Adding to the ongoing conversation regarding a number of problems with a proposed ordinance intended to designate Marshall County as a Second Amendment sanctuary county, Commonwealth's Attorney Dennis Foust said he's concerned with the "unintended consequences."
Foust, who currently serves as chief prosecutor in the same judicial circuit where he previously served many years as circuit judge, said the ordinance wouldn't affect the way in which he prosecutes but it would affect one of the agencies "vital to prosecuting criminal cases," which is the Marshall County Sheriff's Office.
"I have full faith in our sheriff's office to enforce the laws in the proper manner. But if there suddenly becomes a question as to whether they might be subject to legal action if they acted in such a manner which could be in conflict with an invalid ordinance, they could be forced to make a decision which could put themselves or the public at large in danger," he explained. "The ordinance muddies waters which do not need to be muddied."
Foust also expressed a specific concern with the idea of people bringing firearms into the Marshall County Judicial Building and courtrooms, which would become a legitimate concern if the ordinance is passed as-is on Jan. 7, 2020. He said while the decision regarding whether or not firearms are allowed in the courthouse is within the authority of the Chief Circuit Judge, the party responsible for enforcement of court orders is statutorily designated to the Marshall County Sheriff's Office.
"Under this [proposed] ordinance, it appears that the deputies could be prohibited from doing their job," he said. "Regardless of where one stands, I do not think anyone thinks that mixing firearms and court proceedings is a good idea."
"The ordinance on its face is invalid," he added. "It is invalid because of KRS 65.870 and due to the fact that it seeks to void state and federal laws in violation of the Supremacy Clause of the United States Constitution. While that should be the end of the discussion, it is not. Passage of this ordinance opens a can of worms which could serve to distract from the real issues facing the people today."
Foust said while open, public discourse regarding issues relevant to today's society is important, it's also important to consider and look into the consequences of actions, both intended and unintended.
"I have been under a Constitutional Oath to uphold the Constitution of the United States and the Constitution of the Commonwealth of Kentucky for some 30 years, and I have never attempted to violate anyone's rights in any way. But that oath is not limited to picking and choosing the provisions I want to uphold. I support the constitution in its entirety. Be it the second amendment, the fourth amendment, the first amendment, or any amendment, I take them all seriously, respect the reasons for their existence, and fully support each and every provision of our Constitutions," he said. "But I am also a respecter of the rule of law, and there are appropriate ways in which to address grievances without violating the law."
Foust said he will continue to fulfill his oath and pledge to the people of the 42nd Judicial Circuit to ensure justice in the community and to keep its members safe, as well as continue working with the law enforcement officers "who put their lives on the line for the public each and every day."
"But we will do so within the dictates of the law and of the Constitution," he added.
Former Todd County Attorney Harold M. Johns, who served in that role for nearly three decades, also weighed in on the proposed SASO and agreed with the other half dozen attorneys and judges that advise as written, the ordinance exceeds the authority of the fiscal court and creates a number of issues.
Johns noted the proposed SASO ordinance attempts to create jurisdiction in the district court for declaratory and injunctive relief, but pointed toward KRS 24A.010 which declares, "a Kentucky district court is a court of limited jurisdiction," and KRS 24A.110-24A.130, which set forth the district court's jurisdiction.
"None of those statutes confer upon the district court the ability to grant either injunctive or declaratory relief," he said. "The creation of such a function in the district court exceeds the authority of the Marshall County Fiscal Court."
Johns said the ordinance is also inconsistent with the rules of the Administrative Office of the Courts (AOC) regarding court facilities it leases from the county. He said most circuit judges do not allow possession of weapons in their Court of Justice facilities (which is the case at the Marshall County Judicial Building) and this ordinance "would create a separation of powers controversy."
He also cited KRS 65.870 which prohibits local firearms control ordinances, and specifically counties and cities, from occupying any part of firearms regulations--which is the overarching aim of the proposed ordinance.
"Although the proposed ordinance is clothed as a 'pro-second amendment' act, it is nevertheless a firearms control ordinance in its current form," he said. "Subsection 2 of KRS 65.870 declares any ordinance of that type null, void and unenforceable. More than likely, under the statute cited above, this ordinance is void ab initio (from the beginning)."
The proposed "Second Amendment Sanctuary County Ordinance" (SASO) was introduced with a first reading by Marshall County Judge-Executive Kevin Neal during the Dec. 17 Marshall County Fiscal Court meeting. Marshall County Attorney Jason Darnall advised against moving forward with the ordinance as-is during that meeting and in the weeks following, many other attorneys and judges who specialize in local government law have issued similar warnings against the ordinance which was drafted by a lobbyist group, Gun Owners of America.
But as of press time, the second reading and vote for the controversial ordinance was still scheduled for the fiscal court meeting on Jan. 7, 2020 and the only attorney who has reportedly supported the ordinance as-written, Kent Masterson Brown, of Lexington, had not responded to The Tribune-Courier's request for information.