Random Lawyer thoughts

Random thoughts on the Court of Justice in Kentucky and on the practice of law in Kentucky.

*After spending a week in Louisville at the Kentucky Bar Association convention with over 2000 members, I am still convinced that Kentucky lawyers are an outstanding group of people – caring, concerned, dedicated and real smart. I’m proud, honored and humbled to continue in their leadership for the next 3 years.

*No other profession has every member commit a sum of money every year to go into a fund to compensate people who have suffered monetary harm by the very few dishonest or fraudulent members of that group..

*Fewer than 2% of Kentucky attorneys are accused of and face discipline for violating the rules of professional conduct. The way the press (or what’s left of the press) covers it, one would think just the opposite. Lawyers are good folk, serve their clients and communities with distinction, and are there when needed.

*I have been and am concerned with the funding dilemma faced by Kentucky’s Unified Court of Justice. I understand the fiscal woes facing all state governments. I am also aware of our General Assembly failing to meet its obligations in many ways, including failing to pay the state’s share of retirement contributions into the KERS and CERS funds (while fully funding the legislature’s retirement fund!) The nature of KY politics is choosing which special interest to favor session by session, regardless of legal obligation. Even though the Court of Justice in KY receives less than 5% of the total appropriations, cuts were imposed such that the Chief Justice described the system as ‘hollowed out.’

Having given our situation some thought and conducted some research, I think the solution is clear and comes directly from the document that establishes and directs this Commonwealth – the Kentucky Constitution. Bear with me for a few moments while I explain.

Section 27 of our Kentucky Constitution says:’ The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.' Section 109 of the Kentucky Constitution says: ‘The judicial power of the Commonwealth shall be vested exclusively in one Court of Justice which shall be divided into a Supreme Court, a Court of Appeals, a trial court of general jurisdiction known as the Circuit Court and a trial court of limited jurisdiction known as the District Court.’ Section 110 (b) says: ‘The Chief Justice shall submit the budget for the Court of Justice and perform all other necessary administrative functions relating to the court.’ .Section 120 of the Kentucky Constitution says: ‘All compensation and necessary expenses of the Court of Justice shall be paid out of the State Treasury.’ Section 14 of the Kentucky Constitution says: ‘All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.’

In my opinion, the Kentucky Constitution requires the legislative department, our General Assembly, to pay the ‘necessary expenses’ of the Court of Justice as set forth by the budget submitted by the Chief Justice. Nothing in Kentucky’s Constitution gives the General Assembly the power to reduce this budget, or change this budget or appropriate one penny less than the Chief Justice asks for. The separation of powers set forth in Section 27 makes it clear that the judicial branch is separate and distinct, and by failing to fund the system as requested, the General Assembly is invading the judicial branch and its constitutional obligations.

This year, because of the failure of the General Assembly to pay the necessary expenses, Courts will actually close for three days. The Court of Justice budget has been reduced by about 50% over the past few years. Necessary staff has been fired. Needed improvements, such as electronic filing (which will save KY clients millions of dollars a year in wasted time) have been delayed or canceled.

In my opinion, this status is in violation of the Kentucky Constitution in that justice is delayed and denied, and the Courts will not be open. Thus rises the phrase ‘no courts, no justice, no freedom.’

Therefore, I call on Speaker Stumbo, President Williams, and all other officers of the Court who serve as elected members of the General Assembly to stand up and do their duty to the Court and our Constitution. All attorneys licensed in this Commonwealth are subject to the disciplinary authority of the Court of Justice, and Supreme Court Rule 3.130(3.5) prohibits a lawyer from engaging in conduct that disrupts a tribunal. Nothing is more disruptive to a tribunal than closing its doors on a court day. Arguably, conduct by attorney legislators in failing to pass the Chief’s budget is such conduct and is subject to professional discipline.

I call on non-attorney members of the General Assembly to act in compliance with Kentucky’s Constitution, a Constitution that they swore an oath to defend when they assumed their offices.

There. I have that off my chest. I invite comment. What am I missing?



*I took that same constitutional oath last Thursday night. I will become President-Elect of the Kentucky Bar Association on July 1, and currently serve as Vice President. In my new role I am required by the KBA By-Laws to thoroughly familiarize myself with the duties of the President and the work of the Association and of the Board. Given my 6 years as a Governor and one as VP, I have a pretty good handle on these tasks, but I honestly learn something new about the KBA every day. One task assigned to the President-Elect is to chair the budget committee, which is responsible for preparation of the budget to be used during the Presidential year. As a member of the Board, I will continue to participate in attorney discipline sessions. I will continue as a member of the Executive Committee, which is charged to ‘advise the President on matters concerning the operations of the Bar and provide a forum for discussion and recommendation to the Board of Governors including matters of long range planning.’ I hope to continue as a Trustee of the Kentucky IOLTA fund, as a member of the KYLAP Commission and as a member of the Supreme Court Rules Committee. I will assume a new role as a member of the Board of Directors of Lawyers’ Mutual Insurance Company of KY.

*Some may ponder the existence and nature of the Kentucky Bar Association. The KBA website puts it simply: ‘The Kentucky Bar Association is an independent agency of the Supreme Court of Kentucky. Its authority to regulate the legal profession in Kentucky, delegated by the Kentucky Supreme Court through rules, is derived from the Kentucky Constitution. . . . The mission and purpose of the Association is to maintain a proper discipline of the members of the bar in accordance with these Rules and with the principles of the legal profession as a public calling, to initiate and supervise, with the approval of the Court, appropriate means to insure a continuing high standard of professional competence on the part of the members of the Bar, and to bear a substantial and continuing responsibility for promoting the efficiency and improvement of the judicial system. SCR 3.025’

*Some may also ponder why I devote so much time and energy to the KBA. I can’t help it. I was born with a service ethic that was fostered by my mother and father and displayed by my sister. This service ethic is one reason why I served on Erlanger City Council for 13 years and now serve as its Mayor. It is why I devoted so much time and energy to the Kenton County Bar and then the Northern KY Bar. It is simply what I do and who I am.

That is all for now. I am sure there will be more later, as I roll through my terms and serve my clients. After all, at the root of it all I am an offensive lineman - doing the heavy lifting, reacting to the unexpected, and rarely receiving credit. I am a member of the ‘mushroom society’ – left in the dark and fed manure. I love it!