Cole County Judge Set to Rule on Firings of Administrative Law Judges

Missouri Lawyers Weekly – Copyright 2009 Dolan Media Newswires
By Jason Rosenbaum

The futures of three administrative law judges are in the hands of a Cole County judge.

Attorneys presented final arguments on Wednesday in a case deciding whether the three ALJs can stay on job. Gov. Jay Nixon’s administration dismissed Henry Herschel, Matthew Murphy and John Tackes earlier this year, citing budgetary concerns. Two other judges’ positions were also cut.

Cole County Circuit Judge Jon Beetem issued a preliminary injunction earlier this year that prevents the Nixon administration from firing or retaliating against the three judges. The plaintiffs are seeking a permanent injunction that would keep them in place.

John Comerford, an attorney with St. Louis County-based Dowd Bennett, has argued that there are statutory protections against firing administrative law judges. He said an ALJ can only be dismissed after a term expires or if he or she receives two no confidence votes from a state board.

“Outside of those two methods, there is no other method by which an ALJ can be removed,” Comerford said.

Comerford has also argued that a full slate of ALJs is needed, as workplace injuries are steadily increasing as time goes on.

But Ron Holliger, a former appeals court judge who is now Attorney General Chris Koster’s general counsel, argued on Wednesday that administrative law judges could be removed another way: the legislative appropriations process.

“It is the purest way and the only way that they can eliminate positions,” Holliger said. “If they are not allowed to eliminate positions, it creates a constitutional and budgetary crisis.”

The two competing sides spent the majority of the hearing questioning Lawrence Rebman, the director of the Department of Labor and Industrial Relations. Comerford spent a great deal of time asking Rebman about how the cuts were framed to the Legislature, as well as how the five specific administrative law judges were picked for termination.

Comerford also called Murphy to the stand in order to show damages. Murphy – a longtime Columbia resident who had just been assigned to hear cases in Cape Girardeau when he was removed – said he had to put the kibosh on an effort to purchase a house near the southeastern Missouri city.

In his closing argument, Comerford said that the statute presents a clear path to dismissing administrative law judges. But even if the Legislature could upend them by not appropriating money, Comerford said the cut wasn’t based on a statutory requirement of “necessity measured by the needs and requirements of the division office.”

Holliger noted that hundreds of other people in and around state government are losing their jobs, not just administrative law judges.

“They’re going to feel that’s unfair as well – that their job is just as important as these three individuals’,” Holliger said. “This wasn’t and isn’t about the termination of these three people. This is about the ability of the General Assembly to reduce and eliminate positions by the power of appropriation.”

Both Comerford and Holliger indicated that they would appeal Beetem’s ruling on the permanent injunction. Beetem didn’t say when he would render his decision.