The Court under attack

Recent attacks on independence of judges endanger democracy Federal Judge speaks out.

Judge-bashing crosses the line - Ohio Judge blasted wrongly  Prosecutor screws up case and politicians blast the judge calling for impeachment.  This editorial examines the situation.

Former Supreme Court Justice Sandra Day O’Connor blasts court critics – “... we must be ever vigilant against those who would strong-arm the Judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings.”

Public Comments by Justices Veer Toward the Political  New York times Column

    The judiciary is the guardian of the concept of ‘due process’, yet they themselves are denied due process when charges are brought against them.

      The following cases suggest that Kentucky judges walk on very dangerous ground and their judicial independence is far more limited than is commonly believed.  They may be embarrassed, charged and sanctioned for conduct and legal rulings based on rules which are not written and are merely based on any conduct that the Judicial Conduct Commission determines after the fact was an ethical violation justifying punishment. Even offenses deemed just to have given the "appearance of impropriety" authorizes the Conduct Commission to impose the most severe sanction of removal from office.

Judge Jay Bamberger Resigns as Senior Status Judge after public reprimand from Judicial Conduct Commission for rulings he made in Fen-phen class action case. 

Also see:  Fen-phen lawsuit judge resigns Herald Leader article

and  Panel rebukes ex-judge - Ky. Post article 

Lawyers Mislead Judge Courier-Journal Mar. 10, 2006....court finds that lawyers mislead Bamberger.

Profiles of Cunningham, Chesley, Mills, Gallion

Judge William Stewart on trial for allegedly approving his wife’s full time pay for part time work done at home.   Stewart was sanctioned for hearing case of person who cleans his office.

Also see: Shelby Circuit Judge on trial for allegedly paying his wife for full time pay for part time work.  Courier Journal article

Complaint filed against Chief Justice Lambert over campaign contributions made to his wife who is also a Judge.  See: Panel dismisses complaint against Justice Lambert, wife

Senate proposes bill to strip Courts of constitutional review powers  See: Judicial Reform” Fails in Senate

A Senate Bill has been introduced to remove lawsuits against State Government from the jurisdiction of the Franklin Circuit Court...to the plaintiffs home county. This is an apparent payback for the Stephenson election ruling in which the Franklin Circuit Court disagreed with Senate Majority leader David Williams who had boasted - "We can seat a person who is 25 even though the Constitution says they must be 30 years of age...and the courts can't do anything about it."

                                                 The Jay Bamberger Case

            We can not recall a time when judges have been under attack to such a degree.  The issues involved in each of these cases are complex and demonstrate that judges are often sitting ducks who are forced to make complex discretionary decisions then are prohibited from publicly defending themselves or explaining their actions.  Judges are the only public officials who are not provided with a fair due process procedure in which they may defend themselves.

           Anyone may drop an anonymous poison pen letter to the Judicial Conduct Commission making any charge against a judge.  The Commission then becomes the prosecutor bringing charges against the judge.  The Commission then becomes the judge and jury concerning the allegations against the judge.  The judge has his hands tied during this procedure because he is forbidden from publicly making any comment on the facts until after the commission has had their way with him. Can you imagine a County Attorney being able to file a complaint and then being the judge and jury of the person charged?

          The Judicial Conduct Commission can force the judge to defend himself against any act the Commission believes gives “the appearance of impropriety”.  No matter that the judge has violated no ethical guideline, has violated no law, and has even exercised his judicial authority within the statutory and constitutional guidelines ...if a year later the Commission decides that he made a bad legal decision (i.e. the press or a party disagrees with the judges decision) then the judge can be reprimanded and even removed from office.  This takes “Monday morning quarterbacking” to a new level.

          Judge Jay Bamberger was cited by the Commission on five charges.  He choose to resign as Senior Status Judge rather than submit to further proceedings.  He was charged for three instances of not recusing himself from cases “quickly enough”.  While he did recuse himself in those cases....the Commission was “shocked” that he didn’t do so quickly enough.   He was cited for appointing a ‘friend’ to a charitable trust.  No matter that there is no provision in the Judicial Conduct code which prohibits the appointment of a “friend” to such a position.  No mention is made of the fact that judges appoint Master Commissioners, Appraisers, Warning Order Attorneys, Special Masters, Circuit Clerks in some instances, Receivers, etc. all the time.  Are they to appoint their enemies to these positions?  Where is the law, rule or provision of the Code of Judicial Conduct which says a judge when required to make an appointment cannot appoint someone who is considered a “friend”?  You won’t find such a provision because it doesn’t exist. 

All sitting judges should take note of this action by the Board and perhaps in the future should support any appointments they are required to make with a document proving they don’t know who they are appointing, are that the appointee is a mortal enemy of the judge.

         The Commission was “shocked” that Judge Bamberger didn’t recuse himself quickly enough from cases in which one party had hired a trial consultant who was a friend of the judge.  The Code only requires recusal when a person closely related to the judge is a “party or witness” in an action before the judge. Please note that the Code provides a long list of relationships that require recusal...and “friend’ is not on that list. A jury trial consultant is certainly not on the list.

Under the reasoning of the Commission, anybody can now force the recusal of a judge just by proving that the judge may have a social acquaintance with a consultant.  Want to get a judge off a case? Now you can just hire someone who the judge knows socially and bam, you get a new judge.  It is important to note that Judges don’t hire jury trial consultants...parties hire jury trial consultants.

        Judge Bamberger also “shocked” the Commission because over six months after he retired (and no longer had any control over the Fen-phen class action case) he was asked by the Charitable Trust set up to distribute the left over settlement funds to serve on their board.  The Commission has not explained how they ignore the provision of the Code of Conduct that expressly says that even active judges can become members of the Board of Charitable trusts.  Should Bamberger have accepted that appointment? Maybe or maybe not. But this appointment clearly “shocked” the Commission, and caused a media frenzy.

Bamberger served on the Trust for several months, received the same salary as other trustees, and then resigned and returned every penny he received.

       The Supreme Court rules creating the Judicial Conduct Commission limit their jurisdiction and prohibits them from sanctioning a judge for any legal decision or ruling he made in good faith.   If a judge makes a bad decision the remedy is for any person wronged by the decision to seek appellate review.   In the Fen-phen case, the parties presented a settlement signed by all parties to the judge.  He approved the settlement. The settlement was not appealed, even CR 60.02 collateral attack time periods expired.  So one would think that the case was “final”.  Now however, the Conduct Commission  has created a new remedy and sanctioned a trial judge for a legal ruling they disagree with.  They have ignored their jurisdictional limitations by reviewing a courts legal ruling.  This raises a troubling issue about the long held legal principal about the finality of cases.  Can any case now be said to be final when this new avenue of collateral attack is created?  A party who signs a settlement is now not bound by that settlement. Is the Conduct Commission the proper body to be writing new rules allowing attacks on final judgments?

      Another issue that the Commission has ignored in the Bamberger case is the statute of limitations.  They are limited by Sup. Ct. rules from filing charges more than 180 days after a judges retirement.  Further the Civil Rules limit all civil actions after one year for any professional action.  Both statutes have been ignored.  They apparently suggest that since Bamberger signed a contract to become a Senior Status judge that the statute of limitations was tolled, and that acts that had been tolled by the statute of limitations where now once again subject to the jurisdiction of the Commission..  The Sup. Ct. rules do not have any provision that grants the Conduct Commission jurisdiction over Senior Status Judges for actions taken while they were active judges and after the 180 days statute of limitations has expired and after the one year statutory limitations period for professional actions had tolled.

     Every sitting judge should take note of this broad expansion of powers arrogated by the Conduct Commission.  The “appearance of impropriety” doctrine now clearly means that anything the Commission is “shocked by” is an action justifying a sanction of removal from office.  The very basic and fundamental requirement of due process is that a person is entitled to know that certain conduct is prohibited beforehand. When the action taken by a judge is only determined ex post facto to be prohibited conduct, then one can hardly believe that due process was afforded the offending judge.

    Judge Bamberger was selected by the Ky. Bar Association only a few years ago as the Outstanding Judge in Kentucky.  He carried the highest case load of any Circuit Judge in the State of Kentucky for years.  Now after his retirement, after the statute of limitations tolled, the Commission has reprimanded him for legal decisions made well within his discretion.  They have attacked him because they can. 

   There is only one Ky. case disussing the use of "friendship" as a basis for sanctions.  See:  Wilson v. Judicial Retirement an Removal Commission   (The Wilson case requires

                                 The William Stewart Case

     Shelby Circuit Judge William Stewart  has been indicted from approving the number of hours worked by his wife as his secretary.   He certified that she worked the full 37 hours a week required, but the Commonwealth charges that she only worked part time, and therefore was overpaid.

     We know of a few judges that don’t take work home, but very few.  Stewart like most judges often carry their brief case home and work at night or weekends in preparing and researching legal issues before them. AOC has allowed some judges to appoint their wives as their secretary, certainly Stewart is not the only Circuit Judge to have hired his wife.    There is no rule that says judges can’t work at home on their paperwork...and we know of no rule that says the secretary can’t type orders at home at night or on the weekends.

     Stewart says his wife worked at home the requisite number of hours.  Apparently the Commonwealth has a time clock at the Stewart home to record the actual number of hours she worked.  This case is full of political implications raised by Stewart against his accusers.  The Stewart trial has been moved to Franklin Circuit Court and will be tried this week.

     One can see the possibility that these charges have political motivations behind them.  In any event, the elevation of this issue to a felony criminal action is troubling. 

Judge Stewart prior to his indictment was charged by the Conduct Commission for hearing a child support case in which his office maid was involved. Again the friendship issue prevailed.  We know of no rule that says a judge can’t hear a case involving the person who empties their garbage can.  On the other hand, the judge can hear cases involving a long list of relatives. 

                                          The Chief Justice Lambert Case

      Some months ago, charges were filed against the Chief Justice with the Conduct Commission.  The allegations involve campaign contributions that his wife (a family court judge) received in her last campaign.  Subsequently  the Chief Justice ruled on a case involving the parties who are said to have made those campaign contributions.  We don’t know if the Commission is considering this complaint or if it has been dismissed. But the mere filing of the complaint received coverage in the press.

      But the fact that the charge was filed raises the question...must a judge recuse himself from a case in which his wife received a campaign contribution from a party before the judge?  Must a judge recuse himself from any case in which a lawyer has previously made a campaign contribution to the judge?

      Lawyers have always been the main source of campaign contributions to judges. The General Assembly has determined that in Kentucky all judges must stand for election.  Short of public financing then, who will finance judicial campaigns?   When the public demands elections for judges, they automatically get  as part of the election package the practice of campaign contributions being made to judges in those elections.  

      So will the Commission tell us that recusal will be required of a judge if a relative in another race gets a campaign contribution?  Will the Commission say you can’t receive contributions from friends, but contributions from strangers and enemies are acceptable?  Will they put a dollar limit on campaign contributions? Will they now rule that: "$25 does not “shock” us...but $1000 does “shock” us".

      Will the Commission tell us that their “catch all provision” allowing them to sanction anyone for creating the “appearance of impropriety” justifies sanctioning the CJ for a contribution that his wife received in her separate race?  Will they establish a rule that says a judge is responsble for the actions of his wife?  Mr. Bumble in Oliver Twist was punished for the actions of his wife.  The court held him responsible for the actions of his wife. He says in that famous novel, "If the law says that Sir, the law is an ass!'

      One thing the Bamberger case shows us, is that the Judicial Conduct Commission thinks judges should have no friends, and under our definition anyone who makes a campaign contribution is a dear friend indeed.  While this practice has been perfectly acceptable in the past, perhaps the Commission will now expand their jurisdiction to write campaign contribution law for us ‘ex post facto’.  Where is Mitch McConnell when we need him!

                                        The Supreme Court is Guilty

     If the Judicial Conduct Commission has become a loose cannon, we can only blame the Supreme Court.  The Supreme Court writes the rules governing the Judicial Conduct Commission.  They have not clearly spelled out in the Judicial Conduct Code a list of offenses that can be clearly understood by all.  They have made no distinction between sanctions based on criminal offenses,  sanctions based on direct and clear violations of a Code provision, and violations based merely on the “appearance of impropriety” catch-all doctrine.

We would suggest that the range of penalties should be classified so that a judge who has been found to violate a criminal statute could be removed...but that a judge found by the Commission to have committed an act that merely creates the 'appearance of impropriety' could not be removed but only embarrassed with a public reprimend. 

Under the current provisions of the Rules the Conduct Commission can impose the 'death penalty of removal' for even the slightest offense.  We see a major distinction from committing an act that is clearly improper and in violation of specific prohibitions, and offenses that only give the 'appearance' of an improper act as determined ex post facto.

     The Supreme Court has reserved unto themselves the right to review actions of the Conduct Commission when an aggrieved judge appeals...but in cases in which a judge says he will just resign and not appeal the charges, the Supreme Court apparently has no mechanism to review the actions of the Conduct Commission even when their actions are in excess of their jurisdiction.   Shouldn’t there be a provision allowing the Sup. Court to review on its own motion, any action of the Conduct Commission?

The current Supreme Court Rules have left many broad gray areas in the Conduct Code and the Rules Governing the Judicial Conduct Commission inviting the application of ex post facto rules of conduct. Perhaps the time is right to review the authority of the Conduct Commission.

We find troubling the fact that the Conduct Commission is heavily weighted against trial judges. Only two of the six members of the commission are required to have had trial experience. How can they understand and appreciate the many complexities facing trial judges?

    The Supreme Court is charged with creating rules of procedure.  There are virtually no rules provided to the trial courts concerning how they are to handle class action lawsuits.  Judge Bamberger had no rules to guide him with regard to approval of attorney fees, approval of the settlement, creation of the charitable trust, appointment of members of the trust, and many other issues unique to class actions lawsuits. Nevertheless the Commission reviewed his rulings on such issues and disagreed with his exercise of the discretion provided him by the written rules of procedure.

Perhaps it is time for the Supreme Court to appoint a committee to write civil practice rules of procedure to guide judges in the future who are faced with the many difficult decisions that faced Judge Bamberger in the class action lawsuit. 

Under the present arrangement, the rules for conduct of class action lawsuits is left to a majority ex post facto vote of the Judicial Conduct Commission, and as we see ...they are easily “shocked”.  In essence they have written rules of procedure that they feel Judge Bamberger should have followed.  Those rules did not exist when Bamberger ruled , but he was sanctioned for violating them after the Commission reviewed his actions.  This dramatic assumption of power by the Conduct Commission is itself shocking to anyone who believes that only the Supreme Court should be writing rules of procedure. Will the Supreme Court stand by and allow their turf to be violated?

   The Supreme Court has written no practice rules or guidelines governing the appointment of persons to the various offices to which judges are required to make appointments.  In the absence of any guidance by the Supreme Court, the Conduct Commission has assumed the role of rule maker.

    The judiciary is the guardian of the concept of ‘due process’, yet they themselves are denied due process when charges are brought against them.  Clearly, these are tough times to be a judge.  Justice Oliver Wendall Holmes held the philosphy that the law ought to be predictable...he would not be pleased with the ability of a commission to punish someone for the violation of a law that was only created after the fact.

Disclaimer:    We are not attempting to practice law, give advice or represent ourselves as anything more than a resource portal with many unique features. Our design is copyrighted. We have no claim of any affiliation with any linked website nor any liability for anything they may say or do. We, and our contributing authors, offer no warranties of any type, to anyone, about anything express or implied.  What you see is what you get, we cannot afford to be your insurer.   

By going further into this site, you accept this complete waiver of all warranties.

© All material copyrighted, LawReader, Inc. 314 7th. St., Carrollton, Ky. 41008