Published: October 01, 2008 03:33 pm         

State seeks dismissal of Tapp's ruling on prisoner release

Alternatively, state argues Franklin Circuit Court is proper venue

FRANKFORT — An attorney for the state Department of Corrections Friday will ask Pulaski Circuit Judge David Tapp to dismiss his injunction barring release of prisoners given credit for time on parole who were sentenced in the 28th Circuit.

Wesley Duke of the Office of Legal Services of the Justice and Public Safety Cabinet will argue Pulaski Circuit Court does not have venue, or in the alternative seek to transfer the issue to Franklin Circuit Court which typically hears cases involving state government.

The hearing is set for 10 a.m. Friday in Tapp’s court in Somerset.

Duke argues in a memorandum of law accompanying his motion that DOC and the Justice Cabinet are located in Franklin County and maintains no facilities in Pulaski County and that DOC is responsible for calculating sentences of all inmates sentenced into custody of the state.

Duke argues that Pulaski Commonwealth's Attorney Eddy Montgomery, the plaintiff who sought the original injunction, does not suffer any personal harm from implementation of the state budget, House Bill 406, which authorized DOC to grant parole credits against total sentences in an effort to reduce prison costs and population. Therefore, Duke argues, citing previous court rulings, the matter should reside in Franklin Circuit Court.

But Tapp’s Sept. 15 ruling found irreparable harm because offenders who are released “improperly pursuant to HB 406 cannot be ordered to return to custody of Corrections and thus required to fulfill the lawful sentence imposed by the courts. Such harm is irreparable.”

Duke goes on to argue that since Montgomery alleges the provision in HB 406 relating to the release of prisoners is unconstitutional, Franklin Circuit Court is the proper venue.

“The matter to be decided here is not just whether House Bill 406 is unconstitutional for Pulaski County or the 28th judicial circuit, but whether the specific sections of House Bill 406 are unconstitutional or incorrectly applied for the entire state. This is clearly a matter of statewide impact,” Duke argues in the memorandum.

He also argues Franklin Circuit Court is the most convenient for deposing witnesses and presenting evidence and since DOC maintains no facility in Pulaski County and calculates no sentences in Pulaski County, “there is no evidence available in Pulaski County germane to the issue raised by the Plaintiff.”

Duke says Franklin Circuit Court can issue a ruling consistently applied across the state, averting “a myriad of inconsistent decisions regarding this issue from courts throughout the commonwealth.”

Montgomery said there’s nothing new in Duke’s arguments except that of convenience.

“I think he’s made all those arguments before and the judge has already rejected them,” Montgomery said by phone Monday.

The one new argument is that Franklin Circuit Court is more convenient, Montgomery said, but that argument doesn’t impress him.

“My argument against that is simple – the convenient forum for me is here (in Pulaski County),” Montgomery said.

RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. He can be reached by e-mail at rellis@cnhi.com.

     

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