Lawsuit Against Missouri Governor’s Administration Alleges ALJ Cuts were Illegal

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

Three dismissed administrative law judges have filed a lawsuit against Gov. Jay Nixon’s administration, arguing that the move was illegal under state statute.

The three former judges – Henry Herschel, Matthew Murphy and John A. Tackes – are plaintiffs in a lawsuit filed Wednesday in Cole County Circuit Court. The petition alleges that Nixon’s administration and the Department of Labor and Industrial Relations unlawfully dismissed the judges.

Missouri Lawyers Media reported last week that the three plaintiffs and a fourth ALJ, June Doughty, would be dismissed effective July 1. In addition, the position of a retiring judge won’t be filled. Neither Doughty nor the retiring judge, Ron Harris, are parties to the lawsuit.

The lawsuit contains four counts. The first accuses the defendants of violating state laws pertaining to wrongful termination. The second count, specifically against the Missouri Division of Workers’ Compensation, alleges a wrongful termination in violation of public policy. The final two counts allege that judges were denied their due process rights under the state and federal constitutions.

In all of the counts, the three judges are asking for an injunction preventing them from being removed from their appointed posts. They’re also asking to be reimbursed for legal costs and attorney fees.

John Comerford, an attorney with Dowd Bennett in St. Louis, said in a lengthy e-mailed statement that he hoped the suit would convince Nixon “to take a look at the statutes, admit that his administration made a mistake, and let these judges get back to public service.”

“Until that happens, my clients are going to do whatever they have to do to defend their rights,” Comerford said.

One point of contention in the lawsuit is that the firing violated a state statute that spells out how administrative law judges can be involuntarily dismissed. The workers’ compensation statutes, as amended in 2005, say that an administrative law judge can be removed through retention votes by a state review committee.

Comerford said there is “very detailed and precise law to insulate and protect administrative law judges from being fired by elected officials and their political appointees.”

“The law specifically states that administrative law judges can only be removed from office when removal has been recommended by a bipartisan review committee,” Comerford said in an e-mail. “Missouri appellate courts have confirmed that this statute provides the only means by which these judges can be involuntarily dismissed.”

“These protections were written into the law because our state’s judges must be able to render independent and impartial decisions without the fear of political reprisals from people who think they have the power to cut judges out of the budget if they don’t like their decisions or their politics,” Comerford added.

In an e-mailed statement on Wednesday, Nixon spokesman Scott Holste said the judges were dismissed for budgetary reasons.

“During these tough economic times, Missouri government has had to take significant steps to reduce spending, just as many Missouri families have had to do,” Holste said in the e-mail. “The elimination of these positions as part of these budget-cutting measures was approved by the Republican-controlled legislature in an overwhelming fashion and was part of the final budget that the General Assembly presented to the Governor.”

Amy Susan, a Labor and Industrial Relations spokeswoman said in an e-mailed statement that all the cuts were based on seniority, with the most recently hired positions being terminated.

But Comerford said that the budgetary explanation doesn’t hold water.

He said the workers’ compensation system “is a completely separate pot of money” consisting of taxes paid by the insurance companies who provide workers’ compensation insurance coverage to employers.

“The fund is required by law to be reserved for the payment of benefits to sick and injured workers, and to pay for the judges who administer those claims and benefits. Missouri law explicitly says that this money is to be used ‘for no other purposes,'” Comerford said. “Because there is surplus money in this fund, and because the money can’t be used for anything else, we see no support for the administration’s claim that these judges had to be fired due to budget cuts.”

In addition to Nixon, the three plaintiffs are suing Nixon’s Chief of Staff John Watson, Department of Labor and Industrial Relations Director Lawrence Rebman and Division of Workers’ Compensation Acting Director Peter Lyskowski. DOLIR’s Division of Worker’s Compensation and the state Office of Administration are also listed as defendants.

*******************************CORRECTION*********************************

The June 24 story Lawsuit alleges ALJ cuts were illegal misspelled attorney John Comerford’s name in two instances. The Daily Record regrets the error.