Tuesday, October 23, 2012

The High Country


Getting there. Truck up in the high country


Double Rainbow in the Hole In the Wall Country


Dull Knife Battleground and the Hole In The Wall Country.

 Location of the Dull Knife Battleground

Typical scenery in the Hole In The Wall country.

Cave Dwelling







Outlaw Canyon











No "Unauthorized Human Presence"?


I wonder who else could be expected to read the sign?

Thursday, October 18, 2012

Proposed Wyoming Constitutional Amendment A

The third proposed Constitutional Amendment on the ballot this year, and the only one I haven't commented on so far, is Proposed Amendment A.  Here's the information, and my opinion (FWIW) on it:
Proposed Wyoming Constitutional Amendment A
Following is the ballot text language of Constitutional Amendment A as it will appear on the 2012 General Election ballot:
The adoption of this amendment will provide that the right to make health care decisions is reserved to the citizens of the state of Wyoming. It permits any person to pay and any health care provider to receive direct payment for services. The amendment permits the legislature to place reasonable and necessary restrictions on health care consistent with the purposes of the Wyoming Constitution and provides that this state shall act to preserve these rights from undue governmental infringement.
The actual text of the amendment states:
Article 1, Section 38. Right of health care access.
(a) Each competent adult shall have the right to make his or her own health care decisions. The parent, guardian or legal representative of any other natural person shall have the right to make health care decisions for that person.
(b) Any person may pay, and a health care provider may accept, direct payment for health care without imposition of penalties or fines for doing so.
(c) The legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.
(d) The state of Wyoming shall act to preserve these rights from undue governmental infringement.
First of all I'd note that I find it a little aggravating, and slightly insulting, that the system in Wyoming provides that a synopsis, but not the entire text, of a proposed amendment is printed on the ballot.  The voters, unless they take the time to look things up, don't really know what text they're voting on, but rather are voting on a synopsis that was put together by somebody.  Granted, the synopsis is generally pretty darned good, but nobody really knows what an amendment to the constitution means until the Wyoming Supreme Court interprets the statute. That's just the way it is, and is not any sort of a criticism.  There's always a lot of commentary on "judge made law", but having an independent judiciary is what makes any real legal system function in a trustworthy and legitimate manner.  Given that, the voters ought to be able to actually read the text they are voting on.

Okay, on to this proposed amendment then.  I gave the thumbs up to the two other amendments that are on the ballot this year, Proposed Amendment B on the right to hunt, fish, and trap and Proposed Amendment C, allowing for greater use of Court Commissioners.  But this amendment, even though I sympathize with its underlying motives, will not achieve what it is silently intended to do.  And what its intended to do is to take on the Federal Patient Protection and Affordable Care Act which critics have labeled "Obamacare", after the President, it's principal backer.

There are plenty of reasons to criticize the PPCA, with freedom of conscience aspects being the most prevalent.  And that's the reason that this Wyoming Statute states:
Any person may pay, and a health care provider may accept, direct payment for health care without imposition of penalties or fines for doing so.
This provision is designed to try to defeat any Federal mandates on how health care services are paid for, with the implicit concept that the Federal statute might impact this. The thought is that this provision will allow a person to pay for their own health care without being covered by the Federal provisions.

The problem with this concept is that it achieves absolutely nothing in the face of a contrary Federal statute.  I'm frankly not familiar enough with the PPCA to know whether or not it mandates that all health care payments be made by the patient themselves.  I doubt that it provides such a provision, quite frankly.  It is the case, of course, that the Federal statute provides that every individual, with some exceptions, must be covered by a private policy of insurance, the fallback Federal one, or pay a fine for failing to do so.  The fine was the provision that figured in the recent United States Supreme Court decision upholding the PPCA.  Chief Justice Roberts, in a decision what I believe is a plurality decision, held that the fine is a tax, and therefore Constitutional.

Federal laws can absolutely abrogate the contrary provisions of State Constitutions under the Supremacy Clause of the U.S. Constitution, so to the extent that this attempts to defeat the "fine" provision of the PPCA, it will not.  In effect, if that's the goal, this Constitutional amendment would be stillborn upon passage.  That wouldn't mean that the amendment wouldn't otherwise be effective, where not contrary to Federal law, but it's difficult to see where it would be contrary to Federal law.

The final section of the proposed amendment requires Wyoming to file suit or join suits to protect the provisions of the amendment, where it states:

The state of Wyoming shall act to preserve these rights from undue governmental infringement.

Here, "undue governmental infringement" should be read "undue Federal infringement" as it would be bizarre in the extreme to imagine the Legislature passing a bill that infringes, and the Governor signing it, and then the Attorney General of Wyoming filing suit.  Obviously, that's not what was meant, although you can create interesting scenarios where successive state administrations might dislike an earlier bill, or perhaps the state might go after a county for something.  For example, what if a County Health Department acted in a way that frustrated the act?  The state would then have to sue.  Interesting, but unlikely.

In actuality, this provision was no doubt intended to authorize Wyoming to join the suits that were then taking on the PPCA, which the State already had the authority to do, but which it wasn't mandated to do. This would have mandated it.  As it happened, the State did join the suits and the whole matter has now been up to the Supreme Court.  So that won't do much.

So what would this Amendment do?  Well, not very much.  It would establish what is already the law in that it is already the case that "Each competent adult shall have the right to make his or her own health care decisions. The parent, guardian or legal representative of any other natural person shall have the right to make health care decisions for that person."  This is already the way the law works, but this makes what is already the law a Constitutionally protected right.  That may be a good thing, but it also might open up strange potentialities that are not intended.  At best, it would protect what everyone generally desires. At worst, it might give Constitutional protection to actions and procedures that many people now, or in the future, might find abhorrent.  That is, a "competent adult", in the eyes of the law, might wish for procedures that most or some might find questionable.  Of course, that is already the case now.  But what if, for example, a "competent" person argued that he wished to be euthanized?  Would this provision make that a  Constitutionally enshrined right?

The last section of the proposed amendment is probably designed to prevent things like that from occurring.  It states:
The legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.
The problem is however, that in providing an escape clause, the amendment nearly guts any protection it affords. That is the legislature provides that a person's right to make his or her own health care decisions is protected, while at the same time stating that the legislature may make reasonable and necessary restrictions on that right.

Of course, the legislature, under this proposed amendment, is limited to "reasonable and necessary restrictions", which means it can't do anything it wants in terms of restricting a person's health care rights. But that's arguably already the case.  And what is "reasonable and necessary" is left open for interpretation.  Would this bill prohibit, for example, the legislature continuing to outlaw euthanasia?  Most Wyomingites would not want euthanasia legalized, but this provision would cause any restrictions on it to be subject to a "reasonable and necessary" standard, perhaps.  That might be an area that most people don't want to go to, and it is likely not even close to the intent that the legislature had in mind.

For all of these reasons, while I'm still pondering this amendment, I find it to be very problematic.  It seems well situated to do none of what it intends to do, and to create questions that it does not mean to create, and which most people do not want raised.  

Friday, October 12, 2012

Thursday, October 11, 2012

Wyoming Constitutional Amendment Proposed Amendment B: Opportunity to hunt, fish and trap.

Included amongst this year's ballot proposals for amending the Wyoming Constitution (there are three such proposals) is a proposal to amend the constitution to provide for the protection of the right to hunt, fish and trap.


That such an amendment would even be regarded as necessary would have been a shock a couple of decades ago, and perhaps it really isn't needed now.  Participation in hunting is increasing in the United States, reversing a trend of some years, and in Wyoming hunting participation is dramatically up, grossly countering a trend of some years.  Nobody knows the reasons for this, but it appears that hunting is now increasing remarkably in popularity and participation.  And even on television, where we have not seen a great deal of hunting for quite some time, the reverse is now becoming true.  A couple of adventure type channels have been running hunting related series, with the most recent being Yukon Men.  And these shows have become pretty unapologetic about depicting what amounts to subsistence type hunting, which is the type that most American hunters actually do.

Nonetheless, in this day and age when many people live in urban settings that are so distant from nature that they have not connection with it, and often don't understand it, it serves to have an amendment that reminds us of the most basic nature of things, which we are never very far removed from in spite of what me might think.  Hunters and fishermen truly engage in an activity that's so deeply connected with nature and who and what we are as humans that this shouldn't be necessary, but this "modern" age has allowed many to become deluded, debased and indeed depressed, by their lack of connection with nature in this most fundamental of senses.  Therefore, this amendment serves a vital purpose now, even if some feel it is presently unneeded.  And, of course, by the time a right is under attack to such an extent that it needs protection, it's difficult to provide it, which is another reason to support this amendment.

Some have also suggested that this interferes with wildlife management in a way that's not helpful, but that concern seems misplaced.  Nothing in this amendment requires the Game and Fish Department to do any one thing, even if it can be argued that it does provide a mandate as to how the natural resource would be looked at in part.  I'm confident that the interference, to the extent it exists, will be easy to overcome and perhaps it only really exists if its somehow perceived to.

Therefore, like Amendment C below, I feel this is a good proposal and should become law.

Wyoming Constitutional Amendment Proposed Amendment B:
Opportunity to hunt, fish and trap
.Article 1. Section 38. Opportunity to hunt, fish and trap.  The opportunity to fish, hunt and trap wildlife is a heritage that shall forever be preserved to the individual citizens of the state, subject to regulation as prescribed by law, and does not create a right to trespass on private property, diminish other private rights or alter the duty of the state to manage wildlife.

Wednesday, October 10, 2012

WYOMING STATE BAR SUPPORTS CONSTITUTIONAL AMENDMENT C

From the Wyoming State Bar:


WYOMING STATE BAR SUPPORTS CONSTITUTIONAL AMENDMENT C

The Wyoming State Bar would like to encourage Wyoming citizens to vote in favor of Constitutional Amendment C. 

The purpose of Constitutional Amendment C is to enhance the efficiency of the district court by removing two obstacles to the court’s use of court commissioners.  The state constitution currently allows court commissioners appointed by the district judge to conduct “chambers business”, and it grants the court commissioner authority to act in the absence of the district judge from the county.

However, much has changed in the operation of district courts since the 1890 when our constitution was adopted.  The statutes impose more duties and deadlines that can be difficult to fulfill promptly when the district court is conducting trials or other business. The amendment would give the court commissioner authority to act in matters beyond “chambers business,” such as emergency hearings in mental health and juvenile cases, where the district judge is within the county, but is otherwise occupied, such as in  a jury trial.  This would allow the district court to more promptly act on matters of great importance to members of the public.

“This is a simple, necessary and practical change that will increase public access to the court system,” said John Cotton, President of the Wyoming State Bar. “It will improve the legal system and enhance the administration of justice.  I strongly encourage support of the amendment.”

I concur with the opinion of the State Bar.  This would be a worthwhile amendment to the Wyoming State Constitution.  The actual text of the Amendment reads as follows:

Article 5, Section 14. District courts generally; commissioners.
The legislature shall provide by law for the appointment by the several district courts of one or more district court commissioners (who shall be persons learned in the law) in each organized county in which a district court is holden, such commissioners shall have authority to perform such business as may be prescribed by law, to take depositions and perform such other duties, and receive such compensation as shall be prescribed by law.