Nixon defends cuts to ALJs

Gov. Jay Nixon on Friday framed cuts his administration made among the state’s administrative law judges as a continuation of the policies of previous Gov. Matt Blunt.

“They’re not Article V judges,” Nixon said during a press conference in Kansas City. “In the last administration they lessened the number of folks in that department already. We felt that continuing to lean that up was appropriate with the budget challenges we face. I’m confident that the remaining commissioners will be able to handle the workload.”

The Division of Workers’ Compensation last week laid off four administrative law judges, and declined to fill a fifth vacancy, effective July 1.

Judges Henry Herschel and June Doughty, from the Jefferson City office; John Tackes, from the St. Louis office; and Matthew Murphy, from the Cape Girardeau office, have been terminated. A fifth administrative law judge, Ron Harris, is retiring from the Jefferson City office on June 30 and will not be replaced.

The affected ALJs were the four who took office most recently and were all appointed by former Republican Gov. Matt Blunt, two of them in the last month of his term in office. Herschel previously served as Blunt’s general counsel. The division and a spokesman for Nixon have denied any partisan considerations in terminating the ALJs.

The division blamed the cuts on the 2010 budget, which goes into effect next month.

However, Rep. Allen Icet, R-Wildwood, who chairs the House Budget Committee, said Thursday that the decision to cut the five ALJ positions came from Gov. Jay Nixon’s initial budget request in January, and not from the Legislature. Icet said ALJs are not funded through general revenue but from a dedicated fund, money for which comes from a tax on employers.

“I would seriously question whether this is because of budget pressures that the state is facing,” Icet said.

Both trial lawyers and Republican lawmakers have criticized the cuts, saying the move threatens the independence of the ALJs.

Several lawyers have also questioned the legality of the terminations. A rewrite of the workers’ compensation laws in 2005 set 12-year terms for ALJs and subjected them to periodic retention votes by a review committee, which conducts performance audits on judges. It’s not clear that judges can be removed outside the committee review process.

“That’s clearly not what the statute intended,” said John Diehl Jr., an attorney with Armstrong Teasdale in St. Louis and a former Republican lawmaker. He said Nixon could later reappoint his own ALJs to fill those positions, transforming the workers’ compensation division into a “patronage” system.

Jennifer Schwendemann, a legislative appointee to the ALJ review commission and an attorney at Husch Blackwell Sanders in St. Louis, also questioned the legal authority.

“I believe that that statute gives the ALJ review committee exclusive authority to evaluate the ALJs,” she said. “I don’t think an ALJ can be removed without what is a lengthy and rigorous process by the committee that I sit on.” However, she added that she didn’t think the committee had any authority to challenge the cuts.

Asked about potential partisan motives for the firings, Nixon turned the topic back to the economy.

“We’re facing historic budget challenges,” he said. “As the chief executive of the state it’s my job to balance the budget. It requires some challenging choices. I make those choices and I ask the Legislature to help me in that regard. I presented a budget doing this, and in overwhelming numbers Democrats and Republicans supported that. All I can say is that all around the state of Missouri people are tightening their belts.”