What to do with Rodger? The law regarding cremains.

January 12th, 2009
What to do with Rodger?  The law regarding cremains.  

By Stan Billingsley                                                                     Jan. 12, 2009

This week I received a package that I mistook for a belated Christmas gift.  My wife carried the package into my office and said here’s something “from your nephew Pat”.

A few hours later when I got around to opening the package (probably a Fruit Cake or a basket of Fruit I was thinking)  I found a silver heart shaped metallic box.  For some reason it occurred to me that this must be a gift of expensive chocolates.   Great, I love chocolate!

The silver container was about four inches long and four inches wide.   I tried to find a way to open it but after a few minutes of failing to find the secret to opening this container, I gave up (thank goodness!).

I rummaged through the shipping package and discovered a note.  The package was not from my nephew Pat, it was from my sister-in-law Pat, and the note explained that the silver box contained the cremated remains of my brother Rodger who died just before Christmas. (She called them “cremains”.)  I then remembered that my sister-in-law had mentioned that she would be sending the cremains.  The mind has a strange way of ignoring information one does not know how to handle I suppose.

My first thought was relief that I had failed to discover the secret on how to open the container.  That would have presented issues I was not ready to deal with.

My brother Rodger was two years older then me at the time of his death due to a heart attack.  He was a Viet Nam veteran, and lived in Wyoming.  He had no children but had the good fortune of remaining married to the same remarkable woman for 41 years.

This experience is a novel one to me.  What does one do with the cremains of a loved one?   At the moment I have placed Rodger on a book shelf.   Should I leave him there or should I find some more creative and appropriate disposition for Rodger?

We all have seen movies and television programs of people dealing with cremains and most of them have a humorous scene where the remains accidentally are spilled, dropped or whatever.   Other representations have the loyal survivor spreading their loved ones cremains on a beautiful beach or at the scene of some event that was of importance and meaning to the deceased.  Over the years, and largely due to the fact he lived in Wyoming and I live in Kentucky, we did not see each other often.  I am confronted with the issue that I should have known more about him, and admit a sense of guilt that I failed to stay closer to him. I am therefore left without a great deal of knowledge about any events that were of great interest and meaning to him.

Being a lawyer, it occurred to me that I should start my search for an answer to this question by researching the law to see what I was legally entitled to do with Rodger.

I conducted a search of the Kentucky Revised Statutes and found no guidance there.  There are laws about the “improper” disposition of remains, but no real prohibitions about tossing ashes into the wind or waters of the Commonwealth.  I found one case from 1947 that said my brother Rodger was entitled to a “Christian burial”. Just what, I wonder, is a “Christian burial”?  I’m pretty sure Rodger was a Christian. (This is one case ruling that the atheists have apparently overlooked).  He had a certain Zen like approach to life and pretty much did what he wanted throughout his life. While I don’t think he ever studied the Torah he might have taken up the Jewish faith. I am pretty sure that he wasn’t a Muslim.  But why did the highest court in Kentucky specify that he was entitled to a “Christian burial”?   Are Jewish, Buddist or Muslim burials that much different or unworthy of recognition by the courts?   Rodger had a proper “funeral” ceremony, and the local chapter of the American Legion was there, fired a salute and gave his widow an American flag.  The proper prayers were said, announcements were printed, a notice is the local paper was published, and friends and loved ones gathered.  Donations to his favorite charity were made. Flowers were sent.  Does that satisfy the courts? KRS 525.120 (1)  says it is illegal to do anything that would “outrage ordinary family sensibilities”.  What does that mean?   I can imagine that some solutions I might come up with to this question might outrage some family members and might be found acceptable by others.  However, there is no statute that specifically says Rodger has to be placed in the ground.KRS 381.700 says that as a property owner, one must “properly care” for any burial grounds.  If I place him in the back yard can I be cited for a violation of the law if I don’t keep the yard mowed?  (I do mow my yard regularly. Well to be truthful, I pay someone to mow my yard regularly.)  I searched under the title Public Health, and couldn’t find a relevant statute. I searched under Occupations and Professions and found only licensing requirements for undertakers. In checking the case law for reference to the word “funeral” I found 954 cases which discuss funeral expenses, rights to make funeral decisions, operation of funeral homes rights of ex-wives, etc. but no limitations on the handling of cremains.  The courts and the legislature have pretty much left the decision to me to decide what to do with Rodger. No one else is charged with the responsibility to relieve me of this decision (and no one is standing in line to relieve me of this responsibility).  I am not yet ready to make a decision, but I know that I have a great responsibility to do the right thing.  For the moment I will leave Rodger in the silver box on my book shelf until a better solution occurs to me.  Perhaps it is not a bad thing that I may be spending some time with Rodger in my home to make up for all those years when we were so far apart.  One thing I know about Rodger, is that he would love all this.Authorities:
  Terrill’s Adm’R v. Davis, 303 Ky. 758 (KY, 1947)
Dead Bodies. — A person is entitled to a Christian burial and it cannot be delayed to determine upon whom legal obligation to proceed with burial rests most heavily, and undertaker should not be compelled to await an adjustment of any dispute that might arise.
KRS 381.700 Care of burial grounds by owners.
The governing authorities of any city within whose corporate limits any burying grounds lie may require the owner or those having claims to the grounds to properly care for them.
Effective: October 1, 1942
History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2741p-2.
 KRS 525.120 Abuse of corpse.
(1) A person is guilty of abuse of a corpse when except as authorized by law he intentionally treats a corpse in a way that would outrage ordinary family sensibilities. A person shall also be guilty of abuse of a corpse if that person enters into a contract and accepts remuneration for the preparation of a corpse for burial or the burial or cremation of a corpse and then deliberately fails to prepare, bury, or cremate that corpse in accordance with that contract.
Effective: July 15, 2002
History: Amended 2002 Ky. Acts ch. 276, sec. 8, effective July 15, 2002. — Amended 2000 Ky. Acts ch. 490, sec. 1, effective July 14, 2000. — Created 1974 Ky. Acts ch. 406, sec. 222, effective January 1, 1975.
 KRS 307.300 Improperly interred body or cremated remains.
(1) In any instance where the operator of any cemetery is informed or becomes aware that it has improperly interred or has allowed to be improperly interred a body or cremated remains, including but not limited to interment in the wrong space, the burial container shall be disinterred and properly reinterred.
(2) Prior to disinterment and proper reinterment of the body or cremated remains, the cemetery shall give reasonable notice to the next of kin of the deceased and, if requested, the owner of the burial space, informing them of the improper interment and the agreed-upon date of the disinterment and proper reinterment.
(3) The expense of the disinterment and proper reinterment shall be paid by the cemetery in which the body or cremated remains were improperly interred.
Effective: July 15, 2002
History: Created 2002 Ky. Acts ch. 276, sec. 5, effective July 15, 2002.

   

KRS 72.450 Disposal of body and valuables found thereon.
(1) A coroner who has possession of a dead body or a part thereof shall make a bona fide attempt to notify the spouse, if any, or next of kin of the decedent’s death. In the event the coroner is unable to locate the spouse, if any, or next of kin, he or she may cause the body to be buried at the expense of the fiscal court, consolidated local government, or urban-county government, whichever is appropriate.
(2) In the event the body is buried at public expense, the coroner shall take possession of all money or other property found on or belonging to the decedent and shall deliver same to the fiscal court, consolidated local government, or urban-county government, whichever is appropriate. Any money or other property found on the body of the decedent or belonging to him or her shall be delivered by the coroner to the fiscal court, consolidated local government, or urban-county government, whichever is appropriate, to help defray burial expenses. Any excess funds shall escheat to such governmental agency one (1) year thereafter.
(3) In lieu of having an unclaimed body buried at public expense, the coroner may deliver such body or part thereof to a state medical school in accordance with the provisions of KRS 311.300 to 311.350.
Effective: July 15, 2002
History: Amended 2002 Ky. Acts ch. 346, sec. 74, effective July 15, 2002. — Created 1978 Ky. Acts ch. 93, sec. 14, effective June 17, 1978.
 

Martinez v. Employers Insurance of Wausau, 1999 KY 42109 (KYCA, 1999)
     One who is entitled to the Disposition of the body of a deceased person has a cause of action in tort against one who intentionally, recklessly or negligently mistreats or improperly deals with the body, or prevents its proper burial or cremation. The technical basis of the cause of action is the interference with the exclusive right of control of the body, which frequently has been called by the courts a “property” or a “quasi-property” right.
  This does not, however, fit very well into the category of property, since the body ordinarily cannot be sold or transferred, has no utility and can be used only for the one purpose of interment or cremation. In practice the technical right has served as a mere peg upon which to hang damages for the mental distress inflicted upon the survivor; and in reality the cause of action has been exclusively one for the mental distress. * * * There is no need to show physical consequences of the mental distress.


   


 


 

Justice Dept. Issues Opinion: Lawyer Incompetence in Immigration Hearings No Bar to Deportation

January 12th, 2009

 

 Ineffective assistance of counsel in an immigration proceeding is no longer a valid defense to deportation, reports The New York Times. An opinion released Wednesday by Attorney General Michael Mukasey holds that “neither the Constitution nor any statutory or regulatory provision entitles an alien to a do-over if his initial removal proceeding is prejudiced by the mistakes of a privately retained lawyer.” 

Prior to Mukasey’s opinion, many federal courts and the Board of Immigration Appeals held that immigrants denied competent counsel could reopen their cases on constitutional grounds. However, more recent federal appellate cases rejected the proposition that immigrants are entitled to effective representation in a deportation proceeding. 

Some who defend the ruling argue that it is based “firmly in the law.” Others believe that it will cut down on frivolous motions to reopen a case based on ineffective assistance of counsel, which is often a delaying tactic at best. But others criticize Mukasey for his 11th hour ruling, which penalizes immigrants for the sins of their attorneys, many of whom “extract heavy fees in exchange for false promises and shoddy, ineffective representation.” 

Speedy trial issue lands before US Supreme Court. Delay caused by Public Defender to be reviewed.

January 11th, 2009

A Vermont court threw out the conviction of Michael Brillion and freed him from prison last spring, saying his Sixth Amendment right to a speedy trial had been violated.

Now, the U.S. Supreme Court is taking up  a case this week, trying to decide if delays caused by public defenders can deprive a criminal defendant of that right. In particular: Whether governments can be blamed for such delays since they’re the ones who assign and pay the lawyers for indigent defendants.
Forty states and 15 organizations — state governments, county governments, the U.S. Conference of Mayors, a victim’s rights’ group — are backing the Vermont prosecutor’s appeal of the ruling, worried that if it stands criminal suspects will try to game the system and get the result Brillon did.
“You’re greasing that slippery slope,” said David Parkhurst, an attorney with the National Governors Association, which filed a friend-of-the-court brief in support of the prosecutor’s appeal. “That’s the big concern here.”
Brillon, a 46-year-old construction worker whose criminal past includes convictions for sexual assault on a minor, felony obstruction of justice and cocaine possession, was charged with aggravated domestic assault over the 2001 incident with his girlfriend, who was the mother of his child.
Held without bail, his case inched along as lawyer after lawyer asked for postponements and eventually withdrew or was replaced at Brillon’s request.
Brillon appealed on the speedy trial claim, and the Vermont Supreme Court ruled in his favor, saying the delays were the fault of the state. The ruling outraged victim’s rights’ advocates and others, both because Brillon was freed and for fear that other suspects would take his cue, hoping for a similar outcome.
Brillon’s current lawyer, whose position has been buttressed by friend-of-the-court briefs by the National Association of Criminal Defense Lawyers and the American Civil Liberties Union, acknowledges that Brillon had a role in some of the delays.
Still, says attorney William Nelson, the criminal justice system is primarily responsible.
Brillon was without any appointed counsel at all for six months and was held without bail for nearly three years, despite telling judges he wanted to go to trial, Nelson said.
The U.S. Solicitor General, representing the federal government, has filed a brief denouncing the Vermont ruling and is seeking permission to use 10 minutes of prosecutor Christina Rainville’s allotted 30-minute oral argument to make the case for striking down the Brillon ruling.
Maureen Dimino, indigent defense counsel for the National Association of Criminal Defense Lawyers, said cases like Brillon’s will become more common as cash-strapped states cut funding for public defender services, burdening those lawyers with so many cases that they seek more delays to prepare.
“This is going to become a bigger and bigger issue due to the economic crunch. The states are failing to fund these systems, causing these undue delays,” she said

Gov. Beshear Announces Expansion of Ethics Measures

January 11th, 2009

FRANKFORT, Ky. – Gov. Steve Beshear today announced an expansion of ethics measures in his administration that goes beyond what the law requires to promote greater transparency and openness to the taxpayers of the commonwealth.
“My administration has already adopted some of the toughest executive branch ethics reforms in the country,” Gov. Beshear said. “But our work is not done, and when questions are raised, even if they solely involve questions of appearance or perception, we will be willing to take action to ensure that we maintain the trust and confidence of the people of this state.”
Specifically, actions announced by Gov. Beshear today include:
*                   Directing the Governor’s Office of General Counsel to conduct a review each year of all financial disclosure forms from the governor’s senior staff, cabinet secretaries and the heads of agencies administratively attached to the governor’s office for any potential conflicts of interest. Currently, disclosure forms are filed with the executive branch ethics commission directly and not reviewed by the general counsel.
*                   As future or amended disclosure forms are filed each year, the governor’s senior staff, cabinet secretaries, and the heads of agencies administratively attached to the governor’s office will list not only outside businesses in which they have an ownership stake, but will also indentify all individuals who have any ownership in those interests as well. Currently, disclosure forms, by law, only require a listing of outside business interests.
This expansion of the administration’s ethics policy comes following questions about a pre-existing business relationship between Beshear Chief of Staff Adam Edelen and Bob Babbage, who is registered to lobby the executive branch. As required by law, Edelen disclosed the relationship, which existed years before Beshear’s election. However, Babbage failed to properly disclose the relationship on his disclosure form.
To further reassure taxpayers that the administration is taking every step possible to avoid even the appearance of conflict, the administration’s general counsel, on behalf of Edelen, has written to the Executive Branch Ethics Commission to ask for guidance on how to appropriately divest his family’s interest in a Lexington office condominium co-owned with Babbage.
More than two years ago, while working in the private sector, Edelen and Babbage co-owned a real estate interest, consisting of one house in Bourbon County, which was recently sold at a significant loss. In 2006, Edelen’s wife and Babbage signed a pre-construction purchase agreement for a Lexington office condominium.
As required by law, Edelen disclosed the business interests on his financial disclosure form filed with the Executive Branch Ethics Commission. Unbeknownst to the Beshear administration, however, Babbage did not disclose the business interests on his financial disclosure form.
The real estate venture has been dissolved. But Edelen said he wanted to take the further step of divesting his family’s interest in the condominium to remove any questions. “It is important that everyone knows that this administration is steadfastly committed to leading an open and honest government,” Edelen said.
Gov. Beshear added: “Adam completely adhered to both the letter and the spirit of the law. He fully disclosed a business relationship that existed before I ran for governor and, obviously, long before Adam ever contemplated joining state government. But Mr. Babbage’s failure to properly disclose this relationship has raised questions, and those must be fully and forcefully addressed. Adam’s divestiture is an important step in that regard.
“With the reforms we have adopted thus far, and with our conduct in cleaning up state government in areas such as the Transportation Cabinet, we have set a higher standard. We must live up to that standard,” Gov. Beshear said. “No one is perfect, but when questions are raised – whether they are based on reality or perceptions – we will address them as strongly and transparently as possible.
“This substantive expansion of what is already one of the toughest ethics policies in the country represents our intent to move forward in a way that represents the best interests of all Kentuckians,” Beshear said.
 

Shelby County Family Judge victimized by YouTube video postings by angry litigant

January 10th, 2009

A Shelby County pro se litigant who is angry with Shelby Family Court Judge John D. Myles rulings, has posted numerous videos on the video web site youtube.com which attempts to criticize the judge.
The attempt is to try to make the Judge look bad, but the result misses the mark.
LawReader has viewed these video tapes and we conclude that Judge Myles has shown a great deal of restraint.   It is unfortunate that the pro se litigant does not understand anything but that he is losing his case regarding child visitation.  Obviously, the game becomes blame the Judge.
 

We have sympathy for any Family Judge.  Judge Myles is certainly having a difficult time with this litigant.   It is unfortunate that the Judge is not permitted to post his own videos in which he points out the failings of the litigant.
 

Any one who practices law will understand how carefully Judge Myles has handled himself.  As a former Judge I shudder to think what I might have said to this troublesome litigant.   We can imagine that other judges will likely be subjected to this whining.  

Go to YOU TUBE SITE:  http://www.youtube.com/user/03CI000619
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Actual Court Video of John David Myles, Family …
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Judge John D. Myles Cursing a Litigant 
 (LawReader does not conclude that the Judge cursed the litigant.  Use of the word “hell” is hardly shocking and the Judge does not direct that word at the litigant.)
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This week’s schedule for Legislative Comm. meetings

January 10th, 2009

Kentucky General Assembly 

 

Weekly Legislative Calendar
January 12 – 16, 2009 

Monday, January 12, 2009 

 

No Meetings Scheduled 

 

Tuesday, January 13, 2009 

 

10:00am, Annex Room 149
ADMINISTRATIVE REGULATION REVIEW SUBCOMMITTEE
Members: Rep. Robert R. Damron (Co-Chair), Sen. Alice Forgy Kerr, Sen. Joey Pendleton, Sen. Gary Tapp, Sen. Elizabeth Tori, Rep. Danny Ford, Rep. Jimmie Lee, Rep. Ron Weston 

 

10:00am, Annex Room 171
GOVERNMENT CONTRACT REVIEW COMMITTEE
Members: Sen. Vernie McGaha (Co-Chair), Rep. Dennis Keene (Co-Chair), Sen. Julian M. Carroll, Sen. Carroll Gibson, Sen. Elizabeth Tori, Rep. Jesse Crenshaw, Rep. Brad Montell, Rep. Brent Yonts 

 

1:00pm, Annex Room 154
HOUSE STANDING COMMITTEE ON APPROPRIATIONS AND REVENUE
Agenda: pending
Members: Rep. Harry Moberly (Chair), Rep. Robin L. Webb, Rep. John A. Arnold, Rep. Bob M. DeWeese, Rep. Fred Nesler, Rep. Charles Siler, Rep. Arnold Simpson, Rep. Brent Yonts, Rep. Royce W. Adams, Rep. Scott W. Brinkman, Rep. Dwight D. Butler, Rep. Larry Clark, Rep. James R. Comer, Rep. Jesse Crenshaw, Rep. Mike Denham, Rep. Danny Ford, Rep. Derrick Graham, Rep. Keith Hall, Rep. Jimmy Higdon, Rep. Jimmie Lee, Rep. Lonnie Napier, Rep. Rick G. Nelson, Rep. Don Pasley, Rep. Marie Rader, Rep. Rick Rand, Rep. John Will Stacy, Rep. Tommy Turner, Rep. Jim Wayne
Note: This will be a joint meeting with the Senate Standing Session Committee on Appropriations & Revenue 

 

1:00pm, Annex Room 154
SENATE STANDING COMMITTEE ON APPROPRIATIONS AND REVENUE
Agenda: pending
Members: Sen. Charlie Borders (Chair), Sen. Bob Leeper, Sen. David E. Boswell, Sen. Tom Buford, Sen. Denise Harper Angel, Sen. Ernie Harris, Sen. Dan Kelly, Sen. Alice Forgy Kerr, Sen. Vernie McGaha, Sen. R.J. Palmer, Sen. Joey Pendleton, Sen. Tim Shaughnessy, Sen. Brandon Smith, Sen. Robert Stivers, Sen. Gary Tapp, Sen. Elizabeth Tori, Sen. Jack Westwood
Note: This will be a joint meeting with the House Standing Session Committee on Appropriations & Revenue 

 

Wednesday, January 14, 2009 

 

8:00am, Annex Room 154
HOUSE STANDING COMMITTEE ON APPROPRIATIONS AND REVENUE
Agenda: pending
Members: Rep. Harry Moberly (Chair), Rep. Robin L. Webb, Rep. John A. Arnold, Rep. Bob M. DeWeese, Rep. Fred Nesler, Rep. Charles Siler, Rep. Arnold Simpson, Rep. Brent Yonts, Rep. Royce W. Adams, Rep. Scott W. Brinkman, Rep. Dwight D. Butler, Rep. Larry Clark, Rep. James R. Comer, Rep. Jesse Crenshaw, Rep. Mike Denham, Rep. Danny Ford, Rep. Derrick Graham, Rep. Keith Hall, Rep. Jimmy Higdon, Rep. Jimmie Lee, Rep. Lonnie Napier, Rep. Rick G. Nelson, Rep. Don Pasley, Rep. Marie Rader, Rep. Rick Rand, Rep. John Will Stacy, Rep. Tommy Turner, Rep. Jim Wayne 

 

8:00am, Annex Room 149
SENATE STANDING COMMITTEE ON APPROPRIATIONS AND REVENUE
Agenda: pending
Members: Sen. Charlie Borders (Chair), Sen. Bob Leeper, Sen. David E. Boswell, Sen. Tom Buford, Sen. Denise Harper Angel, Sen. Ernie Harris, Sen. Dan Kelly, Sen. Alice Forgy Kerr, Sen. Vernie McGaha, Sen. R.J. Palmer, Sen. Joey Pendleton, Sen. Tim Shaughnessy, Sen. Brandon Smith, Sen. Robert Stivers, Sen. Gary Tapp, Sen. Elizabeth Tori, Sen. Jack Westwood 

 

Thursday, January 15, 2009 

 

No Meetings Scheduled 

 

Friday, January 16, 2009 

 

No Meetings Scheduled 

 

“Kentucky’s Open Door” web site provides online access to how tax dollars are spent

January 9th, 2009


 FRANKFORT, Ky. – On Jan. 1, 2009, Kentucky started the New Year with a Web site that provides citizens access to all state expenditures and other vital information about state-funded programs. The new Web site’s address is www.opendoor.ky.gov.
“In today’s difficult economic times, it is even more important for government to be transparent and accountable, and for citizens to feel confident that their tax dollars are being used efficiently and responsibly,” said Gov. Steve Beshear. “I’m proud of our administration’s efforts, along with the bipartisan support of all of the state’s executive branch constitutional officers, to put our checkbooks online for public view in such a comprehensive and user-friendly manner.”
In the spring of 2008, Gov. Beshear issued an Executive Order establishing the e-Transparency Task Force, a 14-member, bipartisan panel charged with providing a more transparent, accountable state government that helps eliminate wasteful spending and restores public faith in its leaders. What followed was a concerted, multi-agency effort, led by officials of the Finance and Administration Cabinet, which involved the hard work and extensive cooperation of representatives of every state agency, including the staff of the other, independently elected constitutional officers. The task force solicited dozens of ideas from members of the public, some of whom testified at its public hearings, while others emailed their ideas via the Finance Cabinet’s Web site.
Kentucky’s Open Door is a product of this effort. Some of the features found on the site include:
*                   Your Money: A section with dozens of helpful charts, graphs and descriptions that summarize state revenues, expenditures and budget priorities.
*                   Cabinet/Agency Search: A search engine that provides agency-by-agency data on state expenditures.
*                   Budget Basics: A tutorial that allows the average citizen to log on and find out basic information on state expenditures, revenues and how budgets are developed.
*                   Budgeting for Kids: A fully interactive children’s section that offers games, cartoons and interactive lessons on budgets and government finance.
*                   Vendor Income and Expense Watch (V.I.E.W.): A pioneering effort by Treasurer Todd Hollenbach that allows citizens to search all of the state’s vendor and contractor data.
*                   Links, links and more links: Providing taxpayers easy access to state audits, investments, tax incentives, election finances and more.
“We are proud of this bipartisan, interagency effort to launch this Web site,” stated Finance and Administration Sec. Jonathan Miller, chair of the Governor’s e-Transparency Task Force. “But we have not finished perfecting Kentucky’s Open Door. Nor will we ever be. This site will be ever-evolving and ever-improving; it will be our continuing goal to refine and supplement this invaluable taxpayer resource.”
“We have been pleased to work with the administration on this very important initiative,” said State Auditor Crit Luallen. “As Auditor, I’m a strong advocate for transparency in all areas of government. Our citizens deserve to know how their tax dollars are being spent, and now with Kentucky Open Door, the information is available to them.”
As of January 1, this Web site features all financial data from the statewide accounting system subject to disclosure under current law, through the policy established by the Governor’s Task Force.
“People have a right to know how State Government spends their money,” said State Treasurer Todd Hollenbach. “Through e-transparency, the citizens of the commonwealth will have a tool to scrutinize the spending of their tax dollars.”
“Placing our state’s spending online is an important step for our commonwealth’s fiscal health by holding those who spend taxpayer dollars more accountable,” said Secretary of State Trey Grayson.  “I want to thank Governor Beshear, Treasurer Hollenbach, State Representative Jim DeCesare, and the team in my office who made our spending available online last year, for taking leadership roles in this important effort to shine a brighter light on how taxpayer dollars are used.  This significant step will be of benefit to Kentucky taxpayers for years to come, and I look forward to working with the legislature to pass legislation to ensure its perpetuity.”
From the home page, citizens can access a list of features that are coming soon, as well as their estimated arrival dates. The Web site also offers an opportunity for citizens to weigh in on efficiency ideas, as well as suggestions for improvements of the site. Kentucky citizens are encouraged to go to www.opendoor.ky.gov to find out more about how their tax dollars are being spent.
 

Bipartisan Support for Bill to Expand Programs that Divert Drug Offenders from Prison Sentence

January 9th, 2009

FRANKFORT — A legislative committee Thursday approved a bill that would expand programs that divert drug offenders out of the state’s overcrowded prisons. The bill would allow for pretrial officers to screen people for drug addiction and then make recommendations on what type of treatment they should receive. People who receive treatment would not be incarcerated. The legislation allows for the use of secured residential drug treatment. 

A similar bill has been passed by the Senate every year for the past three years but has been killed in the House. Sen. Dan Kelly, R-Springfield and co-sponsor of the bill, said he believes the bill has a better chance of passing the House this year. On Tuesday, House Democrats elected new leadership. Those leaders have expressed support for the program, Kelly said. 

Kelly, who testified before the Senate Judiciary Committee on Thursday, said that the program would not need any additional revenue. Money saved from not housing criminals in state prisons would be used to fund the program, Kelly said. The bill will likely be taken up by the full Senate when the General Assembly reconvenes in early February

Senate Judiciary approves pair of drug bills 

  

Two bills that have sailed through the Senate in past sessions but did not become law have again been approved by the Senate Judiciary Committee. 

 

Senate Bill 4, sponsored by Senate Majority Floor Leader Dan Kelly, R-Springfield, and Senate Democratic Floor Leader Ed Worley, D-Richmond, would create a substance abuse recovery program to get individuals with substance abuse problems who are charged with felonies the help they need even before they come up for trial. Offenders would be screened when they are initially processed and judges could make treatment a condition of bail. 

 

A second component of the bill would allow those with more serious dependency issues to voluntarily enter a secure inpatient program of 3-12 months with conditions similar to a minimum security prison. 

 

Senate Bill 5, sponsored by Sen. Ray Jones, D-Pikeville, would create standards for drivers to be convicted of a DUI if they have a certain amount of drugs in their blood. Exemptions would apply to prescription drugs being taken as directed by a doctor. 

 

Both bills now move to the full Senate for its consideration

Want to attend an inauguration party next week in Washington D.C.? Here’s how.

January 9th, 2009

Want to attend an inauguration party next week in Washington D.C.? 

You can attend a Kentucky-themed pre-inaugural ball in the nation’s capital for $353.50 — or take along nine friends for an even $4,000.
The Bluegrass Ball is a Jan. 19 black-tie event sponsored by the Kentucky Society, which has decided to make tickets available to the public. Go to:  www.kentuckysociety.org.

Conservative 4th. Circuit Ct. of Appeals Court strikes down federal sex offender law.

January 8th, 2009

 

RICHMOND, Va.  — Congress overstepped its authority when it enacted a law allowing the federal government to hold sex offenders in custody indefinitely beyond the end of their prison terms, a federal appeals court ruled Thursday.
 

The law allowing civil commitment of “sexually dangerous” federal inmates intrudes on police powers that the Constitution reserves for states, many of which have their own similar statutes, a three-judge panel of the 4th U.S. Circuit Court of Appeals said.  The 4th. Circuit is widely regarded as the most conservative Court of Appeals in the U.S.
Civil commitment power “is among the most severe wielded by any government,” Judge Diana Gribbon Motz wrote. “The Framers, distrustful of such authority, reposed such broad powers in the states, limiting the national government to specific and enumerated powers.”
In upholding a decision by U.S. District Judge W. Earl Britt of Raleigh, N.C., the 4th Circuit became the first federal appeals court to rule on an issue that has divided courts nationwide. A judge in Minnesota reached the same conclusion as Britt, while courts in Hawaii, Oklahoma and Massachusetts upheld the measure.
Thursday’s ruling is binding only in the states included in the 4th Circuit: Virginia, North Carolina, South Carolina, West Virginia and Maryland.
U.S. Department of Justice spokesman Charles Miller said it was too early to comment on what steps the government might take next. The department could appeal the ruling to the U.S. Supreme Court or seek a rehearing before the full federal appeals court.
Elizabeth Luck, a spokeswoman for the federal public defender’s office in Raleigh, declined to comment. The public defender represented five inmates who challenged the law after they were kept in custody beyond the end of their sentences at the federal prison hospital in Butner, N.C.
Civil commitment was authorized by the Adam Walsh Child Protection and Safety Act, which President Bush signed in July 2006. The act, named after the son of America’s Most Wanted television host John Walsh, also establishes a national sex offender registry, increases punishments for some federal crimes against children and strengthens child pornography protections. Those provisions are not affected by the ruling.
The appeals court found no merit in the government’s argument that it had constitutional authority to enact the civil commitment law under the Commerce Clause, ruling that “sexual dangerousness does not substantially affect interstate commerce.”
The government also relied on a clause authorizing Congress to enact “all laws which shall be necessary and proper” for executing federal powers, but the court said that applies only to powers enumerated by the Constitution.
“Our holding, however, does not require that the Government’s legitimate policy concerns go unaddressed,” Motz wrote, suggesting federal authorities concerned about a soon-to-be-released inmate’s sexual dangerousness can notify state officials, who can pursue civil commitment under state law.
“But Congress’s perceived need for the sort of civil commitment statute at issue here does not create constitutional power where none exists,” Motz wrote. “Congress must instead seek alternative, constitutional means of achieving what may well be commendable objectives.”
Motz was joined in the opinion by Judge G. Steven Agee and visiting U.S. District Judge James C. Cacheris.
On the Net:

 

Are the Polar Ice Caps Really Melting? New satellite will answer this hotly debated question.

January 8th, 2009

European Space Agency will launch a satellite in 2009 to see if the earth’s ice caps are really melting. 
 

ESA’s ice mission CryoSat-2
 
The question of whether global climate change is causing the polar ice caps to shrink is one of the most hotly debated environmental issues we currently face. By monitoring precise changes in the thickness of the polar ice sheets and floating sea ice, CryoSat-2 aims to answer this question.
 The go-ahead to build and launch the CryoSat-2 mission came in February 2006 after the loss of the first CryoSat in October 2005 due to a launch failure. The mission’s objectives remain the same as before – to measure ice thickness on both land and sea very precisely to provide conclusive proof as to whether there a trend towards diminishing polar ice cover, furthering our understanding of the relationship between ice and global climate. CryoSat-2 is due for launch in 2009.
It is now generally agreed that the Earth’s atmosphere is getting warmer, and although the impact of climate change is expected to be amplified at the poles, it is extremely difficult to predict what effect this is having on the polar ice cover. On one hand, recent years have already seen record summer reductions, in extent and concentrations, of sea ice in the Arctic. In Antarctica, giant icebergs have calved and part of the Larsen ice shelf has disintegrated. However, on the other hand, ships have recently been trapped for weeks in unusually heavy Antarctic pack ice conditions.   
From an altitude of just over 700 km and reaching latitudes of 88°, CryoSat-2 will monitor precise changes in the thickness of the polar ice sheets and floating sea ice. The observations made over the three-year lifetime of the mission will provide conclusive evidence of rates at which ice cover may be diminishing.
 
 
Fundamentally, there are two types of polar ice – the ice that floats in the oceans and the ice that lies on land. Not only do these two forms of ice have different consequences for our planet and its climate, they also pose different challenges when trying to measure them from space.
 
 
Sea ice is relatively thin – up to a few metres thick, but, it influences regional temperature and the circulation of ocean currents, and consequently the Earth’s climate. CryoSat-2 will acquire precise measurements of the thickness of floating sea ice so that annual variations can be detected.
 
 
In contrast, the ice sheets that blanket Antarctica and Greenland are several kilometres thick. It is the growth and shrinkage of these ice masses that have a direct influence on sea level. The chosen approach to measuring these vast thicknesses is to determine the height of the surface accurately enough to detect small changes.
 
 
To meet the challenges of measuring ice, CryoSat-2 will carry a sophisticated radar altimeter called SIRAL (Synthetic Aperture Radar Interferometric Radar Altimeter). It is based on heritage from existing instruments, but with several major enhancements designed to overcome the difficulties intrinsic to the precise measurement of ice surfaces.
 
 

School Consolidation could improve education and save tax dollars.

January 8th, 2009

A recent article concerning a survey of voter attitudes in Indiana regarding school consolidation was brought to LawReader’s attention by Circuit Judge Jack Seay of Bardstown.  This article demonstrates how the effort to provide a first rate education takes second place to the desire to maintain a local identity.

The public doesn’t like to pay taxes, but they often demand government policies that waste tax money.  This is evident in the public’s opposition to school consolidation.

When the government tries to close a small post office, or to consolidate a small school system, the public’s eyes glaze over and they ignore the cost savings (and educational benefits) that could be realized from consolidation.

The public gives little weight to the advantages of larger schools which can offer more programs and different classes, in order to preserve their local identity.

This issue also plagues Kentucky in the area of counties.  We have 120 counties and some are so small that they cannot afford to operate efficiently. 

One glaring example of this inefficiency is the Kentucky County of Robertson

As of 2000, the population was 2,266. Its county seat is Mount Olivet, Kentucky.

With a population of only 2, 266, this suggests a school age population of only about 500 students.  That translates into a High School population of about 150 students.  Do you think they offer French, Spanish, German language classes?  Do you think they have adequate math classes?  How big do you think the science lab is?

Perhaps we should ignore County lines, and follow the suggestion of Gov. Daniels of Indiana and redraw school district lines based on actual population.

It is said that the current County lines in Kentucky were created on the basis of how far a man could travel on a horse from his home to the county seat in one day.  Perhaps we should redraw school district lines on the more modern basis of how far a school bus can travel in one hour.

When the state budget is in the red to the tune of $462 million dollars this year, and considering that about half the entire state budget goes to Education, perhaps we should forget county lines, and design an educational system that provides a better educational experience and cost savings instead of adhering to county lines drawn almost two centuries ago.

See the Indiana article:

Most oppose Indiana Gov. Mitch Daniels’ idea to force school mergers

Indiana Survey: Two-thirds don’t like School Consolidation Proposal
 

By Andy Gammill The Indianapolis Star

INDIANAPOLIS — An Indiana University survey on education issues found weak support at best for proposals to consolidate small school districts in the state.
 

Gov. Mitch Daniels recently proposed forcing school districts with fewer than 1,000 students to merge with another district. That would target about 45 of the state’s small school districts.
IU’s telephone survey shows a strong majority of people don’t want their school districts forced to merge: Two-thirds said they would oppose such changes in their community.
 

Opinion was more divided on whether there would be benefits from consolidation:
 

50 percent believe consolidating schools would expand learning opportunities for students; 49 percent believe it would save tax dollars; and 45 percent believe it would enhance student achievement.
 

John Ellis, director of the state school superintendents association, said some very small school districts are operating inefficiently and need to consider consolidation but they need to be able to do it on their own terms.
 

“We do have districts in Indiana that need to consolidate, there’s no doubt about it,” Ellis said. “But it’s a local-control issue.”
 

Terry Spradlin, an education analyst and one of the IU researchers who conducted the survey, said the low levels of support put the burden on the governor and other advocates of consolidation to sway public opinion in their favor.
 

“I’m not surprised by these numbers,” Spradlin said. “Citizens associate closely with their school districts, especially in small-town rural Indiana.”
 

In other key findings:
 

About 54 percent of respondents said Indiana’s schools do an excellent or good job, about the same as in years past.
 

64 percent said public schools did not receive enough funding in Indiana, although that number dropped to 46 percent when they were told that schools spend about $10,000 per student per school year, an approximate statewide average.
 

70 percent said they supported moving school board elections to November rather than the May primary, when some school officials are now elected.
 

66 percent support the use of online courses to supplement schools’ curriculums, but 74 percent oppose school districts or charter schools providing most instruction to students via the Internet, even when supervised by a licensed teacher.
 

71 percent said they would like to see teachers’ pay determined by a combination of years of
experience, as is now done, and by measuring student performance. Another 16 percent would like to see teachers’ pay determined only by their students’ performance.
 

The survey of 612 Hoosier adults was conducted in November by the Center for Evaluation and Education Policy at the IU School of Education. It has a margin of error of plus or minus four percentage points.

State Official May Own Real Estate with others. Governors Chief Aide, Adam Edelen is clean on this issue.

January 7th, 2009

 

By LawReader Senior Editor Stan Billingsley                     Jan. 7, 2009
 

In the field of ethics applicable to Executive Branch officials the law requires that a financial report be made disclosing some but not all business relationships and investments.   Adam Edelen, the chief aide to Gov. Steve Beshear co-owns a condo with lobbyist Bob Babbage.  
 

There is no prohibition against Executive Branch, Legislative Branch or Judicial Branch officials (including judges) from owning a business or real estate with third parties as long as they file the required financial reports.  The only ethical problem arises is if there is some future use of the public official’s position to privately enhance his personal investment.  Knowing Edelen, we believe that that is unlikely to occur.
 

We see it difficult to see how an aide in the Governor’s office is going to be able to take any action that would enhance this real estate investment unless he tried to sell or lease the condo to the state. 
 

The Governor’s office says that Edelen had filed all required reports concerning the investment he has in the condo before the press raised the issue. 
 

The following Ethics Code statute is the basis for the reporting requirement applicable to this investment and Edelen.
 

“KRS 11A.050 Financial disclosure by officers, candidates, and public servants. (1) Each officer, each public servant listed in KRS 11A.010(9)(a) to (g), and each candidate shall file a statement of financial disclosure with the commission, as follows:
 

(j) Information, including a street address or location, regarding any real property in which there is an interest of ten thousand dollars ($10,000) or more held by the filer, his spouse, or dependent children;…”

 

     The press this week reported on the condo investment between Edelen and lobbyist Bob Babbage.   They recognized that Edelen was in full compliance with the law, but felt there was a problem in Babbage’s oversight in disclosing this investment on his financial disclosure report.  Edelen can hardly be held accountable for Babbage’s failure to file his report.      

 

Excerpt from David Hawpe Column:

 

“(Babbage)… should have told the public about all his business dealings, as they involve the state, including a speculative house deal with, and co-ownership of a condo unit with, the Governor’s newly appointed chief of staff.

 

To Edelen’s credit, he did disclose this business relationship which occurred prior to his becoming a state employee.

 

But only after the media began to raise concerns did Babbage file a corrected disclosure form with the Executive Branch Ethics Commission.

 

Asked to check into the Governor’s view of Babbage’s conduct, a spokesman reported that Beshear disapproved of Babbage’s failure to disclose his investment. 

 

That same spokesman said that, when Beshear defended the handling of business links between Edelen and Babbage, he was only talking about his chief of staff’s conduct.

 

Here’s what the Governor said, as quoted in the Lexington Herald-Leader: “I don’t think it looks bad. If the only people who can work for state government are folks who don’t know anybody, don’t do any business with anybody (and) don’t make any money in any other way before they turn to state government, then we wouldn’t have many people working for state government.”

 

    We know of no duty on the part of the Governor to monitor every lobbyists investments.

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STUDY CONFIRMS LONG-HELD SUSPICION THAT WHEN LOCAL BUDGETS GET TIGHT, COPS WRITE MORE TRAFFIC TICKETS

January 7th, 2009

go to: Study confirms long-held suspicion that when local budgets get tight, cops write more traffic tickets

What’s next in the Minnesota Election contest between Al Franken and Norm Coleman?

January 7th, 2009


 Here’s the Minnesota  state law.

The state Supreme Court chief justice will now appoint three judges. It’s unclear if Chief Justice Eric Magnuson will take this action because he was a member of the canvassing board. He may or may not. His duties on the board are completed.

If he doesn’t, then it’s likely that Associate Justice Alan Page will play that role as the senior member of the Supreme Court.

It’s possible that whichever Supreme Court justice does the selecting will present a group of candidates to the two sides and each side will be allowed to eliminate judges they don’t like. That’s an option.

The trial will be held in Ramsey County, but the three judges need not be sitting Ramsey County judges. They can be from any county and even be members of the Court of Appeals, said Coleman lawyer Fritz Knaak.

Before all that, there will be a series of procedural motions filed, probably by both sides. And both sides will begin interviewing witnesses in the discovery phase before a trial.

That trial is to start within 20 days from today, on about Jan. 26.

Minnesota Public Radio says:

The Coleman campaign has seven days to essentially appeal the Canvassing Board’s decision certifying Franken the winner of the Senate recount.

 

Coleman can raise the same questions about the ballots as he did in the past few weeks. But now he faces a different legal path, which will most likely start with a three-judge panel appointed by Minnesota’s Chief Justice Eric Magnuson.

 

Coleman would file the lawsuit in Ramsey County, but there’s nothing in state law that says Magnuson has to appoint Ramsey County judges to hear the dispute.

There’s one potential snarl in Magnuson choosing the three-judge panel — he also was a member of the state Canvassing Board. To ensure the perception of a cleaner-looking process, Magnuson could ask another justice to choose the panel.

 

He could also follow in a previous chief’s footsteps. During the tight gubernatorial race between Karl Rolvaag and Elmer Andersen in 1962, Minnesota Chief Justice Oscar Knutson gave the campaigns a list of all the district judges and told them to choose a panel.

 

Tom Swain, Andersen’s chief of staff and campaign manager at the time, remembered Knutson’s orders.

 

“‘You guys sequester yourselves in this room and spend as long as necessary going over every one of the 54 district judges in Minnesota. You come up with three that you can agree upon, and I’ll make sure they show up — short of being on their death bed,’” Swain recalled.

 

The three judges in this case will function as a trial court, and decide only those complaints brought before them by the Coleman campaign and any others the Franken campaign may raise.

 

The panel will find facts and apply the law. If they disagree, majority rules. The unhappy party could appeal the panel’s decision to the Minnesota Supreme Court.

Once the Supreme Court rules, it would send its decision, all files and proceedings to the presiding officer of the U.S. Senate.

 

But political scientist Guy Charles, a visiting election law professor at Duke University, says there’s also a chance that Coleman may take a cue from the Bush v. Gore 2000 election contest and also file a challenge in federal court.

 

“You saw the Bush campaign proceed on two fronts. There were lawsuits that were filed in federal court, and there were lawsuits that were filed in state court,” said Charles. “And that’s also a possibility [in this case], that you could file a lawsuit in federal district court and you could file an election contest in state court.”

 

The mere mention of Bush v. Gore raises the specter that the U.S. Supreme Court could get involved in Minnesota’s case. Several election law experts say that isn’t likely, because the Supreme Court usually stays out of state election law contests. Nevertheless, they say it’s still an outside possibility.

 

 

Knaak predicted that a trial could last a month, meaning that March in Minnesota is sure to come in like a lion.

On Tuesday Jan. 6, 2009, a former Republican Governor of Minnesota called on Coleman to concede the election to Franken

 

Greg Stumbo Elected Speaker of the House by 3 vote margin.

January 6th, 2009

Jan. 6, 2009

LawReader reported earlier this week that our sources indicated that Greg Stumbo would win the Speaker’s position in a close race. They were right on the mark.

 

 Kentucky House Democrats elected Greg Stumbo Speaker of the House, in the most hotly contested leadership race on the first day of the legislative session.  The caucus meeting lasted over two hours.

 

Stumbo unseated longtime House Speaker Jody Richards.

 

State. Rep. Larry Clark, D-Louisville, was re-elected House Speaker Pro Tem for his ninth term. He was opposed by Joni Jenkins of Louisville.

 

Rep. Bob Damron, D-Nicholasville, was elected caucus chairman. Rep. John Will Stacy, D-West Liberty, was elected whip.

 

Damron said Stumbo beat Richards by three votes.

 

House Republicans made one change in leadership. Rep. David Floyd of Bardstown ousted Rep. Stan Lee of Lexington for House minority whip.

 

Reelected to House GOP leadership were Jeff Hoover of Jamestown as minority leader and Bob DeWeese of Louisville as minority caucus chair.

 

The only change in Senate leadership among the democrats was Sen. Jerry Rhoads, D-Madisonville. His colleagues elected him Senate minority whip in an uncontested race. Sen. Joey Pendleton, D-Hopkinsville, decided not to run again for the position.

 

Pendleton said Rhoads had been seeking the position and he did not want a divisive race.

Senate Democratic leaders re-elected were Ed Worley of Richmond as minority floor leader and Johnny Ray Turner of Drift as minority caucus chairman.

 

Senate Republican leadership had no changes

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SENATE MUST SEAT BURRIS – U.S. SUPREME CT. HAS SET PRECEDENT WHICH LIMITS CONGRESS’S POWER TO REFUSE TO SEAT NOMINEE

January 6th, 2009

Senatorial appointed Roland Burris from Illinois has strong legal argument to be seated.  The Congressional claim to be able to deny a seat at their discretion has been limited by a relative recent ruling of the U.S. Supreme Court.
The U.S. Supreme Court in 1969 (Adam Clayton Powell vs.  Speaker of the House John McCormick) limited the power of Congress to exclude members who met the constitutional requirements for election to office. (i.e. age, residency, citizenship).
The court said:
“…what evidence we have of Congress’ early understanding confirms our conclusion that the House is without power to exclude any member-elect who meets the Constitution’s requirements for membership. “
The Court concluded:
 

Conclusion.
         “ Had the intent of the Framers emerged from these materials with less clarity, we would nevertheless have been compelled to resolve any ambiguity in favor of a narrow constuction of the scope of Congress’ power to exclude members-elect. A fundamental principle of our representative democracy is, in Hamilton’s words, ‘that the people should choose whom they please to govern them.’ 2 Elliot’s Debates 257.
As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel.
To allow essentially that same power to be exercised under the guise of judging qualifications, would be to ignore Madison’s warning, borne out in the Wilkes case and some of Congress’ own post-Civil War exclusion cases, against ‘vesting an improper & dangerous power in the Legislature.’ 2 Farrand 249. Moreover, it would effectively nullify the Convention’s decision to require a two-thirds vote for expulsion.
Unquestionably, Congress has an interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.
          For these reasons, we have concluded that Art. I, § 5, is at most a ‘textually demonstrable commitment’ to Congress to judge only the qualifications expressly set forth in the Constitution. Therefore, the ‘textual commitment’ formulation of the political question doctrine does not bar federal courts from adjudicating petitioners’ claims. “

SEE FULL TEXT OF   POWELL V. MCCORMICK

SEATING OF CONGRESSMAN-SENATOR NOMINEE – SUPREME COURT HAS LIMITED POWER OF CONGRESS TO REFUSE TO SEAT MEMBER

Obama’s Justice Department to Make Big Changes

January 6th, 2009

 

President-elect Barack Obama reached back to the Clinton administration again Monday to fill four top Justice Department posts with lawyers whose records signal a sharp break from the legal policies of the last eight years. 

 

Washington lawyer in private practice, as deputy attorney general; Elena Kagan, dean of the Harvard Law School, as solicitor general; Thomas J. Perrelli, a Washington lawyer, as associate attorney general; and Dawn E. Johnsen, an Indiana University law professor, as head of the Office of Legal Counsel. All four held senior legal posts in the Clinton administration. 

 

At the Justice Department, where controversial Bush administration policies like interrogation tactics and eavesdropping will come under review, the nomination of Eric H. Holder Jr. as attorney general last month and Monday’s selections of four top aides suggested a strong effort to stake out a new direction. 

 

For instance, Ms. Johnsen, who would provide legal interpretations to the entire Obama administration, did not try to hide her disdain for recent counterterrorism initiatives in a law review article last year titled: “What’s a President to Do: Interpreting the Constitution in the Wake of the Bush Administration’s Abuses.” 

 

She criticized the “unnecessary unilateralism of the Bush years” in programs like the National Security Agency’s program of wiretapping without warrants and the administration’s approval of simulated drowning, or waterboarding, in the questioning of suspected Al Qaeda operatives. 

 

After the terror attacks of Sept. 11, 2001, the Justice Department became the center of controversy over a variety of counterterrorism initiatives, as the Office of Legal Counsel gave its blessing to programs that even some Justice Department officials considered potentially illegal. 

 

Mr. Obama’s transition team at the Justice Department, led by Mr. Ogden, has examined a variety of Justice Department policies over the last two months to allow for a quick start to the new administration. Among the first tests it will face are the continuing challenges in federal courts over the N.S.A.’s wiretapping program and a pending Supreme Court case over the indefinite detention of legal American residents as “enemy combatants.” 

 

A Harvard law professor who is an adviser to Mr. Obama on legal issues, Laurence H. Tribe, predicted in an interview that Ms. Johnsen, as head of the Office of Legal Counsel, and Ms. Kagan, as solicitor general, would be particularly forceful in challenging the broad claims to executive authority asserted by the Bush administration. 

 

“I’ll be very surprised if they don’t freshly re-examine some of the positions the previous administration has taken,” said Mr. Tribe, who taught Ms. Kagan at Harvard. 

SECRET SOURCES PREDICT SPEAKER OF THE HOUSE RACE

January 3rd, 2009

 By LawReader Senior Editor Stan Billingsley  –  Jan. 4, 2008

Everyone in Frankfort, of a Democratic persuasion, are scared to death to discuss the race for Speaker of the House between incumbent Speaker Jody Richards, and former Attn. General Greg Stumbo. No one wants to be on the wrong side of this one due to the great power of the Speaker of the House.  During the last session, Speaker Richards removed a Committee Chairman from office in order to get a bill out of committee.  That move struck fear in a lot of legislative hearts. The leadership election is scheduled for Tuesday Jan. 6th.

    This week LawReader put out feelers seeking some insider comments about the race.  We found one person who is a reliable source and who is well connected to the Frankfort establishment.  The person (notice I haven’t indicated the gender) agreed to talk but only on conditions and promises of non-disclosure of their identity.  That is not an unusual requirement for LawReader sources.

Our signal that the meeting was on was to be a red flower pot placed in a certain office window.  I drove by a state government building he designated, at the appointed time, and I spied the red flower pot…the meeting was on!!*

So I got out my British Khaki Trench Coat, my Indiana Jones Fedora, and some dark sunglasses for the meeting.  With my hat pulled down and the collar of my coat up, I met my source on the bottom level of the Capital Parking garage at midnight.  The source stood behind a pillar in the shadows and spoke in a low voice.  I never saw how the source got into the parking lot or how the source left.

The report given to LawReader by this source, confirms what we have heard from other sources close to the election including a member of the legislature.  With two sources we feel comfortable in going with the story.

In the race between Richards and Stumbo, everyone repeats the mantra, “We love Jody Richards.”  Our source was no different. (I have never found anyone who says anything bad about the current Speaker.)  “However”, our source continued, “we believe that Stumbo has a slight edge in the race.”  

Our legislator source, who doesn’t wish to be named, also predicted a Stumbo win, and he also predicted it would be close.  We noted when he talked with us, that he didn’t hesitate to endorse Stumbo but still didn’t want his identify disclosed.   He said that he believed that the House needed new leadership particularly after the failures of the last session.

    Our source suggested that particularly among newer members of the legislature there was some prevarication about their voting tendency and as a result there has been some double counting of pledged votes by the Stumbo team and the Richards team.  So if either of the candidates claimed they have the votes, they may have been mislead by legislators who were afraid of saying “no” when asked by both candidates for their vote.      The source answered our question about how a Stumbo victory would affect the various regional interests in the Legislature.  The source indicated that the region most likely to be affected by a Stumbo win was Jefferson County.   Rep. Larry Clark is openly for Stumbo but many other Jefferson County Representatives were for Richards.  Among them is Joni Jenkins who is seeking a leadership position on the Richards “ticket” while Clark is seeking the same position on the Stumbo ticket.  Our source predicted that “Clark would clean Joni’s clock” in the race.  In some leadership position races to be determined by the Democratic Caucus, there are more than two candidates.  We asked why so many candidates?  Why would a legislator put himself in a race in which he was sure he couldn’t win?  The source explained that Caucus procedures.  A winner must have the majority of the votes cast.  So if a candidate comes in first but fails to obtain a majority, the candidate with the lowest number of votes drops out for a revote.  Therefore the candidates had encouraged several  candidates to enter into some races to assure that the Caucus had a chance to defeat someone they didn’t want elected but who had the most votes on the first ballot.   Sounds like if they put this kind of foresight and planning into their legislative votes, our budget crisis would never have happened.

Both sources called the election for Stumbo by a slight margin.  We are advised that the vote will be by secret ballot.  If so that will provide cover for the legislators who have committed to both candidates. 

One interesting possibility is that one of the candidates for Speaker could form an alliance with the Republican Caucus.  In the Speaker’s race, all members of the House can vote.  Since the Democrats have a majority of seats, they can of course outvote the Republicans.  However, if on the first vote the Republicans vote for one of the Democrats, they could be the Kingmaker.  Of course this type of manuever will require some agreement from the beneficiary, in the form of Committee appointments and who knows what else.  

Stumbo had demonstrated the ability to negotiate a deal with David Williams.  During the last sesssion when there was a deadlock between the Senate and the House on some budget items, Stumbo met with Williams and got the bills favorable to East Kentucky out of the Senate.  This could suggest the possibility that he might be anticipating Republican support in the Speaker’s race.So based on our sources, it looks like a close race with Stumbo having the edge. 

*Some poetic license has been taken by the author concerning the meeting but not on the comments.

 Update Jan. 4, 2008:  Another highly placed source contacted LawReader after the publication of this story and predicted that Stumbo’s victory will not be as close as our other sources suggest.  They predicted a clear cut victory for Stumbo on Tuesday.  This source has proven very reliable in the past.

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Legislature set to reconvene…they should read what delegates to 1897 Constitutional Convention said about them

January 3rd, 2009

Jan. 3, 2009

As the Legislature gets ready to start a new session on Jan. 6th. we note a comment made by a Delegate to the Ky. 1897 Constitutional Convention. 

This should be considered in light of the current $450 million dollar budget deficit and the fact that over the last 20 years the Legislature has granted tax exemptions to business groups totalling $600 million annually:

Delegate Knox: “… look at the ponderous volumes of private acts passed our Legislature within the last few years, and enumerate the horde of railroad and other corporations which have been exempted from taxation, and allowed a variety of other special privileges, while battening like vampires upon the substance of the people….” Vol. 1, p. 466.  

See more quotes at: Tabler v. Wallace, 704 S.W.2d 179 (Ky., 1985)

When considered against its historical background, it is evident that Section 59 is more than simply another way of restating the generalized language of the equal protection clause of the Fourteenth Amendment to the United States Constitution. Indeed, Sections 1, 2 and 3 of the Kentucky Constitution which provide that the General Assembly is denied arbitrary power and shall treat all persons equally, suffice to embrace the equal protection clause of the Fourteenth Amendment.

        But the debates of the Kentucky Constitutional Convention of 1890 and its detailed list particularizing twenty-nine different subjects where the “General Assembly shall not pass local or special acts” provide convincing evidence of the reasons for Section 59, prohibiting local and special legislation. See Debates, Constitutional Convention of 1890, 4 Vol.

        The history of the times and the nature of the problem becomes clear when one reads the debates. Unbridled legislative power had become the captive of special interest groups. Concern for limiting the powers of the legislature in general, and with cutting off special and local legislation in particular, was the primary motivating force behind enactment of the new Kentucky Constitution of 1891.

 Limitations of time and space prevent restating the proceedings in detail. A few excerpts will suffice:

Delegate Mackoy:
“… now, if there is any one evil more than another which the people of this State have earnestly demanded should be corrected by this Convention, it was that local and special legislation should be rooted up entirely….” Vol. 3, p. 4019.

Delegate Young:
“… no special provisions for anybody, no exemptions, but all to have the same protection and all live under the same law, and no special benefits to anybody….” Vol. 3, p. 3996-97.

Delegate Knox:
“… look at the ponderous volumes of private acts passed our Legislature within the last few years, and enumerate the horde of railroad and other corporations which have been exempted from taxation, and allowed a variety of other special privileges, while battening like vampires upon the substance of the people….” Vol. 1, p. 466.

Delegate Carroll:
“… except for the vicious legislation and the local and special laws of all kinds and character passed by the Legislatures that have met in Kentucky for the last twenty years, that no proposition to call a Constitutional Convention could ever have received a majority of the votes of the people of Kentucky.” Vol. 1, p. 1482.