A judge on Friday issued a ruling striking down a state law that affects a former Boyd circuit and district judge’s ability to run for re-election this fall.
Franklin Circuit Judge Phillip Shepherd ruled that House Bill 427 — which prohibits judges who have taken senior status from running for elected office within the five-year period prescribed by law for senior judges — was an unconstitutional overreach by the General Assembly because it added to the qualifications candidates must possess in order to run for the office of circuit judge, which are already defined in Section 122 of the Kentucky Constitution.
While the intent of HB 427 — which was sponsored by Rep. Kevin Sinnette, D-Ashland, passed both chambers of the legislature with zero “no” votes and was signed into law in March of last year by Gov. Steve Beshear — may have been to prevent “double-dipping,” or drawing a paycheck and retirement benefits at the same time, the law was “an unconstitutional means to achieve that goal,” Shepherd wrote.
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.
Hurt and his attorney, James Deckard of Lexington, argued the law was invalid because the General Assembly was not permitted to add to, or subtract from, the qualifications for office set by constitutional mandate and Shepherd agreed.
Shepherd’s ruling is appealable. The defendants in the case, the state Board of Elections, its executive director, Maryellen Allen, and Secretary of State Alison Lundergan Grimes, requested Shepherd deny Hurt’s request for the statute to be declared unconstitutional, but took no position with regard to the construction of the law, which was what prevented Hurt from seeking office.
Accordingly, Shepherd denied Hurt’s motion for summary judgment regarding the proper interpretation of the five-year period of service for senior judges, saying he couldn’t render an opinion because no “actual controversy” had been presented due to the commonwealth’s failure to take a position on the matter.
Hurt’s situation is similar to that of former Boyd Circuit and District Judge Marc I. Rosen. Rosen also filed a lawsuit challenging the constitutionality of HB 427 in Franklin Circuit Court. Shepherd’s ruling would appear to render that case moot.
However, Rosen must still clear another legal hurdle before he can challenge incumbent Boyd Circuit Judge George W. Davis III for an eight-year term in the November general election.
Earlier this month, Special Judge John David Caudill ruled in a separate case in Boyd Circuit Court that Rosen was not a valid candidate. Rosen has appealed that ruling, and must receive a favorable decision from the Kentucky Court of Appeals for his name to be placed on the ballot. If the Court of Appeals upholds Caudill’s ruling, the final determination could be that Rosen’s candidacy violated an unconstitutional law.
Caudill’s ruling was on a petition filed by Ashland attorney Roger Hall challenging Rosen’s bona fides as a candidate, as state law permits any candidate or “qualified voter” to do. Hall argued Rosen wasn’t a valid candidate because 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. However, under HB 427, Rosen was not legally eligible to file until his five-year commitment to the senior-status program officially ended on Jan. 31, even though he’d completed the number of days he was required to serve in the program.
In his written order, Caudill — who was appointed to hear Hall’s case after both Boyd circuit judges, Davis and C. David Hagerman, recused themselves — sided with Hall, stating Rosen’s “attempted candidacy” was in violation of HB 427.
The order also directed Grimes and Boyd County Clerk Debbie Jones to strike Rosen’s name from the November ballot, enjoined Grimes from certifying Rosen as a candidate and enjoined both Grimes and Jones from recognizing Rosen as a candidate or placing his name on the ballot. Grimes and Jones both were named as defendants in the suit.
Rosen also has filed a motion requesting that Caudill alter, amend or vacate his ruling. A hearing on that is scheduled for 10 a.m. Tuesday.
Hall’s challenge to Rosen’s candidacy primarily concerned double-dipping. According to his pleadings, if elected, Rosen would be compensated about $250,000 a year, or nearly $2 million for the eight-year term.
KENNETH HART can be reached at firstname.lastname@example.org or (606) 326-2654.