Sen. Kelly morphing into Circuit Judge Kelly

Later this afternoon, the Administrative Office of the Courts (AOC) will send out a press release announcing that Sen. Dan Kelly’s name — along with the names of two other attorneys from the 11th Circuit Court District — has been sent to the governor by a Judicial Nominating Commission to fill a judgeship. That’s a prediction.

If all goes as widely anticipated, within a few days, Gov. Steve Beshear will choose Kelly to fill a vacancy on the bench. The seat became open when Judge Doughlas George of Springfield resigned instead of completing his term, so he could draw the enhanced pension benefits of a senior status judge, one of 65 in Kentucky.

It is of interest that Kelly’s prospective appointment also has a pension aura. It could be worth more than $2 million to him, via extra pension benefits —it’s like winning the lottery and collecting it in monthly installments.

As a minimum, it would more than double Kelly’s legislative pension from about $30,000 a year to about $64,000, a lifetime increase estimated at $645,000.

The windfall for Kelly could be substantially higher if he has bought five years of “air time,” as he’s entitled to do after 15 years in the legislature, and also has bought credit for his military service. Then, he could draw 100 percent of the judge’s pay as his legislative pension after being a judge for three years. In that case, his legislative pension could be at least $123,384 a year, and a lifetime increase estimated at $2,333,191. He voted for HB 299 in the 2005 session, a bill that allows legislators to base their legislative pensions on government jobs they take after they leave the legislature.

Back to the moment. There is a process, of course, for filling a court vacancy. A seven-member Judicial Nominating Commission, chaired by the chief justice of the Supreme Court, which has six local citizens, including at least two attorneys, submits three names to the governor.

The commission meets at 3:00 p.m. today in Taylor County. They will decide on the three names for the governor. The make up of the commission tells us that one of the names will be Kelly.
Once the governor receives the names this afternoon, the AOC will release the names to the public, and the governor probably will take a few days to ponder his choice, at least giving the appearance of competitiveness in the decision.

Beshear will choose Kelly, because putting him on the bench opens up a Senate seat held by a Republican that the Democrats are slightly favored to win.

Members of the Judicial Nominating Commission
(11th Judicial District, Division 1, for Washington, Marion, Taylor and Green counties)

John C. Minton Jr., chief justice of Supreme Court
James L. Avritt Sr. of Lebanon (Marion County), attorney
Robert Spragens Jr. of Lebanon (Marion County), attorney
Blanche C. Minor of Mannsville (Taylor County), retired state employee
Shiela W. Newcomb of Campbellsville (Taylor County), Kentucky Utilities Company office manager
David R. Carney of Springfield (Washington County)
Randall C. Sullivan of Greensburg (Green County)

The two lawyers are from the same town, and they probably will hold sway over the rest of the commission — all non-lawyers (except the chief justice, of course). After all, this is a process of choosing a judge.

One of the local lawyers on the commission, James L. Avritt Sr., recently sent a letter to the editors of news outlets across Kentucky, inferring that Senate President David Williams’ opposition to video slot terminals at racetracks was financial; Avritt said the Indiana riverboats that Williams frequently visited had a motive (keep expanded gambling out of Kentucky) and an opportunity to comp Williams. Avritt owns racehorses.

On the heels of Avritt’s letter, Williams, himself a lawyer, wrote a letter directly to Avritt, telling him, “You are on notice that I consider any suggestion that I have received a financial benefit for my opposition to expanded gambling to be malicious and made with a reckless disregard for the truth. I ask that you take action to retract this statement immediately. … Any suggestion that I gave engaged in a quid pro quo or received any sort of bribe … is 100% FALSE.”

Avritt said he had no plans to retract anything and that he would welcome a lawsuit. He said the gambling issue would have no sway on his vote as a member of the Judicial Nominating Commission.

Nonetheless, Avritt faces a certain level of public embarrassment if the commission fails to send Kelly’s name to the governor, because failure to include Kelly’s name on the list would deny the Democrats an opportunity to replace Kelly in the Senate with a pro-gambling vote.

It’s unknown whether fellow Lebanon lawyer and commission member, Spragens, shares Avritt’s views on expanded gambling — but Lebanon is a small town. So both lawyers are likely to vote the same way: for Kelly.

Another commission member, Blanche Minor, has been active in Democratic politics, making donations in local and state races. She donated $250 to Steve Beshear’s campaign for the U.S. Senate in 1996, a race U.S. Mitch McConnell won. She also contributed $1,000 to Beshear’s 2007 campaign for governor.

During the Patton administration, Minor held a job in state government with the title of “principle assistant” to the governor. Positions with that title were high-paying jobs, often with no real duties. All of which suggests that Minor is a political team member, and, therefore, would be inclined to vote for Kelly, especially knowing the governor’s wishes.

What’s next?

Within a few days probably, the governor will tell Kelly he has the judgeship. Kelly will then resign from the Senate, and the governor will call two special elections — one to fill the unexpired term of the Senate seat Kelly vacates, and one to fill the unexpired term of the House seat that Robin Webb, D-Grayson, vacated when she was elected to the Senate last month to replace Charlie Borders, R-Russell, who resigned, also for a gubernatorial appointment — not a judgeship, but as a $117,000-a-year commissioner at the Public Service Commission.

Once the governor calls the special elections — issues writs to the sheriffs in the districts — there must be a 35-day waiting period before an election can be held. That’s a constitutional mandate. It gives local officials time to prepare the election, and it gives the candidates time to campaign.

It’s likely the governor will call the special elections for the first week or two of December, and maybe not on the same day. Separating them a few days would give out-of-district political figures in both parties time to go into the districts and campaign for their candidates. The winners would be ready to serve on the opening day of the 2010 General Assembly on Jan. 5.

Capturing Kelly’s seat won’t be easy for the Democrats. Observers with whom we’ve talked expect the race will be competitive. The Democratic nominee, likely former Rep. Jody Haydon of Bardstown, will have “better resources, is better known, and the district is heavy Democratic in voter registration.” But the Republican nominee, likely Rep. Jimmy Higdon of Lebanon, also has some advantages: “the district has been voting Republican in recent years, he is a respected lawmaker, and is knowledgeable.”

Kelly’s resignation as majority floor leader about two weeks ago was perhaps to show a commitment to the governor, and the nominating commission, that he would accept the judgeship, if it’s offered. Also, he gave his GOP caucus in the Senate time to choose a successor for the leadership post ahead of Kelly leaving the Senate. The caucus met this afternoon at the capitol and elected Sen. Robert Stivers, a Manchester (Clay County) lawyer, as the Senate’s new majority floor leader.

Williams is safe

Part of the talk during the past few months has been on the horse industry’s efforts to oust David Williams as Senate president. If the Democrats win the seat Kelly vacates, could that lead to a coup against Williams on the opening day of the 2010 session? You can take it off the table. Williams is safe, at least through the next leadership election in January 2011.

A take-away of the Senate seat now held by Kelly would give the Democrats 18 seats, and drop the Republicans to 19 seats and one independent (who caucuses with them). That leaves the Democrats short — one vote for a tie, two for control.

Slots stalled on legislative front

Since the special legislative session this past summer, where the push by the horse industry and the governor to allow video slots terminals at racetracks failed in the Senate A & R Committee, the political spotlight in Kentucky has been alternately on the open U.S. Senate race (to replace Jim Bunning next year) and on expanded gambling. That’s how big the gaming issue is.

The governor and the horse industry have made progress in positioning themselves for the battle in the Senate over slots at racetracks. But the issue is no further advanced on the legislative front than it was that day in June when it died in committee. The playing field has shifted, and the Senate Republicans have adjusted their defense, but the issue has stalled. Both sides remain poised, however, like the cobra and mongoose, for the next strike.