University of Louisville Law Faculty Blog

The Council on Postsecondary Education, the Law and the Governor

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Kentucky Attorney General Jack Conway* yesterday released an opinion finding that the Council on Postsecondary Education (CPE) violated Kentucky law when it hired Brad Cowgill as its chief without conducting a statutorily required national search. (The opinion is not yet of the AGs site so you can find it here). What is more interesting is the comment made by Conway in an interview with CJ reporter Stephenie Steitzer. He told her that if the CPE ignored his opinion, the matter could end up in the courts, or "without elaborating," he suggested that "Beshear has the authority to "reorganize" the council."

What he was eluding to was the governor's broad power to reorganize executive branch units under KRS 12.028, which gives him or her the authority to "between sessions of the General Assembly, temporarily effect a change in the state government organizationalstructure as described in subsection (1) of this section if such temporary reorganization plan is first reviewed by the interim joint legislative committee with appropriate jurisdiction." While such a reorganization would last only until the next meeting of the general assembly, Kentucky courts have given the governor a wide berth in these cases. The power was last exercised by Governor Fletcher in 2004 when he abolished the old Kentucky Racing Commission replacing it with a new Kentucky Horse Racing Authority.

The CPE, currently under the Department of Education, is among the units subject to the law (KRS 12.020). The governor could abolish the CPE, dismiss Cowgill (who does not have a signed contract), and establish a new board with a new interim director to handle the CPE's duties. The few judicial decisions and AG opinions on the reorg law suggest that the governor may or may not be able to dismiss the appointed members out of hand, but he can certainly ask them to resign (Fletcher's course in the racing commission case) or make them a minority on the new board by increasing its size and appointing new members (subject to the law that boards be evenly split between the top two political parties).

Clearly this would be a "nuclear option" but one available if the current jostling between the governor and the CPE ripens into a crisis. The reorganization law is rooted in the "ripper bill" of 1932, when Gov. Ruby Laffoon nakedly stripped the lieutenant governor and the auditor of much of their powers; in that case (as well as later cases), the high court found that law constitutional, implicitly acknowledging the plenary power of the executive to organize his branch when authorized by statute.**

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* Pictured to the right in a poster supporting the ALA/Kentucky Library Association's READ campaign.

** Talbott v. Laffoon, 79 S.W.2d 244 (Ky.1934).

 

Futile Care

If a physician is within the norms of current practice and care would be considered futile, there is no ethical or legal duty to provide futile care.  There may be an obligation under a living will statute to transfer the patient to a provider who will carry out the wishes of the patient and/or family if the patient wishes to be kept alive be extraordinary means.  There is also the common law obligation not to abandon a patient during a course of treatment.

Kickbacks

Do the kickback laws only apply to Medicare and Medicaid?  The first Federal laws only applied to government payors.  However, HIPAA added anti fraud provisions which also apply to private payors.  State fraud laws are often broader in scope than the federal law.

Clocks and Courts: Enrolled Bills and Extrinsive Evidence

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Joe Gerth has an interesting article on the issues raised by the Kentucky General Assembly’s recent decision to unplug its clocks and enroll several laws that had—allegedly—been passed after the constitutionally mandated April 15 deadline (Ky. Const. s 42).  However, the article is a little vague as to details relevant to lawyers so I decided to dig deeper.

The article discusses an issue precedent to the constitutional controversy (actually more an expectancy of a controversy than a perfected one): the question of whether a court can even inquire into the legitimacy of a enrolled bill.  For years, Kentucky courts had followed the common law principle known as the “enrolled bill rule,” which, as stated in the case of Lafferty* v. Huffman, 35 S.W. 123 (1893), held that a bill "properly enrolled, signed by the presiding officers of both houses, and approved by the governor, will be presumed to have been enacted … in the manner prescribed by the constitution and cannot be impeached.” The rule was based on both the separation of powers between the branches and on the practical understanding of the possibility of errors by clerks and staff in the preparation of legislative records, especially in the more frantic hours of a session.  The courts, in Justice Hazelrigg’s expressive words, didn’t want to cause the “superstructure” [of the] law thus built up [to] fall” due to nitpicking of an imperfect legislative record.

However as Hazelrigg’s pen begat the typewriter, and the typewriter begat the computer, the commonsense justification for the rule waned and many state courts shifted away from an absolute presumption of validity towards a rule that only gave prima facie presumption that an enrolled bill was valid, allowing extrinsive evidence (say, I don’t know, real-time, date-stamped real-time video) to rebut the presumption.  That was the rule adopted in 1980 that Gerth alludes to in his CJ piece.  In D&W Auto Supply v. Department of Revenue, 602 S.W.2d 420, the court examined a litter law that, among other things, assessed a tax to fund its purposes.  Unfortunately, the law, while properly enrolled, clearly failed to meet the constitutional absolute majority required for money bills (See “Two Guides to the Kentucky General Assembly: With Apologies to Niccolò Machiavelli and ABC's Children's Programming Division” ). 

The enrolled bill rule stood in the way of righting an obvious violation of a constitutional provision and the Kentucky Supreme Court, in an unanimous opinion by Justice Stephens, overruled Lafferty and adopted the “extrinsic evidence rule," noting that “It is clear to us that the major premise of the Lafferty decision, the poor record-keeping of the legislature, has disappeared. Modern equipment and technology are the rule in record-keeping by our General Assembly. Tape recorders, electric typewriters, duplicating machines, recording equipment, printing presses, computers, electronic voting machines, and the like remove all doubts and fears as to the ability of the General Assembly to keep accurate and readily accessible records.” Id at 424.

Turning to the balance of powers rationale, the court rejected the premise that “the equality of the branches … requires that we shut our eyes to the constitutional failings and other errors of our copartners in government.”  Channeling Justice Marshall, the court noted its duty under the Kentucky constitution (and I’m paraphrasing) to say what the law is.  The court, in essence, adopted 1 Sutherland, Statutes and Statutory Construction s. 15.06 (4th ed. 1972; s. 15.6 in current 6th ed.) as the law of Kentucky. 

It’s hard to tell yet whether anybody’s ox was gored by the laws enrolled in the wee hours of April 16 (allegedly).  However, if they have a grievance that finds its way into the courts, the law (as well as the video records of KET) may be on their side.

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*  The case was styled from the name of William T. Lafferty, a town official of Berry, Ky., who the court released from an injunction barring him from issuing liquor licenses.  In 1908, he was named dean of the new UK law school, where he soon was producing licenses of a different vintage. 

LEFT: William T. Lafferty; RIGHT: Lafferty Hall, the building that the UK college of law moved into in the 1930s.  It now houses the anthropology department.

Do Successful Students Take Notes by Transcription?

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Today some of my colleagues were discussing potential drawbacks of students using computers in the classroom.  Some felt that one of the major drawbacks is that students simply "transcribe" everything that is said rather than engaging in selective-note-taking, and the class.

I am interested in learning more about this because I talk often with my students about note-taking, learning styles, and study habits.  I am wondering what your thoughts about this are.  Please share them with me by commenting or clicking here

If you are a professor, do you agree that transcribing is a poor way of learning?  Have you noticed that students who transcribe tend to do less well?   Is transcribing on a computer different than taking comprehensive handwritten notes that extensively cover almost every word that is said in class?  Does the effectiveness of transcribing differ from person to person, depending on the student's learning style and what else the student is doing to engage with the material?

Does anyone know of any research on this topic?  I can imagine that those that study academic support principles, learning theory, or learning styles might have information about the differences between handwriting notes and typing notes, as well as the differences between selective note-taking and comprehensive note-taking.

If you are a student, do you tend to type everything that is said?  If so, do you do well in your classes?  Poorly?  Are you also following along, thinking, and answering questions raised by the professor to yourself at the same time you are transcribing?  Do you review the transcript later to correct mistakes, clarify statements, and write down your questions about the material?  Do you review it again when you are outlining to prepare for the paper or exam?

In the interest of full-disclosure, while I attended law school before the dawn of the computer-in-the class era, I was notorious for taking comprehensive notes.  Many of my peers, should they need to miss a class, would rather have had anyone else than me take notes for them.  They would elect to use selective notes that doubtless missed more than one key idea over near verbatim notes that did not differentiate between important and less important ideas.

That said, I realize that multi-tasking is not typically as successful as focusing on one task.  I am open to the idea that focusing on transcribing may detract from a student's ability to focus on engaging with the class.

Current Abortion Standards

The standards in Casey still apply.  When the fetus reaches viability, the state has a greater interest and may impose regulations that do not unduely burden a woman's choice.  Gonzales v. Carhart does not change this standard, but allows that the ban of a particular procedure (intact D & E) does not constitute such a burden even though there is no exception for the life and/or health of the woman.

Exam4 update required

Jim Becker wanted to remind you that there is a new version of Exam4 since the mid-term exam. You will have to download to current version for the final exam. The version of Exam4 that you used for the mid-term has expired and cannot be used for end of semester finals.

If you need the finals version, you may download it here: http://www.law.louisville.edu/it/exam-software-download

Final Exam Content

The following is "fair game" for the final exam:

 The first introductory lecture plus anything from medical staff structure (Feb. 14) through tax exemption (April 8) including "Sicko."  You will not be tested on antitrust.

Tips for a Successful Student Oral Argument

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My students put together a very helpful list of tips for other students engaging in their first appellate oral argument.  (Students doing their second or third one might also find it helpful, as might practitioners doing their first.)  Their google document can be linked to here

Equal Pay Day

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Did you know women in the United States are still paid only 77 cents for every dollar earned by men? For women of color, the numbers are even worse - African American women earn 63 cents and Latinas earn 52 cents for every dollar paid to white men.

To commemorate Equal Pay Day, which will be recognized on Tuesday, April 22, the US Senate is expected to vote on the Lilly Ledbetter Fair Pay Act (HR 2831) soon. The bill will amend Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 (Pub. L. 90-202), and reverse the Supreme Court’s recent decision in Ledbetter v. Goodyear Tire & Rubber Co. (No. 05-1074) to restore adequate protection against pay discrimination.

The Lilly Ledbetter Fair Pay Act was passed by the House in July 2007 and is now on the Senate’s calendar. Senators Hillary Clinton and Barack Obama are among the bill’s cosponsors.

Take Action & Get Informed

Blog for Fair Pay

  • Use this online form to contact your Senators and tell them you support the Fair Pay Restoration Act (S 1843).
  • Compare your salary to that of your coworkers with the Courier-Journal’s Government Salary Database.

References

Pay Equity Fact Sheet

Supreme Court Ruling & Fair Pay Restoration Act Fact Sheet