Cole County Judge Halts ALJ Firings for 15 Days
Missouri Lawyers Weekly – Copyright 2009 Dolan Media Newswires
By Jason Rosenbaum
Three administrative law judges contesting their dismissals will get at least a couple more weeks to continue at their posts.
Jon Beetem, a Cole County associate circuit judge, issued a temporary restraining order against a bid by the state to lay off three administrative law judges. Without such an order, the three men – Henry Herschel, Matthew Murphy and John A. Tackes – would have been forced to leave their positions by June 30.
“The Court finds that plaintiffs will suffer irreparable harm in the form of the loss their appointments as Administrative Law Judges in the absence of this order,” Beetem wrote in the two-page order issued Monday.
Beetem went on to write the defendants in the case – including Gov. Jay Nixon, Division of Workers’ Compensation acting director Peter Lyskowski and Nixon chief of staff John Watson – are barred from terminating the three judges or “engaging in any retaliatory actions.”
The order remains in effect for 15 days and could be extended if the plaintiffs show “that a threat of immediate and irreparable injury, loss or damage continues to exist.”
Citing budgetary reasons, Gov. Jay Nixon’s administration dismissed four administrative law judges earlier this month. A position of a fifth judge who retired is not going to be filled. Three of judges sued in Cole County Court last week in order to keep their positions. The fourth judge who was laid off, June Doughty, is not a party in the suit.
St. Louis-area attorney John Comerford has argued that there is statutory language that prevents administrative law judges from being dismissed without a standardized procedure. He’s also argued that lowering the number of judges will slow down the processing of workers’ compensation claims.
In a telephone interview on Monday, Comerford said “we have the law on our side and the facts on our side.”
“This is just the first battle,” Comerford said. “And we’re eager to move onto the next step, which will be to ask the court for a permanent injunction.”
“And really, we’re very pleased,” he added. “This is exactly how our judicial system is designed to function. The court stepped in and provided a much needed check and balance to protect individual rights in a case where the executive branch, in our opinion, has overreached.”
Nixon has argued that then-Gov. Matt Blunt also made reductions in the number of people adjudicating workers’ compensation claims. He said at a press conference on Thursday that he did not believe his decision made the decision-making of these judges less independent.
“The legislature in a bipartisan overwhelmingly said … that they felt those non-Article V positions should be trimmed up,” Nixon said. “I mean, the Missouri Legislature trimmed up a number of legal assistants over the years anyway. And we have to balance budgets, you have to tighten them up. I don’t see that as a message at all.”
Ron Holliger, a former appellate judge who now serves as Attorney General Chris Koster’s general counsel, argued on Friday that a permanent reinstatement of the judges would prompt layoffs other employees.
“The only way for the division to have to balance its budget – which it’s constitutionally required to do – would be to lay off other employees,” Holliger said on Friday during the hearing.
Comerford said the division has typically spent less than the Legislature has appropriated over the past fiscal years. If the division went over that amount, he added, they could either cut other spending items or lay off at-will employees that he says are not protected by statute.
He’s also noted that the workers’ compensation system “is a completely separate pot of money” consisting of levies paid to the state by the insurance companies who provide workers’ compensation insurance coverage to employers.
According to a filing on Case.Net, a hearing was set for 2 p.m. July 6 on a preliminary injunction “unless parties, counsel and the court identify a mutually agreeable alternative.”