Judicial economy or politics? Legal fight brewing over Kentucky court seat.
Kentucky’s chief Supreme Court justice, John Minton, once said his predecessor warned that re-drawing judicial districts is the third rail, meaning a controversial and politically charged issue.
That proved true in 2017, when a comprehensive proposal on judicial redistricting passed the Senate but didn’t get a hearing in the House.
Lawmakers approved some small changes to the state’s judicial make-up in 2018, but a new lawsuit over that measure shows the issue hasn’t lost the potential for controversy.
In that complaint, Janet Stumbo, who served 11 years on the state’s highest court and was also an Appeals Court judge, is suing the Republican leaders of the state legislature, Senate President Robert Stivers and House Speaker David Osborne, to try to preserve a circuit judgeship in Eastern Kentucky.
The lawsuit argues that the legislature violated the state Constitution when it eliminated one of the two circuit judgeships in Floyd County, which makes up a judicial circuit by itself.
The county has two circuit judges, Johnny Ray Harris and Thomas M. Smith, and a family-court judge, which is a circuit-level position. The family court judge, Dwight Marshall, also handles cases in Knott and Magoffin counties.
The legislature passed House Bill 348 in 2018, which cut the Division II circuit judge slot in Floyd County, the seat held by Smith, effective Jan. 1, 2023.
Stumbo, who lives in the county, and Brandis Bradley, president of the Floyd County Bar Association, recently sued to strike down the measure, arguing the legislature didn’t follow the correct procedure.
The Supreme Court has to certify the need to cut a judicial seat, according to the lawsuit.
The high court submitted a certification in 2017 that made changes in judicial circuits and districts across the state, but the measure died in committee.
That certification would have dropped one circuit judge — the slot the legislature later cut — and one district judgeship in Floyd County, according to the state Administrative Office of the Courts.
That decision was based on “historically low caseloads” in Floyd County, said AOC spokeswoman Leigh Anne Hiatt.
But because that certification was not approved, there was nothing in place to justify eliminating the circuit court slot in Floyd County in 2018, the lawsuit argues.
Stumbo’s husband, Prestonsburg attorney Ned Pillersdorf, said the Floyd County Bar Association voted to back the lawsuit.
Local attorneys are concerned that if the county loses a judge, it will take longer to resolve cases, he said.
Pillersdorf said politics underpinned the move by a Republican-led House and Senate to cut a judgeship in a Democratic-leaning county.
“They just wanted to go after Floyd,” he said.
The legislature approved the second circuit judgeship in Floyd County in the early 1990s, when Democrats controlled the House and Rep. Greg Stumbo, a Democrat from Floyd County, was majority leader.
Stivers said in response to the lawsuit that the single-county circuit in Floyd County “did not even come close” to meeting minimum caseload standards from the American Bar Association.
Stivers, an attorney from Manchester, said he was “very comfortable” with the process by which the bill came together to cut one judgeship in Floyd County.
“We’re still reviewing the lawsuit, but we have questions about the merits and whether or not the correct parties were sued,” Stivers said.
Osborne, of Prospect, said House leadership is reviewing the lawsuit so wouldn’t comment on it directly.
However, he said the state court system “is long overdue for an overhaul to ensure equal access to the courts.”
Some family courts handle almost twice as many cases as others, Osborne said, leaving too many people waiting months for hearings.
The sponsors of HB 348 “worked closely with judicial leadership to determine what options were available and what changes could be made,” he said.
The average workload per circuit judge in Floyd County in cases filed from 2010 to 2019 was less than half of what it was for circuit judges statewide — 0.46 compared to 1.05, according to a study AOC commissioned that analyzed the time judges spent on cases.
But Smith, the circuit judge who holds the job at issue in the lawsuit, said the caseload in Floyd County justifies two circuit judges.
Driven by drug problems, criminal cases have more than doubled since he took office, Smith said, and changes that the legislature made to try to cut jail costs have increased the workload for judges.
Smith said he and Harris also take cases in other judicial circuits. They are handling cases in another county with more than 100 plaintiffs before each of them involving complex litigation over dust masks used in coal mines, for example.
“We are working a full load,” Smith said of he and Harris.
In addition to cutting one circuit judgeship in Floyd County, the bill at issue in the lawsuit also would combine two judicial districts in far Western Kentucky and eliminate a district judge there, effective in 2023; switched a district-court judgeship to a family-court slot in Bullitt County; and added family-court judges serving Pulaski, Lincoln, Rockcastle, Boone and Gallatin counties because of heavy caseloads, according to the courts agency.
The circuit court job in Floyd County was the only one cut under the bill.
Pillersdorf said the people suing over the bill only want to set aside the decision to eliminate a circuit judge in Floyd County, not the rest of the changes.
Whatever happens with the lawsuit, the issue of judicial redistricting isn’t likely to go away.
The bill at issue in the lawsuit also said the Supreme Court could direct the AOC to do a caseload study every eight years, beginning in 2020.
A committee is evaluating an updated caseload study and will submit an analysis to lawmakers by the end of the year, Hiatt said.
This story was originally published October 22, 2020 at 12:07 PM.
