Black Wednesday - Supreme Court Justices Feuding Over Appointment
A squabble among Kentucky state Supreme Court justices over a key appointment spilled into public view Monday as members of the state's highest court jockey for the title of chief justice.
Joseph Lambert was criticized for reappointing AOC chief. Justice Wil Schroder of Covington criticized outgoing Chief Justice Joseph Lambert on Monday for reappointing Jason Nemes last month as director of the Administrative Office of the Courts after the state Senate declined to confirm Nemes.
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Taking the rare step of making an internal disagreement public, Schroder said Lambert's action does not respect "what we call the rule of law in Kentucky."
"People don't get to pick and choose which laws they follow, including the Supreme Court," Schroder said.
Schroder said Nemes' appointment to head the administrative arm of the state court system has become an issue in the race to replace Lambert as chief justice. Lambert will retire in June.
Schroder and Justice John D. Minton of Bowling Green are seeking to be elected chief justice by the other five justices on the court. Justice Mary Noble of Lexington said Monday she has withdrawn her name from consideration.
Schroder said he had agreed not to say anything publicly about Nemes' reappointment if Lambert's order was not portrayed as a decision by the court. But he took issue with a statement that Nemes gave the Herald-Leader on April 25.
The statement said Lambert reappointed Nemes "after consultation with the Supreme Court."
"They're trying to take an umbrella approach, saying it's legal, the court talked about it," Schroder said. "We talked about it, I don't disagree with that. But this was definitely a decision by the chief and not the court."
Lambert said in a statement that Schroder "is mistaken about what transpired concerning the reappointment of Jason Nemes."
"However, as the Court's discussion was a confidential internal matter, all justices agreed that there would be no public comment," Lambert said. "Therefore, I am not at liberty to disclose the substance of the Court's confidential discussion. I can say, however, that Mr. Nemes' statement that his reappointment was made after consultation with the entire Supreme Court is absolutely true."
The Senate did not vote on Nemes' nomination for a four-year term during the recent General Assembly. Lambert responded after the session with a one-page order reappointing him.
After the reappointment, Nemes' supporters cited the Kentucky Constitution for Lambert's authority. It allows the chief justice to appoint "such administrative assistants as he deems necessary."
But Senate President David Williams, R-Burkesville, points to Section 93 of Kentucky's Constitution, which states that the Senate may require approval for the appointments of "inferior state officers" not mentioned in the constitution.
He has also pointed to a statute requiring Senate approval for AOC director nominations.
Schroder said that law must be followed unless it's ruled unconstitutional. Furthermore, the 1976 act creating the AOC and the AOC director is not severable, meaning if part of it is found unconstitutional, the whole act becomes invalid, Schroder said.
Williams' spokeswoman, Lourdes Baez-Schrader, said Nemes personally requested that he be confirmed. His predecessor, Melinda Wheeler, also previously sought confirmation.
Nemes appears to be the only nominee for AOC director not confirmed by the Senate since the agency was created when the courts were reorganized in 1976.
Nemes' appointment has become an issue in the race to replace Lambert as chief because Lambert will vote on his own successor, Schroder said.
"He is pretty set on Jason staying there," Schroder said.
Minton declined to say whether he'd keep Nemes if he is elected.
"I don't want to avoid your question, but I do want to avoid discussing how that's going to play out," Minton said. "I don't know how to answer your question. It will be up to whoever is elected. I personally think Jason has done a good job in the appointment."
Minton said Lambert discussed the appointment with the Supreme Court. He did not take issue with Nemes' statement.
Noble declined to comment.
"The Supreme Court is not in the business of giving advisory opinions," Noble said. "There is no case or controversy before us on that matter. ... Until the court speaks in one voice, we can't speak about this individually."
Noble said the chief justice election will be sometime this month.