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Saturday, October 31, 2009

Courts - Ky AG advises the Corrections Department not to follow a recent state Supreme Court ruling as he appeals it to SCOTUS [But see corrections below]

"State to appeal ruling limiting sex-offender law" is the headline to a story dated Oct. 29th in the Louisville Courier Journal. Andrew Wolfson reports:

The Kentucky attorney general’s office has asked the state Supreme Court to delay enforcement of its Oct. 1 ruling throwing out part of the state’s sex-offender statute until the U.S. Supreme Court hears the case.

The attorney general’s office filed a motion Oct. 21 asking the state high court to stay its ruling that the law banning sex offenders from living near schools, day cares and playgrounds cannot be applied to those convicted before the statute was enacted in 2006.

The court ruled 5-2 that the statute was improperly imposed on people convicted before it went into effect. The U.S. and Kentucky constitutions prohibit laws that impose or increase punishment on criminal acts committed before the law's enactment.

Lisa Lamb, a spokeswoman for the state Corrections Department, said on the advice of its general counsel, the department has told its probation and parole officers not to follow the ruling until the state Supreme Court decides whether it will be stayed. * * *

The attorney general’s office has until Dec. 30 to file a petition with the U.S. Supreme Court to hear the case. No petition has been filed.

The U.S. Supreme Court rejects most cases, but the issue of whether sex-offender laws can be applied retroactively has surfaced in many states.

Under the Kentucky Supreme Court’s Oct. 1 ruling, sex offenders will still be required to register, but the residency restrictions enacted in 2006 cannot be applied to offenders convicted before that date.

Today the LCJ has an editorial headed "Ignoring the Court" [but see 11/2/09 correction below]:
Just because you can do something doesn't mean you should. Attorney General Jack Conway needs to remember the wisdom of that old admonition as he and his counsel advise the Corrections Department not to follow a recent state Supreme Court ruling as Mr. Conway appeals it.

On Oct. 1, the state's high court, in a 5-2 decision, said the law banning sex offenders from living close to schools, day care centers and playgrounds could not apply to those convicted before 2006, the year the law was enacted. (Earlier this year, the Indiana Supreme Court issued the same ruling for its state law.) Mr. Conway was not happy with the decision, which he said raised “serious concerns about the impact on public safety.” He indicated that he might appeal the ruling to the U.S. Supreme Court.

On Oct. 21, Mr. Conway's office filed a motion asking the state Supreme Court to suspend its ruling. The convicted sex offender who successfully challenged the state law has until Nov. 3 to oppose the Attorney General's motion to suspend the higher court's ruling, and Mr. Conway has until Dec. 30 to ask the U.S. Supreme Court to hear his case. In the meantime, the state Supreme Court hasn't issued an opinion as to the stay, and Mr. Conway has asked Kentucky probation and parole officers to continue to enforce the contested law — in essence, disregarding the high court's finding.

“Our position is that the Supreme Court decision is not final,” Lisa Lamb, spokeswoman for the state Department of Corrections, told the Lexington Herald-Leader . “We believe the former law is still in effect.”

That may be what they believe — and they provide copies of rules of procedure to back up their position, per the department's legal counsel. But the attorney general and his operatives ought not to be in the business of ignoring Supreme Court rulings they don't agree with, no matter how public-minded their intentions.

ILB - In some ways this appears to parallel the Indiana dispute over the COA Voter ID ruling negating the Indiana law and whether it applies to the Nov. 3 election, or whether it must be "certified" first. Thoughts?

[Correction posted 11/2/09] The ILB has received this note from the Office of the Kentucky General:

Dear Marcia,

The headline of your article re: Kentucky Attorney General Jack Conway’s decision to appeal the state Supreme Court’s recent ruling regarding sex offender residency restrictions is incorrect. If you read the article you posted, the Department of Corrections is relying on advice from its own General Counsel, not the Attorney General, in advising its probation and parole officers in how to enforce the law.

Attorney General Conway has not advised the department on this issue, nor has he been requested to do so. The Department of Corrections is not under the supervision of General Conway, it is under supervision of the Governor of Kentucky.

Please correct this headline as soon as possible. Thank you.

Sincerely,

Allison

Allison Gardner Martin
Communications Director
Kentucky Attorney General Jack Conway
700 Capital Avenue
Frankfort, KY 40601

In addition, the LCJ has now retracted the editorial quoted above - see this 11/2/09 ILB entry.

[Even more] Here is a link to the 29-page, 5-2 opinion itself - Comm. of Kentucky v. Michael Baker (Oct. 1, 2009).

Posted by Marcia Oddi on October 31, 2009 08:33 AM
Posted to Courts in general