Daily Independent (Ashland, KY)

Local News

June 4, 2014

Appeals court ruling goes Rosen’s way

FRANKFORT — Former Boyd Circuit and District Judge Marc I. Rosen has won a round in his legal battle to run for re-election to the bench this fall.

In a ruling handed down Wednesday, the Kentucky Court of Appeals overturned a special judge’s declaration that Rosen wasn’t a valid candidate to challenge incumbent Boyd Circuit Judge George W. Davis III for an eight-year term in the November general election.

By a 2-1 vote, a three-judge panel of the appeals court granted Rosen’s motion to set aside Floyd Circuit Judge John David Caudill’s March 6 ruling that Rosen wasn’t a legally viable candidate for circuit judge.

Caudill’s ruling was on a petition filed in Boyd Circuit Court by Ashland attorney Roger Hall challenging Rosen’s bona fides as a candidate. Hall argued Rosen wasn’t a valid candidate because, under House Bill 427, it was illegal for him to file to run for office at the time he did so, and Rosen apparently committed a Class A misdemeanor by filing his candidacy papers.

Rosen filed to run against Davis —  who replaced Rosen in 2009 after Rosen retired to the senior-status program — a day ahead of the Jan. 28 deadline to do so. However, under HB 427 — which was introduced by state Rep. Kevin Sinnette, D-Ashland — Rosen was not legally eligible to file until his five-year commitment to the senior-status program ended on Jan. 31.

Rosen filed a lawsuit challenging the constitutionality of HB 427 in Franklin Circuit Court. Rosen maintains the law was passed last year by the Kentucky General Assembly for the express purpose of keeping him and a handful of other senior-status judges from filing and running for office this year.

In overturning Caudill’s ruling, the appeals court found Caudill erred by disqualifying Rosen prior to either continuing the matter until the Franklin Circuit Court had ruled in Rosen’s suit or considering the constitutionality of HB 427 himself before issuing his decision.

“Our review of the record makes abundantly clear that a ruling on (Rosen’s) bona fides without considering the constitutionality of the statute placed Judge Rosen in a legal quagmire,” the majority opinion by Judges Kelly Thompson and James H. Lambert states. “We are convinced that it was incumbent upon the trial court to either address the constitutional question underpinning the controversy or to defer any ruling until the Franklin circuit Court had resolved the constitutional question.”

 Caudill’s ruling came as somewhat of a surprise because Caudill had said several times during the March 6 hearing that he was inclined to hold off on issuing a ruling in the case until Franklin Circuit Judge Thomas Wingate issued a decision in the other case. However, near the end of the hearing, Caudill declared Rosen’s candidacy invalid after Rosen requested the Kentucky Secretary of State’s Office be permitted to issue him a judicial candidate nomination petition.

The appeals court judges said that while the underlying facts in the case were “rather straightforward,” its procedural history was “unusually complex.”

Rosen said he wasn’t sure what the next step would be in his fight to be placed on the November ballot, but he said Wednesday’s appeals court ruling was an indication the effort was “clearly moving in the right direction.”

Wingate hasn’t issued a ruling in Rosen’s Franklin Circuit Court case. However, in a separate case, another Franklin Circuit Judge, Phillip Shepherd, ruled in March that House Bill 427 was unconstitutional.

Shepherd’s ruling was in a lawsuit filed by Steve D. Hurt, a former district judge in the 40th Judicial District — Clinton, Cumberland and Monroe counties — who retired to senior status in 2009 and filed to run for circuit judge this year against former Kentucky Senate President David Williams. According to court records, the legality of Hurt’s candidacy was in question because even though he had completed his required number of days in the senior judge program, he was still precluded from seeking office because five years hadn’t elapsed since he entered the program.

KENNETH HART can be reached at khart@dailyindependent.com or

(606) 326-2654.

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