In this episode of WichitaLiberty.TV: Former United States Senator Jim DeMint joins Karl Peterjohn and Bob Weeks to talk about the Convention of States. David Schneider, regional director for Citizens for Self-Governance also appears. View below, or click here to view at YouTube. Episode 175, broadcast December 9, 2017.
Wichita Business Journal: “McClatchy Co. spokeswoman Jeanne Segal told the Wichita Business Journal on Wednesday that Kelly Mirt has resigned and will rejoin his family in North Carolina. … Mirt was announced as the Eagle’s publisher and vice president of advertising in July. … Mirt came to Wichita after the of former Eagle publisher Roy Heatherly in May. Mirt was the newspaper’s sixth publisher since 2007.” See Wichita Eagle publisher resigns, McClatchy says.
The system is rigged against you
Wichita Eagle Opinion Line, December 6, 2017: “Reading the article about Southeast High School has hardened my resolve even more that my kids will never attend public school.” Dear writer: I’m sorry to inform you, but there is an entire industry in Kansas that works to make sure that public schools are the only viable option for most Kansas families.
Will we ever know the cost?
Wichita Eagle headline: Spirit plans ‘mega project’ with $1 billion investment, 1,000 more jobs in Wichita. This is good news. I wonder, however, if we will ever know all the news, specifically how much it cost to make this happen. Also: Will Wichita Mayor Jeff Longwell’s pledge to forego cash incentives apply to this project?
DeMint in Wichita this week
At the Wichita Pachyderm Club this week: Former Senator Jim DeMint of South Carolina. DeMint served in the U.S. House of Representatives from 1999 to 2005, representing the fourth district of South Carolina. From 2005 to 2013 he served in the United States Senate, again representing South Carolina. From 2013 to 2017 he was president of the Heritage Foundation, one of the nation’s leading conservative think tanks. Now he serves as senior advisor to Citizens for Self-Governance, a group which is seeking to call a convention to propose amendments to the United States Constitution in order to reduce federal government spending and power. See here for details.
While it has become increasingly common for members of the U.S. Supreme Court to make news by public comments, particularly during their summer recess, Wichita Pachyderm Club members had the opportunity for Kansas federal district Judge Eric F. Melgren to quote from his judicial colleagues in a way of defending the Constitution’s concept of the separation of powers. Judge Melgren cited various appellate court rulings, particularly as they related to the largely little known Chevron decision, that damages that constitutional protection at his July 21 speech in Wichita.
Judge Melgren, a former member of this club before his selection as the U.S. attorney for Kansas that was followed by his 2008 elevation to a federal district court post, began by discussing this governmental paradox, “those who favor (government) efficiency, or inefficient, representative government,” and he quoted from three appellate decisions as well as several of Madison’s Federalist papers to make this point.
The founders feared tyrannical government and worried about this new government having too much power. That is the reason for the three separate branches where Congress writes the law, the executive branch administers the law, and the judiciary interprets it. This system of checks and balances make government very inefficient, and Melgren cited Madison’s Federalist 47.
Judge Melgren followed by quoting Supreme Court Justice Clarence Thomas’s opinion in the Department of Transportation v. American Railroads case on this point. Our progressive law has now put the power of taking a general federal statute and having a federal agency basically write the rules and regulations that are then administered by the bureaucracy, and if a dispute arises, is then settled in the agencies own administrative law courts. Congress, often the executive, and unless extensive litigation occurs, the courts are all bypassed. The Chevron decision pushed these legal disputes away from the courts and back to bureaucratic resolutions.
This creates an environment where the bureaucracy has assumed much of the law making powers, administers the law, and then has their own administrative courts to interpret it.
In theory, the bureaucracy is part of the executive branch and reports to the president. However, as U.S. attorney Melgren was reminded by his staff that they would be there after he had left that office. This also applies to the rest of the federal government’s bureaucracy.
To amplify upon this situation Melgren quoted from then federal appeals court judge Gorsuch in an immigration case that turned on the legal question of which conflicting rules from the government applied. The U.S. Supreme Court’s little known but legally controversial Chevron decision took this issue away from the federal courts and gave it to the professional bureaucracy. Gorsuch’s opinion was part of this 10th circuit (federal appellate court) case involving the U.S. justice department in 2016.
Then President Obama’s rule making authority was at issue, that created this legal problem in the realm of federal administrative law making. This was also a problem in Thomas’ opinion in the railroad case.
Justice Thomas warned about this dangerous trend. This amplified the warning Gorsuch bemoans in the weakening of the separation of powers in his appellate case. Thomas warned that too often we abrogated and allowed the power to make laws by administrative fiat. It might help make, as is often suggested, “make the trains run on time,” although Judge Melgren expressed serious doubts on this point there was no doubt about the cost to our Constitution, and the individual liberty it is supposed to protect.
Judge Melgren spoke about the Chevron decision’s impact where the courts must defer to administrative agencies. “Apply the law as it is, and not how they wish it to be,” citing Gorsuch’s opinion, this means that the separation of powers is being totally undermined by the Chevron edict. The solution is: legislation. Law writing is arduous and difficult, but this is not a bug in the system, but this difficulty is a constitutional protection.
This shift in power under Chevron would astonish the founders if they could see our current system as seen by the growth in the federal government in general. Judge Melgren pointed out that within the lifetime of some of the Pachyderm Club members the number of judges in the federal court system in Kansas had expanded from one in 1940 to six today, and that excludes a number of senior federal judges who have officially “retired,” but still on occasion hear about 1/3 of the total number of cases in the three federal courthouses (Wichita, Topeka, and K.C.) in Kansas. Melgren mentioned his late colleague Judge Brown, who was an appointee of President Kennedy and was still hearing cases while over 100 years old. Judge Brown passed away at the age of 104.
Melgren readily acknowledged that the separation of powers was not absolute. The federal court system underneath the supreme court is created by congress. The close to 1,000 federal district and appellate judges operate nationally within an organization structure created by Congress.
Melgren’s last case he quoted was from Kansas Supreme Court Justice Caleb Stegall’s opinion in the selection of district court judges, Sullivan v. Kansas. Stegall’s separation of powers argument cited Madison’s Federalist 51 concerning the concentration of power in any one government agency.
Stegall applied the warnings over the separation of powers and the direction that state law has taken going back to Kansas Supreme Court cases granting additional administrative power going back to a 1976 ruling that involved the complexity created by the separation of powers. The separation of powers was a critical constitutional concept that is a key to protecting our liberties from government expansion.
This cautionary litany of judicial rulings quoted by Judge Melgren served as a legal foundation concerning our Constitution and the separation of powers legal structure. The Chevron decision that weakens our liberty, and expands government’s powers, places a roadblock in the effort to preserve, protect and defend our liberty with this important constitutional protection of the separation of powers today.
Video of this speech is available on YouTube. Click here.
In this episode of WichitaLiberty.TV: David Schneider of Citizens for Self-Governance joins Bob Weeks and Karl Peterjohn to explain the Convention of States project. View below, or click here to view at YouTube. Episode 154, broadcast June 18, 2017
Kansas governments are trying — again — to expand their powers to take property to the detriment of one of the fundamental rights of citizens: private property rights.
Empty lots in northeast Wichita. Click for larger version.Last year cities in Kansas lobbied for a bill that would expand their powers to take property from its lawful owners, all in the name of saving neighborhoods from “blight.” Governor Brownback vetoed that bill, explaining, “The right to private property serves as a central pillar of the American constitutional tradition.”1
The governor further explained: “The broad definition of blighted or abandoned property would grant a nearly unrestrained power to municipalities to craft zoning laws and codes that could unjustly deprive citizens of their property rights. The process of granting private organizations the ability to petition the courts for temporary and then permanent ownership of the property of another is rife with potential problems.”
The bill introduced this year is SB 31, titled “Rehabilitation of abandoned property by cities.”2 It is a slightly modified version of SB 338, the bill from last year.It deserves opposition for the same multitude of reasons. Last year John Todd summarized the reasons for opposition:
Senate Bill 338 appears to provide local governmental units with additional tools that they don’t need to “take” properties in a manner that circumvents the eminent domain statutes that private property rights advocates fought so hard to achieve in 2006.
The total lack of compensation to the property owner for the deprivation or taking of his or her property is missing in the bill.
Allowing a city or their third party take possession of vacant property they do not own and have not obtained legal title to is wrong.
Please take a look at a comparison between a free-market private sector solution as contrasted to a government mandated program to achieving affordable housing and the impact highly subsidized government housing solutions are having on adjacent home owners.
This year’s bill is a “committee bill,” meaning that no legislator was willing to be a named sponsor. We might call this the “Longwell-Meitzner bill,” as these two Wichita City Council members were particularly disappointed that the governor of Kansas blocked their power grab.3
Of note, Todd and I, along with others, had a luncheon meeting with a Kansas Senator who voted for last year’s bill. When we told him of our opposition, he asked questions like, “Well, don’t you want to fight blight? What will cities do to fight blight without this bill?” When we listed and explained the many tools cities already have, he said that he hadn’t been told of these. This is evidence that this bill is not needed. It’s also evidence of the ways cities try to increase their powers at the expense of the rights of people.
Following, John Todd’s testimony opposing SB 31. His exhibits are available via a link at the end of the testimony.4
January 26, 2017
Senator Elaine Bowers, Chair
Senate Ethics, Elections and Local Government
Subject: MY OPPOSITION to Senate Bill No. 31 scheduled for a public hearing in the Senate Ethics, Elections, and Local Government Committee on January 26, 2017
Dear Senator Bowers and members of the Senate Ethics, Elections, and Local Government Committee,
I OPPOSE the passage of Senate Bill No. 31 of 2017 since it is basically a slightly modified and expanded version of the Senate Bill No. 338 of 2016 that Governor Sam Brownback correctly vetoed. I see no new provisions in the 2017 bill that gives citizens any additional private property protection; rather, it strengthens local authorities “unmitigated power in determining which properties should be seized, allowing localities to write their own rules. It also cedes to municipalities the power to select which private organizations receive control of the property.”
This quote is from an e-mail the Governor’s office issued in announcing his Veto of the 2016 bill (see copy attached). A “Message from the Governor” dated April 11, 2016 provides his excellent reasoning for the Veto, explaining, “The right to private property serves as a central pillar of the American constitutional tradition (see copy attached).
Shortly after starting my career in the real estate business in 1976 I acquired my first rehab house. It was located in the Old Orchard area of Wichita that everyone considered one of the most economically challenged and difficult neighborhoods to work with in town. I paid the seller nearly $20 thousand her dilapidated house that included three vacant single family building lots. It cost me in the range of $10 thousand to rehabilitate the house that included repairing a caved in concrete block basement wall. I sold the rehabilitated house and the lot it was on for the $30 thousand I had invested in the transaction and wound up with the vacant lots free and clear. I sold the three lots to a builder for $9 thousand cash and he subsequently built three new affordable entry level homes on them.
Now let’s take a look at this private sector transaction:
The seller of the house received cash for her property through a mutually agreed upon transaction without coercion (no eminent domain) involved.
I rehabilitated the house and sold it to a young couple for their first home.
The builder who purchased the 3 vacant lots built three new houses that he sold to owner occupant homeowners.
The builder provided construction jobs and purchased building materials from local vendors.
The Orchard neighborhood saw immediate improvement and felt the benefits of economic uplift.
The City, County, and School District tax base was expanded providing with one rehabilitated and three new houses thus providing additional tax revenue to fund fire, police, public safety, and money to educate our children.
I paid Federal and state taxes on the profit I made in the transaction and I suspect the builder did too.
There was no need for government subsidies of any nature for this private sector transaction to work.
Now in contrast, let’s take a look at how our local government has been handling similar neighborhood opportunities. Please take a look at the attached Building Blocks Infill Project Area map to discover what has been happening in a predominantly African American neighborhood community in Wichita.
The vacant green rectangles are dozens of vacant lots where houses once stood that were bulldozed by the city.
The owners of these houses were paid $0 for the houses that were taken by the city’s bulldozer
In my judgment, many if not a majority of these bulldozed houses had economic value and offered the potential for rehabilitation and the creation of low-cost entry level housing. (See exhibit A)
The city charged the property owner $8 – $10 thousand for bulldozing charges leaving the owner with a vacant lot that was left to produce high weeds and collect trash.
Most of the owners let their vacant lots go back for taxes and many were sold for $100 or less and they received $0 for their properties.
Thus the existing and potential tax base was lost as well as the wonderful opportunity for clean low-cost affordable entry level home ownership that is part of the American dream.
Some of the most vulnerable and economically challenged property owners of our city rightly feel helpless in the face of this devastation.
Now local governmental officials are asking you for additional powers through Senate Bill No. 31 to “deal” with this problem.
They want the power to seize unoccupied houses without compensating the owners anything for their property.
They want to empower non-profit (non-taxpaying) organizations of their choice to seize unoccupied houses without compensating the owners for their property.
The non-profits involved in the redevelopment of this neighborhood community with the exception of Habitat for Humanity rely heavily on tax subsidies for wealthy taxpayers and generous Federal subsidies in the range of $50 thousand for each house built and sold.
I hear talk of Tax Increment Financing (TIF) to finance redevelopment in this community. The TIF program is simply a diversion of tax revenue that needs to go to city, county, and school district treasuries and not flow back to developers.
I see nothing in Senate Bill No. 31 that does anything to promote private sector redevelopment.
Is there a private sector solution? I say YES and I see it happening. Private sector investors, contractors and homeowners are stepping up and seizing opportunity (See Exhibit B). This economic uplift is healthy for the neighborhood community, expands the tax base, and offers an opportunity for investor/contractor profit in some cases or low-cost affordable home homeownership in others.
The rehabilitation of existing houses and redevelopment on vacant “infill” is best achieved by the private sector and not by government planners or their favored non-profit entitles.
The taking of property by local government without compensation is wrong. I believe that was what Governor Brownback was saying in his veto message, “Government should defend and protect the property rights of all citizens, ensuring that the less advantaged are not denied the liberty to which ever other citizen is entitled.”
I urge you to OPPOSE passage of Senate Bill No. 31!
Sincerely,
John R. Todd
A Kansas Citizen
The exhibits referred to are available in pdf form. Click here.
Another nonsensical editorial from the Wichita Eagle.
This is contained in an editorial urging Sedgwick County government to “stop messing” with the zoo.1
Nor is there any justification for a “non-disparagement clause” in the proposed operating agreement about the zoo director’s public statements, including a prohibition against doing anything to bring the county or society “unwanted or unfavorable publicity.” Even if the county is right — and the society wrong — about the constitutionality of such a gag rule on a public employee, it’s an insult to longtime director Mark Reed’s professionalism and another case of the county trying to pre-empt criticism and punish critics.
It’s common for employees, especially those in managerial and executive positions, to have such agreements. Companies don’t want their employees bad-mouthing the company. I would not be surprised if Holman herself has such an agreement with her employer, the Wichita Eagle. Even if there is no such agreement, can you imagine how long she would last in her job if she started complaining in public about her low pay, her drab office, how her editor censors her best editorials, the crappy publisher, etc.
Employees have protection through whistleblower laws, so if there is corruption or criminality, employees can report it. And the fact that the zoo director is a government employee: I don’t know if that makes a difference, constitutionally speaking.
Do the justices on the Kansas Supreme Court make new law? Yes, and here is another example.
A paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the undemocratic method of judicial selection process used in Kansas.1
The question is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process? In his paper, Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. Here, Ware explains one case:2
May a convicted criminal defendant pursue a legal malpractice action against this criminal-defense attorney without first obtaining any post-conviction relief? No, he may not, the Kansas Supreme Court held in Canaan v. Bartee, adopting what is known as the “exoneration rule.” In so holding, the Kansas Supreme Court acknowledged that it was making law. The Canaan court said that “Whether a plaintiff must be exonerated in postconviction proceedings before bringing a legal malpractice action against his criminal defense attorney is an issue of first impression in Kansas.” The court discussed earlier Kansas cases and concluded that they did not resolve the issue: “Thus, we are left to decide whether we will apply the exoneration rule in legal malpractice actions in Kansas.”
The Canaan court reviewed decisions from courts around the country and noted that most adopted the exoneration rule but some did not. The court also summarized what it candidly called “Policy Reasons Behind the Exoneration Rule.” The Canaan court’s punchline was: “After consideration of these authorities, the varying policy justifications, and the shortcomings of the various approaches, we find the majority view persuasive. We hold that before Canaan may sue his attorneys for legal malpractice he must obtain postconviction relief.”
Who considered “varying policy justifications” in deciding what Kansas law should be? Was it the Kansas Legislature? No, it was the judges on the Kansas Supreme Court did. As in all the examples discussed above, when it comes to the exoneration rule Kansas law is what it is because high court judges chose for that to be law based on what they considered “persuasive.” (emphasis added)
For more on this topic, see As lawmakers, Kansas judges should be selected democratically: While many believe that judges should not “legislate from the bench,” the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its highest court, violates this principle.
Do the justices on the Kansas Supreme Court make new law? Yes, and here is an example.
A paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the undemocratic method of judicial selection process used in Kansas.1
The question is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process? In his paper, Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. Here, Ware explains one example:2
Does the state have a legal duty to control the conduct of parolees to prevent harm to other persons or property? When the Kansas Supreme Court confronted this question in Schmidt v. HTG, Inc., it noted a split of authority in other states. For example, a Washington court held that, yes, “a parole officer takes charge of the parolees he or she supervises despite the lack of a custodial or continuous relationship” and this had the effect of imposing liability on the state. However, the Kansas Supreme Court “reject[ed]” this rule and said “The better-reasoned and more logical approach is that taken in [a Virginia case] which held that state parole officers did not take charge” of a parolee in the relevant sense.
So Kansas law on this topic … was made, not by the legislative or executive branches, but by the judges on the Kansas Supreme Court. In Schmidt, … the lawmaking judges did not pretend that they were compelled by the legislature or anyone else to choose one possible legal rule over another possible legal rule. Instead, the judges decided which view was “better-reasoned” and then made that view the law. (emphasis added)
For more on this topic, see As lawmakers, Kansas judges should be selected democratically: While many believe that judges should not “legislate from the bench,” the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its highest court, violates this principle.
This is contained in an editorial urging Sedgwick County government to “stop messing” with the zoo.1
This is contained in an editorial urging Sedgwick County government to “stop messing” with the zoo.
