Somerset — The state’s appeals court has unanimously upheld an injunction ordered by a Pulaski County judge in a lawsuit filed against the Kentucky Department of Corrections that claims the retroactive application of an early release program for prisoners is unconstitutional and dangerous.
The injunction, ordered by Pulaski Circuit Judge David A. Tapp in September 2008 in response to a lawsuit filed against the department of corrections by Commonwealth’s Attorney Eddy F. Montgomery, went before the Kentucky Court of Appeals after the state filed a motion asking that Tapp’s injunction be dismissed.
In its seven-page opinion, the court stated that Tapp appropriately considered several different elements of the case while determining whether to hand down the injunction.
“An appellate court will not disturb a trial court’s decision to grant a temporary injunction unless an abuse of discretion is demonstrated,” the opinion stated. “Here the circuit court granted the injunction after submission of briefs and conducting a hearing. In its September 15, 2008 order, it appears that the circuit court has properly considered all the factors set out above.”
Montgomery said the case can now be brought to an end without the public being put at risk as a result of the early release of the prisoners.
“With an injunction in place, we can properly protect the public and litigate this case to a final, meaningful result,” Montgomery stated in a press release.
Tapp’s injunction bars the early release of prisoners and parolees in Pulaski, Lincoln and Rockcastle counties under the controversial early release program that gives “street time” to prisoners who had previously violated the terms of their paroles.
The lawsuit brought by Montgomery claimed that the early release program, as part of House Bill 406, which was inserted into the current two-year budget by lawmakers in April 2008 in response to exploding costs and rising inmate populations, was applied unconstitutionally by the state corrections department.
The program was applied retroactively by department of corrections commissioner LaDonna Thompson, or, in other words, she applied the provision to all prisoners who had previously been on parole — not just those who violated parole during the two-year budget provision.
“Kentucky law is clear that statutes are not to be construed to be retroactive ‘unless expressly declared,’” stated the appeals court’s opinion. “House Bill 406 contains no express authorization for retroactive application for the provisions at issue.”
A similar measure placed into the budget in 2003 was interpreted to apply only to those who violated parole during the two years covered by the budget.
Montgomery also claimed in his lawsuit that the program was a dangerous one — and Tapp, in his injunction, agreed that “immediate, irreparable and serious injury” may occur for members of the public should the early release of prisoners continue to be applied retroactively.
“Without the injunction, (the department of corrections) would have continued to release prisoners
and the ultimate finding in the case would be rendered meaningless,” Montgomery stated.
The appeals court also held that the injunction maintains the status quo, in that it requires the department of corrections to release prisoners in a manner consistent with the law prior to HB 406. Kentucky Attorney General Jack Conway also brought a lawsuit against the department of corrections in October 2008 asking that a statewide injunction be ordered barring the early release of prisoners under HB 406.
That motion was denied by Franklin County Circuit Judge Phillip Shepherd, who ruled that attorneys for Conway failed to show immediate and irreparable harm to the public from the policy because those prisoners re-offended at no greater than other inmates released from prison.
Montgomery thanked Conway and his staff for handling the case’s appeal.
“General Conway's team did a great job for us on the appeal,” Montgomery said in the press release. “I think this ruling confirms it.”
A final hearing on the 28th Circuit case is set for February 5 at 1 p.m. in Pulaski Circuit Court.
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Tapp's injunction upheld by appeal's court
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Big Bang Theory
Pulaski County is not at war. The booming you may hear at dusk is mock cannon fire to scare away birds.
Stuart Spillman, environmental director for the Lake Cumberland Health Department, said at least three cannons are on loan from the department to residents who want to scare away swarms of starlings and blackbirds settling in to roost.
He said a cannon is being used by a resident on Laura Lane off Ky. 39; another is in the Oak Hill Road area and a third is on Ashurst Street in the eastern part of Somerset.
Spillman said a timer on each cannon allows it to “fire” at whatever frequency is desired. The cannons must be used as the birds circle before going to roost. “After they settle in, nothing will chase them out,” Spillman said.
The Health Department doesn’t operate the cannons unless there is a specific complaint in an area where there are lots of birds, Spillman noted. He said so far this year the birds are not as bad as in the past. -
Boil water advisory is lifted countywide
The water controversy that Pulaski County has been boiling over — so to speak — for the last week is finally over.
At 10 minutes after noon Wednesday, the “boil water” advisory for the Western Pulaski Water District was lifted — almost a full week after the problems began around 1 p.m. last Thursday.
Prior to that, the Somerset Water Service — along with the other water providers in its system, including Science Hill Water, Southeastern Water, and Eubank Water — lifted their advisories, with Somerset on Saturday afternoon and the last, Southeastern, by Monday morning. Western Pulaski was the last in the system to complete sample testing for potential contaminants, due to not being able to access its Pikeville-based testing lab until Monday.
Somerset Mayor Eddie Girdler thanked the public for its patience and understanding during the duration of the boil water advisory — put in place to keep citizens from drinking water that could have been contaminated after an accident last Thursday at the water plant site — and also thanked all the city employees for their hard work during this time.
“The boil water advisory went about as well as would be expected,” said Girdler.
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