will continue to serve the people of the Commonwealth well assisting Secretary Brown in the Justice and Public Safety Cabinet.?

Geveden served 17 years in the Kentucky General Assembly representing House District 1, covering Ballard, Carlisle, Fulton, Hickman and McCracken Counties.  During his service as Representative, he chaired the State Government Committee and was a member of the House Judiciary Committee and the Economic Development Committee.  Geveden, who practiced law for 36 years in Wickliffe, served as Commonwealth’s Attorney for the First Judicial District prior to his years in the Legislature.

“Charles Geveden’s extensive background, leadership and experience make him the ideal choice for this position,? said Justice and Public Safety Cabinet Secretary J. Michael Brown.  “As a member of the Judiciary Committee in 1996, he was instrumental in the passage of House Bill 117, which established the Department of Juvenile Justice.  I am confident he will continue to serve the Governor and this Cabinet well.? 

“I am honored to be selected for this key role in Governor Beshear’s administration,? said Geveden.  “I appreciate the opportunity to serve as the deputy secretary for the Justice and Public Safety Cabinet, looking forward to working with the staff to make Kentucky a better and safer place to live.?

Geveden received a Bachelor of Arts from Vanderbilt University in 1962 and then his JD degree from University of Louisville School of Law in 1968.  He resides in Frankfort with his wife Patricia. 

  

N.Y. High Court Upholds 11-Person Jury Verdict in Criminal Case

Thursday, December 20th, 2007

 ”The number 12 has long been associated with trial by jury but no one knows why or when the common law settled on that figure,”

Joel Stashenko New York Law Journal  December 20, 2007

 
New York‘s Court of Appeals on Tuesday abandoned one of its oldest precedents by deciding that a jury with fewer than 12 members can return a valid verdict in a criminal trial in New York state.
The 5-2 ruling upheld Winston Gajadhar’s conviction for murder and attempted robbery by an 11-member Manhattan Supreme Court jury. Gajadhar requested that the 11 jurors decide his case after a 12th juror was hospitalized three days into deliberations, but he subsequently appealed his conviction as unconstitutional.
Tuesday’s ruling is counter to the court’s findings in the 1858 case Cancemi v. People, in which the court recognized the 12-member jury as the standard for criminal trials in New York. Cancemi came only 12 years after the formation of the court, and the issue had not been revisited until People v. Gajadhar, 166.
Amendments to Article 1, §2 of the state Constitution and court rulings interpreting the evolving text of the section have made it clear that defendants in non-capital cases can consent to having juries smaller than 12 members decide their cases, the majority found Tuesday.
“The 1938 constitutional amendments clearly dispelled the notion that a defendant cannot consent to an alteration of the common-law jury of 12 in a noncapital criminal case,” Judge Victoria A. Graffeo wrote for the majority in Gajadhar. “Since the waiver language in Article 1, section 2 for civil cases permits juries of less than 12, unlike the dissent, we are not persuaded that the identical language, when applied to criminal cases, prohibits a defendant’s waiver allowing deliberations to continue with 11 jurors.”
The two dissenters, Judge Carmen Beauchamp Ciparick and Chief Judge Judith S. Kaye, are also the longest-tenured members of the Court of Appeals. Ciparick wrote that Cancemi (18 NY 128) “remains good law.”
“A defendant exercising the right to a trial by jury must be tried by a panel of twelve, and neither a court, a prosecutor nor a defendant can alter the parameters of this fundamental mode of a judicial proceeding, that modification is solely within the province of the Legislature,” the dissent stated.
Ciparick called the right to trial by a 12-member jury “inviolate” and wrote that it can only be waived by a defendant in favor of a bench trial.
Cancemi involved a murder conviction reached by an 11-member jury after a 12th juror had been dismissed. That court ruled that permitting convictions reached by juries with fewer than 12 members would be a “highly dangerous innovation.”
In addition to a rereading of the venerable Cancemi decision, Tuesday’s ruling had the court delving into the legal histories for the origins of why juries hearing criminal cases came to have 12 members in the first place. Graffeo wrote that the number may have had a biblical basis (the 12 tribes of Israel and Jesus’ 12 apostles, for example) before becoming the standardized number in England about the 14th century.
“The number 12 has long been associated with trial by jury but no one knows why or when the common law settled on that figure,” Graffeo wrote.
WAIVER IN WRITING
In New York, the first state constitutions provided for a trial by jury, but it was not until Article VI, §18(a) was added in 1962 that the size of juries in criminal trials was placed at 12. CPL §270.05(i) was amended eight years later to spell out the 12-juror requirement.
The 1938 amendments to the Constitution allowed criminal defendants to waive their right to a jury trial, something the Constitution had allowed in civil trials starting in 1846 as part of the same amendments that provided for the establishment of the Court of Appeals.
The court’s 1996 ruling in People v. Page, 88 NY2d 1, affirmed that defendants could waive their right to a trial by 12 jurors by consenting to the substitution by a deliberating juror by an alternate, provided they do so in writing in open court. Oral consent is insufficient, the Page court found.
The majority of the court held Tuesday that defendants are permitted to waive fundamental constitutional rights in many circumstances, such as the right to counsel and the right to testify or present a defense. Waiver of the “common-law jury” under Article 1, §2 is also permissible, as long as it is done knowingly and voluntarily, and with the approval of the trial judge, the court determined.
Judges Eugene F. Pigott Jr., Theodore T. Jones Jr., Robert S. Smith and Susan Phillips Read joined in Graffeo’s ruling.
The dissenters focused on Article VI, §18 of the Constitution as containing “clear and unambiguous language” setting 12 as the size of juries in criminal trials.
“There is no language in the Constitution that permits a felony jury trial with fewer than twelve jurors,” Ciparick wrote.
Prosecutors at Gajadhar’s 2002 trial for killing a man in a dispute over taxicab repairs had argued for a mistrial when the 12th juror became incapacitated. Gajadhar asked that the remaining jurors go back to work.
The trial judge, Justice Michael J. Obus, accepted the defendant’s request, once Gajadhar executed a written waiver of his right to a jury trial in open court. Obus had earlier dismissed the alternate jurors after the defense indicated it would not consent to substitution of alternate jurors once deliberations began.
Convicted by the 11-member jury and sentenced to 20 years to life, Gajadhar appealed. He argued that despite his request to have the short-handed jury make a decision and his signing of the waiver, he is prohibited from waiving his constitutional and statutory rights to a trial by a jury with 12 members.
In People v. Gajadhar, 38 AD3d 127 (2007), the Appellate Division, 1st Department, unanimously upheld Gajadhar’s conviction and determined that any earlier decisions that held that juries at criminal trials must have 12 members had been “implicitly overruled.”
Paul Weiner of the Legal Aid Society represented Gajadhar.
“We are very disappointed,” he said Tuesday. “We really felt very strongly that you could not have an 11-person jury in New York. We felt that the language of the New York state Constitution, the language of the statute, supported that. That has been the law up till now.”
Assistant Manhattan District Attorney Hilary Hassler argued for the prosecution

Mark Hebert: Stumbo Planning to Seek Speaker Post held by Jody Richards

Thursday, December 20th, 2007

Dec. 20, 2007 – WHAS reporter Mark Hebert says Greg Stumbo is planning to run for Speaker of the Ky. House of Represenatives next year.  LawReader is told that Richards has appointed a committee to study the Casino amendment issue, and did not consult with Beshear in the selection of committee members.  It is believed by some that Richards is attempting to take charge of this issue at the Governor’s expense.
Hebert wrote on his blog:
Governor Steve Beshear met with Attorney General Greg Stumbo on Tuesday, just before (Prestonsburg) Rep. Brandon Spencer resigned, opening the door for Stumbo to run for his old house seat.
The governor confirmed that he met with Stumbo but said they did not talk about Stumbo carrying Beshear’s casino bill through the House, assuming Stumbo wins the special election for the 95th District seat. Beshear didn’t elaborate on what they did talk about. Beshear has said he has no desire to meddle in the business of democratic house leaders.
But the conspiracy theories in Frankfort have already taken hold with everyone on the same page……Stumbo is planning to run for Speaker next year, hoping he can oust Jody Richards or convince Richards to retire. If that happens, how would the other house members feel about electing two eastern Kentuckians, Stumbo and House Majority Leader Rocky Adkins, to the top two leadership positions in the house? I’d say the house democratic caucus will be a festive place once Stumbo is elected in early February.
 

A study of the Fiscal Impact of Immigraton

Tuesday, December 18th, 2007

This study by the Center for Immigration Studies provides facts regarding the costs and benefits of immigration.

Dec. l8, 2007  -    *Executive Summary*

————————————————————————

This study is one of the first to estimate the total impact of illegal
immigration on the federal budget. Most previous studies have focused on
the state and local level and have examined only costs or tax payments,
but not both. Based on Census Bureau data, this study finds that, when
all taxes paid (direct and indirect) and all costs are considered,
illegal households created a net fiscal deficit at the federal level of
more than $10 billion in 2002. We also estimate that, if there was an
amnesty for illegal aliens, the net fiscal deficit would grow to nearly
$29 billion.

Among the findings:

    *       Households headed by illegal aliens imposed more than $26.3
      billion in costs on the federal government in 2002 and paid only
      $16 billion in taxes, creating a net fiscal deficit of almost
      $10.4 billion, or $2,700 per illegal household.
      

    *      Among the largest costs are Medicaid ($2.5 billion); treatment for
      the uninsured ($2.2 billion); food assistance programs such as
      food stamps, WIC, and free school lunches ($1.9 billion); the
      federal prison and court systems ($1.6 billion); and federal aid
      to schools ($1.4 billion).
      

    *      With nearly two-thirds of illegal aliens lacking a high school
      degree, the primary reason they create a fiscal deficit is their
      low education levels and resulting low incomes and tax payments,
      not their legal status or heavy use of most social services.
      

    *      On average, the costs that illegal households impose on federal
      coffers are less than half that of other households, but their tax
      payments are only one-fourth that of other households.
      
    *      Many of the costs associated with illegals are due to their
      American-born children, who are awarded U.S. citizenship at birth.
      Thus, greater efforts at barring illegals from federal programs
      will not reduce costs because their citizen children can continue
      to access them.
      

    *      If illegal aliens were given amnesty and began to pay taxes and
      use services like households headed by legal immigrants with the
      same education levels, the estimated annual net fiscal deficit
      would increase from $2,700 per household to nearly $7,700, for a
      total net cost of $29 billion.
      

    *      Costs increase dramatically because unskilled immigrants with
      legal status — what most illegal aliens would become — can
      access government programs, but still tend to make very modest tax
      payments.
      

    *      Although legalization would increase average tax payments by 77
      percent, average costs would rise by 118 percent.
      

    *      The fact that legal immigrants with few years of schooling are a
      large fiscal drain does not mean that legal immigrants overall are
      a net drain — many legal immigrants are highly skilled.
      

    *      The vast majority of illegals hold jobs. Thus the fiscal deficit
      they create for the federal government is not the result of an
      unwillingness to work.
      

    *      The results of this study are consistent with a 1997 study by the
      National Research Council, which also found that immigrants’
      education level is a key determinant of their fiscal impact.

*A Complex Fiscal Picture* 


*Welfare use.* Our findings show that many of the preconceived notions
about the fiscal impact of illegal households turn out to be inaccurate.
In terms of welfare use, receipt of cash assistance programs tends to be
very low, while Medicaid use, though significant, is still less than for
other households. Only use of food assistance programs is significantly
higher than that of the rest of the population. Also, contrary to the
perceptions that illegal aliens don’t pay payroll taxes, we estimate
that more than half of illegals work “on the books.” On average, illegal
households pay more than $4,200 a year in all forms of federal taxes.
Unfortunately, they impose costs of $6,950 per household.

*Social Security and Medicare. *Although we find that the net effect of
illegal households is negative at the federal level, the same is not
true for Social Security and Medicare. We estimate that illegal
households create a combined net benefit for these two programs in
excess of $7 billion a year, accounting for about 4 percent of the total
annual surplus in these two programs. However, they create a net deficit
of $17.4 billion in the rest of the budget, for a total net loss of
$10.4 billion. Nonetheless, their impact on Social Security and Medicare
is unambiguously positive. Of course, if the Social Security
totalization agreement with Mexico signed in June goes into effect,
allowing illegals to collect Social Security, these calculations would
change.

*The Impact of Amnesty.* Finally, our estimates show that amnesty would
significantly increase tax revenue. Because both their income and tax
compliance would rise, we estimate that under the most likely scenario
the average illegal alien household would pay 77 percent ($3,200) more a
year in federal taxes once legalized. While not enough to offset the 118
percent ($8,200) per household increase in costs that would come with
legalization, amnesty would significantly increase both the average
income and tax payments of illegal aliens.

*What’s Different About Today’s Immigration. *Many native-born Americans
observe that their ancestors came to America and did not place great
demands on government services. Perhaps this is true, but the size and
scope of government were dramatically smaller during the last great wave
of immigration. Not just means-tested programs, but expenditures on
everything from public schools to roads were only a fraction of what
they are today. Thus, the arrival of unskilled immigrants in the past
did not have the negative fiscal implications that it does today.
Moreover, the American economy has changed profoundly since the last
great wave of immigration, with education now the key determinant of
economic success. The costs that unskilled immigrants impose simply
reflect the nature of the modern American economy and welfare state. It
is doubtful that the fiscal costs can be avoided if our immigration
policies remain unchanged.

*Policy Implications* 


The negative impact on the federal budget need not be the only or even
the primary consideration when deciding what to do about illegal
immigration. But assuming that the fiscal status quo is unacceptable,
there are three main changes in policy that might reduce or eliminate
the fiscal costs of illegal immigration. One set of options is to allow
illegal aliens to remain in the country, but attempt to reduce the costs
they impose. A second set of options would be to grant them legal status
as a way of increasing the taxes they pay. A third option would be to
enforce the law and reduce the size of the illegal population and with
it the costs of illegal immigration.

*Reducing the Cost Side of the Equation. *Reducing the costs illegals
impose would probably be the most difficult of the three options because
illegal households already impose only about 46 percent as much in costs
on the federal government as other households. Thus, the amount of money
that can be saved by curtailing their use of public services even
further is probably quite limited. Moreover, the fact that benefits are
often received on behalf of their U.S.-citizen children means that it is
very difficult to prevent illegal households from accessing the programs
they do. And many of the programs illegals use most extensively are
likely to be politically very difficult to cut, such as the Women
Infants and Children (WIC) nutrition program. Other costs, such as
incarcerating illegals who have been convicted of crimes are
unavoidable. It seems almost certain that if illegals are allowed to
remain in the country, the fiscal deficit will persist.

*Increasing Tax Revenue by Granting Amnesty.* As discussed above, our
research shows that granting illegal aliens amnesty would dramatically
increase tax revenue. Unfortunately, we find that costs would increase
even more. Costs would rise dramatically because illegals would be able
to access many programs that are currently off limits to them. Moreover,
even if legalized illegal aliens continued to be barred from using some
means-tested programs, they would still be much more likely to sign
their U.S.-citizen children up for them because they would lose whatever
fear they had of the government. We know this because immigrants with
legal status, who have the same education levels and resulting low
incomes as illegal aliens, sign their U.S.-citizen children up for
programs like Medicaid at higher rates than illegal aliens with
U.S.-citizen children. In addition, direct costs for programs like the
Earned Income Tax Credit would also grow dramatically with legalization.
Right now, illegals need a Social Security number and have to file a tax
return to get the credit. As a result, relatively few actually get it.
We estimate that once legalized, payments to illegals under this program
would grow more than ten-fold.

From a purely fiscal point of view, the main problem with legalization
is that illegals would, for the most part, become unskilled legal
immigrants. And unskilled legal immigrants create much larger fiscal
costs than unskilled illegal aliens. Legalization will not change the
low education levels of illegal aliens or the fact that the American
labor market offers very limited opportunities to such workers, whatever
their legal status. Nor will it change the basic fact that the United
States, like all industrialized democracies, has a well-developed
welfare state that provides assistance to low-income workers. Large
fiscal costs are simply an unavoidable outcome of unskilled immigration
given the economic and fiscal realities of America today.

*Enforcing Immigration Laws. *If we are serious about avoiding the
fiscal costs of illegal immigration, the only real option is to enforce
the law and reduce the number of illegal aliens in the country. First,
this would entail much greater efforts to police the nation’s land and
sea borders. At present, less than 2,000 agents are on duty at any one
time on the Mexican and Canadian borders. Second, much greater effort
must be made to ensure that those allowed into the country on a
temporary basis, such as tourists and guest workers, are not likely to
stay in the country permanently. Third, the centerpiece of any
enforcement effort would be to enforce the ban on hiring illegal aliens.
At present, the law is completely unenforced. Enforcement would require
using existing databases to ensure that all new hires are authorized to
work in the United States and levying heavy fines on businesses that
knowingly employ illegal aliens. Finally, a clear message from
policymakers, especially senior members of the administration, that
enforcement of the law is valued and vitally important to the nation,
would dramatically increase the extremely low morale of those who
enforce immigration laws.

Policing the border, enforcing the ban on hiring illegal aliens, denying
temporary visas to those likely to remain permanently, and all the other
things necessary to reduce illegal immigration will take time and cost
money. However, since the cost of illegal immigration to the federal
government alone is estimated at over $10 billion a year, significant
resources could be devoted to enforcement efforts and still leave
taxpayers with significant net savings. Enforcement not only has the
advantage of reducing the costs of illegal immigration, it also is very
popular with the general public. Nonetheless, policymakers can expect
strong opposition from special interest groups, especially ethnic
advocacy groups and those elements of the business community that do not
want to invest in labor-saving devices and techniques or pay better
salaries, but instead want access to large numbers of cheap, unskilled
workers. If we choose to continue to not enforce the law or to grant
illegals amnesty, both the public and policymakers have to understand
that there will be significant long-term costs for taxpayers.

*Summary Methodology* 


*Overall Approach.* To estimate the impact of households headed by
illegal aliens, we rely heavily on the National Research Council’s (NRC)
1997 study, “The New Americans.” Like that study, we use the March
Current Population Survey (CPS) and the decennial Census, both collected
by the Census Bureau. We use the March 2003 CPS, which asks questions
about income, household structure, and use of public services in the
calendar year prior to the survey. We control total federal expenditures
and tax receipts by category to reflect actual expenditures and tax
payments. Like the NRC, we assume that immigrants have no impact on
defense-related expenditures and therefore assign those costs only to
native-headed households. Like the NRC, we define a household as persons
living together who are related. Individuals living alone or with
persons to whom they are unrelated are treated as their own households.
As the NRC study points out, a “household is the primary unit through
which public services are consumed and taxes paid.” Following the NRC’s
example of using households, many of which include U.S.-citizen
children, as the unit of analysis makes sense because the presence of
these children and the costs they create are a direct result of their
parents having been allowed to enter and remain in country. Thus,
counting services used by these children allows for a full accounting of
the costs of illegal immigration.

*Identifying Illegal Aliens in Census Bureau Data.* While the CPS does
not ask respondents if they are illegal aliens, the Urban Institute, the
former Immigration and Naturalization Service (INS), and the Census
Bureau have used socio-demographic characteristics in the data to
estimate the size and characteristics of the illegal population. To
identify illegal aliens in the survey, we used citizenship status, year
of arrival in the United States, age, country of birth, educational
attainment, sex, receipt of welfare programs, receipt of Social
Security, veteran status, and marital status. This method is based on
some very well-established facts about the characteristics of the
illegal population. In some cases, we assume that individuals have zero
chance of being an illegal alien, such as naturalized citizens,
veterans, and individuals who report that they personally receive Social
Security benefits or cash assistance from a welfare program or those who
are enrolled in Medicaid. However, other members of a household, mainly
the U.S.-born children of illegal aliens, can and do receive these
programs. We estimate that there were 8.7 million illegal aliens
included in the March 2003 CPS. By design, our estimates for the size
and characteristics of the illegal population are very similar to those
prepared by the Census Bureau, the INS, and the Urban Institute.

*Estimating the Impact of Amnesty.* We assume that any amnesty that
passes Congress will have Lawful Permanent Residence (LPR) as a
component. Even though the President’s amnesty proposal in January seems
to envision “temporary” worker status, every major legalization bill in
Congress, including those sponsored by Republican legislators, provides
illegal aliens with LPR status at some point in the process. Moreover,
Democratic presidential nominee John Kerry has indicated his strong
desire to give LPR status to illegal aliens.

To estimate the likely impact of legalization, we run two different
simulations. In our first simulation, we assume that legalized illegal
aliens would use services and pay taxes like all households headed by
legal immigrants with the same characteristics. In this simulation, we
control for the education level of the household head and whether the
head is from Mexico. The first simulation shows that the net fiscal
deficit grows from about $2,700 to more than $6,000 per household. In
the second simulation, we again control for education and whether the
household head is Mexican and also assume that illegals would become
like post-1986 legal immigrants, excluding refugees. Because illegals
are much more like recently arrived non-refugees than legal immigrants
in general, the second simulation is the more plausible. The second
simulation shows that the net fiscal deficit per household would climb
to $7,700.

*Results Similar to Other Studies.* Our overall conclusion that
education level is the primary determinant of tax payments made and
services used is very similar to the conclusion of the 1997 National
Research Council report, “The New Americans.” The results of our study
also closely match the findings of a 1998 Urban Institute study, which
examined tax payments by illegal aliens in New York State. In order to
test our results we ran separate estimates for federal taxes and found
that, when adjusted for inflation, our estimated federal taxes are
almost identical to those of the Urban Institute. The results of this
study are also buttressed by an analysis of illegal alien tax returns
done by the Inspector General’s Office of the Department of Treasury in
2004, which found that about half of illegals had no federal income tax
liability, very similar to our finding of 45 percent.

Return to Table of Contents http://www.cis.org/articles/2004/fiscal.html 

 

Table of Contents

Executive Summary

A Complex Fiscal Picture
Policy Implications
Summary Methodology 

Introduction
Why Study the Fiscal Impact of Illegals?

Methodology
Data Source and General Principles
Estimated Tax Payments
Assigning Costs by Household
Adjustment for Under-Reporting in the CPS

Findings

Demographic Overview
Estimated Tax Payments
Costs by Household
Balance of Tax and Cost
The Fiscal Implications of Amnesty
Comparisons to Other Studies

Conclusion

Appendix 

August 2004

By Steven A. Camarota

Download the .pdf version
Read the panel discussion transcript
Read articles about the report 

 

About the Author
Steven A. Camarota is Director of Research at the Center for Immigration Studies in Washington, D.C. He holds a master’s degree in political science from the University of Pennsylvania and a Ph.D. in public policy analysis from the University of Virginia. Dr. Camarota often testifies before Congress and has published widely on the political and economic effects of immigration on the United States. His articles on the impact of immigration have appeared in both academic publications and the popular press including Social Science Quarterly, The Washington Post, The Chicago Tribune, Campaigns and Elections, and The Public Interest. His most recent work published by the Center for Immigration Studies includes: Immigration in a Time of Recession: An Examination of Trends Since 2000; Where Immigrants Live: An Examination of State Residency of the Foreign-Born; Back Where We Started: An Examination of Trends in Immigrant Welfare Use Since Welfare Reform; and The Open Door: How Militant Islamic Terrorists Entered and Remained in the United States, 1993-2001.

 

 

 

Kentucky public libraries rank as most highly regarded local government service in new state survey

Monday, December 17th, 2007

 

FRANKFORT, Ky. – Kentucky public libraries are the most highly regarded local government service, according to a recent independent survey of Kentuckians. 

In addition, more than 95 percent of Kentuckians surveyed agree that public libraries are a good investment of tax dollars.

A survey of 600 Kentuckians by the University of Kentucky Survey Research Center sponsored by the Kentucky Public Library Association indicates that Kentuckians place a high value on local public libraries. The telephone survey conducted Sept. 6 – Oct. 13 represents citizens from every county.

The research shows that nine out of 10 people view Kentucky’s public libraries as a key educational asset in the community, while more than eight out of 10 agree that public libraries improve communities.

Among six services provided by local government, Kentucky’s public libraries rank at the top with nearly 86 percent giving public libraries an A or B grade when asked to rate the quality of libraries’ services. The second highest ranking is police services at 75 percent.

Kentucky General Assembly Public Library Caucus Co-chairs Reps. Bob Damron and Bob M. DeWeese, M.D., said they were very pleased with the community support for public libraries. The bipartisan caucus for members of the Kentucky House of Representatives supports public libraries through state initiatives.

“Libraries have always been the center of community learning for all ages,? Damron said. “If Kentucky is going to continue progressing economically, we need to be a community of life-long learners, and libraries are critical to that vision. We’ve got to double our efforts to finance our libraries under an increasingly difficult budget situation so that we can maintain the progress we have made.?

DeWeese said, “I am very pleased that such a large majority of citizens across the state use and appreciate the public library system and the opportunities it provides. Our libraries are woven in the very fabric of our society, providing learning and enjoyment and defining the richness of our communities. I am most supportive of our public libraries and will continue to work with the general assembly and budget offices in support of increased state general budget funding to keep our libraries strong.”

Currently more than 2 million Kentuckians have public library cards, according to Wayne Onkst, state librarian and commissioner of the Kentucky Department for Libraries and Archives (KDLA). Kentucky has 116 public libraries serving 118 counties.

In FY 2006, more than 16.7 million visits were made to Kentucky’s local libraries, and more than 1 million children participated in children’s programs.

Onkst said, “Community libraries serve people of all ages in a safe, friendly environment. They introduce preschoolers to reading, provide materials on parenting skills, assist school-age students with homework, help individuals prepare for the GED, provide equipment and assistance for job seekers, provide Talking Books for the visually impaired and elderly and serve as community centers.?

Community libraries also provide computer access, free Internet service and computer training to citizens across the commonwealth. During fiscal year 2006, more than 31,500 people received computer training in the state’s public libraries. The survey shows that if more funds were available for public libraries, about one in three Kentuckians would like to see more computers made available for users.

“I think people would be amazed to know that in fiscal year 2006, nine times as many people entered Kentucky public libraries as attended men’s and women’s basketball and football games at the University of Kentucky, University of Louisville, Kentucky State University, Eastern Kentucky University, Western Kentucky University and Morehead State University combined,? Onkst said.

 

Public Library Caucus members

 

Co-chairs – Rep. Bob DeWeese, Jefferson County; and Rep. Bob Damron, Fayette and Jessamine counties
Rep. Royce Adams, Gallatin, Grant and Owen counties
Rep. Mike Cherry, Caldwell, Crittenden, Livingston and McCracken counties
Rep. Jim DeCesare, Warren County
Rep. Teddy Edmonds, Breathitt, Estill and Lee counties
Rep. Jeff Hoover, Clinton, Pulaski and Russell counties
Rep. Dennis Keene, Campbell County
Rep. Charlie Miller, Jefferson County
Rep. Tanya Pullin, Boyd and Greenup counties
Rep. Marie Rader, Jackson, Laurel and Owsley counties
Rep. Rick Rand, Carroll, Henry, Oldham and Trimble counties
Rep. Frank Rasche, McCracken County
Rep. Steve Riggs, Jefferson County
Rep. Sal Santoro, Boone County
Rep. Brandon Smith, Harlan and Perry counties
Rep. John Will Stacy, Menifee, Morgan, Rowan and Wolfe counties
Rep. Ken Upchurch, McCreary, Pulaski and Wayne counties
Rep. Robin Webb, Carter and Lewis counties
Rep. Susan Westrom, Fayette County
Rep. Addia Wuchner, Boone County

 

The Kentucky Department for Libraries and Archives provides equitable access to quality library and information resources and services, as well as helps public agencies ensure that legislatively mandated documentation of government programs is created, efficiently maintained, and made accessible.  For more information on KDLA resources, programs and services visit www.kdla.ky.gov or call 502-564-8300, ext. 315.

KDLA is an agency of the Kentucky Education Cabinet which coordinates learning programs from P-16, and manages and supports training and employment functions in the Department for Workforce Investment. For more information on our programs, visit www.educationcabinet.ky.gov, or www.workforce.ky.gov, or call 502-564-6606.

Why Kentucky Should Keep Anti-Dueling Language in Oath of Office

Monday, December 17th, 2007

Comment by LawReader Senior Editor Stan Billingsley     Dec. l7, 2007-

Louisville Courier-Journal columnist Joseph Gerth is seeking comments on the anti-dueling provisions of the Ky. Constitutional Oath.  Some believe this oath is a relic that should be put to rest.  I strongly disagree and see both the historic and modern reason this oath is relevant and useful. 

Mr. Joseph GerthLouisville Courier-Journal                                                         Dec. 17, 2007Dear Mr. Gerth:

        As a retired judge, I have taken and administered the Ky. Constitutional Oath of Office many times.  I strongly disagree with those who feel the portion of the oath dealing with “dueling? is out of date and should be removed.The anti-dueling provisions of the oath was adopted at a time when dueling was a reality, and in fact many public officials where challenged not on the merits of their positions on public issues, but on their “honor?. This is not dissimilar to the “honor? that causes some cultures to murder their daughters and wives, or to fight family feuds that last for generations.  Most of the current violence in the Middle East is a continuing example of this medieval practice.

The anti-dueling provisions of the Oath of Office were adopted by Kentucky to provide a pass to public officials from having to participate in this barbarous practice.  The result was a quick end to dueling in Kentucky.

On LawReader we have republished a pamphlet written in l858 titled the Code Deullo, which sets out the formal rules for dueling.  This chilling pamphlet can be read online at:  http://www.lawreader.com/index.php/edit/node/2623.html  How to send a challenge, select a second, conduct of the parties and fighting of the duel, as GentlemenThis interesting pamphlet was also included by J. Winston Coleman, Jr. in his book, Famous Kentucky Duels , Henry Clay Press.  The Coleman book describes famous Kentucky duels. You can find this book at your favorite bookstore, or your public library.  This book helps you understand why every Kentucky public official must still to this day, take an oath that he has not fought a duel, nor acted as a second.  Just because this Oath has been successful, it should not be discarded.  I believe it continues to serve a useful purpose.  The Oath serves as a message to those cultures that continue to believe that one must prove their “honor? by acts of violence, that Kentuckians and other civilized societies have renounced this type of violence.

Sincerely,

Judge Stan Billingsley (ret.)  Senior Editor LawReader.com  314 7th. St.  Carrollton, Ky. 41008   Firstjudge@aol.com

OATH GIVEN TO ALL OFFICERS, JUDGES & ATTORNEYS IN KY.

This oath is administered to members of the General Assembly and all officers (including judges) before they enter   upon the execution of the duties of their respective offices, and all members of the bar, before they enter upon  the practice of their profession:   (This is found in Section 228 of Kentucky Constitution.)
 
 I do solemnly swear (or affirm as the case may be) that I will support the
Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I remain a citizen thereof, and that I will faithfully execute , to the best of my ability, the office of_____________, according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this state, have not fought a duel with deadly weapons within this State nor out of it, or have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second  in carrying a challenge, or aided or assisted any person thus offending, so help me God.

 

                             
 

Judge Horner has final words from the weeks news

Sunday, December 16th, 2007

         New Jersey Nets guard Jason Kidd this past week denied reports that he had faked a migraine as a personal one-day strike to induce a trade or contract extension.  Charles Barkley, for one, could understand why Kidd would have a headache, saying on TNT:  “I’ve seen (the Nets) play, and they give me migraines.? 

          From Dwight Perry of The Seattle Times: “Not that the NFL Network is difficult to find or anything, but it’s just been declared the official network of the federal Witness Protection Program

Kentuckians Bypassed as Amul Thapar gains Senate Approval for Federal Court post in Eastern Ky. District

Sunday, December 16th, 2007

Editorial by LawReader Senior Editor Stan Billingsley

U.S. Attorney Amul Thapar will soon become a Federal Judge replacing the retiring Judge Joseph Hood in the Eastern District of Kentucky.

Thapar is said to be very bright, and is undoubtedly well qualified for the job. Questions remain however, about his close affiliation with and public support of disgraced Attorney General Alberto Gonzales. Thapur served on an advisory committee for Gonzales.  We don’t know if he advised Gonzales on the firing of U.S. Attorneys, on water boarding, and rejection of the Geneva Convention as a “quaint doctrine?, and on Gonzales decision to be less than candid in his testimony before Congress.  Hopefully not.

Other questions remain about his apparent failure to take any action against the violators in the recent Merit System scandal in Kentucky.  When appointed U.S. Attorney he boasted that “No one was above the law.?  That promise appears to have had one large and very obvious exception that remains unexplained.  We concede that a U.S. Attorney should not publicly discuss ongoing investigations, but in the year after he was provided access to over 100,000 documents from the Merit System investigation, he has taken no action and has given no hint of any review by his office. 

While other U.S. attorneys prosecuted prominent Democrats in Illinois, Alabama and other states, there was an almost total lack of similar prosecutions against Republican officials involved in similar investigations.  A congressional investigation of this issue continues.

While there is no legal requirement that a Federal Judge have strong ties to the state he is appointed for life to serve, we are bothered by the almost total absence of Kentucky connections other than the fact that he lived in No. Ky for a couple of years, and was a friend of Ky. Sec. of State Trey Grayson and Sen. McConnell.

His only employment in Kentucky occurred after he was appointed U.S. Attorney two years ago.

Thapur has in our memory, the weakest Kentucky background of any Federal Judge ever appointed in Kentucky. 

He was born in Troy, Michigan and grew up in Toledo, Ohio. He graduated from Boston College with a bachelor’s degree in l991 and earned his law degree from the Univ. of California in Berkeley in l994.  Before becoming a U.S. Attorney in Kentucky, he worked as an assistant U.S. attorney for the District of Columbia and spent time at the Williams & Connolly law firm in Washington, D.C. and at Squire, Sanders & Dempsey in Cincinnati.  He clerked for a Federal District Judge in Ohio from l994 to l996 and later worked for Judge Nathaniel Jones of the 6th. U.S. Circuit Court of Appeals, which covers four states including Kentucky.

We can think of dozens of very highly qualified attorneys among the Kentucky Bar who are just as qualified as Judge Thapur.  We hope in the future that our Senators (who nominate Federal Judges), will give consideration to Kentuckians when they nominate Federal Judges to serve for life in Kentucky.

Texas Judge who refused to keep court open a few minutes for death appeal, wants lawsuit dismissed

Sunday, December 16th, 2007

Associated Press –Dec. 16.2007 

AUSTIN — The judge who prevented a convicted killer from making a last-minute appeal by not extending office hours has asked a federal judge to dismiss the wrongful death lawsuit filed against her by the executed man’s widow.

In her motion to dismiss, Judge Sharon Keller acknowledges as the chief administrator of the Court of Criminal Appeals that she could have ordered the clerk’s office to remain open. But she would have to make such an order only if she considered it “necessary or advisable.”

Keller also argues that the attorneys for convicted killer Michael Richard could have filed their appeal to any of the court’s judges, “so Richard did not need the CCA clerk’s office to stay open after hours to file his motion.”

Keller refused to allow the Court of Criminal Appeals to stay open past 5 p.m. on Sept. 25 — even though attorneys for Richard had called and asked for extra time to file their appeal because of computer problems.

Richard was put to death hours later for the rape and murder of a Houston-area woman and mother of seven.

Earlier that day, the U.S. Supreme Court had agreed to review the constitutionality of lethal injection in a Kentucky case. Richard, 49, is the only person in the nation to have been executed since that decision.

Keller’s refusal to keep the court open outraged defense attorneys and civil rights activists and led to the wrongful death lawsuit filed by Richard’s widow, Marsha.

The director of the Texas Civil Rights Project, which is representing Richard’s daughter and other attorneys who have filed complaints against Keller, called the judge’s argument “shameless.”

“The rules of procedure in the law are supposed to serve justice, and here you have a case where a guy’s life is at stake,” said the director, Jim Harrington. “It’s literally a matter of life or death and to fall back on some off-the-wall assertion, ‘Go find a judge and file it that way,’ is absurd. It makes a farce of the law.”

No right to counsel in civil trial..but there should be.

Sunday, December 16th, 2007

SEATTLE POST-INTELLIGENCER EDITORIAL BOARD – Dec. 16, 2007

A justice system should create a perception of fairness. It’s hard to see a level playing field in a recent divorce case where the parent losing child custody had no lawyer while an attorney represented the winning spouse.

A 7-to-2 Washington Supreme Court majority came to a carefully argued conclusion that the lack of an attorney in a civil case didn’t violate the constitutional rights of Brenda King, who lost her three children to her former husband. While we liked the eloquent minority dissent written by Justice Barbara Madsen, Justice Charles Johnson’s majority ruling rightly pointed to the place where a reasonable solution should be crafted: the Legislature.

A 1963 U.S. Supreme Court ruling established the right of the accused, regardless of financial means, to an attorney in criminal cases. As the American Bar Association and the state bar have suggested, better provision of counsel should be provided by federal and state authorities in proceedings where custody, housing, health and other basics are being decided. Attorneys and, increasingly, law students (the University of Washington and Seattle University deserve big credit) give a great deal of time to helping the poor, but volunteerism can’t meet all the needs.

The Washington State Equal Justice Coalition has a good motto: “It’s not justice if it’s not equal.” As Justice Madsen noted, an attorney for Brenda King might not have changed the outcome of this particular case. But the future ought to be guided by the principle that people in her position deserve a fair shot.

LawReader comment on Ky. Law:

COMMENT:
A civil proceeding need not be delayed due to the excuse of a party that they cannot locate an attorney.
The unpublished case of Babbs v. Minton  (immediately below) demonstrates the theory.   While in a criminal case lack of an attorney might justify some delay, it can never determine a interminable delay. Note that Babbs cites Shoney’s v. Lewis, 875 S.W.2d 514, 516 (Ky. 1994). 

If the law allowed a party to continuously delay a custody hearing because they could not locate an attorney, then the other parties right to a custody hearing would be effectively denied….therefore, the court can set a date for the hearing and proceed whether or not either party has an attorney show up.

KY     [U] Babbs v. Minton, No. 2004-SC-000559-MR (Ky. 03/17/2005) 

…the trial court disqualified (defendant’s attorney)  …Bratcher, noting that her conduct had been a clear violation of Rule 4.2, which prohibits ex pane contacts, and Rule 8.3, which prohibits an attorney from using another person to violate a Rule of Professional Conduct. Babbs filed a motion to reconsider, but the trial court upheld its previous ruling. 

Though we noted in Shoney’s, Inc. v. Lewis 875 S.W.2d 514, 516 (Ky. 1994).that disqualification is a drastic remedy that should be used sparingly, we also held that in some cases disqualification is appropriate. This is supported by the notion that “there is no unqualified right to… choice of counsel” even for criminal defendants, who have a constitutional right to counsel. 

The United States Supreme Court has also recognized this, noting that although the Sixth Amendment’s guarantee of assistance of counsel also includes a right to counsel of one’s choosing, that right is not absolute. But civil litigants cannot claim solace in the Sixth Amendment Thus, in a case such as this, where the litigants’ dispute is civil in nature, there is not even a guarantee of counsel, much less choice of counsel. 

Footnote to Babbs Case: See Austin v. United States, 509 U.S. 602, 608, 113 S.Ct. 2801, 2804 (1993) (“The protections provided by the Sixth Amendment are explicitly confined to `criminal prosecutions.”‘).
 

Third wrong-sided brain surgery at R.I. hospital

Saturday, December 15th, 2007

Patient OK in 2 of the incidents; institution fined $50,000 after latest error

PROVIDENCE, R.I. – Rhode Island Hospital was fined $50,000 and reprimanded by the state Department of Health Monday after its third instance this year of a doctor performing brain surgery in the wrong side of a patient’s head.

“We are extremely concerned about this continuing pattern,” Director of Health David R. Gifford said in a written statement. “While the hospital has made improvements in the operating room, they have not extended these changes to the rest of the hospital.”

The most recent case happened Friday when, according to the health department, the chief resident started brain surgery on the wrong side of an 82-year-old patient’s head. The patient was OK, the health department and hospital said.

In February, a different doctor performed neurosurgery on the wrong side of another patient’s head, said Andrea Bagnall-Degos, a health department spokeswoman. That patient was also OK, she said.

But in August, a patient died a few weeks after a third doctor performed brain surgery on the wrong side of his head. That surgery prompted the state to order the hospital to take a series of steps to ensure such a mistake would not happen again, including an independent review of its neurosurgery practices and better verification from doctors of surgery plans.

In a written statement, Rhode Island Hospital said it was working with the Department of Health to minimize the risk of medical errors.

“We are committed to continuing to evaluate and implement changes to our policies to help ensure these human errors are caught before they reach the patient,” the statement read.

Earth Magnetic Field Reversal – Could Affect Legal Descriptions

Saturday, December 15th, 2007

Possible energy ramifications of diminishing magnetic field.  How long will it linger at zero before reversing? [Feedback: legal ramifications for official land/title survey]

 

by Mary-Sue Haliburton   Pure Energy Systems News Dec. 15, 2007

Seeing the powerful earthquakes such as the December 26th, 2004 event that triggered the tsunami disaster, people are looking for possible causes for the apparent instability of earth’s crust. “End-times” alarmists and backyard researchers believe that the predicted imminent reversal of the earth’s magnetic field may be a significant clue to these eschatological-scale events.

Scientists have been observing changes in the direction of earth’s magnetic field which took place recently as well as in the distant past. NASA’s website features a map showing the gradual northward migration of the north magnetic pole in the past century and a half. Since more than double the time interval has elapsed since the last reversal, compared to the time lapse between the previous two pole reversals, some believe we may be overdue for the next north-south flip. (1,2) However, though the interval between reversals of the Earth’s magnetic field can be as short as 5,000 years, it can also be as long as 50 million years. There does not seem to be any logic or rule governing the planet’s behavior.

It is not only the direction but also the strength of this magnetic field that is a concern. In the time of dinosaurs, at an estimated 2.5 gauss, it was eighty percent stronger than it is now. This may have been one of the reasons such gigantic life forms thrived. It is now accepted that a catastrophic event ended the reign of giant reptiles. However, they did not re-evolve to equivalent dimensions. And the disappearance of mammalian “mega-fauna? in more recent times is still considered to be a mystery. The mastodons and mammoths would have towered over modern elephants. Why are there so few large terrestrial animals today?

The smaller average size of modern animals may be due to the gradual decline of Earth’s “steady state” (as opposed to “pulsed?) magnetism. Thousands of years ago the Chinese, with their astute discovery of bio-electrical energy flows known as “meridians?, learned that magnetism promotes vigor in biological life. They used magnetic rocks in medical treatment. In the past century there has been a further decline of earth’s magnetic field by another five percent down to only 0.5 gauss. This has led Dr. Dean Bonlie to identify a “magnetic deficiency syndrome” resulting from the biological stress caused by the weakening of this “energy base” for life. (3)

The weakening of earth’s magnetism is one of the factors believed to be predictive of a pole reversal. That magnetic field reversals have occurred in the past is confirmed in the geological record. What is unclear is how precisely the transition occurs, and what happens to life forms extant at the time of this pole flip.

Does the magnetic field drop to zero gauss? Dire predictions follow upon the heels of this theory. Electronic devices would all be at risk: there may be damage to, or complete loss of, all near-earth-orbiting satellites and possibly the space station itself. Effects on life forms could range from migrating birds losing their sense of direction to immune system decline and even widespread die-off from radiation-induced cancers.

Losing its protective magnetic envelope, the atmosphere would expand and become thinner, possibly leading to altitude sickness near sea level. No longer filtered out, deadly cosmic rays would kill most if, not all, living creatures on the surface. Only those living in deep caves would be safe. This scenario has prompted some to build underground bunkers in hopes of surviving.

Countering this frightening vision, NASA predicts that, rather than declining to zero gauss, the magnetic field would become disordered. Thus we might for short time have more than one north and south pole on the planet. This official scientific stance says that the magnetosphere which shields us from cosmic radiation would not entirely disappear either. Thus, while communications would be erratic and perhaps at times completely inactivated, humans would find ways to survive. However, there are dissenters in the ranks, pointing to the vast South Atlantic magnetic anomaly and radiation damage to satellites over that region attributed to weakening of the protective magnetosphere. (4)

The disorderly-flip theory is supported by evidence from geology that in past reversals the decline was not total. Lava flows that solidified at Steen’s Mountain during a lengthy reversal process show that the magnetic poles wandered across the equator three times. Though strength of the field was reduced to about 20% of maximum, there is no record that it fell to zero gauss during that transitional period. (5)

The theory that activity in the turbulent molten outer iron core of the planet generates its magnetic field currently dominates scientific thinking. Stormy activity deep in the earth’s outer core, believed to be filled with roiling convection flows of molten iron, is understood to generate the planet’s magnetic field. Such violent seething could affect the mantle as well, possibly disturbing the earth’s crust and causing the quakes.

However, there is an alternate theory of how the magnetic field is generated. In his article, “Origin of the Earth’s Magnetic Field”, Ernest McFarlane outlines gaps in the molten-iron convection theory. He proposes a system of electronic cells in a crystalline metal core with hot spots of heavy metals releasing alpha and beta particles. Due to the high heat the alpha particles are unable to combine with the free electrons. “Consequently an electron current flow is produced and conditions are set up for the generation of current loops throughout the inner and outer core. … magnetic fields are produced as a consequence, in accordance with the right hand rule of electromagnetic theory.” (5)

Which theory is right? We may find out from experience sooner than we can come to amicable agreement, given the conflicting theories and computer models. The actual dynamics may include aspects of both, or new insights not yet fully developed.

The sun reverses its magnetic field like clockwork every eleven years at the peak of the sunspot cycle. The next solar flip is due in 2012. South-pointing magnetic flux moves from sunspots, which are intense magnetic loops near the equator of the sun, along “meridional flows? to the north magnetic pole, and vice versa. As the oppositely-directed charge accumulates at the poles the field declines, until eventually the reverse charge predominates.

Scientists point out that the heliosphere does not wink out of existence during this reversal. The sunspots are intense magnetic knots, much stronger than the star’s main field, which continue to spiral outward even when the main dipole field vanishes briefly. Though the solar magnetic reversal is not completely understood, the Ulysses space probe has sent back detailed data which has supplied answers to many questions. (6)

The mechanism that controls earth’s field reversals may not be based on similar principles. For one thing, a planet does not seem to have any equivalent to the powerful sunspots. McFarlane refers to there being more than one north-south pole system and about 10% of the total field being involved in smaller extra fields. If these subordinate minor magnetic fields take up more of the magnetic activity during the main field’s decline, they might become active enough to sustain a minimal protective layer shielding the biosphere, even if the main dipole field declines to zero gauss. This could be important for our survival, as the Steen’s mountain lava flows indicate that the reversal took 4,500 years to be completed! (5)

IMPLICATIONS FOR HUMANITY’S ENERGY NEEDS

Whether the magnetic field is primarily molten-metal flow dynamics or electron current loops, or a combination of those and other factors, a magnetic pole reversal may be of significance to the search for clean energy generation and transportation. If earth magnetic anomalies become more frequent or are concentrated in certain areas, we could see disruption of existing electrical grids, even without the dramatic atmosphere expansion and radiation damaging to life and computers.

PES Network Inc. wants to encourage people in all geographical regions to participate in magnetic-pole data collection and reporting. A community-editable directory page at PESWiki.com has been created for this purpose. It is recommended that you first establish a “base line? by determining the accurate magnetic north reading for your location, and report the number of degrees and direction of any deviation from this norm. If you are able to access equipment to determine field strength as well, this additional data would be of interest too.

This data may be useful in helping inventors and researchers test the tolerance of Zero-point technologies, magnetic motors and other new generation systems in adverse situations. As we may have to live through ongoing magnetic disturbance for a long time, we will need to know whether the new systems will be robust under conditions of planetary pole reversal.

Ordinary citizens do not usually have access to instrumentation that would allow them to examine the deeper layers of the planet, nor the high atmosphere, nor the magnetospheres in space. However, if many people collect observations on magnetic field direction from different locations across the continent of North America, and indeed around the world, this data may become relevant in more ways than feeding “end-time” theorizing.

The subject is complex, and whichever scenario may be about to occur, some individuals have been taking note of unusually large fluctuations in the apparent position of the magnetic north pole. Using a large, stationary, home-built compass, one individual in western Canada noticed a ten-degree variation within a few days. This was so unusual that, concerned about a sudden pole shift, he described and published his observations, and asked for input.

No one else was seeing this rapid “pole shift”.

On borrowing a very sensitive water-filled portable compass and quartering the area, he discovered that this was indeed a highly localized anomaly in which his domicile happened to be situated dead center. See his recorded readings at the link below. (8) He is now theorizing that the phenomenon may be a vortex related to the nearby extinct volcano Mount Ida. (9) Vortices have been known to occur in volcanic mountain areas, and in the past some have become tourist attractions.

Individual observations are of value, but need to be balanced by additional data from a much wider geographical area. Thus alarms about sudden general “pole shift” may be put to rest, and anomalies studied for what they are.

Ted Twietmeyer is one of those calling for volunteers to join in a non-profit effort (10) to track the magnetic pole shift — or apparent pole shift. Summaries and links to this data would be appropriate for the above-mentioned PESWiki directory.

REFERENCES

1. Article describes magnetic pole migration and related theories, with numerous diagrams.
2. The geodynamo: beautiful diagrams of shifts and variations in magnetic field strength.
3. Dr. Bonlie’s concepts of the energy base for biological life, including paleomagnetics.
4. Huge magnetic anomaly in South Africa, and satellite damage suggests that magnetosphere is weakening.
5. McFarlane’s alternative magnetic-field theory based on electrodynamics.
6. sun reversals
Solar magnetic field reversals described, with instructive diagrams.
7. General electrical theory about solar system.
8. data sheet of the local magnetic anomaly in British Columbia
9. “Mount Ida British Columbia Vortex” report. (to follow).
10. magnetic-pole-shift-may-be-underway
11. Article on magnetic anomalies for download