Neal’s Notes

Commonwealth Journal

March 01, 2006 March 01, 2006 09:51 am

— Pulaski Circuit Judge Jeffrey T. Burdette has been put in a difficult position. Two years after being appointed as circuit judge by Gov. Ernie Fletcher, Burdette’s number has been called again by Fletcher — this time to hear the scandalous hiring-practice case that has plagued the governor’s administration for the better part of a year.
But the roots run deeper.
Fletcher appointed Burdette to his post, which he has since been re-elected to, a year after the Rockcastle County native contributed $1,500 to Fletcher’s gubernatorial campaign.
Since Friday, when Fletcher appointed Burdette and Lexington attorney Ronald L. Green — another Fletcher supporter — as Special Justices, the media and Fletcher opponents have had a field day.
And why not?
Even though by all accounts Burdette has done a tremendous job on the bench for our circuit, he’s now being portrayed as a political lackey.
Not only is Attorney General Greg Stumbo screaming about the possible bias of Burdette and Green, but a political watchdog group has filed a complaint with Kentucky’s Judicial Conduct Commission requesting that the two be “forcibly” removed from the case.
"I don't see how either of these men can with a straight face tell the public there is no appearance problem," said Mark Nickolas, who runs the political Web site, www.bluegrassreport.org. "The appointments show Fletcher's true disgust and disdain for the judicial process.
"The decision by Governor Fletcher to appoint two significant contributors to his own political campaigns ... to hear his own appeal in his final legal at-bat has created an undeniable appearance of political gamesmanship in hopes of winning his desperate appeal," Nickolas said.
It’s true there’s no precedent to follow in this peculiar case. In essence, Fletcher — who by law is obligated to replace justices who recuse themselves — is selecting people to oversee his own case.
William Fortune, a University of Kentucky law school professor, told the Associated Press it was "an odd situation" and there probably was no "clear-cut answer." While lawyers frequently make political donations to judges, the reverse seemed potentially problematic, Fortune said.
"It certainly indicates — on the part of the judge — that the judge favored that person," Fortune said.
Sen. Ernesto Scorsone, D-Lexington, said Burdette and Green should remove themselves and Fletcher should ask the Kentucky Bar Association to make recommendations on replacements.
"It was very disappointing," Scorsone said. "It was, quite frankly, alarming because these two appointments call into question the impartiality of the system, they undermine the integrity of the process, they do great damage to the supreme court."
Stumbo has said the two substitute judges should disqualify themselves because of the political donations and to "preserve the integrity of the court."
Fletcher's communications office issued a one-sentence statement, but did not respond specifically to Nickolas' complaint.
"The Kentucky Constitution and the case law from the Supreme Court of Kentucky are clear, the governor is required to make the appointment of special justices in these circumstances and he has done so," according to the statement.
So the question is: Why couldn’t Fletcher have, at the very least, selected two judges who were not on his list of campaign contributors?
Perception can often be taken as reality without much thought or insight. So even if Burdette has every intention of ruling on this controversial case right down the middle, it just seems inappropriate for him to rule on it at all.
Fletcher has put a good man in a political pickle. It’s up to Burdette to get himself out of it by recusing himself immediately.