As some of the posts on the 6th Circuit's recent Anderson v. Spear
decision may have disclosed, the organs of the Commonwealth responsible
for defending the challenged statutes reached different conclusions on
whether to petition for rehearing. The Registry of Campaign
Finance, which had been handling the CFR aspects of the case, voted
against petitioning. The Attorney General, who had been handling
the challenge to the 500-foot no-electioneering zone around polling
places, decided to petition for rehearing not only on a couple of issues
regarding that part of the case, but also brought up two CFR statutes
that had been struck down by the panel. (We submitted an
amicus brief supporting the AG and urging the court to rehear the
whole case en banc).
Now comes this docket entry:
2/6/04 TENDERED : letter from
Rosemary F. Center for Appellees [individual members of the Registry of
Campaign Finance] notifying this office that "the Registry has
chosen not file a petition for rehearing. The Registry assumed sole
responsibility for defending all statutes contained in KRS Chapters 121
and 121A during the pendency of this action and has not authorized any
other party to petition on its behalf." Copy of minutes from a
Registry meeting attached.
Shades of the fight between the Governor of Georgia and the AG over
pursuing Georgia v. Ashcroft? If anyone is wondering, the
Kentucky Supreme Court does accept certified questions of state law from
federal courts, so it is at least conceivable for the Sixth Circuit to do
what (if I recall correctly) was done in Georgia and ask the state court
to sort out the question of who has the authority to control the
litigation.
J. J. Gass
Associate Counsel, Democracy Program
212-998-6281
jj.gass@nyu.edu
Brennan Center for Justice at NYU School of Law
161 Avenue of the Americas, 12th Floor
fax 212-995-4550
www.brennancenter.org