Chief Justice draws fire for taking firm stand against double dipping

Chief Justice Joseph Lambert urged the governor to take action against the judicial budget bill which would have allowed retired judges to run for office again and draw full retirement benefits and a full judicial salary. Governor Fletcher concurred and used his line item veto powers to veto that provision of the budget bill. This raises an issue for possible litigation as to whether or not a Governor can use the budget bill to effect a change in the law.  The Governor also vetoed portions of a bill that created new judgeships so that he could appoint the new judges instead of having them run for election this November.

Critics suggest that he did this to benefit his wife who is opposed by a retired judge who is running for her office.  Retired Chief Justice Palmore raises eyebrow at the C.J.’s actions.  Nevertheless, Lambert is Chief Justice, and not many can present a cogent argument in favor of double dipping.  Should he neglect his administrative duties as C.J. just because of his party registration or the fact his wife might (or might not) benefit from his stand.
The following article ran in the Louisville Courier Journal on May 28, 2006.
Top judge urged Fletcher to speed up law’s start
Lambert: It wasn’t to aid wife in election

By Andrew Wolfson  Kentucky Chief Justice Joseph Lambert urged Gov. Ernie Fletcher to speed up the start of a law that could penalize a campaign opponent of Lambert’s wife, a family court judge seeking re-election.

In a letter to Fletcher last month, Lambert said the measure, which prohibits retired judges who return to the bench from collecting both their pay and their pension, needed to take effect this year.

When the General Assembly passed the “anti-double dipping” provision as part of the judicial budget this year, it delayed its effective date so it wouldn’t apply to three retired judges running in November.

But at the chief justice’s request, Fletcher used his line-item veto authority to strike the language delaying the start of the law.

As a result, retired judges running for office this year — including Debra Lambert’s opponent, former District Judge Walter Maguire — would, if elected, have their salary cut so their combined paycheck and pension don’t exceed the salary for the position.

In Maguire’s case, when his pension is deducted from the $121,344 family court judgeship, he would be working for a salary of about $30,000, he said.

Maguire, who retired in June 2005 after 23 years on the district bench, said he still intends to run. But he contends the chief justice had “misused the power of his position for the obvious purpose of discouraging somebody from running against his wife.”

Debra Lambert is family court judge for Rockcastle, Pulaski and Lincoln counties. She did not return phone calls seeking comment.

Chief Justice Lambert said in an interview that his wife’s situation “did not influence my position.” As top administrator for the courts, he said, he had a duty to address the issue and “absolutely” shouldn’t have recused himself.

But Maguire alleged that the chief justice’s interest in the issue is personal — as illustrated by an incident at a Christmas party at U.S. Rep. Hal Rogers’ house in December, when Maguire said Lambert challenged him to publicly pledge not to accept both his salary and pension if elected.

Maguire said he declined. Lambert said in an interview that he remembers saying only, “Walter, I see you are going to be a double dipper, aren’t you?”

In the interview, Lambert said it might be argued that his April 18 letter to Fletcher — and the change in the law’s timing — actually could hurt his wife because it deprives her of an issue to use against her opponent.

Use of veto
Several experts on state constitutional law said Fletcher’s use of the line-item veto to change the effective date of a law was highly unusual. Such vetoes are usually used to strike down specific spending items, said Mark Guilfoyle, who served as general counsel to Brereton Jones when he was governor.

Lexington lawyer Scott White, who researched the issue as assistant deputy attorney general for a 2003 opinion, said Fletcher acted improperly. “You can’t amend the law by fiddling with a budget bill,” he said. “You can only veto the money.”

Fletcher’s general counsel, Jim Deckard, who until recently was Lambert’s top lawyer, defended the veto, saying it was permitted because it was part of a spending bill.

The state Constitution gives the governor power to “disapprove any part or parts of appropriation bills embracing distinct items.”

Pat Abell, who was general counsel to Gov. Wallace Wilkinson, said the veto was “unusual” but probably within the governor’s powers.

But retired Chief Justice John Palmore said in an interview that he believes “this is a bunch of Republicans working together behind the curtains, and that is too bad.” Both Lambert and the governor are Republicans.

“I have a strong position that the judiciary should keep its hands out of the governor’s business, and the governor should keep his hands out of the judiciary’s,” Palmore said.

Governor’s explanation
Fletcher said in his April 24 veto that he was moving up the effective date “to protect against the possibility that judges who are unopposed on the November 2006 ballot could retire prior to the commencement of their new term, which would allow receipt of both salary and retirement benefits.”

But Donna Early, executive director of the state Judicial Retirement Board, said that would be impossible because the board voted several years ago to require a “good faith separation of service” before a retiring judge receives a pension. She said the federal government has defined that as one year.

Lambert, who is chairman of the retirement board, questioned whether the rule would be enforceable without legislation backing it up. “There certainly would be the potential for litigation,” he said.

In his letter to Fletcher, Lambert cited fears of judges taking “a nice long vacation,” then returning to the bench to double dip. He didn’t mention the board’s rule on the matter.

The chief justice also cited questions of fairness, noting that in 1999 he adopted a policy barring all other employees of the judicial branch from retiring and then returning and collecting pension and salary. He said that has created a “double standard” and is unfair to non-elected employees.

Besides Maguire, the other retired judges seeking election this fall are Lewis Paisley of Lexington, who is running for the Court of Appeals, where he previously sat, and David Knox, who left the Court of Appeals in 1999 and is now running for circuit judge of Bourbon, Woodford and Scott counties. A fourth retired judge, Emby McKeehan of Williamsburg, withdrew from his race.

Candidates’ reactions
Knox said in an interview earlier this year that he supported the anti-double-dipping law because of public perception that it is improper. “I would feel uncomfortable taking both,” he said, noting that without the law, some judges could earn more than $200,000 annually.

But Paisley said the measure would discourage experienced judges from coming out of retirement; he said he has not yet decided if he still will run.

Maguire said he earned his retirement pay — “It wasn’t a gift” — and voters should have been allowed to decide whether they wanted to elect him if he was going to receive full pay and his pension.

The original bill to prohibit judicial double dipping was sponsored by Rep. Gross Lindsay, D-Henderson, chairman of the House Judiciary Committee, who acknowledged during the session that he had talked briefly with Chief Justice Lambert about it. It was added to the judicial budget just before the General Assembly adjourned.

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