Daily Independent (Ashland, KY)

July 16, 2013

Delayed justice

Retired judges help reduce state’s backlog of court cases

The Independent

ASHLAND — The backlog in criminal and civil cases in circuit courts throughout Kentucky could get a lot worse with the state’s dropping of a program that sends retired judges to hear cases wherever they are needed. The reason for the discontinuation of the program is the lack of funding to pay the retired judges serving as special judges, but the discontinuation of the program could cost the state far more in the long run.

The cause of justice is not served when it takes many months for a criminal case to be resolved and years for a civil case to go to trial. Justice delayed can be justice denied.

Judge Tony Frohlich is one of two circuit judges in the northern Kentucky counties of Boone and Gallatin, just across the Ohio River from Cincinnati. Frohlich already is taking breaks in trials to keep the other items on his court docket moving.

Extending the length of trials creates problems, Frohlich admits. There are greater risks jurors will talk about the cases or research the facts of the crimes. Jurors’ retention of the facts also becomes an issue.

“That is always a problem,” Frohlich said. “The longer you have it, the more days you are off, the more risk you run.”

Kentucky’s scrapping of the special-judges program has the potential of putting the brakes on everything from capital murder cases to civil lawsuits.

The Senior Status Program for Special Judges was created by an act of the Kentucky General Assembly in 2000. It was originally seen as a way to address congested dockets when tight budgets prevented the creation of expensive new judgeships. Kentucky compensated judges in the senior status program through enhanced retirement benefits rather than general fund appropriations.

Legislators initially paid for the program through June 2007, but money was later appropriated to keep it running through 2014. At its peak in 2007, there were 45 senior judges in the state. That number has dwindled to 15.

That number is not enough to keep things quickly moving in the third-busiest judicial district in Kentucky, Frohlich said. The first available trial date for a civil case is May 2014. To keep things moving, Frohlich is not having drug court and postponing 35 or 40 criminal trials, all civil trials and evidentiary hearings.

Eliminating the senior-judge program means any retired judge tapped to handle congested dockets in the future will have to be paid from the judicial branch’s general budget — and the money isn’t there. Legislators cut $25.2 million from the judicial system last year, forcing the courts to close for three days this year and furloughing employees.

“The chief justice recognizes that the loss of the ... program might result in sitting judges handling even greater caseloads and attorneys and parties waiting longer for access to justice without the benefit of senior judges to help alleviate growing dockets,” said Leigh Anne Hiatt, public information officer for the Administrative Office of the Courts.

Drug courts offer treatment instead of punishment for defendants who are addicted to drugs or alcohol, and when the number of drug courts declines the number of addicts sent to prison is likely to increase, adding to the cost. Plea bargaining is common in criminal cases simply because getting a defendant to plead guilty to a lesser charge is the easiest and fastest way to clear a case off the docket.

Using retired circuit judges as special judges in the state courts does the same thing as having retired federal judges take senior status in the federal courts. The special judges in Kentucky serve a real need. The wheels of justice already turn too slowly. Having fewer retired justices serving in selected cases is only going to slow the wheels further, and that is anything but a positive.