« Ind. Law - "When a public defender is also a defendant" | Main | Ind. Decisions - Four cases granted transfer Oct. 29 »

Monday, November 02, 2009

Courts - Louisville paper gets it wrong re Kentucky AG "advising" the Corrections Department not to follow a recent state Supreme Court ruling

The Louisville Courier Journal has pulled the editorial included in this ILB post from Oct. 31st. It has published a retraction.

In addition, today's LCJ includes this letter from Kentucky Attorney General Jack Conway, headed "Conway: editorial based on 'factual errors'".

As Kentucky's Attorney General, I understand and accept that some of my positions may occasionally draw criticism from your editorial board. However, when you publish an editorial based on factual errors, I must respond and correct the record.

Your editorial titled “Ignoring the Court” on Oct. 31, is based on an erroneous premise. In that piece, you wrote (regarding the recent state Supreme Court decision striking down a portion of Kentucky's sex offender law restricting where offenders convicted prior to 2006 may live) that “Mr. Conway has asked Kentucky probation and parole officers to continue to enforce the contested law — in essence, disregarding the high court's ruling.” You additionally wrote that I and my staff “advise the Corrections Department not to follow a recent state Supreme Court ruling.” These are factually incorrect statements.

Let me be clear — I and my staff have not advised the Corrections Department or its officers on this issue, nor have we been asked to do so by the Corrections Department. The Kentucky Corrections Department has its own general counsel and is acting of its own accord. I would never tell an agency of state government, which has its own general counsel and which I do not represent, to ignore a ruling of the Kentucky Supreme Court. I have too much respect for the court system, and to do so would be completely at odds with my oath as Attorney General and my duty as a lawyer.

Moreover, it is ironic that Andrew Wolfson's article, published the same day as your editorial, got the facts right when he wrote that a spokeswoman for the Corrections Department stated that, “on the advice of its general counsel, the department has told its officers not to follow the ruling until the state Supreme Court decides whether it will be stayed.” Mr. Wolfson also correctly points out that my office has sought a stay of the ruling from the Kentucky Supreme Court as we prepare to ask the U.S. Supreme Court for review.

And I do plan to seek review by the U.S. Supreme Court of this important matter. I have the statutory responsibility to defend laws passed by the General Assembly, and many states have laws similar to Kentucky's that have been upheld by their courts. Therefore, I plan to ask the U.S. Supreme Court to provide clarity on this issue. I understand the constitutional ban on retroactive punishment, but we must also consider the public's interest in its safety and limiting offenders' proximity to areas where children congregate. Only the U.S. Supreme Court can resolve this disagreement among state courts and apply this balancing test.

While you may certainly disagree with my decision to appeal, I would never ignore a ruling by our state's highest court. I respect our justices and the principle of judicial review.

JACK CONWAY
Kentucky Attorney General
Frankfort, Ky. 40601

Posted by Marcia Oddi on November 2, 2009 11:10 AM
Posted to Courts in general