WHEN DOES THE SENIOR STATUS JUDGE PROGRAM EXPIRE? WE SAY 2009. Read the full text of the act.

The Kentucky Post published a story about the Senior Status Judges Program, and gives great weight to an argument that the program is scheduled to terminate as of July 1, 2007.  We believe that that interpretation is incorrect.  The law was clearly amended in 2003 and the legislature has extended the program to July 1, 2009.
The Senior Judge Statute, KRS 21.580 creates this issue because there is a statement in the heading of the statute which is contained in parenthesis which states (Effective until July 1, 2007).
 

That language was contained in the original act adopted in the year 2000.
 

The legislative statutory history states:
 

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 Section 4 of the same Act repealed KRS 21.580 effective July 1, 2007.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

 

A current version of the statute as amended includes the following provision which reflects the amendments made in 2003 Ky. Acts ch. 128, sec. 6, effective June 24, 2003 and states:

 

(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.
 

The rules for statutory construction require an interpretation where the courts are charged with the duty to give meaning to all provisions of a statute if possible.  The original statement mentioning the date 2007 correctly states the original ending date of the program.  But subsequently the legislature added a provision that extends the expiration date to 2009.

 

We believe that the amendment can be read along with the original ending date and the statute must be interpreted to have been extended to 2009.

 

We note that the legislature has adopted a law which tells us how to interpret statutes:

 

KRS 446.080 Liberal construction — Statutes not retroactive — Common usage –
Technical terms.
(1) All statutes of this state shall be liberally construed with a view to promote their
objects and carry out the intent of the legislature,…

 

 

See full text of Senior Status Judge Act below

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The Post article published Feb. 17, 2007 states:
“As many as 20 judges across the state – including three from Northern Kentucky – could take early retirement this summer unless the General Assembly passes legislation extending the senior judge program.
The number would be on top of an estimated 30 to 40 percent of the state’s 232 judges who left the bench last year, leaving the state judiciary nearly half-staffed with younger, less experienced judges.
The senior judge program, which allows retired judges to fill in as needed across the state in exchange for a hike in their annual pensions, is set to expire in July, or – perhaps – in February 2009. It’s unclear because two different laws include sunset dates for the program.
If the former date is the operative one, judges would have to sign up for it by June 30. And to do that, they would have to retire from full-time service on the bench by then
A bill pending in the legislature, filed by state Rep. Arnold Simpson, D-Covington, would extend the program to 2012.
“Any time you have that many judges leave, it’s disquieting to the practicing bar and to the general public,” said Rod Messer, a circuit judge in Laurel and Knox counties who is president of the Kentucky Circuit Judges Association.
“That’s a lot of experience you’re not going to be able to replace for a long time.”
When the 2000 General Assembly created the program, it set the expiration date for June 30, 2007, which meant no additional judges could enter the program after that. Two years ago, the legislature extended it to end on Jan. 31, 2009.
But in doing so, it failed to repeal the 2007 expiration date – leading some to conclude it would indeed end this year.
“That’s a legal snaggle,” said Campbell Family Court Judge D. Michael “Mickey” Foellger, who has been following the legislation.
“We’d like to have that straightened out. … We have no reason to believe they wouldn’t do that.”
If the program does end this year, Foellger will be one of three Northern Kentucky judges – Kenton Circuit Judge Steve Jaeger and Pendleton Circuit Judge Robert McGinnis are the others – faced with the decision of whether to retire early.
“It’s possible, but if I had to go in ’07, I probably wouldn’t do it,” said McGinnis, who also hears cases Harrison, Robertson and Nicholas counties.
Jaeger said early retirement would be an option for him. Foellger said he has been crunching numbers to try to determine which course is best for him.
“If it’s clear that it does end this year, I’d have to give it serious consideration,” Foellger said.
Both said they are confident the program will be extended. But some who oppose it question its constitutionality, because it uses non-elected judges.
The opposition is particularly strong in Jefferson County, where Commonwealth Attorney R. David Stengel complaints that it has created judges who no longer must answer to the public.
He points to the senior judge appointment of former District Judge Paula Fitzgerald – whose behavior he called bizarre and who was voted out of office in November.
“The voters threw her out, and now she doesn’t have to answer to the voters anymore,” Stengel told the Louisville Courier-Journal. “There is no accountability.”
Simpson’s bill addresses some of those concerns.
It limits eligibility to judges who have 20 years actual judicial experience – currently, judges can “buy time,” or get credit for other governmental experience, such as being a prosecutor.
It also says a judge who has lost an election is not eligible, and all potential senior judges must pass a screening test by the Judicial Conduct Commission.
“I think the modifications address the concerns that arose in Jefferson and that I’ve heard elsewhere,” said Messer. “I’m hopeful it will pass.”
Currently, about 40 judges participate in the senior program, at an annual cost to the state of about $500,000.
Supporters said the benefits are enormous, enabling the state to get extra judges at a fraction of the cost of full-time judgeships, currently estimated at $350,000 annually each.
The senior judges fill in for district and circuit judges who are ill, on vacation, or otherwise unavailable.
They have sat in for judges in the military reserves who have been sent to Bosnia or Iraq.
In Boone County, they have helped Circuit Judge Tony Frohlich keep up with his docket, the busiest in the state.
Special judges are required to work 120 days a year for five years.
They are not paid a salary, although they do get expenses.
But at the end of the period, the judges’ annual pension generally will be set at 100 percent of their salary when they retired.?
 

SENIOR STATUS JUDGE ACT:
 

KRS 21.580 Senior Status Program for Special Judges. (Effective until July 1, 2007).
(1) As a pilot project to determine the effectiveness of using senior retired judges to
combat backlog and delay in Kentucky courts, there is hereby created a “Senior
Status Program for Special Judges.” The program shall be implemented as follows:
(a) KRS 21.400(1) and any other provision in KRS Chapter 21 to the contrary
notwithstanding, a member who retires at a time when combining his total
years of judicial service credit and his age equals or exceeds the number
seventy-five (75), may elect, within ninety (90) days following retirement, to
participate in the “Senior Status Program for Special Judges,” if he complies
with the provisions of this subsection. In that event, the member shall be
entitled to a service retirement allowance, commencing at the member’s
normal retirement age, payable monthly during his lifetime in an amount equal
to five percent (5%) of his final compensation multiplied by the number of
years of his judicial service, not to exceed twenty (20) years of judicial service
at the five percent (5%) factor, not to exceed one hundred percent (100%) of
final compensation. “Final compensation”, notwithstanding any provision to
the contrary, for all members retiring under any provision of KRS 21.345 to
21.570 or this section, or similar statutes governing the same positions, as
defined in KRS 21.400 shall be based on a period of thirty-six (36) months.
Any nonjudicial time shall be counted as is otherwise provided in KRS
Chapter 21, but in no event shall service retirement allowance exceed one
hundred percent (100%) of final compensation.
1. In the event the retiring judge elects to retire as a “Senior Status Special
Judge” under this subsection, he shall commit to serve, upon
appointment by the Chief Justice of the Commonwealth, as special judge
for one hundred twenty (120) work days per year for a term of five (5)
years without compensation other than the retirement benefits under this
subsection. The Senior Status Special Judge may agree to work more
than one hundred twenty (120) days in any year within the five (5) years
of service; however, the Senior Status Special Judge shall be
compensated as otherwise provided by law, in addition to his retirement
benefits, for any days served in excess of one hundred twenty (120) in
that year. If the Senior Status Special Judge has not served a total of six
hundred (600) days within the five (5) year period outlined in this
subsection, the Chief Justice shall require the Senior Status Special
Judge to serve at no additional compensation to the Senior Status
Special Judge, until the six hundred (600) day period is served by the
Senior Status Special Judge. The Senior Status Special Judge and the
Chief Justice may agree in writing to serve less than the one hundred
twenty (120) days in any one (1) or more of the five (5) years; however,
any of the days not served in a given year shall be served at the end of
the five (5) year period set forth in this subsection.
2. Should any member electing to retire under the Senior Status Program
for Special Judges fail, when ordered by the Chief Justice to serve the
requisite number of days not to exceed one hundred twenty (120) days a
year for the five (5) year period outlined in this subsection, unless
otherwise agreed in writing, he shall no longer be eligible for benefits
computed under this subsection and shall return to the benefits otherwise
provided under this chapter.
3. Subject to Section 110(5)(b) of the Kentucky Constitution, the Chief
Justice shall give due regard, when practical, to the desirability of
appointing Senior Status Special Judges to serve within their judicial
region as defined by the regional administration charter.
(b) The inviolable contract provisions of Kentucky law, KRS 21.480, shall apply
during the period of time that KRS 21.580 is effective; however, no other
provisions of 2000 Ky. Acts ch. 305 shall be considered subject to an
inviolable contract of the Commonwealth.
(c) Nothing contained in this section shall be construed to invalidate provisions in
the current law which require a penalty for retiring before the normal
retirement age.
(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. — Amended
2002 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.
 

 

Statutory Construction:

Commonwealth v. Plowman, 86 S.W.3d 47 (Ky. 09/26/2002) An unambiguous statute is to be applied without resort to any outside aids. Delta Air Lines. Inc. v. Commonwealth, Revenue Cabinet, Ky., 689 S.W.2d 14 (1985). See & Gatewav Construction Co. v. Wailbaum, Ky., 356 S.W.2d 247 (1962). This Court has repeatedly held that statutes must be given a literal interpretation unless they are ambiguous and if the words are not ambiguous, no statutory construction is required. See McCracken County Fiscal Court v. Graves, Ky., 885 S.W.2d 307 (1994); Commonwealth v. Shivlev, Ky., 814 S.W.2d 572 (1991). KRS 446.080 provides for a liberal construction of statutes with the view to promote their objects and to carry out the intent of the legislature. All words and phrases shall be construed according to the common and approved usage of language. Cf. 446.080(4). Here, the language of KRS 513.010 is clear and unambiguous when considered in its expansive content and no further interpretation is required. Although dictionary definitions can sometimes offer guidance as to statutory construction, they are not conclusive. The predominant element is the legislative intent.

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