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Law Review Volume 25 Winter 1998 Number 2

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Law Review Volume 25 Winter 1998 Number 2 NORTHERN KENTUCKY LAw REVIEw Volume 25 Winter 1998 Number 2 Kentucky Law Edition ARTICLES Relationship Between Federal and State Constitutional Law ................... HonorableDonald C. Wintersheimer 257 Setting Child Support for the Low Income and High Income Families in Kentucky .. Judge Gregory M. Bartlett 281 The Role of Ethics and Unauthorized Practice Opinions in Regulating the Practice of Law in Kentucky .............................................. William H. Fortune 309 Expert Testimony in Kentucky: Think Fast - Today's Standard May Change Tomorrow ....................... Joan Brady 333 The Kentucky Ban on Insurers' In-House Attorneys Representing Insureds ............................ Grace M. Giesel 365 Kentucky Real Property Law in Review: Three Cases, Taxes, and a "Non-Closing ........... CarylA. Yzenbaard 407 Provision for the Surviving Spouse Under Kentucky Law ......................................................... Robert L. Stenger 429 NOTES Giulianiv. Guiler: Stealing the General Assembly's Thunder ................................................ Jamie M. Ramsey 445 Lane v. Commonwealth: The Kentucky Supreme Court Doesn't Turn the Other Cheek ......................... Paige L. Bendel 473 ARTICLES RELATIONSHIP BETWEEN FEDERAL AND STATE CONSTITUTIONAL LAW BY HONORABLE DONALD C. WINTERSHEIMER' I. INTRODUCTION As has been pointed out in previous articles, the primary focus of constitutional law in the United States has been the Federal Constitution and its judicial interpretations. 2 Many legal scholars have been preoccupied with federal constitutional questions. However, the Federal Constitution relies extensively on mechanisms provided in state constitutions and leaves nearly all matters within the boundary of state authority to be regulated by state constitutions and laws. There has been an increased interest in the judicial interpretation of individual rights as provided in state constitutions. This development frequently provides greater civil liberties for citizens than are generally required by the Federal Constitution and the state constitutional decisions are generally insulated from federal review. The Federal Constitution is a grant of enumerated powers upon which all exercises of federal authority must be based. In contrast, state constitutions serve as a limitation on the otherwise sovereign power of the states to make laws and govern themselves. 1. The Honorable Donald C. Wintersheimer is an Associate Justice of the Kentucky Supreme Court and is a Distinguished Jurist in Residence at Salmon P. Chase College of Law. (B.A., Thomas Moore College; M.A., Xavier University; J.D., University of Cincin- nati). 2. See Donald C. Wintersheimer, State Constitutional Law, 20 N. KY. L. REV. 591 (1993); Donald C. Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. REV. 257 (1994). 257 258 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:2 II. UNITED STATES SUPREME COURT DECISIONS In Agostini v. Felton,3 the United States Supreme Court recently overruled two twelve-year old decisions that had barred sending public school teachers into parochial schools.4 In a 5-4 ruling, the Court held that a federal program that funds remedial instruction and counseling of disadvantaged children in public and private schools does not violate the First Amendment's Establishment Clause. 5 In Agostini, the opinion delivered for the majority of the Court by Justice O'Connor held that a federally-funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause when such instruction is given on the premises of a sectarian school by government employees under a program containing safeguards such as those present in New York City's Title I program.6 Consequently, Aguilar, and that portion of its companion case, Ball, addressing a "shared time" program, are no 7 longer valid law. The majority noted that Zobrest v. Catalina Foothills School District8 rejected an Establishment Clause challenge to a parochial school student's use of a publicly-funded sign language interpreter.9 Zobrest expressly rejected the notion, relied on in Ball and Aguilar, that based solely on one's presence on private school property, a public employee will be presumed to inculcate religion into the students.'0 The end of that assumption eliminates the perceived need in Aguilar for a "pervasive monitoring."" The Supreme Court found no genuine basis for confining Zobrest to the use of sign language interpreters. 2 The Court further said the rule of Ball, to the effect that "all government" aid that directly aids the educational function of 3. 117 S. Ct. 1997 (1997). 4. Id. See Aguilar v. Felton, 473 U.S. 402 (1985); Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985). 5. Id. at 2016. 6. Id. 7. Id. 8. 509 U.S. 1 (1993). 9. Agostini, 117 S. Ct. at 2010 (citing Zobrest, 509 U.S. at 12-13). 10. Id. 11. Id. at 2011. 12. Id. 1998] CONSTITUTIONAL LAW 259 religious schools is invalid,, was abandoned in Witters v. Washington Department of Services for the Blind.1 3 Witters upheld a state tuition grant to a blind seminarian under a program like Title I, which offered educational aid without regard to the religious or secular nature of the institution.14 In both Zobrest and Witters, the United States Supreme Court observed that any money that found its way to the religious institution did so as a result of a private decision by the recipient of such aid. 15 It would appear that the Agostini decision would have little impact on the Kentucky position expressed in Fannin v. Williams,'6 which held that the appropriation of tax money for distributing textbooks to children in non-public school was in violation of Section 171 of the Kentucky Constitution as well as a number of other constitutional sections.'7 The majority in Fannin held that the problem was not whether the statute in question would pass muster under the Federal Constitution, but whether it satisfied the more detailed and explicit provisions of the Kentucky Constitution found in Section 186.18 The Relationship Between States' Rights and the Federal Judiciary In a series of other decisions rendered near the end of the 1997 term, the United States Supreme Court indicated an increased respect for individual state sovereignty in a number of areas that might be considered social or cultural. In striking down portions of the Religious Freedom Restoration Act,19 the United States Supreme Court in City of Boerne v. P.F.Flores, 20 in a 6-3 decision, substantially reduced the authority of Congress under the 13. 474 U.S. 481 (1986). 14. Agostini, 117 S. Ct. at 2011 (citing Witters, 474 U.S. at 487). 15. Id. at 2012. 16. 655 S.W.2d 480 (Ky. 1983). 17. Id. at 484; Section 171 of the Kentucky Constitution deals with taxes to be levied and collected for public purposes only by general laws and to be uniform within classes. KY. CONST. § 171. 18. Id. at 483; Section 186 of the Kentucky Constitution provides that: All funds accruing to the school fund shall be used for the maintenance of the public school of the Commonwealth and for no other purpose, and the General Assembly shall by general law prescribe the manner of the distribution of the public school fund among the school districts and its use for public school purposes. Ky. CONST. § 186. 19. 42 U.S.C. §§ 2000bb(1)-(4) (1997). 20. 117 S. Ct. 2157 (1997). 260 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:2 Fourteenth Amendment to protect churches and personal faith in a rather routine zoning dispute arising out of a Texas church's appeal from a refusal to allow it to enlarge its missionary style sanctuary.2' In Idaho v. Coeur d'Alene Tribe of Idaho,22 the United States Supreme Court suggested a restriction on the jurisdiction of the federal judiciary in suits where individual states are accused of violating constitutional rights.23 The Idaho decision determined that the federal courts did not have jurisdiction over the case in which the State of Idaho was accused of violating the constitutional right to due process.24 The Court found that Idaho had sovereign immunity from a suit in federal court.25 The Eleventh Amendment to the Federal Constitution, which has been considered dormant for a number of years, reads as follows: "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, com- menced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any 26 foreign state." Ex Parte Young27 held that a suit might go forward in federal court if the plaintiff named the governor of the state as a defendant as distinguished from the state itself.28 In 1996, Seminole Tribe v. Florida29 reversed the attempt of Congress to waive the sovereign immunity of the states under the authority of the Interstate Commerce Clause, but did not consider whether the states could be forced into federal court in a Fourteenth Amendment suit.30 Idaho would still allow federal suits in extraordinary cases, determined on a case by case basis, although it indicates that when a claim is brought against a state for violation of a constitutional right, the primary adjudication should be left to the state courts, "assuming the availability of a state forum with the authority and procedures adequate for the effective 21. Id. 22. 117 S. Ct. 2028 (1997). 23. Id. 24. Id. at 2043. 25. Id. 26. U.S. CONST. amend. XI. 27. 209 U.S. 123 (1908). 28. Id. at 157. 29. 116 S. Ct. 1114 (1996). 30. Id. 1998] CONSTITUTIONAL LAW vindication of federal law."31 Some people believe that federal involvement in constitutional rights became popular when it was thought that there was no other option available to block states from violating individual civil rights. Some now believe that excessive federal involvement in local affairs can no longer be justified.
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