HON. WILLIAM MITCHELL NANCE, CIRCUIT COURT JUDGE, 43RD COURT JUDICIAL CIRCUIT, DIVISION TWO (FAMILY COURT), COMMONWEALTH OF KENTUCKY V. KENTUCKY ADMINISTRATIVE OFFICE OF THE COURTS
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RENDERED MARCH 24, 2011
TO BE PUBLISHED
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2010-SC-000202-OA
HON. WILLIAM MITCHELL NANCE,
CIRCUIT COURT JUDGE, 43RD
JUDICIAL CIRCUIT, DIVISION TWO
(FAMILY COURT), COMMONWEALTH
OF KENTUCKY
V.
PETITIONER
IN SUPREME COURT
KENTUCKY ADMINISTRATIVE
OFFICE OF THE COURTS
RESPONDENT
OPINION OF THE COURT BY JUSTICE NOBLE
This action arises from a petition filed by Judge William Nance,
pursuant to CR 76 .36, for a writ enjoining the Administrative Office of the
Courts (AOC) to "cease and desist" from unlawful interference with his powers
as "appointing authority" for the employees in his office as a circuit family
court judge . In March of 2009, the employment of Sharon Travis, the Family
Court Administrator for the 43rd Judicial Circuit, where Judge Nance presides,
was terminated after an internal investigation reported that the Administrator
created "an atmosphere of fear" and violated confidentiality rules. Judge Nance
further asks, as ancillary to his appointing authority, that the Administrator be
reinstated .
After careful deliberation, this Court finds that there is no basis for the
writ, but acknowledges that this is the proper forum to decide the question .
Though Judge Nance seeks reinstatement of the Administrator, among other
things, this is not an appeal of a personnel decision . At the heart of this matter
is the question of whether the Chief Justice can terminate the employment of
an employee working in a circuit judge's office, and if he has the authority, can
it be delegated? Such disputes are properly brought in this Court. See Jones v.
Commonwealth, Administrative Office of the Courts, 171 S . W.3d 53, 55 (Ky.
2005) .
Judge Nance begins by asserting that as the elected official in whose
office the Administrator works, he is the sole appointing authority. As the
appointing authority, he asserts that he not only hires the employee, he also is
the official with the authority to fire that employee . There is support for his
position in the AOC Personnel Policies, which must be approved by the
Supreme Court pursuant to SCR 1 .050(2) . In the Policies, at Section 1 .03(1),
there appears to be a clear delineation between the Director of AOC as an
appointing authority "for personnel at the Administrative Office of the Courts"
and the elected official "for the personnel in his or her office ." However, the
policy does not address the termination authority of the Chief Justice.
The Kentucky Constitution, at Section 110(5)(b), states that the Chief
Justice is the "executive head" of the Court of Justice and has the specific
ability to "appoint such administrative assistants as he deems necessary."
Further the Chief Justice must submit the budget for the Court of Justice,
which contains the financial request for the salaries of any positions within the
Court of Justice . He is given the authority to manage the day-to-day aspects of
the Court and its administration . This authority is balanced by the "power to
prescribe rules. . . for the appointment of commissioners and other court
personnel" in the Court of Justice, which is given to the Supreme Court as a
whole in Section 116 of the Kentucky Constitution .
Historically, at least since the beginning of the Court of Justice's present
incarnation, following the Judicial Article of 1975 creating the unified four-tier
court system and a statewide administrative office to assist the courts, the
Supreme Court has enacted Supreme Court Rules which give deference to the
Chief Justice to act in his discretion on most day-to-day matters of court
administration . Further, the Supreme Court has approved personnel policies
for Court of Justice employees, which specify that non-tenured employees
"serve at the pleasure" of the appointing authority.
The AOC Personnel Policy specifically at issue here, Section 1 .03(1), says
that the elected official is the appointing authority for employees in his or her
office . This personnel policy has been duly approved by the Supreme Court,
and sets forth policy in making local employment decisions: the elected official
should decide who works directly with him or her on a daily basis . This
includes choosing the person to be hired, and firing whoever does not work out
successfully . This is a sound policy for many reasons : the Chief Justice
cannot reasonably travel the state to all 120 counties with elected judicial
officials to handle local employment decisions; the cost would be exorbitant ;
and in the long run, the elected officials and employees would possibly be
incompatible .
Nonetheless, Section 110 of the Kentucky Constitution makes the Chief
Justice the Chief Executive Officer of the Court of Justice . As such, he has
participated in creating various employment positions, has approved the job
descriptions, and has asked the legislature for the money to fund them,
including the Administrator's position in the 43rd Judicial Circuit.
Additionally, as Chief Executive Officer, he must oversee the employment of
Court of Justice personnel, even those in local offices, and act when a local
official refuses to act, if it is in the best interests of the Court of Justice .
In this case, the Court Administrator at issue had been the subject of a
complaint made to the AOC Personnel Department during an exit interview of
another employee . This complaint led to an investigation by an outside,
neutral attorney. In her report, the investigator found that the Court
Administrator had violated confidentiality principles relating to confidential
matters and had created a hostile work environment, or "an atmosphere of
fear." Recommendations regarding her future employment were made, which
were presented to the local official who refused to follow the recommendations
and terminate her employment. No formal complaint was initiated under the
Court of Justice harassment policy.
At that point, the Director of AOC entered the dispute . KRS 27A .020(1)
provides that the Chief Justice may delegate administrative services for the
Court of Justice and the supervision of clerical and administrative personnel to
the AOC Director. While this statute may raise questions regarding separation
of powers, this Court has long given it comity in most instances . Certainly, in
this instance,, it allows no more than the authority the Chief Justice, as the
executive head of the Court of Justice, already has . In any administrative
capacity, some functions may or must be delegated, particularly when the
executive heads a separate branch of government with employees numbering in
the thousands . In fact, for example, the Supreme Court has approved the
policy that the Director has "responsibility for the implementation of the Court
of Justice Equal Employment Opportunity Policy." AOC Personnel Policies,
Section 3 .01(2) .
However, in an independent capacity, it is not the Director of AOC who
has termination authority for Court of Justice Employees . There is no grant of
authority to the AOC Director beyond that which is delegated to him by the
Chief Justice, or by the Supreme Court in its rule-making capacity.
Acting on the impartial report, former AOC Director Jason Nemes first
asked Judge Nance to discharge the Administrator. Judge Nance had refused
to participate in the investigation, and refused to discharge her when asked to
do so.
At this point, three written communications become important to the
analysis of this case . In a letter dated March 26, 2009, then-Director Jason
Nemes wrote the Administrator to terminate her employment. The letter
specifically states that "pursuant to Section 110(5)(b) of the Kentucky
Constitution and KRS 27A.020(1), I am hereby terminating you as Family
Court Administrator for the Barren Family Court." Later in the letter he said, "I
have concluded that your actions may place Judge Nance and the Court of
Justice at risk for personal and professional liability ." Facially, it can be
argued that the use of the personal pronoun "I" makes this termination an act
taken by the Director standing alone.
However, this letter also refers to the Chief Justice by reference to
Section 110, and to a delegation to the Director pursuant to KRS 27A.020 .
This is a recognition that the Chief Justice, as the executive head of the Court
of Justice, is a superior officer to the Director. And while the statute sets forth
things that the Chief Justice may delegate to the Director of AOC, even though
termination authority is not listed, it is clearly within the executive powers of
the Chief Justice to make such a delegation within the Court of Justice . The
statute does not empower the Chief Justice, as his authority comes from the
Constitution . Likewise it cannot limit that authority for the same reason.
Instead, the statute primarily shows that the legislature understands and
approves the fact that a busy Chief Justice heading the third branch of
government may need to delegate some functions over which he retains
executive control.
To that end, the two subsequent written communications in the record
establish that the Chief Justice was aware of the situation and approved the
actions taken by the Director. In a letter to Judge Nance dated April 10, 2009,
Chief Justice John Minton stated that he had delegated supervisory control to
the Director, and that the Director had the authority to terminate the
Administrator. In the second letter dated June 30, 2009, written after a
meeting with Judge Nance in Frankfort, followed by a letter from the judge,
Chief Justice Minton stated that after "further review of the facts of this case,
the Kentucky Court of Justice Personnel Policies, and Kentucky statutes, I
remain resolute in the conclusion that Ms . Travis's termination was an
appropriate and necessary measure ." In both letters, the Chief Justice referred
to the investigative findings listing the conduct of the Administrator that led to
her termination. These letters not only establish that the Chief Justice was
aware of the problem, but that he also delegated the termination process to the
Director. In the third letter, he unequivocally demonstrated his agreement with
the action taken . The Chief Justice, at the very least, ratified the actions of the
Director.
When Judge Nance declined to act in the best interests of the Court of
Justice, the Chief Justice, as Chief Executive Officer of the Court of Justice,
had to determine if action was necessary . At that point, there was no benefit
from the Court of Justice policy allowing local officials to have appointment
authority over employees working as the judge's staff, but rather potential
liability. As the executive head of the Court of Justice constrained to act in its
best interest, Chief Justice Minton properly made the executive decision to
terminate the Court Administrator in line with the authority given to him by
Section 110 of the Kentucky Constitution .
Consequently, we hold that the power of local officials to appoint the
personnel in their offices exists through policy of the Supreme Court. This
policy in no way prevents the Chief Justice from acting as the executive head of
the Court of Justice when those to whom any power is delegated are not acting
in the best interests of the Court of Justice . Granting appointing authority to
local officials for their office personnel is a policy that works generally in the
best interest of the Court of Justice. When that grant of appointing authority
is not properly executed by the local officials so that the grant is no longer in
the best interest of the Court of Justice, then the Chief Justice must act, either
directly or by proper delegation of his authority. That is exactly what Chief
Justice Minton did here . Consequently, there is no basis to grant a writ.
Since this Court is not granting the writ, there is no need to address the
reinstatement of the Administrator, or whether any other Court of Justice
policies were violated in her employment action, except to say that these
questions cannot be raised on her behalf by Judge Nance .
For these reasons, Judge Nance is not entitled to the grant of a writ, and
his petition is denied.
Abramson, Cunningham, Scott and Venters, JJ., concur. Abramson, J .,
also concurs by separate opinion. Schroder, J ., dissents by separate opinion.
Minton, C .J ., not sitting.
ABRAMSON, J., CONCURRING : I concur because the well-reasoned
majority opinion is grounded in the Kentucky Constitution, specifically §
110(5)(b), which states in pertinent part: "The Chief Justice shall submit the
budget for the Court of Justice (COJ) and perform all other necessary
administrative functions ." This particular provision controls disposition of the
issue at hand, namely "when a COJ appointing authority refuses to terminate
an employee whose conduct merits dismissal, who has the authority to act?"
The dissent counters that the full Supreme Court must take part in the
employee's dismissal, citing § 116 of the Kentucky Constitution, a provision
that, in pertinent part, gives this Court authority to make "rules for the
appointment of commissioners and other court personnel . . . ." Certainly, the
Court has rule-making authority in this area and, indeed, it has exercised that
authority by adopting personnel policies . But the Court has never adopted a
policy that addresses the particular scenario of a local appointing authority
unwilling to act when confronted with grounds for dismissal of a COJ
employee . The dissent refuses to acknowledge this crucial fact and then
suggests that the Chief Justice, in taking a personnel action deemed to be in
the best interests of the Court of Justice and public, must be amending or
overriding the Court's personnel policies . Dissent at p. 17. He plainly did
neither of those things . There is an interstice created by the absence of a
controlling personnel policy and that interstice is properly filled by the Chief
Justice exercising his power under § 110 to make a "necessary administrative"
decision . Moreover, to suggest that the full Court must convene to decide the
termination issue completely misperceives the fundamental difference between
rule-making power and administration . The Court could have adopted a
personnel policy that addressed this scenario (and perhaps it will do so in the
future) but having either declined to do so or failed to do so, the Chief Justice
is not powerless to engage in necessary administrative acts, and he most
certainly is not obligated to convene the full Court to address a personnel
scenario which they failed to address or chose not to address in the first
instance .
Oversight of the Court of Justice is a solemn and, indeed, awesome
responsibility and a myriad of circumstances have arisen, and will arise, which
have not been anticipated, requiring prompt action in the interest of the Court
of Justice and the public we serve . We have elected a Chief Justice and have
reposed confidence in him to act in those matters . The dissent proposes a
management-by-committee approach to Court administration in these
circumstances which is not supported by the law and which has been rejected
by the overwhelming majority of the Court - indeed, six of the seven sitting
Justices since we may rightfully presume that our current Chief Justice acted
with the same well-grounded understanding of the law as does the majority in
this case. To state that in reaching our decision, the majority has
"diminish[ed] respect for this Court and the rule of law," id. at p. 19, and to
suggest that only the lone dissenter has honored the Constitutional oath and
declined to abdicate responsibilities, id. at p. 19, is entirely inappropriate .
SCHRODER, J ., DISSENTING : Rather than admit that the AOC Director
improperly fired an appointee of an elected official (a sitting Family Court
Judge), the majority redefines the issue, overlooks controlling precedent, and
ignores our Supreme Court policies . Judge Nance is entitled to the writ
because the legal remedy for terminating the employee has not been followed.
10
Simply stated, the facts
reflected by the record are :'
By letter dated
March 26, 2009, the former AOC Director informed the court administrator of
elected Family Court Judge William Nance, that he (the AOC Director) had
concluded she should be terminated, and that he was terminating her effective
March 27, 2009 .2 Recognizing that the AOC Director had no authority to fire
his employee, Judge Nance complained to the Chief Justice.3 Believing the
AOC Director possessed such authority and that cause existed, the Chief
Justice acquiesced in the AOC Director's decision . 4 Again, Judge Nance
complained to the Chief Justice that the AOC Director did not have the
authority to fire his employee . The Chief Justice responded that, on further
review, he remained resolute with the ADC's termination.5 Judge Nance
thereafter petitioned this Court for a writ to enjoin the AOC Director from firing
his court administrator .
1 The record before this Court is extremely limited, and consists only of Judge Nance's
petition, ADC's response, and three letters attached as exhibits . Because the
investigator's report is not contained in the record, we do not know what the
allegations against the court administrator were.
2 See Exhibit B of the Petition (Exhibit A of Response), Letter from former AOC Director
to Sharon Travis .
3 See Exhibit B of the Response, Letter from Chief Justice Minton to Judge Nance
dated April 10, 2009.
4 See Exhibit B of the Response, Letter from Chief Justice Minton to Judge Nance
dated April 10, 2009 .
5 See Exhibit C of the Response, Letter from Chief Justice Minton to Judge Nance
dated June 30, 2009 .
THE AOC DIRECTOR CANNOT TERMINATE THE APPOINTEE OF AN
ELECTED COURT OF JUSTICE OFFICAL
The AOC Director has no authority to hire or fire a non-AOC employee.
AOC is a department within the Court of Justice. While all AOC employees are
Court of Justice employees, not all Court of Justice employees are AOC
employees (see organizational chart in appendix) .6 Elected officials in the Court
of Justice, and their staffs, are not AOC employees .? These elected officials
include justices, judges, and circuit/ district court clerks .
Personnel policies and procedures for the Court of Justice, which
includes elected officials and their staffs, and the AOC, are set by the Supreme
Court. Ky. Const. § 116; SCR 1 .050. This Court has established a policy that
the elected official shall be the appointing authority$ for personnel in his or her
office . Personnel Policies for the Kentucky Court ofJustice, § 1 .03(1) .9 The AOC
Director's appointing authority is limited to "personnel at the Administrative
Office of the Courts." Id. Therefore, as the majority agrees, the AOC Director
6
The AOC was created to serve as the staff for the Chief Justice in executing the
policies and programs of the Court ofJustice. KRS 27A.050; Ky. Const. § 110(5)(b) .
Consistent, however, with the Supreme Court's control and rule-making authority
over the Court of Justice, AOC policies and procedures must be approved by the
Supreme Court, and all of its personnel actions must conform to the requirements of
the judicial personnel system approved by the Supreme Court. SCR 1 .050; Ky.
Const . § 110(2)(a), § 116 .
7 The AOC provides services to elected officials and their staffs, such as payroll,
benefits, facilities, and technical support .
8 The "appointing authority" is the individual who is authorized to hire and dismiss
said employees . Personnel Policies for the Kentucky Court ofJustice, § 1 .03(l) .
9 Adopted by the Supreme Court (Order No . 2005-03) .
12
has no independent authority to terminate the employee of an elected judge .
Accordingly, under the facts in the record, Judge Nance is entitled to his writ.
But wait! Not wanting to grant the writ, the majority changes the facts
and redefines the issue. After realizing the Director said "I" in the letter of
termination, the majority spends the next two pages rationalizing that it was
"really" done by the Chief Justice through his delegation of powers through
KRS 27A.020 (but recognizing that said statute does not list termination
authority), and redefines the issue as a firing by the Chief Justice.
THE CHIEF JUSTICE CANNOT DELEGATE POWERS WHICH HE DOES NOT
HAVE
For argument's sake, even if the firing was through delegation to the AOC
Director by the Chief Justice, or ratified by the Chief Justice, Judge Nance
would still be entitled to the writ because the Chief Justice cannot delegate
powers that he does not have. The Chief Justice does not have the power to
unilaterally terminate the appointee of an elected official.
Section 110 of the Kentucky Constitution creates the Supreme Court .
The Supreme Court consists of a Chief Justice and six associate justices. Ky.
Const. § 110(1) . The ChiefJustice is not the Supreme Court. Where the
Constitution, statute, rule, or policy refers to the "Supreme Court," this means
the seven justices of the Supreme Court. Sections 110(2)(a) and 116 of the
Kentucky Constitution vest control of, and rule-making power for, the Court of
Justice in the Supreme Court. 10 See, e.g., Abernathy v. Nicholson, 899 S .W.2d
to Section 110(2)(a) of the Kentucky Constitution provides :
13
85, 87-88 (Ky. 1995) (recognizing that Sectionl 10(2)(a) grants the Supreme
Court supervisory control over the Court of Justice, and that Section 116 vests
rule-making power for the Court of Justice exclusively with the Supreme
Court); Combs v. Huff, 858 S .W.2d 160, 162 (Ky. 1993) ("With the adoption of
the Judicial Article and creation of a unified court system, this Court was
granted rule-making power over matters affecting the Court of Justice.") ;
Kentucky Utilities Co. v. South East Coal Co., 836 S .W .2d 407, 408 (Ky. 1992)
("The authority to exercise administrative control of the judicial branch of
government is vested in the Supreme Court of Kentucky .") ; Smothers v. Lewis,
672 S .W .2d 62, 64 (Ky. 1984) (recognizing the Supreme Court's rule making
power is "firmly rooted within the Constitution") ; Francis v. Taylor, 593 S .W .2d
514, 515 (Ky. 1980) ("The Supreme Court, in addition [to appellate
jurisdiction], has the control (or supervision) of the entire Court of Justice.") ;
Ex parte Farley, 570 S .W.2d 617, 620 (Ky. 1978) ("[Section] 110 vests the
supervisory and policy-making authority of the judicial department in the
The Supreme Court shall have appellate jurisdiction only,
except it shall have the power to issue all writs necessary in
aid of its appellate jurisdiction, or the complete
determination of any cause, or as may be required to
exercise control of the Court of Justice .
Section 116 provides :
The Supreme Court shall have the power to prescribe rules
governing its appellate jurisdiction, rules for the
appointment of commissioners and other court personnel,
and rules of practice and procedure for the Court of
Justice . The Supreme Court shall, by rule, govern
admission to the bar and the discipline of members of the
bar.
14
Supreme Court.") . Supreme Court Rule 1 .020(1) (a) requires that "matters of
policy or administration shall be decided by a concurrence of at least four of its
members ." Orders of the Court are signed by the Chief Justice. SCR
1 .020(1)(b) .
Section 110(5)(a) of the Kentucky Constitution provides for the election of
a Chief Justice by the members of the Court. Section 110(5)(b) provides that
the Chief Justice shall be the "executive head" of the Court of Justice, and
perform necessary administrative functions relating to the Court . The majority
misconstrues the role of an "executive head" to be superior to the role of the
Supreme Court, and would give the Chief Justice veto power over all Court of
Justice personnel decisions . There is no basis in reason or in the law for this
interpretation .
The Chief Justice, as the executive head of the Court of Justice,
administers, or carries out, the policies of the Court of Justice, which are
adopted by the Supreme Court. The Chief Justice has no independent policy or
rule-making authority for the Court of Justice. Therefore, in performing his
administrative functions, the Chief Justice is constrained by the policies and
rules promulgated by the Supreme Court. "Though Const . §1 10(5)(b) provides
that the Chief Justice `shall be the executive head of the Court of Justice,' there
can be little doubt that § 110 vests the supervisory and policy-making
authority of the judicial department in the Supreme Court." Farley, 570
S .W.2d at 620 .
15
"Section 110(5) (b) of the Constitution does not confer unbridled, absolute
or unlimited power on the Chief Justice in his capacity as Chief Executive of
the court system." Kuprion v. Fitzgerald, 888 S .W.2d 679, 683 (Ky. 1994) .
"The power of the Chief Justice is not absolute. It must be exercised under the
authority granted by the constitution and is subject to review by the entire
Supreme Court." Id. at 684. Thus, in administrative matters, the Chief Justice
is accountable to the entire Supreme Court for his actions. As this Court
recognized in Kuprion, actions of the Chief Justice acting in an administrative
capacity are reviewed under an abuse of discretion standard . Id. at 682-84 .
Section 116 of the Kentucky Constitution specifically authorizes the
Supreme Court (not the Chief Justice individually) to adopt policies and
procedures for personnel matters for the Court of Justice. Under this
constitutional authority, the Supreme Court established the policy that the
elected official is the appointing authority for personnel in his or her office .
Personnel Policies for the Kentucky Court of Justice, § 1 .03(1) . The Chief Justice
is bound by this policy.
THE SUPREME COURT, NOT THE CHIEF JUSTICE, CAN TERMINATE THE
NON-TENURED EMPLOYEE OF AN ELECTED COURT OF JUSTICE OFFICIAL
The Supreme Court has designated the elected official as the appointing
authority for his or her office personnel. This means Judge Nance, the elected
Family Court Judge, has the discretion and authority to both hire and dismiss
his court administrator. The issue facing this Court is - how can a nontenured employee who engages in conduct which interferes with the operation
of the Court of Justice (as alleged in this case) be removed, when the
16
appointing judge refuses to act? While, for the reasons stated above, the Chief
Justice individually does not have the authority to amend or override Court of
Justice personnel policies," the Supreme Court does have said authority. Ky.
Const. § 110(2)(a) ; Ky. Const. § 116. "In addition to the Court's Constitutional
rule making power, the Court is also vested with certain `inherent' powers to do
that which is reasonably necessary for the administration of justice within the
scope of their jurisdiction ." Smothers, 672 S.W . 2d at 64 . Pursuant to Section
116 of the Kentucky Constitution and SCR 1 .020(1)(a), termination of Judge
Nance's court administrator would require a vote of four justices . 12
THE AOC DIRECTOR, CHIEF JUSTICE, AND THE COURT MAJORITY ARE NOT
FOLLOWING SUPREME COURT PERSONNEL POLICIES
The letters from the Chief Justice to Judge Nance add another
complication to the case . The letters indicate that the AOC Director terminated
the employee for having violated Sections 2 .02 (Confidential Information), 2 .05
Amendments to the Personnel Policies for the Kentucky Court of Justice made by
the Chief Justice alone, like those before the 2009 layoffs (Order Nos. 2009-08, 200910, and 2009-11) are ultra vires and void .
11
While only the Supreme Court may amend or override a Court of Justice personnel
policy (in this case, Section 1 .03(l) - the grant of appointing authority to the elected
official), I note that an alternative remedy lies with the Judicial Conduct Commission.
A judge who declines to terminate an employee whose conduct interferes with the
operation of the Court of Justice can face the Judicial Conduct Commission . See
SCR 4.300, Canon 3. The Code of Judicial Conduct recognizes that "[t]he judge's
judicial duties include all the duties of the judge's office prescribed by law," SCR
4.300, Canon 3A, and holds the judge personally accountable for the actions or
inactions of his or her staff. Violations of the Code of Judicial Conduct are
punishable by the Judicial Conduct Commission, which has the authority to
discipline judges, with punishments ranging from a private reprimand to a
suspension or removal from office. Decisions of the Judicial Conduct Commission
are reviewable by the Supreme Court . By operation of law, a judge's removal
terminates his appointing authority .
12
17
(Abuse of Position) and 3.02 (Workplace Harassment) of the Court of Justice
personnel policies . 13 The added complication is that Section 3 .02 requires
specific procedures to be followed for both tenured and non-tenured, elected
and appointed, employees accused of workplace harassment, including review
and findings by the Court of Justice Harassment Complaint Panel (COJ HCP) .
Personnel Policies for the Kentucky Court ofJustice, § 3 .02(8)(a)-(e) . The record
before this Court does not indicate that these procedures were followed. The
majority simply ignores the Court's own harassment policy.
The majority also blatantly ignores, as evidenced by the letters in the
record, the AOC's and Chief Justice's obvious misunderstanding of what
constitutes "workplace harassment" or "hostile work environment" as those
terms are used in a legal sense (per Kentucky's Civil Rights Act, KRS Chapter
344, and Section 3 .02 of the Personnel Policies for the Kentucky Court of
Justice) . Under Section 3 .02, "unlawful workplace harassment" (hostile work
environment) must be based on "race, color, religion, gender, national origin,
age, disability, sexual orientation [or] political affiliation ."14 Personnel Policies
for the Kentucky Court of Justice, § 3 .02(2)(a)-(b) . Judge Nance points out in his
petition that there was no allegation that his employee engaged in any such
conduct. While an "atmosphere of fear," if true, would be undesirable, I remind
See Exhibit B of the Response, Letter from Chief Justice Minton to Judge Nance
dated April 10, 2009, and Exhibit C of the Response, Letter from Chief Justice
Minton to Judge Nance dated June 30, 2009 .
13
Section 3.02 incorporates protected criteria set forth in KRS 344.040 (race, color,
religion, gender, national origin, age, and disability) while adding sexual orientation
and political affiliation.
14
18
the majority that this does not constitute a "hostile work environment" in the
legal sense, which is what Section 3 .02 of our personnel policies encompasses .
Accordingly, from the face of the limited record, termination under Section 3 .02
appears improper .
Finally, whatever offense(s) the Court Administrator may or may not have
committed, and any evidence thereof, are outside the record. Even if the
majority believes the Chief Justice has the power to do so, how, without
having seen the evidence, can the majority conclude the Chief Justice
"properly" terminated the employee? The record before this Court contains no
allegations of fact, no investigative report, nor any explanation of the conduct
which constituted the alleged violations. How can this Court conduct a
meaningful review without the evidence?
CONCLUSION
When the Supreme Court ignores its own rules, it can only diminish
respect for this Court and the rule of law in this Commonwealth. I have taken
an oath to uphold the Kentucky Constitution and will not abdicate my
responsibilities and cede the Court's power to the AOC Director or to the Chief
Justice . As the facts and the law stand in this case, the writ should be granted
and the matter remanded to the whole Court for further proceedings .
COUNSEL FOR PETITIONER :
Robert Lee Abell
PO Box 983
Lexington, Kentucky 40588-0983
COUNSEL FOR RESPONDENT :
James E. Keller
Elizabeth Snow Hughes
Huston Barrow Combs
Gess, Mattingly 8, Atchison, PSC
201 West Short Street
Lexington, Kentucky 40507-1269
Cindra Kay Walker
Administrative Office of the Courts
100 Millcreek Park
Frankfort, Kentucky 40601
Laurie Rachael Kidd
Director, Administrative Office of the Courts
100 Millcreek Park
Frankfort, Kentucky 40601
APPENDIX
Kentucky Court ofjustice
Organizational Structure
QLAK OF THE COURT"
Support Staff
CLERK Ot" THE COURT
Support Staff
SUPREME COURT
Gourtof last-resort
7 Justices elected for a term *f 8 years
Justice
1 Chief
Chosen by his or her colleagues for a term of 4 years
COURT OF APPEALS
fntem}adiate appellate court
ADMINISTRATIVE OFFICE OF THE COURTS
Provides services and support to all court personnel
Director and Deputy Director, appointed
by the Chief Justice
Executive Officers and Support Staff
Elected for a term of 8 years
.. .. ....
Xli~
Organizational Chart, Kentucky Court of Justice, http . -! Lgourts.ky.gov I research .
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