Kurt X. Metzmeier's blog

John McKinley: Louisville's Lost Supreme Court Justice

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Two associate justices of the U.S. Supreme Court are buried in the city of Louisville. One, Louis D. Brandeis, is considered to be one of the finest jurists to ever serve on the Court, writing opinions that are widely considered landmarks in the development of the right to privacy and the freedom of speech. He is the namesake of both Brandeis University and, more importantly, the Brandeis School of Law at the University of Louisville, where he is buried in the school's portico.

And then there is John McKinley. In fifteen years on the Court, he wrote 21 opinions. True, he was assigned to ride the Southern Circuit, a brutal task in the years from 1837 to his death in 1852, but in his later years he neglected this task, avoiding his responsibility to visit Arkansas his whole time on the court. (Some might argue that this was an understandable omission). He was so obscure that when he died in Louisville on July 19, 1852, the New York Times gave him a one-line obituary. He may have been the victim of unfortunate timing; another man with Kentucky connections died that day, Henry Clay. McKinley’s obscurity has only grown; many biographies have his death place listed wrongly as Lexington.

McKinley is not usually counted among Kentucky’s Supreme Court justices, but the state has a rather strong claim to him (assuming it wished to claim him). He was born (like Clay) in Virginia, but was brought to Lexington, Kentucky, in his youth. He was called to the bar in Frankfort and practiced there and in Louisville, before trying his fortunes in Alabama in 1821. He served that state in Congress and was considered an Alabaman when President Martin Van Buren appointed him to the Supreme Court. However, he soon decided that Louisville was an excellent home base for his circuit court duties, and relocated here in 1842. The 1850 census lists him and his family well ensconced in the city.

Related by birth to one leading Kentucky family, the Logans, he became connected to others by the marriage of his daughters. (One set of in-laws, the Churchills, dabbled in horse racing and built a race track of moderate fame).

He was buried in a prominent place in Cave Hill Cemetery, Louisville’s oldest and most beautiful burial place; his memorial is dignified but relatively modest. The cemetery does not mention McKinley among its list of famous residents, which includes John Keats’ brother George and Col. Harlan Sanders.

National Champions!

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These guys? Oh, right...I remember.

How 'bout these? Nope. (Not yet, at least).

No, these are the champions!

Coaches Mary Jo Gleason, Michelle Grant Rudovich, competitors, David Scott and Scott Powell.

UofL News: UofL law students win national negotiation competition

March 3rd, 2008

A team of University of Louisville law students recently won the American Bar Association Law Student Division’s Negotiation Competition.

Scott Powell and David Scott, third-year students at the Brandeis School of Law, are the first UofL students to win the national competition. They will represent the United States in the International Negotiation Competition in London in July.

Acting as lawyers, Powell and Scott had to negotiate a series of legal problems in a simulated family law case. They defeated 20 other teams from such law schools as the University of California, Berkeley; Northwestern University; Boston College; the University of Tulsa; and the John Marshall Law School in Chicago.

Michelle Grant Rudovich, assistant commonwealth attorney and adjunct professor of law, and Mary Jo Gleason, staff attorney for Judge Denise Clayton with the Kentucky Court of Appeals, serve as team co-coaches. Rudovich was a student on the UofL team that came in third in the 2004 national competition.

“It is very exciting to work with a team that is so exceptional in every way — work ethic, negotiating skill, legal prowess and collaborative style,” Gleason said. “It reflects well on our law school to have students with this level of skill and ability.”

 

 

I say MED-ve-dev, you say med-VYEHD-yev, let’s call the whole thing off

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During the presidential debate last Tuesday, NBC’s Tim Russert made a big deal out of the candidates’ ability to say the name of Dmitry Medvedev, the pliant functionary who Clinton correctly called “Putin’s handpicked successor" but stumbled over the correct pronunciation of his name. (Obama, perhaps wisely, didn't even try). Russert’s smugness was no doubt due to his access to pronunciation guides and his ability to practice a difficult name before employing it in the trivial gotcha game that passes for modern political journalism. Now, unless you run for president, you will likely not be subject to juvenile mind games by snarky gasbags like Russert. But you may want to correctly pronounce the names of foreign leaders and distant lands and, thanks to the Voice of America, you will be able to access the same kind high-quality tools that TV anchors use.

Broadcasters have long relied on reliable pronunciation guides but these tools were usually not available to the public. The guide privately maintained by the BBC’s Pronunciation Unit is the granddaddy of these tools and a current version was recently offered for sale in an affordable book form. (Something especially useful for those of us who like to opine on world affairs in an Oxbridge accent). In the states, the AP has a regularly updated guide available only to subscribers, but bootlegged older versions regularly pop up on websites. Unfortunately, newer names are still circulated privately and generally it’s the newer presidents, tyrants and rebels that beg for pronunciation assistance.

However, the publicly funded Voice of America has an excellent, regularly updated and completely free guide at http://names.voa.gov. It uses a simplified notation system that does not use diacriticals or symbols, but also provides MP3s of the names pronounced. Textual pages explain its methodology, its sources, and give more details on its pronunciation rules.

The BBC, AP and VOA guides give assistance on the names in the news, but occasionally a question arises over older names, obscure geographic locations, and characters in literature and mythology. In this case, I usually turn to some well-worn tools. For personal names, I refer to the first edition of Webster's Biographical Dictionary (1951) and its latest incarnation Merriam-Webster's Biographical Dictionary. The new version dropped hundreds of names but added almost as many; together used together they are fairly complete. Merriam-Webster's Geographical Dictionary is a solid source for place names. Webster’s Second International Dictionary (1934 and other printings) is a great source for help pronouncing the characters of mythic, biblical, and English literary history. The Online Merriam-Webster Dictionary also has pronunciation data (and audio cues) for many geographic and literary names.

New Harvard Digital Collection Highlights British Crime Broadsides

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The "Law and Order" and "CSI" of the 18th and 19th century were the half-penny broadsides which broadcasted the lurid details of sensational crimes, trials and hangings. The Harvard Law Library has announced the launch of a new digital collection "highlighting its extensive holdings of crime broadsides." It can be viewed at http://broadsides.law.harvard.edu.

From Harvard: "Just as programs are sold at sporting events today, broadsides--styled at the time as "Last Dying Speeches" or "Bloody Murders"--were sold to the udiences that gathered to witness public executions in eighteenth- and ineteenth-century Britain. The Library's collection of more than 500 of hese broadsides is one of the largest recorded and, to our knowledge, the first to be digitized in its entirety. The examples digitized span the ears 1707 to 1891 and include accounts of executions for such crimes as rson, assault, counterfeiting, horse theft, murder, rape, robbery, and reason. Many of the broadsides vividly describe the results of sentences anded down at London's central criminal court, the Old Bailey, the proceedings of which are now available online at http://www.oldbaileyonline.org."

 

21th Century Toll Gates: History Repeats--Tragedy or Farce?

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Increasingly, it is becoming clear that Louisville’s ambitious two-bridge plan cannot be funded without tolls. Alarmingly (especially to those who are not in love with the plan), some have proposed converting existing free bridges into toll bridges to help pay for the increasingly expensive plan. Even backers of the plan offered in opposition to the bridges, the so-called “8664 plan,” have not ruled out tolls.

Now while toll-roads may not be a big deal in the Northeastern corridor, the mention of tolls in Kentucky rubs a sore spot in the state’s history. Widespread, secretly organized political violence has arisen only four times in Kentucky. First, it occurred in the 1850s when nativist anger at immigrants set Louisville afire in the 1855 riots. Later, in post-Civil war era, Kentucky saw a taste of the anti-black KKK repression of blacks that spread through the South. In the early 20th century Kentucky tobacco farmers donned hoods to burn the warehouses of the distant trusts whose pricing they saw as a danger to their way of life. However, a mere decade before, masks and firebrands were employed in another struggle: the fight against excessive tolls.

In the small-government era of the early 19th century, most Kentucky road construction was “outsourced” to private parties that built roads in order to then be able collect tolls. The legislature regularly gave private turnpike companies the right to sell stock in order to raise money construct local roads, which were later paid off by tolls. However, in most cases, citizens paid steep tolls for years after the day that the turnpike company recouped its outlays. By the end of the century, Kentuckians were fed up with toll roads. Companies often let the roads fall in disrepair, while the toll keepers continued to collect tolls. Locals sporadically took their out frustration over costly but defective roads violently, burning toll gates and harassing toll keepers.

Reacting to their constituents, the 1896 legislature (then controlled by the populist free-silver wing of the Democratic Party) passed a free turnpike law. The law mandated that county officials take over toll roads, but local officials refused to follow the law’s mandate and buy-out the turnpike companies. Their obstinacy set off a wave of violence known as the “Toll Gate War.” In dozens of central Bluegrass counties masked vigilantes on horseback used fire and dynamite to destroy toll gates, more than three hundred from some estimates. Often they were assisted by government officials, even judges, and in one case Governor William O. Bradley had to call out the state militia to stop the violence. However, the raiders ultimately made their point and counties took over the turnpike companies and abolished tolls.

While it is unlikely that Kentuckians will mount their SUVs and take the torch to toll gates on the Sherman Minton Bridge, the talk of paying money to ride bridges that have long been free may well waken a rebellious tendency in the state body public. Perhaps instead of a horse and a firebrand, the modern toll raiders will fire their up Linux server, awaken their zombie machines and launch a denial-of-service attack on the electronic toll system…

Illustration: Old Frankfort Avenue toll keepers house, now Ray Parella's Italian Cuisine

The Filing Game

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A key date on the Kentucky political calendar is a mere week away; January 29, 2008 (at 4.00 p.m. EST) marks the last opportunity for candidates to file for the state primary. The Kentucky General Assembly usually doesn't "get real" until after this date when the lawmakers know whether or not they will face a serious challenge. Also, as Kentucky politicians are usually apt wait to file until the last minute, even at this late date much is up in the air. For example, the two declared opponents to Sen. Mitch McConnell--Andrew Horne and Greg Fischer--have not yet filed, nor have Rep. John Yarmuth's declared and rumored opponents, Chris Thieneman and Anne Northrup. There is some strategy here; declaring but not filing allows potential candidates the opportunity to perhaps work out a deal that leaves them unopposed.

On the judicial front, Jefferson County's Supreme Court Justice Lisabeth Hughes Abramson already has one challenger, James M. "Jim" Shake, while Lexington's Justice Mary C. Noble is as yet unopposed. Jefereson County has one district court seat up for election, the 30th Judicial District, 16th Division, and three candidates have filed, David P. Bowles, Katie King, and Matthew H. Welch.

The Kentucky Secretary of State's elections website makes it easy to follow the filing game. A direct link to the filing page can be found at http://www.kentuckyregistrar.net/. Be sure to log in next Tuesday afternoon and watch the first act in the 2008 election year unfold.

UPDATE: The Kentucky Law Review blog has the final judicial races for Jefferson County here. 

Two Guides to the Kentucky General Assembly: With Apologies to Niccolò Machiavelli and ABC's Children's Programming Division

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In its 2008 Kentucky General Assembly Preview, the Courier-Journal has created a one-page visual guide to “How bills become law in Kentucky” <http://www.courier-journal.com/graphics/2008/legislature/bill.pdf > that evokes the 1970s School-House Rock classic, “I’m Just a Bill.” However laudable its effort to simplify, it omits some of the unique features and quirks of the Kentucky rules and thus conveys too much similarity to the rules of the national Congress. These rules give Kentucky politics color and allow old legislative hands to concoct byzantine legislative strategies that evoke reactions ranging curses of anger to sighs of admiration.


Here are a few areas where the arcane passes through profane on the way to profound:

 

CALENDAR. The 1891 Kentucky constitutional framers and succeeding amenders have worked hard to limit the damage done by roving bands of lawmakers by strictly limiting the time that the good townsfolk of Frankfort are subject to their reign of terror (typically embodied in cheap suits, bad cologne and even worse tipping). Even-year sessions (like this year’s) convene on the first Monday of January and meet for 60 legislative days and must complete their work by April 15. (Odd-year sessions have 30 legislative days and must be completed by March 30). A “legislative day” is a day that the legislative leadership has designated as a day of official business. Weekend days and holidays are typically not employed for this dirty work. The legislature creates a calendar that spreads the allotted legislative days out, usually reserving a few days at the end to deal with gubernatorial vetoes. The 2008 session calendar can be found on the General Assembly’s website.

 

MAJORITY RULES. A majority is not always a “majority” under the capitol dome. An ordinary bill passes by a simple majority of those voting (so long as that number exceeds 2/5ths of elected members). Ky. Const. § 46. The 2/5ths rule doesn’t come up much, but it is not irrelevant because the constitution sets a quorum as a majority of the numbers elected (a so-called absolute majority) Ky. Const. § 37. For example, the Senate elects 38 members, making the quorum 20. Suppose a bill appears to pass with a bare majority of 11-9 with the minimum constitution quorum of 20. The bill fails because it doesn’t reach the 2/5ths rule's margin, which is 16. (The constitutional minimum for the House is 41). Reaching a quorum isn’t usually a big deal but in the 19th century leaders were known to send men out to troll the bars for drunken lawmakers to make the quorum (and to bar the doors and windows to keep it).

 

MONEY BILLS. Since this is a budget year, it is important to note that the constitution provides different rules for money bills. A bill for “the appropriation of money or the creation of debt” (1) must originate in the House and (2) needs an absolute majority of all elected members Ky. Const. § 46. (Courts have ruled that provision does not apply to bills authorizing local entities to raise funds through fees or taxes because such funds generated do not enter the state treasury). Ordinarily, a budget is agreed to in the even-year session and runs two years, although in two recent sessions the legislature adjourned without passing a budget so following sessions had to clean up the mess. By a term of art it is “biennial budget” and typically each budget year is known as a “biennium.” Thus a typical statement might be “well, it the budget will pinch a bit in the first biennium, but as revenues increase in the second biennium ... [insert unrealistic expectation here].”

 

VETO/EFFECTIVE DATE OF LAWS. The governor has ten days (excepting Sundays) to consider each bill. He can sign it, veto it, or let it become law without his signature by doing nothing. The legislature can override a governor’s veto by absolute majority vote in both houses. However, since the number of days of a session is set by the constitution, the legislature must reserve at least one “veto day” in its calendar beyond this ten-day period or forfeit this right. (It usually sets two to be safe). Unlike the federal executive, the governor has a broad line-item veto power on the budget and can delete words, phrases and lines to trim fat or, occasionally, make mischief. Ky. Const. § 88. Laws are effective 90 days after the adjournment of the Kentucky General Assembly, unless the law is designated as emergency legislation (an act that needs an absolute majority of both houses). In that case, the law is effective upon the governor’s signature. Ky. Const. § 55.

 

GERMANENESS. One striking difference between federal and state legislation is that the Kentucky constitution specifically requires that all provisions of a bill “shall relate to [no] more than one subject, and that shall be expressed in the title.” Ky. Const. § 51. This means that the “omnibus legislation” common in the U.S. Congress is unknown. Kentucky appellate courts have been asked to determine the ontological question of whether the provisions of a law truly constitute one subject dozens of times but have only rarely struck down laws on these grounds. Thus the courts have upheld the blanket adoption of model laws on the same subject, Davidson v. American Freightways, Inc., 25 S.W.3d 94 (Ky. 2000) but they have decided that including a minumum wage provision for bartenders to an alcohol beverage contraol act goes too far, Lewis v. Captain's Quarters Inc, 655 S.W.2d 26 (Ky. Ct. App. 1983).

 

CONSTITUTIONAL AMENDMENTS. With the possibility of a constitutional amendment allowing casino gambling on the agenda, it’s worth noting that such a measure would require an affirmative vote of 2/3rds of all members in both houses to get on the ballot. Only four constitutional amendments can be offered to the voters at one time. The ratification by the voters must take place “at the next general election for members of the [Kentucky] House of Representatives." (This means even-year elections, so the gaming measure must be on the ballot this year or 2010 if Beshear wants to passed before the end of his first term). Amendments must relate to a single subject but can “modify as many articles and as many sections” as needed to “accomplish the objectives of the amendment.” Ky. Const. § 256. There is a strong legislative custom to limit such measures to only two per session, with each house originating one amendment. (Keep in mind that the limit is four on the ballot, not per session; two measures from both the even and odd years could add up to four constitutional amendments that voters have to read, digest and vote on—all usually in the morning (before coffee) or in the evening after a long day of work). A simple majority of Kentuckians passes the amendment; unlike some state charters, there is no rule that any number of counties must ratify the act.

 

FOLLOWING THE FUN. The two remaining major Kentucky newspapers (R.I.P. fair Kentucky Post) do a pretty good job of covering the “leg” (pronounced “ledge”). The Courier-Journal’s Legislature section on the web collects the excellent work of its Frankfort reporters (Stephenie Steitzer, Tom Loftus, and Joe Gerth) and its Politics in Kentucky blog adds additional content. Lexington Herald-Leader’s State Government page and its PolWatchers blog featuring Lex Herald scribes, Ryan Alessi, Jack Brammer and John Stamper regularly match, if not surpass, CJ coverage. (See also columnist Larry Dale Keeling's Kentucky Kurmudgeon) WHAS 11 Political Blog features the voice of Mark Hebert, one of the best political reporters in the state (latest scoop: Ann Northrup considering run against Cong. JohnYarmuth; best scoop: Governor Paul Patton's affair with state-regulated nursing home operator). Of course, no government-geek in Kentucky misses KET's Comment on Kentucky Friday night or Sunday at noon--unless they are TIVOing or plan to catch the Podcast on KET's website.

 

By the way, YouTube has a version of "I'm Just a Bill" here. Fair warning, it doesn't look like the copyright holder is the person posting it so it may be gone tomorrow.

Legal Injection Case Argued Today

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The latest Kentucky case in the Supreme Court spotlight, Baze v. Rees, will be argued today and the Court has decided to provide same-day (but not live) audio of the of the oral argument. This extraordinary treatment only happens on rarely and reflects high public interest in the case. Recently the Meredith v. Jefferson County Board of Education and Guantanamo Bay cases received this attention.

Supreme Court will release the audio recording of oral argument in the case, scheduled at 10 a.m. today, January 7, 2008, shortly after the conclusion of the argument. The audio recording “will be provided to the network pool, which will in turn provide an offsite, simultaneous feed to member news organizations.” My guess is that it will be available on the websites of 24/7 news channels CNN and MSNBC by this afternoon.

UPDATE: From SCOTUSBlog: The transcript of today’s argument in Baze v. Rees (07-5439) is now available here. I still haven't found an audio feed.

Louisville Law Alums in Kentucky State Government

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Governor-elect Steve Beshear has only just begun to make appointments to his administration-in-waiting but it looks like graduates of the UofL law school will play a prominent role. Louisville Law already is strongly represented in the judicial branch with Chief Justice Joseph E. Lambert (class of 1974), Court of Appeals Chief Judge Sara Walter Combs (1979), and Administrative Office of Courts Director Jason M. Nemes (2003) all graduates of the school. However, UofL alums also will be taking the two top legal jobs in the Beshear executive branch. Ellen Hesen (1984) been named the governors' general counsel and Judge Combs' classmate J. Michael Brown (1979) will be heading the justice cabinet. The election of Jack Conway--a George Washington University National Law Center alum--as attorney general does prevent UofL from claiming all Kentucky's top public sector legal jobs, but at least Jack has a good pedigree: his father F. Thomas Conway is a 1968 graduate.

UPDATE: Beshear announced Friday that UofL alum Vince Gabbert (2001) will be deputy chief of staff and that general counsel Ellen Hesen will also serve as acting secretary of the Health and Family Services Cabinet.

Partisan Defined

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When I said "partisan" judges in a prior post ("Samuel Steinfeld and the Old Partisan Kentucky Judiciary"), I meant judges formally elected under a political party's label. That is correct as a linguistic convention but it may confuse readers that are more familiar with word being used as a synonym for "ideologue." With the exception of election contests (and cases that had become explicitly political--think Fletcher-Stumbo) that party label often did not mean much as regards the fairness of judicial decision making. Because of the non-ideological nature of Kentucky parties in the last part of the 20th century, whether a judge was slated Republican in 1966 usually meant less then than whether a judge is rumored to be a Democrat means in 2008. (Indeed, some may argue that parties are more ideologically pure now than at any time since the Reconstruction era).

In some cases, a Kentucky judge's regional origin mattered more than party. The Jefferson County GOP was more progressive than its Democratic counterpart on a wide range of issues in 1966, especially race. The Eastern Kentucky GOP, on the other hand, was still defined by its opposition to FDR and was far more conservative. In the larger Democratic party, all political philosophies were accommodated so being labeled Democrat meant little ideologically. What mattered far more to voters was the alignment of a candidate within the party's factions. For example, if a voter cared most about civil rights, party label was not conclusive for picking a champion. The question would be: is he a Clements-Combs Democrat (progressive) or Chandler Democrat (conservative)? If the candidate is Republican, was he allied to Louisville moderates who helped elect Republican Charles W. Anderson the first black member of the Kentucky House of Representatives, or to the Roosevelt haters in the "Old Fifth" congressional district in Southeastern Ky.

The worst aspect of slating candidates was not ideological bias; it was competence. Far too often perceived loyalty to the court house gang or political machine that controlled the process was the the primary requirement for judges wishing to run on the party ticket. Many candidates who went on to be excellent judges convinced the boss of their loyalty; unfortunately a sizable number of hacks did also.