Daily Independent (Ashland, KY)

March 7, 2014

Judge rules Rosen not valid candidate

Legality of candidacy for re-election far from settled

Kenneth Hart
The Independent

CATLETTSBURG — A judge on Thursday ruled former Boyd circuit and district judge Marc I. Rosen was not a legally bona fide candidate to seek re-election to the bench this fall.

However, the matter of whether Rosen is legally entitled to challenge incumbent Boyd Circuit Judge George W. Davis III for an eight-year term in the November general election is far from settled.

On Thursday, Floyd Circuit Judge John David Caudill sided with Ashland attorneys Roger Hall and Michael Curtis in an action they filed in Boyd Circuit Court challenging Rosen’s bona fides as a candidate. They contended Rosen wasn’t a valid candidate because it was illegal for him file to run for office at the time he did so, and Rosen committed a Class A misdemeanor by doing so.

Caudill’s decision was somewhat surprising because it came at the end of the approximately one-hour hearing, and because Caudill had earlier said several times he was inclined to hold off on issuing a ruling in the case until a decision was rendered in a separate case involving Rosen’s ability to seek re-election.

That case, filed by Rosen in Franklin Circuit Court in January, challenges the constitutionality of House Bill 427, which Rosen maintains was passed last year by the Kentucky General Assembly for the express purpose of preventing him and a handful of other senior-status judges from filing and running for office this year.

Rosen filed to run against Davis —  who replaced Rosen in 2009 after Rosen retired to the senior-status program — 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.

In a ruling handed down last month, Franklin Circuit Judge Thomas D. Wingate allowed Davis to enter the case as an intervening respondent, but denied motions by Davis’ attorney, Perry Bentley of Lexington — who also represents Hall in the Boyd County case — and by the commonwealth to dismiss the case.

What Thursday’s ruling means, essentially, is to challenge Davis, Rosen would have to prevail in the Franklin County case and Caudill’s ruling would have to be overturned on appeal.

Rosen said after the hearing he was “extremely disappointed” in Caudill’s ruling and surprised the judge ruled as he did because he and Bentley had not argued the merits of the case; they were arguing Rosen’s motion to continue the case pending Wingate’s ruling on the constitutionality of HB 427.

Rosen said he intended to appeal the ruling. Under the state’s expedited-appeal statute that applies to such cases, he has five days to do so.

Caudill’s ruling hinged on the question of whether “irreparable harm” would result from Rosen being allowed to remain a valid candidate. Hall and Curtis raised the matter in their petition.

Caudill had initially said he saw no harm that could come from holding his ruling in abeyance pending Wingate’s decision in the other case.

“We’re not talking about an election that’s going to be held next week,” he said.

According to Lynn Zellen, communications director for Kentucky Secretary of State Alison Lundergan Grimes, Aug. 25 is the date on which Grimes’ office will certify judicial candidates for the November election and instruct county clerks on how to prepare the ballots. After that date, she said, there is “no mechanism” for removing the name of a candidate who’s been found to be ineligible from the ballot, but a notice can be posted in the clerk’s office that the candidate has been disqualified, she said.

However, near the close of Thursday’s hearing, Zellen informed Caudill the secretary of state’s office is also required to issue certificates of nomination to candidates who have filed for judicial office and requested “some guidance” from the judge on whether it should issue one to Rosen.

Caudill said he believed the issuance of that certificate could constitute the “irreparable harm” referenced by Hall and Curtis.

“Are you hot to have that piece of paper?” Caudill asked Rosen, who responded by saying he would prefer the judge do nothing that would prevent the secretary of state’s office from issuing it.

“Are you sure that’s the position you want to take?” Caudill asked.

Rosen responded it was. Caudill then ruled Rosen was not a bona fide candidate for circuit judge.

“I didn’t want to get to this point, but that’s where we are,” he said before adjourning the hearing.

Hall and Curtis say in their petition their challenge to Rosen’s candidacy primarily concerns the practice of “double dipping,” drawing retirement benefits and a salary at the same time. According to their pleadings, if elected, Rosen would be compensated about $250,000 a year or nearly $2 million for the eight-year term.

Sinnette also has said HB 427, which cleared both chambers of the legislature with zero “no” votes and was signed into law by Gov. Steve Beshear on March 23, 2013 — was aimed at eliminating double dipping and was not directed at Rosen or any other judge.

KENNETH HART can be reached at khart@dailyindependent.com or (606) 326-2654.