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.

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.

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

Politics and spirit… a reminder of events 10 years ago

A recent set of comments on a spirit squad related email list reminded me of events that happened 10 years ago this month that brought controversy to the KU spirit squad.

In December of 1998, the KU Athletics department decreed that the spirit squads would not be allowed to participate in Nationals. However, the Dance team captain had already made the necessary arrangements to participate at the the ’99 UDA nationals, which by then were about a month away. The elected to ignore the embargo and proceeded as planned, which was publicly posted in the local newspaper. Reaction from the squad was extremely negative. Many of the cheerleaders quit in protest, reducing that squad to 12 by the end of February.

The mother of one of the squad members was nice enough to contact me that Saturday night to let me know how they did. I was also able to greet them when they returned to KCI.

The dance team was also moved from the floor into a reserved section in the south bleachers. Some of the squad believed it was because they were concealing advertising banners for the local phone company. Toward the end of the season, rumors also persisted that the the south bleachers were going to be turned from student seating to reserved seating.

In the end, the coaching staff was dismissed, and the 99-00 dance squad was reduced from two squads of 12 to one squad of 10, with an alternate. The athletic department also sponsored an student support organization called the HAWK club, of which I was a participant. The south bleachers remained student seating, and in fact, the HAWK club was encouraging its members to sit in those south seats. The dance squad was returned to its two squad lineup for the 02-03 season, however, the original name “Crimson Girls” was retired. The new name, “Rock Chalk Dancers,” was introduced in 2004. The squad still anchors the south bleachers while the game is underway, and I doubt they will be moved back to the floor anytime soon.

I didn’t mind the name change, partially because the athletics had been promoting the use of blue over crimson, and because I knew there were male dancers out there. In fact, I have a couple of them in my family. I’m also fine with the south end bleachers; that move may have actually saved them from being turned into reserved seating.

I haven’t been in contact with the squad personally since the fall of ’03, but thanks to Facebook, I have re-established contact with many of the members of the past squads, including the 98-99 squad. Among that squad, a couple of them are still dancing. I’ve also got a nurse and a dentist. Some are married, a few have kids of their own.

The following is a letter I wrote 10 years ago, which was published in the Lawrence Journal-World on February 2, 1999. The letter also notes that Kansas high school cheerleaders and dance teams cannot participate in nationals. As of 2009, this is still the case. However, they can participate in contests where the site is no more than 500 road-miles from the border (this limit in 1999 was 150)

To the Editor,

Among the worlds of business, academia, and sports, there is one common goal: the pursuit of excellence.

Recently, the KU Athletic Department decided that the cheerleaders and Crimson Girls should not be allowed to compete in nationals. Since the spirit squads were willing to raise their own funds, money is not the problem. Therefore, the only plausible reason I could think of is the Athletic Department simply does not want them to go.

When it comes to similar spirit groups on the high school level, the Kansas State High School Activities Association is among the most restrictive associations in the country. The Lawrence High and Free State High pom squads and cheerleaders have been invited to national competitions similar to the ones KU have been attending several times. Because of the rules of the KSHSAA, they have not been allowed to go. In addition, the KSHSAA does not allow groups attending summer camps under their name to be ranked, whereas other camps rank their participants on a regular basis. This leads me to believe that the KSHSAA believes that spirit groups should not be competing, a mentality which I suspect has spread to the KU athletic department.

Why should the Crimson Girls and the pom squads and cheerleaders of Lawrence be allowed to compete? By competing, they have a brass ring to reach for. If a team succeeds and reaches that ring, they become the mark of excellence. If they try and dont quite make it, they would have my utmost respect for reaching for the top. Not reaching for the top, not really competing, means they have no real passion for what they do and would settle for mediocrity.

The Athletic Department and the KSHSAA, whether intentionally or not, are promoting mediocrity by disallowing the spirit squads under their control the opportunity to compete against their peers with little or no reason. Their actions are not good for the students that these organizations are representing because it takes away from their spirit and passion for cheering. Without that passion, their support for the teams they cheer on would be weaker, and that would take away the atmosphere the spirit squads bring to the game they attend.

Richie Kennedy

Sarcoxie Township is definitely GOP territory

Once again, I present my not-so-surprising voting decision.

POTUS: McCain. In a previous post, I noted that the a presidential picking website generally favored McCain as my pick. If there’s any other reason for me to choose McCain over Obama, it is this: The National Federation of Independent Business gave Senator McCain a rating of 100 in its 110th (2007-2008) Pre-Election Congressional Report, versus a 50 for Obama. The NFIB determines the ratings of its candidates using information gathered by surveying its members… people like my uncle Marty. Basically, McCain is considered better for small buisness than Obama.

US Senate: Pat Roberts. I find it somewhat amusing that Jim Slattery is riding on the Obama style change Bandwagon. Slattery was our US representative in the 2nd District for many years, then ran unsucessfully for Govenor in 1994. (That election was basically called at 7:01 CT) Outside of Douglas County, Senator Roberts remains popular. He also received a 100 from the NFIB.

US House – District 2: Lynn Jenkins. Although Boyda received a respectible grade from the NFIB (70), the fact is, the rest of her party, particulary the incumbant speaker of the house, generally have low marks.

State Senate – 3rd District: Roger Pine. His opponent, Rep. Tom Holland, has been running attack ads, to which the incumbant Senator has found unworthy of response.

State Rep – 47th District: Republican Lee Tafanelli is running unopposed

County positions – All GOP, all unopposed.

Sales Tax – 1/4 cent for County matching KPERS. Yes.

Judicial Retention – None of the Judges that serve my district have run into contraversy. I voted to retain them all.

Other issues of interest
Lawrence Sales Tax – since I no longer live in Lawrence, this issue is not on my ballot. There’s currently a ballot measure for major infrastructure projects and for the transit service. I support the infrastructure measure, but oppose the transit measure on the grounds that, based on ridership and demographics, a fixed route bus system is *not* an nessecity for Lawrence and should be decommed.

JoCo question 1: Johnson County has a ballot measure to switch Judges from an appoint and retention system to direct election. This should be interesting

JoCo question 2: This question is on a sales tax to fund research development in cooperation with the state universities.

Kansas City Light Rail: This one is similar to the “T” question in Lawrence. Those opposed to the Light Rail basically argue that the demographics are not present to support rail transit just yet. I do believe, however, that the use of rail transit should be considered in cooperation with busses and automobiles.

New address… New Polling Place

With the move to a new house, and a new county, there’s a new polling place.

The polling place for Sarcoxie Township is at an old one-room schoolhouse just north of Lawrence. They also use a optical scanning method pretty much the same as the one in Douglas County.

For the Republican Primary, there were only two contested seats, plus one ballot question. Here’s how I voted.

US Congress, KS-2: Lynn Jenkins
The Republican Primary has been somewhat contested between the incumbent state Treasurer and former Congressman Jim Ryun over their respective service records. I choose Jenkins mainly because I wanted to vote out the Democratic incumbent, and I doubt the person the was previously defeated would be able to re-claim his seat.

County Attorney: Caleb Stegall
The Kansas Court district Jefferson County is in is shared with neighboring counties, each county having its own attorney. In the larger counties, such as Shawnee, Douglas, Johnson, and Wyandotte, the court district is contiguous with the county, and therefore, they are considered District Attorneys.

Stegall’s campaign against his opponent, the incumbent county attorney, mainly challenged his effectiveness. I did not see any campaign material from his opponent.

Sales Tax Issue: Yes
Jefferson County also had a sales tax issue on the docket. It was a 1% tax with a 6 year Sunset clause for road improvement. There was no campaign material for or against, and the tax is very likely a renewal of an existing tax issue.

All other positions on the ballot were unopposed, except for township treasurer, which did not have a Republican candidate.

The future of elections….

Over at the fairgrounds this afternoon, the county brought in vendors to demonstrate their voting systems. One Vendor used a exclusive touch screen system, the others featured touch screen and optical ballot options. One even had the ability to transfer from a touch screen to a optical ballot.

Being in the IT realm, I know that the computers that will use this system could potentially, however unlikely, be vunerable to hackers, viruses, and spyware. There is always the possibility (and some have already thrown this accusation) that either a vendor or a third-party could rig the voting.

The paper trail provided by vendors that also have optical systems appear to be secure. I doubt, once the ballot has been printed, it could be altered by the machine after it is prepared for the next voter. Keeping an optical system, however, does alllow for the posability of handling larger numbers of users than the touch-screen, since there is only one machine and multiple people can be on it at the same time.