Here's a head-scratcher prompted by a deeply analytical and thought-provoking posting by Retired Judge Stan Billingsley at LawReader entitled "The Early election for Chief Justice Lambert raises question about the beginning of his term."
This posting, as all of Judge Billingsley's postings, is strong on research, but this time methinks he stopped short of the real question - it's not so much a question about the beginning of Lambert's term, but rather the ending of his term and his legal authority to wear the Chief's robes after the expiration of that term (2007) and the dawn of a 'new' Supreme Court.
To summarize the salient points from that posting that piqued my posting, note the following:
- The Chief Justice is the executive head of the Court of Justice under Section 110-5(b) of the Kentucky Constitution, to be elected by the other justices for a term of four years.
- This provision of the Constitution was passed by the voters on Nov. 4, 1975 and became effective Jan. 1, 1976.
- The four year terms would thus begin presumably from that initial date forward with a 'new' election for terms beginning each Jan. 1 for the years 1980, 84, 88, 92, 96, 2000, and 2004.
- Therefore, the current term would seem to have begun on January 1, 2004 and if permitted to follow its normal Constitutional course, it would end Dec. 31, 2007.
- Although the CJ is the head, the remainder of the Supreme Court is still nonetheless vested with policy-making and administrative powers per SCR 1.010 and 1.020.
Some might argue (including the 'new' Supreme Court in Jan. 2007) that Lambert's current term ends December 31, 2007 and that this summer's 2006 vote was of no legal consequence (somewhat like the obiter dictum in the famous footnote 16). More of a vote of confidence since the term had not expired.
When judicial terms are vacant now, they are filled by appointments pending elections for the remainder of the unexpired terms. No reason to treat the Chief Justice any differently.
For example, what if a justice whose term would expire in two years is elected as chief justice for a term of four years but fails to be re-elected? Obviously, there is now a vacancy for the remaining two years of that unexpired term and the vacancy must be filled by election by the new justices. When the normal four-year cycle ends, then a new election should be held.
However, the questions submitted now are:
- Why was there an election called for the Chief Justice when one was not needed?
- Why was there an election called this year of all years with a guaranteed new majority on the bench in just six months?!
- Why force a potential court-crisis upon the new majority if they should not want Lambert's leadership since a new court might not want to be saddled by a lameduck vote and want a new leader of their own choosing?
- What happens if the new majority determines as either a policy or rule of constititutional interpretation that the term ends in 2007? [Note that the new majority will be the final arbiter of not only the policy of the court but what the Constitution requires on that point!]
- What if a single justice decides to air the decision and force a public ruling (and if not would any other judge or citizen have standing to question the legal authority of Lambert after 2007?)
Another mess in Frankfort?