Thursday, November 29, 2012
Tuesday, November 27, 2012
Calendar Query
Are any of the denizens here finding any neat agriculture, nature, equine or history related calendars in the offering for 2013?
As per usual, I have the Wyoming Historical Society Calendar up on the wall. On my office wall I typically run four calendars at once, so that I'm three to four months out in scheduling at a glance. I may try to mix the calendars up a bit, and I'm curious what's out there.
As per usual, I have the Wyoming Historical Society Calendar up on the wall. On my office wall I typically run four calendars at once, so that I'm three to four months out in scheduling at a glance. I may try to mix the calendars up a bit, and I'm curious what's out there.
Monday, November 26, 2012
Monday, November 19, 2012
Thursday, November 15, 2012
Saturday, November 10, 2012
An update on the proposed Wyoming Constitutional Amendments
Prior to the election, I summarized all three proposed amendments to the Wyoming Constitution. Now that the election has come and gone, it can be noted that two passed and one failed.
That two passed isn't a surprise. Amendment B, which concerned the right to hunt, fish and trap was a Wyoming natural, although I've heard some observe that it wasn't necessary. The voters probably felt it wasn't necessary, but wanted to act before it was.
Amendment A was the amendment that was supposed to make health care decisions constitutionally protected. I have doubts about this one, frankly, as I feel that the legislature's escape clause actually might operate at some point in the future to have the opposite effect of the one intended. I'm sure that most people think that very unlikely, and perhaps it is, but Constitutional interpretation is just that, interpretation, as critics of the law, lawyers and courts so often note. The amendment proved popular with the voters, however, and there was never really any doubt that it would pass.
The real surprise to me, however, was that Amendment C failed. The purpose of this amendment was to make clearly legal what is actually already occurring in some of Wyoming's judicial districts. That is, allowing court commissioners to fill in more broadly for judges. I really can't figure out why it failed. It did have a majority of votes cast in favor of it, but it failed to pass in that it wasn't a majority of votes cast in the election. That means a number of people didn't vote on the issue at all. And it did draw a fair number of no votes to be sure.
As to those who declined to vote on it, well, that's probably because this topic seems obscure, and it is. I don't blame people for not voting on an issue they don't understand, particularly one like this. But I don't understand the large number of no votes. I wish I did.
I guess the large circulation statewide newspaper in Wyoming came out against the Amendment. I missed that, but a knowledgeable person informed me of that. The paper's apparent position was that if more judges are needed, more should be provided for.
Well, there's some logic to that, but providing for more judges is a legislative act that takes quite a bit of time, and perhaps doesn't quite understand the many roles that the judges fill. In the popular imagination, judges don robes and hear trials all day. Not really. They do that, of course, but they also do a lot of oddball odds and ends, such as marry people, that can just as well be filled by a court commissioner, if they judges are overtaxed. Do we need to add judges, for example, if small matters that can be handled by a commissioner are taking up a fair amount of their time? I wouldn't think so, but apparently most do feel that way, perhaps.
A distressing element of this is that some districts have been broadly using commissioners and others, sticking to the absolute letter of the law, have not. One lawyer told me that one of the districts, some time ago, used commissioners in a fair number of divorces in that district. Not because the judges were "out of their office", but because they had so many, and one of t he commissioners was skilled at them. Would that district be better served if that didn't occur? It's hard to see how. And what does that mean for those cases in which that has occurred to date?
That two passed isn't a surprise. Amendment B, which concerned the right to hunt, fish and trap was a Wyoming natural, although I've heard some observe that it wasn't necessary. The voters probably felt it wasn't necessary, but wanted to act before it was.
Amendment A was the amendment that was supposed to make health care decisions constitutionally protected. I have doubts about this one, frankly, as I feel that the legislature's escape clause actually might operate at some point in the future to have the opposite effect of the one intended. I'm sure that most people think that very unlikely, and perhaps it is, but Constitutional interpretation is just that, interpretation, as critics of the law, lawyers and courts so often note. The amendment proved popular with the voters, however, and there was never really any doubt that it would pass.
The real surprise to me, however, was that Amendment C failed. The purpose of this amendment was to make clearly legal what is actually already occurring in some of Wyoming's judicial districts. That is, allowing court commissioners to fill in more broadly for judges. I really can't figure out why it failed. It did have a majority of votes cast in favor of it, but it failed to pass in that it wasn't a majority of votes cast in the election. That means a number of people didn't vote on the issue at all. And it did draw a fair number of no votes to be sure.
As to those who declined to vote on it, well, that's probably because this topic seems obscure, and it is. I don't blame people for not voting on an issue they don't understand, particularly one like this. But I don't understand the large number of no votes. I wish I did.
I guess the large circulation statewide newspaper in Wyoming came out against the Amendment. I missed that, but a knowledgeable person informed me of that. The paper's apparent position was that if more judges are needed, more should be provided for.
Well, there's some logic to that, but providing for more judges is a legislative act that takes quite a bit of time, and perhaps doesn't quite understand the many roles that the judges fill. In the popular imagination, judges don robes and hear trials all day. Not really. They do that, of course, but they also do a lot of oddball odds and ends, such as marry people, that can just as well be filled by a court commissioner, if they judges are overtaxed. Do we need to add judges, for example, if small matters that can be handled by a commissioner are taking up a fair amount of their time? I wouldn't think so, but apparently most do feel that way, perhaps.
A distressing element of this is that some districts have been broadly using commissioners and others, sticking to the absolute letter of the law, have not. One lawyer told me that one of the districts, some time ago, used commissioners in a fair number of divorces in that district. Not because the judges were "out of their office", but because they had so many, and one of t he commissioners was skilled at them. Would that district be better served if that didn't occur? It's hard to see how. And what does that mean for those cases in which that has occurred to date?
Tuesday, November 6, 2012
Tuesday, October 23, 2012
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.
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:
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:
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:
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.
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.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.
(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.
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:
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.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.
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 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.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.
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.
Monday, October 15, 2012
Sunday, October 14, 2012
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