DOCSLIB.ORG

Kentucky Post-Conviction Remedies and the Judicial Development of Kentucky Rule of Criminal Procedure 11.42 John S

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Kentucky Post-Conviction Remedies and the Judicial Development of Kentucky Rule of Criminal Procedure 11.42 John S Kentucky Law Journal Volume 83 | Issue 2 Article 2 1994 Kentucky Post-Conviction Remedies and the Judicial Development of Kentucky Rule of Criminal Procedure 11.42 John S. Gillig Office ofh t e Attorney General of the Commonwealth of Kentucky Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Criminal Procedure Commons, and the State and Local Government Law Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Gillig, John S. (1994) "Kentucky Post-Conviction Remedies and the Judicial Development of Kentucky Rule of Criminal Procedure 11.42," Kentucky Law Journal: Vol. 83 : Iss. 2 , Article 2. Available at: https://uknowledge.uky.edu/klj/vol83/iss2/2 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. Kentucky Law Journal VOLUME 83 1994-95 NUMBER 2 Kentucky Post-Conviction Remedies and the Judicial Development of Kentucky Rule of Criminal Procedure 11.42 BY JOHN S. GILLIG* TABLE OF CONTENTS INTRODUCTION ................................. 267 I. BACKGROUND: THE THEORY OF THE VOIDABLE JUDGMENT AND MODERN POST-CONVICTION REVIEw ................. 274 II. THE FEDERAL COURTS INCREASE THEIR INVOLVEMENT IN STATE CRIMINAL PROCEDURE. ....................... 279 A. FederalHabeas Corpus from Its Origins to 1938 .... 280 B. FederalHabeas Corpus from 1938 to 1963 ........ 287 C. Federal Habeas Corpus After 1963 .............. 289 * Assistant Attorney General, Environmental Special Counsel; former Director, Criminal Appellate Division, 1988-1992, Office ofthe Attorney General, Frankfort, Kentucky. BA. 1973, Hanover College; J.D. 1975, University of Kentucky; MA. 1980, University of Virginia. The author acknowledges his debt to an early unpublished work of Kay Alley, Post- Conviction Relief Digest (Judicial Conference and Judicial Council 1972; reissued by the Office of the Attorney General 1972). This excellent but sadly dated handbook was the inspiration for a practice manual written by the author and distributed to prosecutors statewide as the Kentucky Post-Conviction Manual (Office of the Attorney General 1990). The author also acknowledges the assistance and legal insight of Assistant Attorney General Ian Sonego, who privately reviewed drafts of this Article at various stages and always provided valuable additions and suggestions. Needless to say, the opinions expressed here are those of the author alone. KENTUCKY LAW JOURNAL [Vol. 83 IH. VOIDABLE JUDGMENTS: KENTUCKY'S FIRST POST-CONVICTION REMEDIES EMERGE FROM COMMON LAW WRITS ......... 295 A. Habeas Corpus in Kentucky ................... 296 1. 1792 to the Early Twentieth Century .......... 296 2. 1937 to 1963 ........................... 304 3. After Enactment of RCr 11.42 ............... 309 a. Judgment Void Ab Initio ................ 311 b. PretrialDetention ..................... 312 c. Extradition and Loss of Jurisdiction ........ 314 d Probation, Parole, and "Good Time"....... 315 e. Other Available Uses .................. 317 B. Coram Nobis in Kentucky ..................... 319 1. 1792 to the Early Twentieth Century .......... 320 2. Jones v. Commonwealth (1937) .............. 321 3. ProceduralAspects to 1963 ................. 325 4. Since Enactment of CR 60.02 ............... 330 IV. HIGH COURT RULE MAKING AND KENTUCKY RULE OF CRIMINAL PROCEDURE 11.42 ....................... 334 A. Code Revision and the Enactment of RCr 11.42 ..... 334 B. The Number and Pattern of Claims .............. 340 V. APPLYING FOR RELIEF AND PROCESSING THE MOTION ...... 344 A. General Principles .............. ............ 345 1. Constitutional Grounds for Attack ............ 345 2. Burden of Proof ............. ............ 346 3. Timing the Motion ........... ............ 346 4. Successive Motions ........... ............ 349 5. Other ProceduralBars ........ ............ 351 B. Pleading Requirements ........... ............ 354 1. Basis for Complaint .......... ............ 354 2. Supporting Facts ............ ............ 355 3. Substantial Compliance ........ ............ 356 4. Custody ................... ............ 357 C. Indigents and Prisoners Proceeding ProSe ........ 360 1. Transcripts ............................ 2. Appointment of Counsel ................... 3. Standards for Pro Se Motions ............... 4. Presence of the Movant at Hearings .......... D. Response, Hearing, and Duties of Trial Court ...... 1. Commonwealth's Response ................. 2. Evidentiary Hearing ...................... 3. Duties of Trial Court and Appellate Court ...... 1994-95] KENTUCKY POST-CONVICTION REMEDIES E. Mandamus and Reopening of RCr 11.42 Proceedings ............................... 375 VI. RECENT AND PROPOSED MEASURES FOR REFORM ......... 376 A. The 1994 Reform Amendment .................. 380 1. Time Limitation ......................... 380 2. Laches ............................... 385 B. Unfinished Business: Additional Proposalsfor Reform .................................. 387 1. Appeal from the Denial of an RCr 11.42 Motion Should Be Discretionary ............. 387 2. Summary Dismissal and Hearing Procedure .... 390 3. Use of a Form Motion and Other Changes ..... 392 V11. RESOLUTION OF SUBSTANn E ISSUES UNDER RC. 11.42 ... 393 A. The Needfor Adequate Counsel ................ 395 B. Provision of Counsel ........................ 398 1. Failure to Appoint ....................... 398 2. Failure to Perform ....................... 403 3. Application of the Performance Standard ...... 408 4. Appellate Review of Counsel's Performance ..... 414 C. Attacking a Guilty Plea ...................... 415 D. Sentencing Error ........................... 420 E. Venue ................................... 422 F. Evidence ................................. 423 1. Searches and Seizures .................... 424 2. Confessions ............................ 425 3. Persistent Felony Offender (Habitual Criminal) .. 425 4. Other Evidentiary Claims .................. 426 G. Jury .................................... 427 H. Waiver by Guilty Plea ....................... 429 I. Pretrial Publicity ........................... 431 J. Presence and Competence of the Accused .......... 432 K Bail ..................................... 435 L. Indictment ................................ 436 M. Pretrial Delays or Failure to Hold PretrialHearings . 437 N Miscellaneous Grounds ....................... 438 CONCLUSION .................................. 440 NTRODUCTION Providing a person imprisoned by a jailer, warden, or other public official with the ability to challenge the justness of confinement through legal process is not a new idea. The roots of this concept predate the KENTUCKY LAW JOURNAL [Vol. 83 Magna Charta of 1215, which states: "No freeman shall be taken, or imprisoned ... but by lawful judgment of his peers, or by the law of the land."' English common law has long recognized the right of an individual to seek a writ of habeas corpus from a competent court in order to compel the government agent to bring the prisoner before the bench. The availability of this writ was recognized in medieval England as a fundamental protection of free citizens against the power of the crown.2 Acknowledging the need for such protection in a republic and following forms of law imported from England during the colonial period, the framers of the Constitution of the United States specifically provided that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."' As is typical among the states, Kentucky has used almost identical language in each version of its constitution to insure that an imprisoned citizen of the Commonwealth may petition state courts for a writ of habeas corpus to test the legality of his or her detention.4 The early constitutional, statutory, and common law remedies afforded by federal and state habeas corpus were not aimed primarily at freeing an unjustly incarcerated defendant after conviction.5 That use of habeas corpus came later.6 In Kentucky, as in all the states, other well-established remedies were available for that pur- pose. Early Kentucky statutes and the common law recognized and used the post-judgment remedies of new trial7 writ of error,' ap- ' KY. REV. STAT. ANN. § 843 (Michie/Bobbs-Merrill 1988). 2 DONALD E. WILES, JR., FEDERAL AND STATE PosTcONVICTION REMEDIES § 2-2 (1992) [hereinafter WILKES, PoSTcONvIcION REMEDIEs] (discussing the writ of habeas corpus in England). 3 U.S. CONST. art. I, § 9, cl. 2. 4 KY. CONST. art. XII, § 16 (1792) ("The privilege of the writ ofhabeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it."); id art. X, § 16 (1799); id art. XIII, § 18 (1850); id. § 16 (1892). Only minor variations in punctuation differentiate the texts. 'WILKES, POSTCONVICTION REMEDIES, supra note 2, § 3-1 (discussing the writ of habeas corpus in North America). 6Id. §§ 3-3, 3-7, 3-9. Prior to full development of the direct appeal in the modem era, the motion for new trial was a primary means of attempting to reverse an adverse judgment of a Kentucky trial court. Its importance is indicated by the large number of reported cases of an early date. See, e.g., W.W. FRY ET AL., AN ANALYrCAL DIGEsT OF THE DECISIONS OF THE COURT OF APPEALS Op KENTucKY 290-96 (1852). ' Loudon
Load more

Recommended publications
  • Reporters Handbook
    For Additional Copies Thanks to a grant from the State Justice Insti- tute, copies of this handbook will be provided at no charge as a service to Kentucky journal- ists. To request additional copies of this hand- book, contact: Office of Public Information Administrative Office of the Courts 100 Millcreek Park Frankfort, KY 40601 502-573-2350 or 800-928-2350 [email protected] Copies also available on www.kycourts.net Reporter’s Handbook on Covering Kentucky Courts First Edition, April 2004 This handbook was developed under a grant from the State Justice Institute. Points of view expressed in this handbook are those of the authors and do not necessarily represent the official position or policies of the State Justice Institute or other organizations that contributed to it. Acknowledgments he Reporter’s Handbook on Covering T Kentucky Courts was produced as part of the 2003-2004 Bench/Media Program of the Kentucky Court of Justice. It was developed by the Court of Justice, the Kentucky Press Association and the Kentucky Broadcasters Association under a grant from the State Justice Institute. This project was made possible through the ongoing support of Chief Justice of Kentucky Joseph E. Lambert, who has consistently promoted better understanding of the roles of the courts and the media in our democracy, and by the contributions of the journalists and lawyers who comprise the Handbook Advisory Committee: Bob Schulman Handbook Committee Chair; Veteran Journalist and Commentator Ed Staats Handbook Co-Editor; Former Chief of Bureau, Associated Press/Kentucky David M. Wilkison Handbook Co-Editor; Former Chief of Bureau, Associated Press/Kentucky Linda Sorenson Ewald Associate Dean, University of Louisville Louis D.
    [Show full text]
  • Supreme Court of the United States ______
    NO. 19-__ In the Supreme Court of the United States ________________ COLORADO DEPARTMENT OF STATE, Petitioner, v. MICHEAL BACA, POLLY BACA, AND ROBERT NEMANICH, Respondents. ________________ On Petition for Writ of Certiorari to the U.S. Court of Appeals for the Tenth Circuit ________________ PETITION FOR WRIT OF CERTIORARI ________________ PHILIP J. WEISER GRANT T. SULLIVAN Attorney General Assistant Solicitor General ERIC R. OLSON LEEANN MORRILL Solicitor General First Assistant Attorney Counsel of Record General Office of the Colorado Attorney General 1300 Broadway, 10th Floor Denver, Colorado 80203 [email protected] (720) 508-6000 Counsel for Petitioner QUESTIONS PRESENTED Like most States, Colorado requires its presidential electors to follow the will of its voters when casting their Electoral College ballots for President. In the 2016 Electoral College, one of Colorado’s electors violated Colorado law by attempting to cast his presidential ballot for a candidate other than the one he pledged to vote for. Colorado removed him as an elector, declined to accept his ballot, and replaced him with an alternate elector who properly cast her ballot for the winner of the State’s popular vote, consistent with Colorado law. The removed elector later sued Colorado for nominal damages. The questions presented are: 1. Whether a presidential elector who is prevented by their appointing State from casting an Electoral College ballot that violates state law lacks standing to sue their appointing State because they hold no constitutionally protected right to exercise discretion. 2. Does Article II or the Twelfth Amendment forbid a State from requiring its presidential electors to follow the State’s popular vote when casting their Electoral College ballots.
    [Show full text]
  • British Statutes in American Jurisdictions 197
    December, 1929 BRITISH STATUITES IN AMERICAN JURISDICTIONS FREDERICKI G. MCKEAN, JR. The abstraction called the Law is a magic mirror wherein we see reflected not only our own lives, but the lives of all men that have been.-Attributed to Mr. Jus- tice Holmes. It has been said that man differs from other animals chiefly in this: that he retains in each generation that which has been handed down by its predecessor,, and, after applying the touchstone of experience, passes it to his successors. This commonplace has been phrased in the folk saying, "Experience is the best teacher", and in the legal aphorism that "the life of the law has been-experi- ence". An outstanding characteristic of the founding of this re- public was the tenacity with which our forefathers clung to their inheritance of the laws which their immigrant ancestors brought into the New World and adapted to the requirements of changed environment. John Adams is credited with the statement that he would not have taken the stand that he did in the War for Inde- pendence, if such action had involved the loss of the common law. Chief Justice Taft says, "We embodied in the Bill of Rights in our Constitution the principles of the British Constitution as they had. been established at the Common Law."' At the threshold of the Revolution the American Continental Congress of 1774, under the presidency of George Washington, adopted this resolution: "Resolved, N. C. D. 5. That the respective colonies are entitled to the common law of England, and more espe- cially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.
    [Show full text]
  • MIDNIGHT JUDGES KATHRYN Turnu I
    [Vol.109 THE MIDNIGHT JUDGES KATHRYN TuRNu I "The Federalists have retired into the judiciary as a strong- hold . and from that battery all the works of republicanism are to be beaten down and erased." ' This bitter lament of Thomas Jefferson after he had succeeded to the Presidency referred to the final legacy bequeathed him by the Federalist party. Passed during the closing weeks of the Adams administration, the Judiciary Act of 1801 2 pro- vided the Chief Executive with an opportunity to fill new judicial offices carrying tenure for life before his authority ended on March 4, 1801. Because of the last-minute rush in accomplishing this purpose, those men then appointed have since been known by the familiar generic designation, "the midnight judges." This flight of Federalists into the sanctuary of an expanded federal judiciary was, of course, viewed by the Republicans as the last of many partisan outrages, and was to furnish the focus for Republican retaliation once the Jeffersonian Congress convened in the fall of 1801. That the Judiciary Act of 1801 was repealed and the new judges deprived of their new offices in the first of the party battles of the Jeffersonian period is well known. However, the circumstances surrounding the appointment of "the midnight judges" have never been recounted, and even the names of those appointed have vanished from studies of the period. It is the purpose of this Article to provide some further information about the final event of the Federalist decade. A cardinal feature of the Judiciary Act of 1801 was a reform long advocated-the reorganization of the circuit courts.' Under the Judiciary Act of 1789, the judicial districts of the United States had been grouped into three circuits-Eastern, Middle, and Southern-in which circuit court was held by two justices of the Supreme Court (after 1793, by one justice) ' and the district judge of the district in which the court was sitting.5 The Act of 1801 grouped the districts t Assistant Professor of History, Wellesley College.
    [Show full text]
  • History of the New Hampshire Federal Courts
    HISTORY OF THE NEW HAMPSHIRE FEDERAL COURTS Prepared by the Clerk’s Office of the United States District Court for the District of New Hampshire - 1991 1 HISTORY OF THE NEW HAMPSHIRE FEDERAL COURTS TABLE OF CONTENTS PREFACE & ACKNOWLEDGMENT .......................................................................................... 5 INTRODUCTION .......................................................................................................................... 7 THE UNITED STATES CIRCUIT COURT ................................................................................ 11 Time Line for the Circuit Court and Related Courts ................................................................ 19 JUDGES OF THE CIRCUIT COURT ......................................................................................... 20 John Lowell ............................................................................................................................... 20 Benjamin Bourne ...................................................................................................................... 21 Jeremiah Smith.......................................................................................................................... 21 George Foster Shepley .............................................................................................................. 22 John Lowell ............................................................................................................................... 23 Francis Cabot Lowell ...............................................................................................................
    [Show full text]
  • Legal Malpractice
    Legal Malpractice This issue of the Kentucky Bar Association’s Bench & Bar was published in the month of Janaury. Publications Committee Edwin S. Hopson, Chair, Louisville Paul Alley, Florence Mindy Barfield, Lexington Gregory M. Bartlett, Covington Sandra A. Bolin, Berea Michael A. Breen, Bowling Green Beverly M. Burden, Lexington Christopher S. Burnside, Louisville Frances Catron-Malone, Frankfort David C. Condon, Owensboro P. Franklin Heaberlin, Prestonsburg Sheryl E. Heeter, Newport Judith B. Hoge, Louisville Susan H. Kosse, Louisville Edna M. Lowery, Frankfort Theodore T. Myre, Jr., Louisville Eileen M. O’Brien, Lexington CONTENTS Brian K. Pack, Glasgow Sandra J. Reeves, Corbin E.P. Barlow Ropp, Glasgow Candace J. Smith, Covington LEGAL MALPRACTICE E. Frederick Straub, Jr., Paducah Gerald R. Toner, Louisville John A. West, Covington 5 Lawyer Regulation and the Movement Toward Michele M. Whittington, Frankfort A Unified Bar in Kentucky By Jane H. Herrick Publisher Bruce K. Davis 11 Legal Malpractice in Kentucky By Del O’Roark & Pete Gullett Editor Edwin S. Hopson 19 Legal Malpractice Primer By O. Daniel Wolff Managing Editor Barbara L. Thomas Departments The Bench & Bar (ISSN-1521-6497) is 3 President’s Page By Robert C. Ewald published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, 24 Hot Topic Partnership and Limited Partnership Acts - Part I KY 40601-1812. Periodicals Postage paid at By Dean Allan W. Vestal & Thomas E. Rutledge Frankfort, KY and additional mailing offices. All manuscripts for publication should be 29 Book Review By Sheryl G. Snyder sent to the Managing Editor. Permission is granted for reproduction with credit.
    [Show full text]
  • The Privacy Paradox: the Divergent Paths of the United States Supreme Court and State Courts on Issues of Sexuality
    THE PRIVACY PARADOX: THE DIVERGENT PATHS OF THE UNITED STATES SUPREME COURT AND STATE COURTS ON ISSUES OF SEXUALITY M ELANIE D. PRICE* The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.1 INTRODUCTION As the Warren Court evolved into the Rehnquist Court, individuals seeking constitutional redress and expanded privacy protections became increasingly frustrated with the United States Supreme Court. The Warren Court provided a high water mark for expanded privacy protections which continued to some degree during the Burger Court. However, the Reagan appointees, now with Chief Justice William Rehnquist at the helm, used the winds to sail in a different direction, retreating from the expansive constitutional interpretations used to protect individual privacy in the Warren Court era. Sensing the change in course, commentators began calling for state court judges to seek out independent meaning from their individual state constitutions.2 A handful of states responded by amending their constitutions to expand protections, while other state courts used expansive interpretations of long-standing constitutional provisions of their individual charters. The array of protections varies dramatically based on the individual state constitutional framework. For instance, Oregon looked to its constitution to find that obscenity, while unprotected under the First Amendment of the U.S. Constitution, is protected under its constitution;3 and Vermont more recently found that school vouchers violate the compelled support clause of its state constitution,4 while the issue is unresolved under the Federal Constitution. Earlier this century, the U.S.
    [Show full text]
  • Motorist Statutes and Federal Jurisdiction
    Catholic University Law Review Volume 5 Issue 1 January 1955 Article 7 1955 Motorist Statutes and Federal Jurisdiction Francis A. Pacienza Jr. Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Francis A. Pacienza Jr., Motorist Statutes and Federal Jurisdiction, 5 Cath. U. L. Rev. 87 (1955). Available at: https://scholarship.law.edu/lawreview/vol5/iss1/7 This Comments is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. application would be an invaluable aid in bringing about relief from punishment for the criminal act which is the product of mental illness, without destroying our traditional concept of responsibility for crime. This proposal could be the beginnings of rationality in the jurisprudence of insanity. NATALIE R. YEAGER GENNARO J. CONSALVO Motorist Statutes and FederalJurisdiction An automobile collision occurs on a state highway. The injured party consults an attorney concerning the possibility of bringing an action against the negligent driver, or his principal, or the manufacturer of the car, or all of them. A tort action being transitory in nature, the attorney may bring the action in either the federal' or state courts having their situs in the jurisdiction where the defendant resides. Clearly, however, this might well entail great inconvenience to the plaintiff or his witnesses and certainly may not bring the action to a "just, speedy, and inexpensive determination." In addition, regardless of where the defendant resides, the attorney may bring the action in the courts of the state wherein the collision occurred.
    [Show full text]
  • In Re BAY HILLS EMERGING PARTNERS I, LP
    IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE In re BAY HILLS EMERGING : PARTNERS I, L.P.; BAY HILLS : EMERGING PARTNERS II, L.P.; : BAY HILLS EMERGING : C.A. No. 2018-0234-JRS PARTNERS II-B, L.P.; and BAY : HILLS EMERGING PARTNERS III, : L.P., Delaware limited partnerships : MEMORANDUM OPINION Date Submitted: May 17, 2018 Date Decided: July 2, 2018 A. Thompson Bayliss, Esquire and E. Wade Houston, Esquire of Abrams & Bayliss LLP, Wilmington, Delaware and James C. Rutten, Esquire and Erin J. Cox, Esquire of Munger, Tolles & Olson LLP, Los Angeles, California, Attorneys for Plaintiffs BHEP GP I, LLC; BHEP GP II, LLC; BHEP GP II-B, LLC; BHEP GP III, LLC; and Bay Hills Capital Management, LLC. Kevin M. Gallagher, Esquire of Richards, Layton & Finger, P.A., Wilmington, Delaware and Mark C. Goodman, Esquire of Baker & McKenzie LLP, San Francisco, California, Attorneys for Plaintiffs/Nominal Plaintiffs Bay Hills Emerging Partners I, L.P.; Bay Hills Emerging Partners II, L.P.; Bay Hills Emerging Partners II-B, L.P.; and Bay Hills Emerging Partners III, L.P. Brett D. Fallon, Esquire, Patricia A. Winston, Esquire and Travis J. Ferguson, Esquire of Morris James LLP, Wilmington, Delaware and Mark A. Cameli, Esquire, Ryan S. Stippich, Esquire and Brent A. Simerson, Esquire of Reinhart Boerner Van Deuren S.C., Milwaukee, Wisconsin, Attorneys for Defendants Kentucky Retirement Systems, Kentucky Retirement Systems Pension Fund, and Kentucky Retirement Systems Insurance. SLIGHTS, Vice Chancellor A limited partner in four Delaware limited partnerships invoked its “for cause” removal rights to remove the general partners of each of the four entities.
    [Show full text]
  • Justice Charles M. Leibson and the Revival of State
    Kentucky Law Journal Volume 86 | Issue 4 Article 10 1998 Justice Charles M. Leibson and the Revival of State Constitutional Law: A Microcosm of a Movement Jennifer DiGiovanni Assistant District Attorney, Allegheny County, Pennsylvania Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Constitutional Law Commons, and the State and Local Government Law Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation DiGiovanni, Jennifer (1998) "Justice Charles M. Leibson and the Revival of State Constitutional Law: A Microcosm of a Movement," Kentucky Law Journal: Vol. 86 : Iss. 4 , Article 10. Available at: https://uknowledge.uky.edu/klj/vol86/iss4/10 This Essay is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. Justice Charles M. Leibson and the Revival of State Constitutional Law: A Microcosm of a Movement BY JENNIFER DIGIOVANNI INTRODUCTION he resurgence of state constitutional law jurisprudence has caused many to positively reevaluate the feasibility of state courts developing an independent body of law based upon their own state constitutions. Tins Essay will provide an overview of the state constitutional law revival movement by focusing upon the work of one state jurist, the late Kentucky Supreme Court Justice Charles M. Leibson. During his tenure on the court, from 1983 through 1995, Justice Leibson's state constitutional law opinions underwent a transformation that presaged similar developments m the greater movement going on nationwide.
    [Show full text]
  • Public Health Law Judicial Reference Guide for Kentucky Courts
    Public Health Law Judicial Reference Guide For Kentucky Courts CENTER FOR PUBLIC HEALTH LAW PARTNERSHIPS UNIVERSITY OF LOUISVILLE A COLLABORATING CENTER OF THE PUBLIC HEALTH LAW PROGRAM Centers for Disease Control & Prevention Authors Mark A. Rothstein, J.D., Director, Center for Public Health Law Partnerships Herbert F. Boehl Chair of Law and Medicine Director, Institute for Bioethics, Health Policy and Law University of Louisville School of Medicine Meghan K. Talbott, J.D. Research Associate, Center for Public Health Law Partnerships University of Louisville School of Medicine Amy R. Schofield, J.D., M.P.H. Former Project Director Center for Public Health Law Partnerships Associate, Wilmer Cutler Pickering Hale and Dorr, LLP Palo Alto, CA Hon. Linda L. Chezem, J.D. Associate Director for Professional Development Center for Public Health Law Partnerships University of Louisville School of Medicine Professor, Purdue University Acknowledgement The authors would like to thank the Kentucky judges and court administrators who helped facilitate the publication of this Reference Guide. We would especially like to recognize Judge Julia Adams, Michael Losavio, and Judge James Shake. The authors would also like to thank Robert Klein for his outstanding efforts in formatting the manuscript and directing the administration of this project. Disclaimers This Reference Guide has been reviewed by the Kentucky Circuit Judges Education Committee, but it is not an official publication of the Committee; it is not a rule of the Kentucky Supreme Court; and it is not a “manual” within the meaning of Civil Rule 1. It has been prepared to assist judges in the conduct of their duties.
    [Show full text]
  • Removing Recalcitrant County Clerks in Kentucky Shawn D
    Kentucky Law Journal Volume 105 | Issue 2 Article 3 2017 Removing Recalcitrant County Clerks in Kentucky Shawn D. Chapman Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the State and Local Government Law Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Chapman, Shawn D. (2017) "Removing Recalcitrant County Clerks in Kentucky," Kentucky Law Journal: Vol. 105 : Iss. 2 , Article 3. Available at: https://uknowledge.uky.edu/klj/vol105/iss2/3 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. Removing Recalcitrant County Clerks in Kentucky Shawn D. Chapmani ABSTRACT Events in 2015 surrounding Rowan County Clerk Kim Davis showed how removing county clerks from office is not a simple task in Kentucky. At present, removal can be accomplished only by the same dfficult means required to remove a state-wide executive offlcer, meaning the county clerk has the same tenure as the governor and attorney general. Historically, however, the county clerk was removable by other, lesser means, as were all other county officers. Today, the other county offcers are stillremovable by those lessermeans, but the county clerk is not, resultingin a removal gap. That gap first appearedin 1976 and, based on a review of the available historical materials, was the result of mere oversight when the Kentucky Constitution was revised substantially to implement a new judicial branch.
    [Show full text]