Daily Independent (Ashland, KY)

February 27, 2013

LaRue fiscal court looks at 'nullification' laws

By Ronnie Ellis
CNHI

FRANKFORT — The Republican state Senate surely wasn’t expecting LaRue County to follow its lead.

Surprise!

LaRue County’s Fiscal Court is wondering if the state Senate can “nullify” federal laws, then why can’t counties do the same with state laws?

On Monday, the Senate passed Senate Bill 129 sponsored by Sen. Jared Carpenter, R-Berea, “to prohibit the enforceability of any new federal law, rule, regulation, or order relating to the ownership or registration of certain firearms, magazines, or other firearms accessories.”

The point was to decry the possibility of passage of new federal laws governing background checks for gun sales and perhaps limiting ownership and sale of assault weapons and high-capacity ammunition magazines in the wake of the massacre of school children in Sandy Hook, Conn.

But the law resurrects the idea of “nullification,” the theory that individual states can refuse to comply with some federal laws. The idea has been discredited by most legal scholars and in at least one ruling by the U.S. Supreme Court. Nullification is also considered one of the causes of the Civil War.

And the second paragraph of Article VI of the U.S. Constitution reads:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

That, however, didn’t prevent the state senate from passing Carpenter’s bill. So what if a Kentucky county decided to follow suit?

“Good idea!” said Sen. Ernie Harris, R-Crestwood, who voted for Carpenter’s bill. “We’ll have a little insurrection around here.”

“We’d be up in arms, wouldn’t we?” asked Sen. Jimmy Higdon, R-Marion, rhetorically. “We would.” Higdon also voted for Carpenter’s measure.

“They could try,” Carpenter said Wednesday. “I haven’t done any research to tell you if they can or can’t.”

LaRue County’s Fiscal Court thinks it can.

This week it gave first reading to an ordinance which “mirrors the language of Senate Bill 129,” said LaRue County Judge/Executive Tommy Turner. One magistrate voted against it. A second reading is scheduled for the court’s next meeting in two weeks.

“What’s good for the goose is good for the gander,” Turner said. “They (lawmakers) think counties shouldn’t be doing something like that — but they think it’s alright for them to do it.”

The LaRue County ordinance reads in part: “Whereas, the Kentucky General Assembly has, through actions of the Kentucky State Senate, displayed its desire to allow a lower level of government to ignore the laws, rules, orders and regulations imposed by a higher level:

“Now, Therefore be it ordained by LaRue County, Kentucky that any state law, rule, regulation, or order created on or after January 1, 2013, including any amendment or other change made after January 1, 2013, to a preexisting state law, rule, regulation, or order, shall be unenforceable within the borders of LaRue County . . .” if the law “mandates implementation, construction or enhancement of any facility or program without funding provided by the state . . .”

Turner said counties face a myriad of “unfunded mandates” from state government, mandates passed by the General Assembly, and he sees no difference in the LaRue County ordinance than Carpenter’s bill passed by the Senate.

“We’re always trying to find some way to fund programs and construction facilities to meet requirements put on us by the state government,” Turner said. “But they don’t provide the funding.”

Sen. Kathy Stein, D-Lexington, was one of three Democratic senators to oppose Carpenter’s bill. She was asked if counties could act in a similar way, to nullify state laws.

“Of course they could,” she said, laughing. “If we can, why can’t they?”

Senate Majority Leader Damon Thayer, R-Georgetown, voted for Carpenter’s bill and also this session made a floor speech criticizing the federal government as a “big daddy government.”

But he declined to give an opinion on whether a Kentucky county might choose the same course chosen by the Republican-controlled state Senate.

“I’m not a lawyer,” Thayer said. “I’d need to take a look at that.”

At least for now, that’s what LaRue County is doing.

RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.