Posted on Fri, May. 16, 2008

Court system's employee pay raises stir controversy

By Brandon Ortiz

BORTIZ@HERALD-LEADER.COM

The state court system is defying a legislative budget mandate to spend $7.8 million next fiscal year on pay raises for deputy clerks. The controversial move raises constitutional questions and could spur a backlash from the General Assembly.

Ignoring the recently passed state budget, the Court of Justice provided $3.4 million in "pay equity" raises for the judicial branch's non-elected employees making less than $60,000 a year.

Beyond a 1 percent raise that all state employees get, the legislature had only authorized pay raises for the approximately 1,800 deputy clerks, who are spread out in court houses throughout the state. The starting salary for deputy clerks is $18,120.

Some $8.4 million more was allocated by the courts for pay raises for all non-elected workers in fiscal year 2010.

News of the move angered several powerful legislators, who said the judicial branch is not complying with the law. Legislators said it could strain relations between the branches.

"When they just fly in the face of law, that is just disturbing to me as an attorney that my judicial branch would do that," said state Rep. Robin Webb, D-Grayson, who sits on the judiciary and budget committees. "But it doesn't surprise me with that bunch that they would flagrantly disregard legislative intent in the law."

Future budget requests will not be well received by legislators, Webb said.

"They have no credibility with me at this time," he said. "In the whole process this time, they would say one thing and do another. It is not good interbranch relations, if nothing else."

Administrative Office of the Courts director Jason Nemes said Chief Justice Joseph E. Lambert knew the unauthorized raises might displease lawmakers. But he believes the mandated raises for deputy clerks were an unconstitutional trampling of the judiciary's independence.

Citing a 1980 state Supreme Court case, ex parte Auditor of Public Accounts, Nemes said the judicial branch can spend money appropriated to it however it sees fit. He says the constitution makes the chief justice the top administrator of the courts.

The legislature can only appropriate a total dollar figure to the judicial branch, said Robert W. McGinnis, a circuit judge in Harrison, Nicholas, Pendleton and Robertson counties.

"We cannot permit them to micromanage how that budget is spent," said McGinnis, the legislative chairman for the Kentucky Circuit Court Judges Association. "Because they could create a lot of mischief there. And they could control everything we do."

Not surprisingly, legislators disagree.

Senate Judiciary Committee Chairman Robert Stivers, R-Manchester, said it is a well accepted constitutional principle that the legislature sets policy and controls the purse strings, and the judiciary interprets the law.

"They are interpreters, they are not policy-makers," Stivers said.

The pay raise, which went into effect May 1, is the second time in less than a month that Lambert has defied the General Assembly. Last month Lambert, who retires next month, reappointed Nemes to a four-year term even though the Senate declined to confirm him. The reappointment was publicly criticized by Supreme Court Justice Wil Schroder of Covington.

Starting pay for deputy clerks will rise from $18,120 to $20,004 a year, a 10.4 percent increase. In 2010 it rises to about $22,000.

Other employees in pay grades lower than $25,812 will get raises ranging from 7.39 percent to 1.59 percent. Employees above those pay grades will get a flat $500-a-year raise; part-timers will get $250.

Pay increases approved by the legislature were more generous for deputy clerks. Pay grades below $53,604 would have increased 7 percent, with pay below $21,924 getting 22.83 percent raises.

The raises were blessed by officials from organizations representing the judges and court clerks.

McGinnis said court employees make far less than executive branch workers with similar jobs. Entry-level deputy clerks, for example, make about $6,000 less a year.

"If we're separate and equal, you would think we would be paid the same," McGinnis said.

The Court of Justice employs 4,000 people, about 500 of whom are elected officials.

Budget cuts left the courts with little wiggle room, Nemes said. Rising costs combined with budget cuts left the courts with $55.7 million less the next two years than officials had anticipated.

Legislators said pay equity for court employees is a laudable goal, but the courts weren't given the money to do it. Webb said the state could not afford the other raises in a tight budget year.

Nonetheless, it seems unlikely that any legislators will challenge the raises in court.

"If we were to file a lawsuit, they would hear it," House Appropriations and Revenue Chairman Harry Moberly Jr. said. "It would be very difficult for us to win a lawsuit involving the courts, so they will probably be able to get away with it. But it will not be viewed very favorably by the General Assembly and it probably will affect their funding the next time."

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