Supreme Court of Kentucky

Supreme Court of Kentucky FROM THE 30th JUDICIAL CIRCUIT JEFFERSON CIRCUIT COURT, DIVISION 6 IN RE: MOTION TO DISQUALIFY THE HONORABLE OLU A. STEVENS FROM PRESIDING IN ALL CRIMINAL MATTERS IN THE 30th JUDICIAL CIRCUIT, DIVISION 6 OPINION AND ORDER Kentucky Revised Statute (KRS) 26A.020 is Kentucky s statutory mechanism for trial-judge disqualification. Under this statute, a party who believes a judge will not afford a fair and impartial trial may file with the circuit clerk an affidavit stating the factual basis for that belief. The circuit clerk in turn certifies the party s affidavit to the Chief Justice for immediate review and a decision whether grounds exist to appoint a different judge for the case. Consistent with that statutory process, the Jefferson Circuit Clerk has certified to the Chief Justice the affidavits of Jefferson County Commonwealth s Attorney Thomas B. Wine requesting the assignment of a new judge to preside in all criminal cases prosecuted by the Commonwealth s Attorney or his assistants in the 30th Judicial Circuit, Division 6, because Judge Olu A. Stevens, the regular judge of that division, cannot preside fairly and impartially. The Commonwealth s Attorney filed his first affidavit on November 18, 2015, asking for Judge Stevens s disqualification from all criminal cases pending in Jefferson Circuit Court. In an attempt to resolve this controversy in a manner respectful of both the Commonwealth s Attorney and Judge Stevens, 1

avoid disruption in the criminal justice system, and safeguard the dignity of the courts of the Commonwealth, the Chief Justice deferred ruling on the disqualification of Judge Stevens and ordered the parties to participate in mediation. The mediation occurred on December 4, 2015, and resulted in an agreement signed by Judge Stevens, the Commonwealth s Attorney, and the four appointed mediators. Among other things, the parties agreed that they would, in essence, stop using social media as the vehicle to influence public support for their personal grievances. In filings since the mediation agreement, the Commonwealth s Attorney asserts that Judge Stevens has breached the mediation agreement to the extent that its terms are now meaningless. The Commonwealth s Attorney also renews his argument that Judge Stevens must be removed from presiding in any criminal prosecutions because his continued violations of the Code of Judicial Conduct prove his inability to preside without bias against the Commonwealth s Attorney or his assistants. 1 The facts underlying the Commonwealth s Attorney s original affidavit and his later filings are complex. The dispute arose, at least initially, from Judge Stevens s comments on social media regarding the jury-selection process 1 In his response, Judge Stevens erroneously argues that there is no longer a KRS 26A.020 affidavit for disqualification pending before the Chief Justice because the Commonwealth s Attorney withdrew the request as a part of the mediation agreement. But nothing in the record furnished by the Jefferson Circuit Clerk indicates that the request has been withdrawn, and the Commonwealth s Attorney s supplemental motion and affidavit clearly show that the disqualification request is viable. 2

in Jefferson County and the Commonwealth Attorney s decision to ask the Supreme Court of Kentucky to certify the law with respect to jury selection in a specific case. The Commonwealth s certification-of-law request was granted, and that case now pends in the Kentucky Supreme Court. But the certification of law is not the subject of the current controversy between Judge Stevens and the Commonwealth s Attorney nor the basis for the decision today. And it is worth noting that Kentucky s court rules and Constitution permit the Commonwealth to request the Supreme Court to clarify the state of the law through the certification process in cases where there has been an acquittal. 2 The only issue before the Chief Justice today relates to Judge Stevens s actions taken after the Commonwealth s Attorney asked the Supreme Court to certify the law. As demonstrated in the Commonwealth s Attorney s affidavits, Judge Stevens reacted to the certification request by launching a social-media campaign to disparage the Commonwealth s Attorney and intentionally mischaracterize a legitimate legal question. Judge Stevens s ensuing public discourse appears to flout the directives of the Code of Judicial Conduct, creating a social-media firestorm calculated to aggrandize himself by exploiting the deep-seated and widespread distrust of the criminal-justice system by minority communities. The list of offending posts highlighted by the Commonwealth s Attorney includes accusations by Judge Stevens questioning the Commonwealth s 2 Ky.Const. 115; Kentucky Rules of Civil Procedure (CR) 76.37(10). 3

Attorney s motives for filing the request for certification of law, including statements made on Judge Stevens s personal Facebook page alleging that the certification is the Commonwealth s Attorney s attempt to impanel all-white juries. Judge Stevens accused the Commonwealth s Attorney of calling him a racist and suggested that if people would stand up and call [the Commonwealth s Attorney] out, he would go right back in the corner. Judge Stevens further accused the Commonwealth s Attorney of trying to deceive the people. In later posts and letters allegedly written by Judge Stevens, he again accused the Commonwealth s Attorney of seeking to seat all-white jury panels. In a November 3, 2015, post on his personal Facebook page, Judge Stevens accused the Commonwealth s Attorney of complaining to the Kentucky Supreme Court about [his] entitlement to the all-white jury panel the trial judge set aside a complaint that Judge Stevens claimed made the Commonwealth s Attorney s purpose readily apparent. Judge Stevens again referred to the Commonwealth s Attorney complaining he should have had an all-white jury panel after losing a trial in a later Facebook comment, noting that the action was poor form at the very least or, [a]t most, something much more sinister. Judge Stevens further questioned the Commonwealth s Attorney s motives by arguing that he requested the certification of law only because he wants to and because he is seeking to influence a change in my approach and decisions. Judge Stevens also posted on his personal Facebook page that 4

[h]istory will unfavorably judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming his entitlement to an all-white jury panel. No matter the outcome, he will live in infamy. All of these posts appeared before the parties mediation. The lengthy mediation produced to the Chief Justice a report, signed by the parties, which included a provision stating issues concerning the parties should no longer be addressed by posts or comments on social media. 3 The parties signed mediation agreement further reduced to writing their promise that all information disclosed during the mediation would be confidential, with the exception of the written agreement, should they reach one. 4 The Commonwealth s Attorney s supplemental affidavit and motion to set aside the mediation agreement alleges that Judge Stevens breached the mediation agreement s provisions on the use of social media. The supplemental documents reference the Support Judge Olu Stevens Facebook page, which included a post minutes after the ten-hour mediation session ended that boasted of victory for Judge Stevens. The post included a photo of Judge Stevens with the words I am back on the bench Thank You! imposed on top of his image. The Commonwealth s Attorney further alleges that Judge Stevens granted several interviews in the days following the mediation during which he remained silent, nodded affirmatively, and/or failed to correct misinformation 3 Report to Chief Justice John D. Minton, December 4, 2015. 4 Agreement to Mediate, In re: Motion to Disqualify, December 4, 2015. 5

in response to statements and questions from the interviewers regarding both the certification-of-law matter and the issue of jury selection generally. The supplemental affidavit and motion also argue that Judge Stevens violated the mediation agreement by failing to remove the previous Facebook posts that were the subject of the Commonwealth s Attorney s original affidavit. Finally, the Commonwealth s Attorney references a December 11, 2015, post on the Support Judge Olu Stevens Facebook page that was written in a first-person narrative and appears to have been created by Judge Stevens. That post, while not mentioning the Commonwealth s Attorney or the certification of law matter specifically, references the efforts of others to silence him and the attempts to remove him from his elected position as a circuit judge. The post further states that concerns over Judge Stevens s method of communication were misplaced, purposely by many who sought to distract from [his] message. While the mediation initially appeared to be successful, it is now clear to the Chief Justice that it failed to achieve its intended goals. In the minutes, hours, and days since the mediation occurred, Judge Stevens has repeatedly demonstrated that he does not intend to comply with the letter or spirit of the agreement. His failure to remove offending posts from his Facebook page and his continued public comments, even if not directly in reference to the Commonwealth s Attorney or the pending certification-of-law case, give a clear indication that he intends to continue violating the Code of Judicial Conduct, 6

despite assurances to the contrary given privately to the Chief Justice and during the course of the mediation. The requirement that judges act fairly and impartially is manifest throughout the Kentucky Code of Judicial Conduct. Equally plain is the principle that judges, by the nature of their positions, are subject to greater public scrutiny and restrictions on their conduct. As noted in the commentary to Canon 2 of the Code: Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. 5 Judges are required to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. 6 The Code requires judges to be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity. 7 And a judge is required, both by the Code and by statute, to disqualify himself in proceedings where his impartiality might reasonably be questioned, including situations where the judge has a personal bias or prejudice concerning a party or a party s lawyer. 8 5 Rules of the Kentucky Supreme Court (SCR) 4.300, Kentucky Code of Judicial Conduct, commentary to Canon 2(A). 6 Id., at Canon 2(A). 7 Id., at Canon 2(B)(4). 8 Id., at Canon 2(E)(1)(a); see also, KRS 26A.015(a) and (e). 7

Judges are also prohibited from commenting on any matter pending before any court. Canon 2(B)(9) specifically states that [a] judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness... Perhaps most importantly, Canon 1 of the Code of Judicial Conduct, charges judges with the responsibility to actively participate in establishing, maintaining and enforcing high standards of conduct and to personally observe those standards so that the integrity and independence of the judiciary will be preserved. 9 The Code of Judicial Conduct places very specific and necessary restrictions on the behavior of judges restrictions that Judge Stevens has continued to violate, despite the best efforts of the Chief Justice and four neutral mediators to remedy the situation. Rather than provide leadership on an important issue worthy of wide discussion, deliberation, and action, Judge Stevens has detracted from the conversation by choosing instead to malign the Commonwealth s Attorney and mischaracterize his motives in pursuing his constitutional right to seek clarification on an issue of law before the Supreme Court on behalf of the Commonwealth. The motion to disqualify Judge Stevens in all criminal cases in the 30th Judicial Circuit, Division 6, was filed via KRS 26A.020. Illustrative of how KRS 26A.020 motions traditionally operate, on November 17, 2015, the 9 Id., at Canon 1. 8

Commonwealth s Attorney filed individual motions to disqualify Judge Stevens in two cases: Commonwealth of Kentucky v. Chauncey Sellers, 14-CR-03357, and Commonwealth of Kentucky v. Daisy Hodges, 15-CR-00621. The Chief Justice granted the motions on the same day, concluding that the Commonwealth s Attorney has demonstrated disqualifying circumstances that require the appointment of a special judge under KRS 26A.020. Those motions were filed in two specific criminal cases that were set for trial before Judge Stevens. The sweep of the matter currently before the Chief Justice is significantly broader because it seeks the blanket disqualification of Judge Stevens in all criminal cases both current and future prosecuted by either the Commonwealth s Attorney or any of his assistants. Beyond simple disqualification, this is tantamount to a request for removal from office. A disqualification of this magnitude would effectively remove Judge Stevens from his criminal docket for the foreseeable future and render him unable to fulfill the constitutional duties of a circuit judge. 10 This request exceeds the scope of KRS 26A.020. Under KRS 26A.020, a party may file with the circuit clerk an affidavit that the judge will not afford him a fair and impartial trial. This affidavit prompts the Chief Justice to review the facts and determine whether to designate a regular or retired justice or judge of the Court of Justice as special judge. With regard to the authority given the Chief Justice when making such 10 See Ky.Const. 112; KRS Chapter 23A. 9

a determination, KRS 26A.020 is relatively vague, and there is a paucity of case law to illustrate or develop the Chief Justice s authority. But the underlying purpose of KRS 26A.020 is clear the judge s disqualification. 11 From the days of common law, disqualification has been equated to recusal that is, the removal of a judge from a particular case because of bias, financial interest, or personal interest. 12 But disqualification has not been equated with removal. So at the very least, the statute implies that the Chief Justice s statutory authority is limited to designating a special judge in a specific case where disqualification is warranted because the regular judge is unable to afford a party a fair or impartial trial in a specific case. Section 121 of the Kentucky Constitution gives the power to suspend or remove a judge to a commission whose actions are subject to judicial review by the Supreme Court. That commission, which is referred to in the enabling statute as the Judicial Retirement and Removal Commission and by Supreme Court Rule as the Judicial Conduct Commission, is the only entity authorized under the Kentucky Constitution to undertake temporary or permanent disciplinary action against a sitting Kentucky judge. KRS 34.340 provides that 11 This is evident by the operation of KRS 26A.020 in para materia with KRS 26A.015, the general disqualification statute. KRS 26A.015 outlines when a judge should selfdisqualify; KRS 26A.020, on the other hand, operates as a backstop to provide the Chief Justice the authority to disqualify a judge who may not self-disqualify. 12 See, e.g., John P. Frank, Disqualification of Judges, 56 YALE L.J. 605 (1947) (discussing the origin of disqualification and its development from English common law); Note, Disqualification of Judges Because of Bias and Prejudice, 51 YALE L.J. 169 (1941) (using disqualification and recusal interchangeably); see also, Bryan A. Garner, Garner s Dictionary of Legal Usage (3d. ed. 2011) (equating disqualify with recuse: A disqualified judge must withdraw from hearing a case when one of the parties is, for example, a close relative. ). 10

[n]o justice or judge shall be retired for disability or suspended without pay or removed for good cause except upon a majority vote of members of the Judicial Retirement and Removal Commission. Supreme Court Rule 4.020 sets forth the jurisdiction of the Judicial Conduct Commission, which includes the authority to impose various remedial and punitive disciplinary actions based on a variety of offenses, including violations of the Code of Judicial Conduct. 13 Given the serious implications of imposing discipline on an elected official, the Judicial Conduct Commission is charged with following specific procedural rules to protect the due process rights of a judge. 14 This includes the judge s right to defend against charges, to be represented by counsel, and to examine and cross-examine witnesses. 15 A judge under investigation by the Judicial Conduct Commission also has the right to subpoena witnesses and produce evidence in support of the judge s defense. 16 None of these procedural processes exist under KRS 26A.020. This raises significant constitutional concerns about the Chief Justice s authority under KRS 26A.020 to take the extraordinary step of disqualifying a judge from all criminal cases. 17 Such action potentially violates the judge s due process rights 13 To the extent that Section 121 and SCR 4.020 can be viewed as conflicting with KRS 26A.020 (that is, if 26A.020 is read to permit the Chief Justice to remove a judge), the specific controls the general. Section 121 and SCR 4.020 specifically deal with judicial discipline and removal from office while KRS 26A.020 is a general disqualification statute. 14 SCR 4.000, et seq. 15 SCR 4.210(1). 16 Id. 17 These concerns are universal, it seems, because no state in the country permits a Chief Justice, acting alone, to remove a sitting judge. The federal government, of course, does not give the Chief Justice such authority either. See 28 U.S.C. 455; U.S. Const. Art. III. To the contrary, the normal procedure for removal involves a 11

and limits the judge s ability to defend his constitutional authority as a dulyelected state official. 18 A motion to disqualify a judge in a specific case that is limited in both time and scope does not diminish a judge s ability to fulfill the constitutional duties of the judge s elected office. But the disqualification of a judge from potentially hundreds of criminal cases pending now or in the future amounts to the removal of the judge from a significant portion of the judge s docket and renders the judge unable to satisfy the constitutional obligations of his elected office. 19 The Commonwealth s Attorney s request is not properly before the Chief Justice under KRS 26A.020. The Code of Judicial Conduct requires a judge who receives information indicating a substantial likelihood that another judge has committed a violation of [the] Code to take appropriate action. The Chief Justice finds that the Commonwealth s Attorney s motion sufficiently details facts indicating a substantial likelihood that Judge Stevens has committed violations of the Code commission akin to Kentucky s Judicial Conduct Commission. See NATIONAL CENTER FOR STATE COURTS, Methods of Judicial Selection, Removal of Judges, http://www.judicialselection.us/judicial_selection/methods/removal_of_judges.cfm?st ate. 18 See, e.g., Arkansas Judicial Discipline and Disability Com n v. Proctor, 360 S.W.3d 61, 95 (Ark. 2010) ( [S]tate judges do have protected due-process rights, the basic components of which are fairness, meaningful notice of charges, and a meaningful opportunity to defend oneself. ). 19 This authority is notably absent from the text of KRS 26A.020. While the Chief Justice is vested with the authority to appoint a special judge, the Chief Justice is not vested with the authority effectively to appoint a new circuit judge for the 30th Circuit. This is evidenced, of course, by the simple fact that the people, not the Chief Justice, select circuit judges at the ballot box. Further evidence is provided by the process in which a vacant judicial seat is filled the Chief Justice, as part of a larger commission, recommends three names to the Governor who makes the appointment. In other words, nowhere in our law, KRS 26A.020 or otherwise, is the Chief Justice, alone, vested with the authority to remove a duly elected sitting judge. 12

of Judicial Conduct. Accordingly, this matter must be referred to the Judicial Conduct Commission for immediate action in accordance with its constitutional and statutory duty to investigate complaints and impose sanctions on judges found to have committed disciplinary violations. Based on the reasons stated, the Chief Justice ORDERS that: (1) The Commonwealth s Attorney s request to disqualify Judge Stevens from presiding all criminal cases arising in the 30th Judicial Circuit of Kentucky, Division 6, is DENIED. (2) The Commonwealth s Attorney s affidavits and all related documents are referred to the Judicial Conduct Commission for immediate action under SCR 4.170; and (3) The Jefferson Circuit Clerk shall place a copy of this order in the record. ENTERED: December 18, 2015. CHIEF JUSTICE Copies to: Judge Olu A. Stevens, 30th Judicial Circuit, Division 6 Thomas B. Wine, Commonwealth s Attorney, 30th Judicial Circuit David Nicholson, Clerk, Jefferson Circuit Court Judge A. C. McKay Chauvin, Chief Judge, Jefferson Circuit Court Honorable Stephen D. Wolnitzek, Chair, Judicial Conduct Commission Ms. Jimmy Shaffer, Executive Secretary, Judicial Conduct Commission James L. Deckard, Esq., Counsel for Judge Olu A. Stevens 13