Parental Advisory: Case Law

This week, the Kansas court of appeals released This opinion in the case of State v. Guein. In the majority opinion, Justice Steve Leben inserted the following caution before getting into the legal terminology:

We want the reader to know that we do recognize that some of the language in our opinion is vulgar enough that it cannot be used on over-the-air television shows. Yet we have used it in a published judicial opinion. We do so because this language carries a certain force that’s not necessarily apparent if we rephrase it. We must judge the effect of the words said — in this case by a police officer — on the person in handcuffs who heard them. To make that judgment and to explain our decision, we must repeat the actual words used and place them in the context in which they were said.

With that introduction, we turn now to the factual and procedural setting in which these issues are presented. We will then address each of the three legal issues Guein raises on appeal, only one of which is successful.

In a nutshell, two Lenexa PD officers observed what they suspected to be a purchase of illegal drugs. They approached the vehicles and were able to detect an odor of marijuana coming from them. After an initial patdown, the defendant was cuffed and given his Miranda warning. After this is when the proverbial f-bombs started dropping. The Court of Appeals ruled 2-1 that the officer’s language amounted to a verbal threat of physical harm which “Effectively Negated the Miranda Warning,” and that statements made and evidence gathered after the officer used such language must be suppressed. The court also ruled that use of the evidence in question could have affected the outcome of the case, reversed the verdict, and remanded for a new trial.

The dissenting judge, Kathryn Gardner, disagreed with the notion that the language was threatening and would affirm the trial court. Some of her arguments in her dissent were responded to in Leben’s opinion.

Voting ab initio

As a left-handed right-winger, I mostly toe the GOP line. That does not mean I blindly vote the straight ticket.

For President: I could not vote for Hillary Clinton. I could not vote for Donald Trump. Even though he’s far from perfect, I went with Gary Johnson and will leave it at that. Besides, it’s safe to say that Trump will carry Kansas no matter what I do.

For the US senate and US house, I did toe the line for Jerry Moran and Lynn Jenkins.

For State Senate, I once told incumbent Democrat Marci Francisco that the only person I would pick over her was myself – and I’m not running. I made good on what I said. In the statehouse, I went with Republican Ron Ellis. I also crossed over and voted for incumbent Ann Mah in the Board of Education race.

All of the County races are unopposed by Republicans except for one contested race. Linda Buttron will be the county clerk, Delia Heston will be Register of Deeds, Lisa Buerman will be treasurer, Jeff Herrig will be Sheriff. The only contested race for Jefferson County office is County Attorney. I went with Republican Josh Ney.

On a somewhat contentious judicial retention race, I voted to retain all judges except for one: Supreme Court justice Carol Beier. Why did I target that particular one instead of all four targeted justices? I based it on a read of a dissenting opinion in two Capital Murder case. Both cases involved defendants who where convicted, but died in prison before the automatic appeal could be heard. In many states, and at the federal level, if a defendant dies while his appeal is pending, the defendant’s charges are abated ab initio. In layman’s terms, it legally means the defendant is treated like he was never charged. That’s not the case in Kansas. In the two Capital cases, the Supreme Court reduced their review to issues that could have absolutely absolve the defendant. In one of the cases, a lesser conviction was dismissed as duplicative of the Capital Murder conviction. Beier’s dissent in the two cases indicated that she felt that Kansas should adopt abatement ab initio. She was the sole dissenter in both cases.

The doctrine of abatement ab initio seems reasonable at first glance. After all, the Defendant is no longer able to defend himself personally, nor would the state be able to punish him personally. However, the high profile case of Ken Lay showed the weakness – abating the conviction also abates victim restitution. It seems to me that, rather than adopting the concept of abatement in Kansas, other states are leaning towards getting rid of it.

Lies and Damned Lies

I decided to do an unofficial poll on how the Kansas Governor’s race is looking, based on the results of last night’s primary. Basically, I compared the votes tallied for Brownback with the total voters for Jennifer Winn (Brownback’s primary opponent), Chad Taylor and Patrick Wiesner (the two Democrat candidates for the US Senate seat)

Overall, Brownback is leading with 50.9%. In the “Big 5” Counties (Johnson, Sedgwick, Shawnee, Douglas, and Wyandotte) Brownback trails with only 48.3%. He’s leading in Johnson and Sedgwick counties, but is getting demolished (unsurprisingly) with less than 30% in Douglas and Wyandotte counties. In Shawnee County, Brownback trails with 41.9%

Other counties where Brownback is trailing with less than 45%: Elk (!), Lyon (Emporia), Crawford (Pittsburg), Jackson (north of Topeka), and Pratt (!).

My advice to Sam Brownback and to his general election opponent, Paul Davis: eat lots of KAKE (and KSNW, and KWCH). Wichita is the prime battleground — and I expect a no holds barred campaign between the two candidates.

How I voted – GOP primary

I don’t mind that the state of Kansas can tell me my voting history (for the record, I’ve voted in every August/November statewide election, and have (maybe) only missed one city/school board election) Hell, I’ll even tell you how I voted 😛

US Senator: Pat Roberts. In the duel between “Ya’ ever been to Dodge City, Kansas?” and “I’m a doctor, not a politician,” I’m tipping towards Dodge. My Message to Mr. Wolf: [in Scottish accent]Now you’re a politician.” Furthermore, he’s apparantly not a very popular doctor, either.

US House: Lynn Jenkins. I have no beef with the incumbant.

Governor: Sam Brownback. Obviously, he’s the incumbant going into this race with less than shining publicity. However, I do think Mr. Davis has a weakness that the Brownback campaign has yet to exploit.

Secretary of State Kris Ko….. Actually, I didn’t vote for him last time, either. I voted for Scott Morgon.

Attorney General: Derrick Schmidt ran unopposed.

State Treasurer: Ron Estes. Same Deal

Insurance Commissioner: Beverly Gossage. For 36 out of the past 44 years, the Insurance Commissioner spot has been held by a Republican from Douglas County. Fletcher Bell, Ron Todd, and outgoing commissioner Sandy Praeger all came from Lawrence, with Kathleen Sebelius inturupting the pattern. None of the candidates are from Lawrence, but Gossage is from Eudora.

State House: Ramon Gonzalez. No competition.

County Commissioner: Lynn Luck. Maybe I can run in 4 years.

Sarcoxie Township Clerk: No candidate. Didn’t write one in, either.

Pricient Committeeman and Committewoman: John and Annette Fales

As an aside, indirectly, Fletcher Bell could be credited with propelling Sebelius’s star. Bell received a workman’s comp award after retiring from the Insurance Commission’s office which some considered to be dubious. Since his sucessor, Ron Todd, was also Bell’s longtime deputy, voters took it out on him.

It’s finally over…. until we do it again in 2012

Today is election day, and that means all of the political ads stop… at least until we do it again in 2 years.

Here’s who I picked:

In general, my family owns a glass business and, as such, tend to take more of a pro-business conservative standpoint. Democrats, particularly those in Washington, are seen as hostile to business in general. It should come as no surprise, therefore, to say that I voted for Jerry Moran for the US senate, Lynn Jenkins for the US House, and Sam Brownback for Governor. All three are considered by the national pundits to be heavily favored to win their respective positions.

I crossed the aisle and voted for Chris Biggs for Secretary of State and Steve Six for Attorney General. In my opinion, the Republican candidate for Secretary of State, Kris Kobach, is political poison. His crusade against supposed voter fraud and illegal immigration would be best served as a private citizen, not in the Secretary of State position. As for the AG race, the incumbent, Steve Six, ha managed to keep his nose clean… unlike his two predecessors. He also comes from a well-respected family of jurists. The AG race was also, quite possibly, the nastiest of the races, with PAC groups on both sides going after the other.

The State Treasurer’s race was run cleanly, with both parties running ads about themselves and not even mentioning their main opponent. The pro-buisness conservative in me went ahead and picked the Republican, Ron Estes

Sandy Praeger only had an opponent in the Primary; no democrat ran for her position.

The last two contested positions were both picks for the republicans. For the State House 47th District, we had incumbent Lee Tafanelli. For the Board of Education, I picked Willie Dove. It appears that Dove was a relatively low-profile candidate, but I did not see anything that signaled he was political poison (read: I didn’t see anything in regards to evolution or creationism) I do think that incumbent Janet Waugh has the edge here.

County Commission candidate Lynn Luck was the winner of the GOP primary, and faces no opposition in the general election. Bob Lockwood will be our Township clerk.

On the Judicial Retention issue, the Kansas Commission on Judicial Performance gave all of the judges passing marks. Therefore, I voted Yes on all of the judicial retention questions.

There were also two constitutional amendments on the ballot. The first makes the right to bear arms an explicit individual right, rather than a explicit collective and implicit individual right. The other amendment strikes the words “mental illness” from the section regarding voter disqualification. The legislature has never enacted a measure stripping the mentally ill of the right to vote, and this amendment was actually initiated by the legislature. There is no organized opposition to either issues, and I voted yes on both.

You know, I’m beginning to hate politics

Last night, I got into a major argument with someone via chat.

This person has had significant health problems, is unemployed and uninsured, and obviously doesn’t have much financial resources.

And he says that people like me want to see him get sick and die, and that hate minorities and the poor.

To me, those are fighting words. I went into a war of words with this person, and lost badly.

I feel like I’m in the minority at times, but I believe that routine medical visits should be gravitated more towards a “pay as you go” system, with insurance reserved for major issues that cannot normally be accounted for.

I also believe that the medical profession has the obligation to treat their patients without regard to their ability to pay. There should NEVER be an excuse for not seeking treatment.

In Lawrence, in fact, there is a place that specializes in the poor and uninsured. They’re called Health Care Access. They’re on Facebook. And Twitter.

If only there was a way to get my “combatant” in there.

I approved this message…

Today was primary day in Kansas. Here’s who I voted for in the Republican Primary

US Senator: Jerry Moran
Basically, the two leading candidates are fairly close policy-wise. What sealed the deal for me to break for Moran was the way Mike Shanin and Scott Parks of KMBZ felt of the way the candidates handled themselves while being interviewed on their program.

US House of Representative, District 2 – Lynn Jenkins
With Moran and Tihart running for the senate seat, and Dennis Moore deciding not to run for office again, Lynn Jenkins was the only incumbent house member running for the seat they held during the current congress. Dennis Pyle ran on a campaign indicating that Lynn was not conservative enough.

Kansas Govenor – Sam Brownback
Senator Brownback is, of course, the front-running candidate overall in the current race for govenor.

Kansas Secretary of State – JR Claeys
I’ve actually received messages from the Claeys campaign for a while now. I didn’t pay that much attention. However; the front runner, Kris Kobach, doesn’t excite me that much. With all of the hubub regarding the immigration bill, among other things…. Kobach seems to be ‘Damaged goods.’

Kansas Attorney General – Dereck Schmidt
In reality, whoever I vote for in this race didn’t makea difference. Something tells me the incumbent, Democrat Steven Six, will get elected for a full term, especially after the controversy with the two previous AG candidates.

Kansas State Treasurer – Ron Estes
Free Pass to November – Mr. Estes ran unopposed on the Republican Primary.

Insurance Commissioner – Sandy Preager
Basically, this is the de facto insurance commissioner race, with no opposition from democrats or third parties. Her opponent ran on the fact that he is n insurance agent, and that Preager is a RINO. I have not seen a problem in the Insurance Commissioner’s office, however

Knsas House – Lee Tafenelli (unopposed)
Kansas Board of Education – Dawn Weston (unopposed)

County Commissioner – Lynn Luck
Haven’t seen much debate on this one.

On the Kansas Highways front

On Memorial Day, I took a road trip to explore a couple of roundabouts, as well as parts of the new US 69 freeway in Linn County.

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As a Consequence of my raodtrip, I’ve also updated the US 69 exit guide to reflect the actual signage out in the field (I wasn’t *that* far off regarding the final segment of the freeway between Fort Scott and Kansas City.

http://www.route56.com/exitguides/us69.html

I also added a conceptual exit numbering scheme… the new 2009 Manual on Uniform Traffic Control Devices mandates that all major freeways have milepost-based exit numbering.

In addition, over the past week, there were protests over the removal of a Beaver Dam in the Baker Wetlands done to prevent 31st Street from losing integrity. Therefore, I wrote a Letter to the Editor:

31st Street Decay