Bill to extend the Senior Judge Program past Jan. 31, 2009 has little chance for passage.

Chief Justice said to be target of Sen. Williams due to Supreme Court ruling against legislative pension bill in 2003.

Feb. 24, 2008

The current Senior Judge program has a sunset expiration date of Jan. 31, 2009.  An attempt was made to extend this program during the last session of the legislature but was shot down in the Senate under the leadership of  Sen. David Williams.  There is nothing to suggest that Senator Williams will permit the current bill to get through the Senate during this session.

LawReader has been told by highly placed sources that they believe that Sen. Williams wants to kill the current Senior Judge’s program in order to force Chief Justice Joseph Lambert to resign this year before the current program expires.

The Chief Justice, as well as all other Judges, receive an enhanced retirement benefit if they agree to enter the Senior Judge program and work for an additional 600 days over a five year period, after their retirement.  If the Chief Justice fails to retire by Jan. 31, 2009 and enter the program, he could lose retirement benefits of some $40,000 a year.  This would be hard for any judge to turn down.  The retirement benefit allowed under this program would not exceed the Judge’s highest salary.

The failure of the Legislature to extend the program has influenced dozens of judges to retire early so as not to lose the retirement benefit enhancement.

The story goes that this is a payback against the Chief Justice and the Supreme Court, by Senator Williams, for a ruling of the Supreme Court which killed an effort by the Legislature to sweeten their own retirement programs in 2003.  The Sup. Ct. found the law adopted by the Legislature to be unconstitutional.  The law  would have increased Legislator’s  retirement benefit by 72%.  This bill would have allowed a retirement benefit which was 20% higher than their highest salary as a legislator.    If this is true, it is a low blow of the worst sort.  The Chief  Justice or any other Judge should not be punished for a ruling they have made. The strange thing about this claimed basis for Sen.William’s ire against the Chief Justice is that the Chief Justice did not participate in that decision.  The published decision states that the ruling was adopted by  “GRAVES, JOHNSTONE, KELLER and STUMBO, JJ., concur. WINTERSHEIMER, J., concurs by separate opinion. LAMBERT, C.J., not sitting?(See quotes from this case below: Board of Trustees v. Attorney General of the Commonwealth of Kentucky, No. 2002-SC-0699-DG (Ky. 10/23/2003) (Ky., 2003))We have been informed that the enmity of Senator Williams against the Chief Justice is so great that when William’s father died, his office called the Chief Justice and requested that he not attend the funeral.

At a luncheon meeting at a Judicial conference held last fall in Lexington, Ky. Wayne County District Judge Robyn E. Williams, the wife of Senator David Williams, spoke to the group made up of some 80 District Judges and AOC personnel. In that meeting Judge Robyn Williams described the Senior Judge program as “welfare for judges?. 

Senator Williams accompanied his wife to the Judges conference but was not in the room when this statement was made.  A person who was in attendance said no one in the audience challenged that characterization of the program by Judge Williams but there was amazed eye contact among the various judges. 

Judge Robyn Williams was appointed District Judge for Clinton, Wayne and Russell counties by then Gov. Ernie Fletcher in October 2004. The ending date for the current Senior Status Judge is Jan. 31, 2009.

See: “KRS 21.580 Senior Status Program for Special Judges.
(2) The Senior Status Program for Special Judges created by this section shall be open to any member who is a judge in office on the June 24, 2003, and who subsequently retires as a Senior Status Special Judge on or before January 31, 2009.? Effective: June 24, 2003

History: Amended 2003 Ky. Acts ch. 128, sec. 6, effective June 24, 2003. — Amended2002 Ky. Acts ch. 258, sec. 1, effective July 15, 2002. — Repealed 2000 Ky. Acts ch.

305, sec. 4, effective July 1, 2007 — Created 2000 Ky. Acts ch. 305, sec. 1, effective

July 14, 2000.

Legislative Research Commission Note (6/24/2003). 2000 Ky. Acts ch. 305, sec. 1,created KRS 21.580, which established the Senior Status Program for Special Judges.

Section 4 of the same Act repealed KRS 21.580 effective July 1, 2007. Thereafter,

2002 Ky. Acts ch. 258, sec. 1, amended KRS 21.580 to change the retirement date

from June 30, 2007, to January 31, 2009, and 2003 Ky. Acts ch. 128, sec. 6,

amended KRS 21.580 to extend eligibility for the program to judges in office on June

24, 2003. Neither of these Acts specifically addresses the repeal set out in the 2000

Act.

H.B. 581 the current bill states:

HB 581/AA (BR 1914) – R. Wilkey
     AN ACT relating to the Court of Justice.
     Amend KRS 21.580 to establish prerequisites for entry into the senior status judge program and establish a sunset date of July 1, 2012; make technical corrections.
     Feb 19-introduced in House
     Feb 21-to Judiciary (H)

The 2003 Ruling of the Supreme Court:

Board of Trustees v. Attorney General of the Commonwealth of Kentucky, No. 2002-SC-0699-DG (Ky. 10/23/2003) (Ky., 2003)
“The significance of KRS 61.510(13) is that KRS 6.520(1) calculates a legislator’s initial retirement benefit by multiplying 3.5% of the legislator’s “final compensation” times the legislator’s years of service and defines “final compensation” as the “creditable compensation” defined in KRS 61.510(13). A 72% increase in the “assumed salary” would, therefore, translate into a concomitant 72% increase in a legislator’s retirement benefits.

For example, a legislator earning $27,500.00 and retiring after twenty years of service would be entitled to an annual retirement benefit of $19,250.00 before HB 389(4) (3.5% X $27,500.00 X 20 years) but an annual retirement benefit of $33,115.60 after HB 389(4) (3.5% X $47,308.00 X 20 years) even though the legislator never earned a salary in excess of $27,500.00.?
“This theory that the amendment of KRS 21.450 actually amended KRS 61.510(13) has three immediately apparent flaws. First, HB 389(4) refers to an “accrual of benefits provided under . . . any . . . applicable statute.” (Emphasis added.) However, no “accrual of benefits” is “provided under” KRS 61.510(13); it merely identifies a legislator’s “creditable compensation,” which is but one factor used in calculating that legislator’s initial retirement benefit. Second, the theory misapplies accrual of benefits to creditable compensation. “Accrual of benefits” means, in a defined benefit plan,1 “the process of accumulating pension credits for years of credited service, expressed in the form of an annual benefit to begin payment at normal retirement age.” Employment Benefit Plans: A Glossary of Terms, supra note 1, at 1. Applying that definition, “accrual of benefits” pertains not to the retiree’s “creditable compensation” but to the retiree’s “service credits,” i.e., the retiree’s years of creditable service, KRS 6.515, yet another factor used in calculating the initial retirement benefit. Clearly, annual CPI increases do not apply to allow the accumulation of additional “service credits.” A third flaw in the theory is that HB 389(4) refers to the “last establishment of that benefit,” and “creditable compensation,” in the case of a legislator, is an assumed “salary,” not a benefit.? “I. LEGISLATIVE HISTORY OF KRS 21.450(3).
        Senate Bill 349.
        On March 13, 2000, Senate Bill (SB) 349 was introduced and read on the Senate floor. 2000 Sen. J. 1544. As written, Section 1(13) of SB 349 would have read as follows:
        [F]or members of the General Assembly who retire under Section 12 of this Act, or who die in office, “final compensation” shall be forty-five thousand dollars ($45,000). The assumed salary for legislators in this subsection shall be adjusted annually . . . to reflect changes in the current purchasing power of the dollar. The maximum possible compensation for legislators under this subsection shall be based precisely upon the consumer price index formula approved Matthews v. Allen, Ky., 360 S.W.2d 139 (1962).
        Thus, its sponsor clearly intended for SB 349 to increase the “assumed salary” of legislators from $27,500.00 to $45,000.00 and to provide for CPI increases of the assumed salary on an annual basis thereafter. An actuarial analysis dated March 10, 2000, presumably obtained in compliance with KRS 6.350, indicates that the increase of the “assumed salary” to $45,000.00 would have required $725,000.00 per year of additional funding for the JFRS. Letter from Gagel to Early of 3/10/00, at 3. When the tenor of the floor debate indicated that the proposed increases would fail, SB 349 was withdrawn and replaced by a committee substitute that retained the $27,500.00 “assumed salary” and did not provide for future annual CPI increases. 2000 Sen. J. 1590. The committee substitute then passed the Senate and was sent to the House where it was reported and received its first reading on March 24, 2000. 2000 House J. 4622. On March 27, 2000, a House floor amendment to SB 349 (committee substitute) was introduced that would have reinstated the amendments deleted by the Senate, i.e., immediate increase of “assumed salary” to $45,000.00 with annual CPI increases thereafter. 2000 House J. 4909. The bill was never called to a vote and was recommitted to the appropriations committee from which it did not re-emerge. Id. at 5297.
        House Bill 389.
        Meanwhile, on March 13, 2000, the same day the original version of SB 349 was debated and withdrawn, HB 389 was passed by the House and sent to the Senate. This bill, as passed by the House, would have amended various unrelated provisions of the Legislators’ and Judicial Retirement Plans, but not KRS 21.450. 2000 House J. 3359. It was first referred to the Senate Appropriations Committee, 2000 Sen. J. 2090, then to the State and Local Government Committee. Id. at 2926. On March 23, 2000, the latter committee adopted and added to the consent calendar by voice vote a committee substitute for HB 389 that deleted several sections and added a new section (4). Minutes, Sen. Comm. on State & Local Gov’t (15th meeting, March 23, 2000). The Legislative Research Commission then requested that the executive director of the JFRS provide an actuarial analysis of all four sections of HB 389 (committee substitute). On March 27, 2000, the executive director responded that the impact of Sections 1 and 2 would be “zero,” the impact of Section 3 would be “negligible,” and “I am unable to determine the fiscal impact, if any, of Section 4.” Letter from Early to Dutton of 3/27/00.
        On March 29, 2000, HB 389 (committee substitute) passed the Senate without debate as part of the consent calendar. 2000 Sen. J. 3366. Later that same day, the House concurred with the Senate’s committee substitute for HB 389 with only this comment by the House sponsor:
        Section 4 was added . . . and I have a report here . . . from the retirement system . . . that says . . . “I am unable to determine the fiscal impact, if any, of Section 4.”
        Videotape: House Floor Debate (3/29/2000); 2000 House J. 5229.
II. PROCEDURAL BACKGROUND.
        Unable to decipher what effect, if any, HB 389(4) might have on the JFRS, the executive director of the JFRS requested a formal opinion from the Attorney General, pursuant to KRS 15.025(1) as to the bill’s proper interpretation and effect with respect to the following potential issues:
        1. Does the amendment to KRS 21.450 require that the assumed salary in the Legislat[ors'] Retirement Plan be annually increased by the CPI?
        2. If the amendment to KRS 21.450 provides that the assumed salary under the Legislat[ors'] Retirement Plan is to be annually increased by the CPI, is the increase retroactive?
        3. If the amendment to KRS 21.450 provides that the assumed salary under the Legislat[ors'] Retirement Plan is to be annually increased by the CPI, at what date is the increase to be first applied?
        4. Does the amendment to KRS 21.450 provide that in a year in which a judicial salary increase falls below the CPI, will the salary be adjusted by the CPI? If the amendment requires that a judicial salary be adjusted by the CPI, is the increase retroactive? If the amendment requires that a judicial salary be adjusted by the CPI, at what date is the increase to be first applied?
        5. Is the legislator or judge required to make personal contributions on the additional assumed salary or salary on which the benefits ultimately will be calculated?
        6. To whom does the amendment apply — members, retirees, or both?
        OAG 00-5, at 2 (quoting the questions posed by the executive director of the JFRS).
        In the course of drafting his response, the Attorney General requested that Senator Robinson, chair of the Senate State and Local Government Committee, provide any research or documentation utilized in drafting the committee substitute for HB 389(4). Letter from Sen. Robinson to Carrico, 5/18/00, at 1 (referring to Attorney General’s information request). By letter dated May 18, 2000, Senator Robinson responded that no such documents existed and gratuitously added that the intent of the bill was to increase legislators’ retirement benefits by applying annual CPI increases to the “assumed salary” of legislators retroactive to 1982. He further explained:
        Since it was our intent to not make the provision of the amendment so visible; and based on staff’s proposal, we decided to place the substance of our proposal on one of the judicial statutes that are identified with KRS 6.525. Therefore, we chose to peg our proposal to KRS 21.450.
        Id. On June 13, 2000, the Attorney General rendered his opinion that HB 389(4) was void because it (1) was enacted without obtaining the actuarial analysis required by KRS 6.350; (2) is so vague as to be unintelligible; and (3) violates the “nondelegation doctrine” by delegating legislative authority to an administrative agency. OAG 00-5.
        The Board of Trustees of the JFRS filed this action in the Franklin Circuit Court for a declaratory judgment pursuant to KRS 418.040, requesting that the court declare HB 389(4) valid and judicially construe its meaning. The Franklin Circuit Court accepted the theory that the amendment of KRS 21.450 actually amended KRS 61.510(13) and that its effect was to increase the “assumed salary” of legislators to $47,308.00 as of July 14, 2000, and to apply CPI increases to the assumed salary on an annual basis thereafter. The circuit court further concluded that HB 389(4) was unintelligible only to laypersons but understandable to pension law specialists (despite the fact that the executive director of the JFRS was unable to comprehend its meaning). The circuit court did not address the nondelegation doctrine despite conceding that only an expert could decipher the bill’s meaning. Finally, the circuit court found substantial compliance with KRS 6.350 because the General Assembly had made an unsuccessful attempt to obtain an actuarial analysis from the executive director of the JFRS. KRS 6.350 provides, inter alia:
        A bill which would increase the benefits . . . of any public retirement system . . . shall not be reported from a legislative committee of either house of the General Assembly . . . unless the bill is accompanied by an actuarial analysis . . . show[ing] the economic effect of the bill on the public retirement system, including a projection of the annual cost to the system of implementing the legislation for at least ten (10) years . . . prepared by an actuary who is a fellow of the Society of Actuaries, a member of the American Academy of Actuaries, or an enrolled actuary under the Employees’ Retirement Income Security Act of 1974.
        The Court of Appeals reversed the Franklin Circuit Court without addressing the vagueness and nondelegation issues, deeming KRS 6.350 mandatory and, thus, the failure to obtain the actuarial analysis fatal. Having granted discretionary review, we disagree with the Court of Appeals that the General Assembly’s noncompliance with KRS 6.350 invalidates HB 389(4). However, we also disagree with the Franklin Circuit Court and find HB 389(4) unconstitutional because it is void for vagueness in that it is unintelligible and because it violates the nondelegation doctrine.?“ All parties have assumed this to be a valid law unless it violates some specific provision of the Kentucky Constitution, but there is another ground upon which we may declare this enactment ineffective as a law. That is the lack of intelligibility. In other words, if the language of the law is so ambiguous as to completely obscure the legislative intent and to defy rational meaning, it is simply inoperative as a law.
        Id. at 364. Citing Kerth and Folks, the Court found that the relevant words in the statute were “meaningless;” thus, it deemed the statute “an abortive effort” and “a nullity.” Id. at 366.
        Kentucky is not alone in requiring that statutes be facially intelligible. Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc., 515 N.E.2d 1222 (Ill. 1987), the Supreme Court of Illinois invalidated a statute permitting teachers to inspect some, but not all, of the documents in their personnel files because that statute was so vague that it was impossible for school districts to discern which documents were subject to disclosure. Id. at 1228. It noted the rule that:
        While it is the duty of the courts to ascertain the meaning of and to give effect to every valid act of the legislature, yet they cannot supply omissions or remedy defects in matters committed to the legislature. A legislative act which is so vague, indefinite and uncertain that the courts are unable, by accepted rules of construction, to determine, with any reasonable degree of certainty, what the legislature intended, or which is so incomplete or conflicting and inconsistent in its provisions that it cannot be executed, will be declared to be inoperative and void.?
“We conclude that HB 389(4), subsequently codified at KRS 21.450(3), is unconstitutional because it is unintelligible and violates the nondelegation doctrine embodied in Sections 27, 28, 29 and 60 of our Constitution. Accordingly, the decision of the Court of Appeals is affirmed, though on different grounds than expressed in its opinion.
        GRAVES, JOHNSTONE, KELLER and STUMBO, JJ., concur. WINTERSHEIMER, J., concurs by separate opinion. LAMBERT, C.J., not sitting?
  

 

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