Fletchers veto of judicial elections is challenged

SUPREME COURT DECLINES TO RULE ON MERITS OF CASE

By Brandon Ortiz HERALD-LEADER STAFF WRITER

The Kentucky Supreme Court could weigh in on the constitutionality of Gov. Ernie Fletcher’s controversial line-item veto of provisions requiring the election of nine new judges, a move that allowed him to appoint them instead.

Georgetown lawyer Neil Duncliffe, 58, has filed a lawsuit challenging the vetoes, which Fletcher made in April. Duncliffe’s petition to get on the November ballot for a new family court judgeship covering Scott, Woodford and Bourbon counties was rejected by the Secretary of State’s office on Aug. 1.

“I did think it was wrong for the governor to cancel nine elections. I really do,” said Duncliffe, who practices family and personal injury law. “We’re supposed to be about elections; we’re not supposed to be about appointments.”

On Aug. 7, a day before the deadline to get on the ballot, Duncliffe filed suit in Franklin Circuit Court.

This week, Supreme Court Justice Donald Wintersheimer denied an emergency injunction to place Duncliffe on the ballot uncontested. Because general election candidates were certified Monday, the issue is moot, Wintersheimer ruled.

But Wintersheimer did not rule on the merits of the case.

Former Justice James E. Keller, who is representing Duncliffe, said the door is still open for the Supreme Court to throw out Fletcher’s line-item vetoes.

Louisville lawyer Sheryl Snider, who is representing Secretary of State Trey Grayson, called that prospect remote.

“If the Supreme Court declined to step in now, I can’t imagine they will step in later in the process where there would be even more eggs they would have to unscramble,” Snider said.

A Fletcher spokesman has said the governor vetoed the election requirements so the bill would comply with the state constitution, which he said forbids holding a judicial election before it has been funded.

The nine judgeships, seven in circuit court and two in district court, are effective Jan. 1.

Some Democrats have accused Fletcher, a Republican, of court-packing. They say he robbed voters of the right to choose those judges.

The new judges will have to run for election in November 2007 to finish the eight-year term. Incumbents are typically favored to win re-election.

Several Republicans have defended Fletcher and the vetoes. Rep. Stan Lee, R-Lexington, said he has no problems with the vetoes. It’s within the governor’s constitutional authority, he said.

Voters “will have an opportunity to pick them at some point,” Lee said.

Fairness questioned

Lawyers representing the government have portrayed the lawsuit as a creative ploy to put Duncliffe on the ballot uncontested.

The vetoes were made on April 24. But Duncliffe waited nearly three months to sue.

Placing Duncliffe on the ballot unopposed while giving nobody the chance to run against him stomps on the public’s right to pick judges, Snider argued.

An appeals court agreed, denying the injunctive relief on procedural grounds. By filing so late, Duncliffe did not give possible opponents a chance to run, the court said.

“The aspiration to run unopposed in this case amounts to the pursuit of a windfall rather than the assertion of an actual right,” Chief Judge Sara Combs wrote.

Approving the injunction also would have created the potential for troubling scenarios, the appeals court said. If the Supreme Court had ruled against Duncliffe after he had been seated, the election results would be nullified and Duncliffe would have to step down.

That could create a flood of litigation questioning the validity of his rulings, the court said.

Keller said that Duncliffe did not have standing to sue until July 15, when the judiciary budget bill took effect. It also took time for Duncliffe to make up his mind, Keller said.

“Whether to run for office and give up a very successful legal practice … that’s a big decision,” Keller said. “That is not a snap consideration.”

He said nothing prevented other potential candidates from also filing suit.

In the constitution

The line-item veto is authorized in Section 88 of the state constitution. It reads, in part, “The Governor shall have the power to disapprove any part or parts of appropriation bills embracing distinct items …”

Keller says that only allows the governor to line-item veto specific expenditures in appropriations bills. It does not allow him to erase words, phrases, clauses or sentences to alter legislative intent, he said.

The state Supreme Court has never ruled on the issue.

In a development that went largely unnoticed, Fletcher employed similar line-item vetoes in the budget bill.

For example, Fletcher struck “encouraged” from a line that read: “The University of Kentucky is encouraged to provide funding in fiscal year 2006-2007 and fiscal year 2007-2008 to the Cooperative Extension Service to support the County Extension Enhancement Initiative.”

House Democratic Whip Joe Barrows, of Versailles, has said the change essentially created an appropriation that was not authorized by the legislature, which is constitutionally charged with controlling the government’s purse strings.

Lawyers representing the government argued that courts in states with partial veto clauses worded similarly to Kentucky’s have consistently ruled that the governor may veto text, as well as appropriations, in a bill.
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