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Courier Journal Article: Senior Judge Program Sparks Many Objections

Senior judge program sparks many objections Critics decry lack of merit screening By Andrew Wolfson and Jason Riley The Courier-Journal Lawyers routinely gave her by far the worst marks in bar surveys. And in November, Jefferson County voters removed her from office after eight years in District Court. But Paula Fitzgerald is back -- as a senior judge, one of 42 retired judges statewide who work part time to help handle the Kentucky courts' growing caseload. To Fitzgerald's critics, her appointment undermines the voters' will and points out the lack of merit screening that other states have in place for selecting senior judges. "The voters threw her out, and now she doesn't have to answer to the voters anymore," said Jefferson Commonwealth's Attorney Dave Stengel, who protested Fitzgerald's appointment to Kentucky Chief Justice Joseph Lambert. "There is no accountability." Stengel said Fitzgerald's behavior in court was "eccentric to the point of being bizarre." He said she refused to enter the results of cases in a courtroom computer and to fax approval for search warrants to police or prosecutors. Lambert said that he was aware of the criticism of Fitzgerald but that he has no discretion to exclude judges from the program, as long as they meet the age and service requirements and have no pending disciplinary complaints. Appointments Fitzgerald isn't the only Kentucky judge to lose an election and still receive a senior appointment. Ann O'Malley Shake, a highly regarded circuit judge who lost a Supreme Court race last year, was among those added this month. And Henry Weber, a former district judge who routinely had some of the highest ratings in lawyer evaluations, became a senior judge after losing a re-election bid. But Fitzgerald was consistently rated as one of Jefferson County's worst judges. In four successive Louisville Bar Association surveys and evaluations, she received the lowest marks of any district or Family Court judge. Earlier this year, 31 percent of the lawyers who appeared before her said she was unqualified to sit on the bench, which far exceeded any other incumbent's numbers. Fitzgerald, who was defeated by Annette Karem in the November election, didn't respond to several requests for comment. After the most recent bar poll was released, which was last February, she didn't dispute the rankings and instead focused on achieving "social and economic justice for the everyday people of Jefferson County." Louisville attorney Scott Cox, one of a half-dozen lawyers who contributed to Fitzgerald's re-election campaign, said he routinely appeared in her courtroom and she was "always very courteous to me and fair to my clients. She had a soft spot in her heart for poor people who appeared before her and victims of domestic violence." Lack of screening Unlike some states, Kentucky has no merit screening of appointments for senior judges, who are assigned to fill vacancies around the state and agree to serve 120 days a year for five years. In exchange, they receive enhanced retirement benefits usually worth several thousand dollars a year. In Indiana, applicants must apply to a commission and submit the names of three lawyers who appeared in their court. In Tennessee, the Supreme Court must determine that an applicant's service "would promote the effective administration of justice." And in Florida, candidates are evaluated not only when they apply, but also periodically after their appointment. The Florida Supreme Court also bars judges who lost their most recent election. Even though "competent judges may occasionally fail to win re-election," the Florida court said, "concerns of public trust and deference to the electoral process dictate that the expressed will of the voters prevail." 'Some kind of discretion' Kentucky has 45 judges in its program, including seven from Jefferson County. Fitzgerald is one of 14 who were added Jan. 7. The program, created in 2000, expires this year unless it is extended by the General Assembly. Jefferson County Public Defender Dan Goyette said that considering Kentucky's deep-seated tradition of electing judges, "it seems incongruous" to allow judges who have failed to win re-election to continue presiding over cases involving the same citizenry that removed them from office. "The situation is exacerbated by the fact that there is no review mechanism … to determine their suitability to continue serving, notwithstanding having been 'unelected,' " said Goyette, chairman of Citizens for Better Judges, which promotes the election of qualified candidates. Stengel said he will support legislation this year to require screening of applicants for senior judge. The presidents of the Louisville Bar Association, Tom Williams, and the Kentucky Bar Association, Bob Ewald, agreed that screening is warranted. "There should be some kind of discretion," Ewald said. Lambert recalled that when the program was created, some legislators said they didn't want participants to be subject to "potentially arbitrary decision-making" about who got in. But he said that screening would "probably be a good idea" and that he will work with the General Assembly "in perfecting" the program. However, although barring defeated judges might seem like a good idea, Lambert noted that some good judges are defeated when they seek re-election. That fear of losing might discourage good judges from seeking another term, he said. Judge qualifications The senior judge program is open to retired or defeated judges whose age and years of service, including previous government employment, add up to 75. Fitzgerald, 59, was once a state corrections officer. The commonwealth's attorneys association contends that the program might violate the Kentucky Constitution, which requires that judges be elected, according to group president Rickey Bartley, the Pike County commonwealth's attorney. The constitutionality of the program has not been tested, but Lambert noted that another section of the state constitution gives the chief justice the right to "assign temporarily" any judge, active or retired, to sit on any bench but the Supreme Court. Lambert and other state court officials say that it is cheaper to use senior judges than to create new judgeships, in part because the former work out of their homes or use the office and staff of the sitting judge for whom they are covering. They also are available to travel on short notice to wherever they are needed. Creating a single new judgeship costs about $300,000 a year, Lambert said. The senior judge program costs about $550,000 a year, including expenses and appropriations for enhanced retirement benefits, court officials said. "The senior status program is a bargain for Kentucky taxpayers," Lambert said. Reporter Andrew Wolfson can be reached at (502) 582-7189. Reporter Jason Riley can be reached at (502) 582-4727.

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