Kentucky

I like Representative Owens, but I don't think we need to change the oath to remove dueling.  It provides us with a link to the past.   Once upon a time disputes were resolved by duels rather than the courts or other legitimate means.  Alexander Hamilton was killed one.  Andrew Jackson prevailed in a duel in Kentucky.  In the late 18th and early 19th century duels were creating a loss of the respect for the rule of law as those who should have known better, did not.

When I hear stories about judges and lawyers snickering about this oath, I am reminded that history has been forgotten and an opportunity missed to educate those about the sanctity and value of that oath within the context of Kentucky taking the lead in enforcing the rule of law not only among the citizenry but in the elected officials too.

During a recent civics lesson recently appointed circuit court judge Olu Stevens made the following quip to grade school students about this "antiquated" oath.  Although I like Olu too, I don't think it's ok to laugh during any oath or during any public investiture, and it's high time to quit discounting the sanctity of an oath.  Of course, I am not supportive of judges breaking the law be it drunk driving or dueling since it is hard enough for those nonlawyers to respect the law when the judges fall short of that standard.

Oh well, here is an extract from the CJ story:

Before the ceremony, Wilcox explained the oath, while Stevens pointed out one antiquated part of it.?We have to promise we have not fought in a duel with deadly weapons,? Stevens said. He explained that people used to duel with swords, and it's OK to laugh when that part is read, which some students did.

However, to be perfectly blunt this puff piece (Civics lesson comes to Lowe

New district judge sworn in at school) in the Courier Journal featuring three newly appointed Jefferson county judges doing a civics lesson and one judge taking the oath of office in a public school during an election year might have been a tad suspect in light of the furor last year when many parents nationwide objected to the President of the United States having a national school speech. 

A summary of dueling and constitutional prohibitions and legislation making dueling illegal can be found at Wikipdia by clicking here.  "20 states, along with the District of Columbia and Puerto Rico, have some statute(s) (including constitutional provisions) specifically prohibiting dueling. The remaining 30 states either have no such statute or constitutional provision, or limit their dueling prohibition to members of their state national guard. This does not necessarily mean, however, that dueling is legal in any state, as assault and murder laws can apply." from Wikipedia

Lawyer Andre Busald pleads a better case than I in his recent letter to editor to the Courier Journal:

Save the Kentucky dueling oath of office

I am extremely opposed to the proposition to eliminate Section 228 of the Kentucky Constitution requiring all elected officials to disavow dueling as a legitimate method of dispute resolution.

I have been trying civil cases for the great majority of my 39 years of practice and have discussed this issue with prospective jurors (during voir dire examination) in many cases. As a practical matter, most significantly injured plaintiffs (or their survivors or caretakers) would like to either shoot or pummel to death the careless party who caused them or their loved ones injury. This is, of course, a first reaction and basic instinct. I believe the framers of our Kentucky Constitution were very wise in recognizing that while violence and deadly force (dueling, for example) might satisfy one?s basic instinct for justice or revenge (?a tooth for a tooth?), our civilized society (at least here in Kentucky) has an alternative forum of dispute resolution called a civil trial by jury.

In this novel approach to dispute resolution, the aggrieved party comes before 12 citizens who know little or nothing of the dispute, presents the claim in an orderly and well-officiated fashion (you don?t have three or four people screaming over one another as you often see on nighttime TV), following which the accused party has an opportunity to challenge what was said and also present his side. At the end of the process a panel of 12 people decides whether a money award (as opposed to the opportunity to shoot or pummel the opponent) is appropriate and, if so, how much. Thomas Jefferson believed this to be the ?crown jewel? of our constitutional government.

While the oath sometimes does result in a ?collective snicker,? it is more out of ignorance than appreciation for our ?crown jewel.? I think it would be a serious mistake to remove this from our Constitution. Furthermore, with other more significant issues, I don?t think the legislature of the electorates? time and money should be wasted on doing away with something that has stead us so well for over 100 years.

E. ANDRE BUSALD

Florence, Ky. 41022

Here's the pre-filed bill:

BR 172 - Representative Darryl T. Owens (08/28/09)

     AN ACT proposing to amend Section 228 of the Constitution of Kentucky.

     Propose to amend Section 228 of the Constitution of Kentucky to delete language regarding duels; submit to the voters for approval or disapproval.

In the meantime, others agree with Rep. Owens, eg, Wes Browne, a Richmond attorney, and said so in the Richmond Register:

Kentucky officers should stop swearing

* * *

It?s a ridiculous oath, and we all know this. Young attorneys chuckle the first time we hear it ? then we get used to it ? then we get sick of it. I have personally sworn this oath three times. I promised former Supreme Court Justice James Keller I didn?t fight a duel when I was sworn in to the Kentucky Bar. Then I assured Judge Clouse the same thing when he swore me in as Assistant Madison County Attorney. When retired Circuit Judge William Jennings asked the same thing a few weeks later when he swore me in to the Madison County Bar, I dutifully reconfirmed that, no, I have not fought a duel (or seconded).



It?s not just judges and attorneys who are required to take this oath, it is any state officer. And each and every time the oath is spoken, someone snickers. And that?s Rep. Owens? point. It?s like the television show ?My Name Is Earl.? It was funny for a while, but then it got stupid. That?s okay for a sitcom, but not Kentucky?s oath of office.