LawReader : OUR MAIN - LAW DIGEST INDEX : SENATE CONFIRMATION OF JUDICIAL ASSISTANTS

Last week retiring Chief Justice Joseph Lambert appointed Jason Nemes to a four year term as Director of AOC (Administrative Office of the Courts). The Chief Justice had previously appointed Nemes to the post.

KRS 25A.050 gives the Senate the authority to confirm the appointment. Senate President David Williams announced last week that there was no vote taken on the appointment"He did not have the support to be confirmed."

The Chief Justice said that he had “consulted” with the other members of the Supreme Court and was of the opinion that the statute did not prevent him from making the appointment.

This issue comes down to how one interprets Section 110(5)(b) of the Kentucky Constitution and KRS 25A.050.

“Retired Chief Justice John Palmore said he doesn't think that Lambert needs the Senate's approval to appoint Nemes. He noted that there is no such requirement in the Kentucky Constitution, which says the chief justice is the executive head of the courts and "shall appoint such administrative assistants as he deems necessary."

Palmore said the law requiring Senate approval is unconstitutional. He said the Senate is meddling with the court's internal affairs.

"I don't like the way in some instances the legislature has thrust itself into the judiciary's business," said Palmore, who retired in 1982. "They should only have one interest, that is how much they pay them."

Retired Justice James E. Keller said the constitution always controls over any statute.

"Every first-year law student knows that," Keller said.” (Brandon Ortiz – Herald-Leader)

We note that KRS 27A.050 was passed in l976 and became effective in July of l976. The Constitutional provision was ratified by the public on November 4, 1975, and became effective January 1, 1976.

Section 110(5)(b) of the Constitution states:

“The Chief Justice of the Commonwealth shall be the executive head of the Court of Justice and he shall appoint such administrative assistants as he deems necessary;”

Note: This constitutional provision does not set a term of office for the AOC director, and does not require Senate confirmation of any judicial assistant.

Other Constitutional provisions that apply to this legal argument are:

Section 27 - Powers of government divided among legislative, executive, and judicial departments-

The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.

Section 28-One department not to exercise power belonging to another-

No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

A closely related issue was discussed by the Supreme Court in a decision rendered in 2005:

Jones v. Commonwealth, Administrative Office of the Courts, No. 2005-SC-0272-OA (Ky. 08/25/2005) To read full text go to: 2005-SC-000272-OA.pdf

“The Judicial Article also provided for the Chief Justice's governance of the administrative arm of the Court of Justice . Ky. Const. § 110(5)(b). This effectively removed the AOC from legislative authority, in the same manner as it did the KBA. See Auditor of Pub. Accounts , 609 S.W.2d at 687 ("[T]he 1975 Judicial Amendment extended the judicial function to include the administration of the business affairs of the judicial branch of government . . . .") ; Farley , 570 S.W .2d at 620 ("Clearly, [the AOC] and its director and employes are part and parcel of the judicial department of the state. They are, in fact, inseparable from the office of the Chief Justice itself .") .”

LawReader discussed this issue with Senator David Williams. He said “the Senate was just following the statute”. He noted that the Senate has been given authority in a number of statutes to confirm appointments in the Executive Branch of Government, and these confirmations have never been challenged on a constitutional basis.

We have conducted a cursory search of the Kentucky Constitution for authority of the legislature to mandate confirmation of Executive Branch officials. In Section 69 the Governor is given the power to “fill vacancies”. We have found no authority for the legislature to mandate their confirmation of the Governor’s appointments. Ex: We note that the legislature has created Administrative Law Judges for review of Worker’s Compensation appeals. The act creating ALJ’s mandate Senate Confirmation. This may be an infringement upon the Governors power to fill vacancies under Section 69 for many of the same reasons cited by Justice Lambert relating to the Judiciary.

KRS27A.050. This statute which requires Senate confirmation also sets the term of office for the AOC Director at (4 years) and states that:One of the arguments raised against the reappointment was that since the Chief Justice was retiring effective June 30^th, that he should have left this appointment to the next Chief Justice. This issue if raised will once again require an examination of

“ The director of the Administrative Office of the Courts, employees thereof, and administrative assistants of the Chief Justice shall serve at the pleasure of the Chief Justice.”

If the court is confronted with a lawsuit challenging the appointment of Nemes, it is likely to apply the constitutional provisions cited above to hold that the act of the legislature to require confirmation of the AOC Director, is a constitutional infringement on their powers. Then they must decide, “Is the entire statute unconstitutional, or is just the confirmation provision unconstitutional?”

We would suggest that the mandate by the legislature of a “4 year term” for the AOC Director is unconstitutional. The imposition of a term of office for the AOC director clearly infringes on the Chief Justice’s power to name such assistants “as he deems necessary”. KRS 27A.050 also grants to the Chief Justice to power to remove any assistant:

“The director of the Administrative Office of the Courts, employees thereof, and administrative assistants of the Chief Justice shall serve at the pleasure of the Chief Justice.”

That provision just states the obvious. Since the Constitution allows the Chief Justice to appoint assistants as he “deems necessary”, it would inherently empower the Chief Justice to fire any assistant he deems unnecessary. So we see little infringement being imposed upon the next Chief Justice by the re-appointment of the current AOC Director.

It is not unusual for the Courts to apply a legislative enactment but not that they are doing so only under the theory of “comity”. “Comity” is a doctrine wherein the Courts notes their reservation of authority, but agree to go along with a legislative enactment.

It would appear to us that KS 27A.050 is a clear infringement on the constitutional powers of the judiciary, and the entire statute should be declared unconstitutional. This statute is so intrusive on the Constitutional powers of the Courts that it does not seem a good candidate for application of the comity doctrine.

We note a comment made by former Chief Justice John Palmore in an article published in the Herald-Leader:

"I don't like the way in some instances the legislature has thrust itself into the judiciary's business," said Palmore, who retired in 1982. "They should only have one interest, that is how much they pay them."

This comment by Justice Palmore was not expanded upon by the Herald-Leader, but it is a reference to legal arguments that have arisen in some states regarding legislative funding of the Judicial Branch of government. There is a legal argument often cited in New York State, that the legislature MUST appropriate the budget requested by the Judiciary Branch of government including appropriate salaries. The power of the legislature to delete a Judicial appropriation is the power to eliminate the Judicial Branch entirely. This, the argument goes, would be forbidden by the Separation of Powers clause in the Constitution.

So when Justice Palmore mentions the only interest of the legislature has in relation to the courts is to set their pay, this is not an off hand or casual personal opinion. In New York state, the judiciary has not been given a pay raise in many years, and the judges are threatening a lawsuit against the New York legislature on this issue.

AUTHORITIES:

KRS 27A.050 Administrative Office of Courts -- Appointment of director --

Compensation -- Prohibition.

The Administrative Office of the Courts is created to serve as the staff for the Chief

Justice in executing the policies and programs of the Court of Justice. The director of the

Administrative Office of the Courts, employees thereof, and administrative assistants of

the Chief Justice shall serve at the pleasure of the Chief Justice. Provided, however, the

director shall be appointed or reappointed at least every four (4) years with the advice and consent of the Senate; but if the Senate is not in session when a term expires or a vacancy occurs, the Chief Justice shall make the appointment to take effect at once, subject to the approval of the Senate when convened. The salaries of the director, employees thereof, and administrative assistants of the Chief Justice shall be fixed by order of the Chief Justice and paid monthly or at such other periods as may be consonant with the policy applicable to payment of salaries of state employees out of the State Treasury. While holding their positions the director, employees of the office and administrative assistants shall not practice law in any court of this Commonwealth.

History: Created 1976 (1st Extra. Sess.) Ky. Acts ch. 33, sec. 1.

ANNOTATIONS FOR THIS STATUTE:

Jones v. Commonwealth, Administrative Office of the Courts, No. 2005-SC-0272-OA (Ky. 08/25/2005) 2005-SC-000272-OA.pdf

The Judicial Article also provided for the Chief Justice's governance of the administrative arm of the Court of Justice . Ky. Const. § 110(5)(b). This effectively removed the AOC from legislative authority, in the same manner as it did the KBA. See Auditor of Pub. Accounts , 609 S.W.2d at 687 ("[T]he 1975 Judicial Amendment extended the judicial function to include the administration of the business affairs of the judicial branch of government . . . .") ; Farley , 570 S.W .2d at 620 ("Clearly, [the AOC] and its director and employes are part and parcel of the judicial department of the state.

They are, in fact, inseparable from the office of the Chief Justice itself .") .

Nevertheless, "[t]he policy of this court is not to contest the propriety of legislation

in this area to which we can accede through a wholesome comity." Auditor of Pub.

Accounts, 609 S.W.2d at 688. The extension of comity depends on the outcome of a

balancing test, as demonstrated by this Court's denial of comity to KRS Chapter 43,

which defines the functions of and directs the Auditor of Public Accounts. Id. at 688-89.

Kentucky Constitution Section 27

Powers of government divided among legislative, executive, and judicial departments. The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.

Text as Ratified on: August 3, 1891, and revised September 28, 1891.
History: Not yet amended.

KentuckySection 28 Constitution

One department not to exercise power belonging to another. No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Text as Ratified on: August 3, 1891, and revised September 28, 1891.
History: Not yet amended.

Kentucky Section 110 Constitution

Composition -- Jurisdiction -- Quorum -- Special justices -- Districts -- Chief Justice.

(5) (a) The Justices of the Supreme Court shall elect one of their number to serve as Chief Justice for a term of four years.

(b) The Chief Justice of the Commonwealth shall be the executive head of the Court of Justice and he shall appoint such administrative assistants as he deems necessary. He shall assign temporarily any justice or judge of the Commonwealth, active or retired, to sit in any court other than the Supreme Court when he deems such assignment necessary for the prompt disposition of causes. The Chief Justice shall submit the budget for the Court of Justice and perform all other necessary administrative functions relating to the court.

Text as Ratified on: November 4, 1975, effective January 1, 1976.
History: Repeal and reenactment proposed by 1974 Ky. Acts ch. 84, sec. 1; original version ratified August 3, 1891, and revised September 28, 1891.

April 26, 2008

State court appointment questioned

By Brandon Ortiz
BORTIZ@HERALD-LEADER.COM

Uncertainty reigned over the state court system Friday.

Questions surfaced about the status of the court's administrative director only a day after Chief Justice Joseph E. Lambert announced he will retire June 27.

And the Frankfort rumor mill ground at full speed with speculation about who will succeed Lambert as chief justice and whether he will play a role in the process.

Senate President David L. Williams, R-Burkesville, acknowledged Friday that the Senate did not confirm the appointment of Jason Nemes to director of the Administrative Office of the Courts during the recently ended session of the General Assembly. Nemes' appointment was not put to a vote.

"He did not have the support to be confirmed," Williams said in a statement released by his spokeswoman.

The consensus in the Senate was that Lambert was likely to retire soon and his successor should get to pick the AOC director, Williams said.

Nemes appears to be the first AOC director that the Senate refused to confirm.

Lambert responded this week with a one-page order reappointing Nemes as AOC director.

"After consultation with the Supreme Court the chief justice entered the attached order, which removed any previous questions as to my authority as the director of AOC," Nemes said in a statement.

But Williams pointed to a law that requires the AOC director to be appointed every four years "with the advice and consent of the Senate."

And Williams pointed to another law which states that the governor "or other appointing authority" must wait two years to reappoint someone rejected by the Senate. That law, however, is in a section of the Kentucky Revised Statutes that deals with the executive branch.

Retired Chief Justice John Palmore said he doesn't think that Lambert needs the Senate's approval to appoint Nemes. He noted that there is no such requirement in the Kentucky Constitution, which says the chief justice is the executive head of the courts and "shall appoint such administrative assistants as he deems necessary."

Palmore said the law requiring Senate approval is unconstitutional. He said the Senate is meddling with the court's internal affairs.

State court appointment questioned

SENATE DID NOT CONFIRM PICK FOR AOC DIRECTOR

By Brandon Ortiz

BORTIZ@HERALD-LEADER.COM

Uncertainty reigned over the state court system Friday.

Questions surfaced about the status of the court's administrative director only a day after Chief Justice Joseph E. Lambert announced he will retire June 27.

And the Frankfort rumor mill ground at full speed with speculation about who will succeed Lambert as chief justice and whether he will play a role in the process.

"He did not have the support to be confirmed," Williams said in a statement released by his spokeswoman.

The consensus in the Senate was that Lambert was likely to retire soon and his successor should get to pick the AOC director, Williams said.

Nemes appears to be the first AOC director that the Senate refused to confirm.

Lambert responded this week with a one-page order reappointing Nemes as AOC director.

"After consultation with the Supreme Court the chief justice entered the attached order, which removed any previous questions as to my authority as the director of AOC," Nemes said in a statement.

But Williams pointed to a law that requires the AOC director to be appointed every four years "with the advice and consent of the Senate."

Retired Chief Justice John Palmore said he doesn't think that Lambert needs the Senate's approval to appoint Nemes. He noted that there is no such requirement in the Kentucky Constitution, which says the chief justice is the executive head of the courts and "shall appoint such administrative assistants as he deems necessary."

Palmore said the law requiring Senate approval is unconstitutional. He said the Senate is meddling with the court's internal affairs.

Retired Justice James E. Keller said the constitution always controls over any statute.

"Every first-year law student knows that," Keller said.

CJ race

Williams has admitted to reporters that he does not like Lambert, even though they, and Nemes, are Republicans.

Retired Northern Kentucky judge Stan Billingsley saw the snub as another act of retribution that allegedly has its roots over a Supreme Court ruling that killed a bill that would have greatly increased some legislators' pensions.

Billingsley, who writes for a blog on lawreader.com, notes that Williams has refused to extend a work program for retired judges and slashed the judiciary's budget this year.

"David Williams has done everything he can to insult the chief justice and restrict any success in the courts," Billingsley said.

Meanwhile, justices on the state's top court began jockeying to fill Lambert's shoes.

Two justices, John Minton and Wil Schroder, have confirmed that they're interested in the job. And Justice Mary Noble of Lexington has not ruled out interest.

Sometime in the next few weeks the justices will meet behind closed doors to pick a new chief justice.

They will look at who can get along with the other justices, who can manage the court's 4,000 employees and who will be an effective lobbyist to the General Assembly, Palmore said.

Alliances will be made as justices strive to get four votes on the seven-person court.

"Not everybody has the ability to preside over six strong-willed people," Palmore said. "You have to have their respect, and you must respect them."

Party affiliation or political philosophy are not always good indicators of what alliances will be formed. Palmore noted that former Chief Justice Robert Stephens, a Democrat, supported Lambert to succeed him.

The court has five Democrats and two Republicans.

Minton, Schroder and Noble are all moderates, with Minton leaning slightly more conservative on criminal cases, Billingsley said. All have shown a willingness to take stands dissenting from the majority.

"It is hard to say there is a very wide disparity between the three," Billingsley said.

All but one Kentucky chief justice, Scott E. Reed, have helped pick their replacement since the courts were reorganized by a constitutional amendment in 1976

Lambert declined interview requests Friday.

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