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Judging the Judges

By Theresa Fritz Camoriano

Imagine a basketball game in which the referees decide ahead of time which team they want to win and then proceed to change the rules as the game is being played in order to ensure the desired outcome.  For example, they might decide that some baskets were scored with more skill than others and thus should be awarded more points, or they might create new fouls that would allow them to punish the disfavored team. 

The fans would be furious!  Even those fans whose team was being favored would understand that it is the job of the referee to apply the rules objectively, not to make them up as the game is being played.  They would realize that, if referees were allowed to change the rules of the game, not only would the victory be illegitimate, but eventually the entire game of basketball would be destroyed. 

In recent years, many real-life judges have been behaving like those imaginary referees.  Instead of objectively applying the laws, they have acted as if they were “super-legislators”, changing the laws as the game is being played in order to achieve the outcome they want. 

Unlike the decisions of those imaginary referees, which only would affect the game of basketball, the decisions of these real-life judges affect us all.  They affect how we educate our children, how safe we are in our homes and businesses, and what types of economic opportunities and medical care will be available to us.  Ultimately, the judges will determine whether our legal system will continue to stand or whether its foundations will be undermined, allowing it to collapse.

A recent paper written by John Bush and Paul Salamanca cites numerous instances of Kentucky judges making law rather than interpreting it.  For example, in the case of Rose v. Council for Better Education, Inc., the Court put itself in a policy-making position, imposing its own policy ideas about the way public schools should be funded rather than respecting the policies established by the state legislature.  The Court based its decision on language in the Kentucky Constitution requiring the General Assembly to “provide for an efficient system of common schools throughout the State”.  Nowhere does the Kentucky Constitution give the Court the power to substitute its judgment for that of the legislature in deciding how schools should be funded. 

The result of the court’s imposing its own judgment in this matter has been a funding arrangement by which a large portion of the education taxes collected in Jefferson County now are sent to other parts of the state, despite the fact that Jefferson County faces some of the state’s most difficult education challenges. 

In other cases, the state legislature has wrestled with various issues, only to find that the Court has simply stepped in and imposed its own will.  For example, in Williams v. Wilson, the Kentucky legislature enacted a statute to clarify how much knowledge a civil defendant must have in order to be liable to be punished by punitive damages.  The Court struck down that statute, even though the constitutional provisions on which the Court relied involved only recovery for injury, not punitive damages. 

This year, the citizens of Kentucky will be electing nearly every judge in the state.  These judges will have a far-reaching impact on our lives, so we should take at least as much interest in these elections as we do in a basketball game.  Will we elect judges who respect the legal system and will perform their proper role, serving as impartial referees, or will we elect “super-legislators” who overstep their authority and undermine the foundations of our legal system? 

(Theresa Camoriano is a patent attorney in Louisville.)

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