Alred v. Commonwealth, Judicial Conduct Commission

CUNNINGHAM, J.,

Concurring in Part and Dissenting in Part:

Judge Aired has not killed or physically injured anyone. He has not molested his secretary. He has not stolen a dime. In fact, he hasn’t even been charged with a crime of any kind — misdemeanor or felony. None of his friends or family members have gotten rich or gone free because of his missteps. He has not enriched himself financially nor engaged in any kind of debauchery.

His judicial misconduct has been primarily on behalf of children and against criminals. In all his excessive exuberance, he has failed to grasp his professional responsibility. He simply has not learned how to conduct himself as a judge. The heat of his passion for his community, including children, has singed his judicial robes. His misbehavior brings to mind the words of Shakespeare’s Othello: “When you shall these unlucky deeds relate, speak of me as I am; nothing extenuate, nor sit down aught in malice; then must you speak of one who loved not wisely but too well.”

I know that in the past, at least, we have had judges convicted of crimes who contin*448ued to serve on the bench. Therefore, I concur in part and dissent strongly in part. I concur with the adept handling of the constitutional issues by the Chief Justice. I dissent as to the penalty of removal from office, as well as our Court’s treatment of some of the charges.

First of all, I am against affording our duly elected state judges less protection from removal from office than federal judges who are appointed for life. In regards to the removal of federal judges from office, Article II, § 4 of the U.S. Constitution lays out express phrasing: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Federal courts have wrestled through the ages as to what constitutes “other high Crimes and Misdemeanors,” but never have they wavered from the necessity that such be found before a “civil Officer” is removed from office.

Section 121 of the Kentucky State Constitution invests this Court with authority to remove a judge for “good cause.” Judges in Kentucky are subject to close scrutiny by the electorate every four years for district judges, and eight years for other judges and justices. The federal judges are not. Therefore, I think our state judges, whose conduct is regularly being reviewed by the electorate, deserve equal protection from removal. The standard for “good cause” should at least require being guilty of committing some crime, either felony or misdemeanor. Judge Aired has not been adjudicated guilty of any crime by any court, or even by the majority opinion entered against him here today.

I also take issue with the substance of some of the charges. I question the broad, sweeping edicts of this Court in dealing with those ethical issues. They bode troublesome for future cases.

The most serious of the alleged wrongdoing by Judge Aired centers on what appears to be a simmering and ongoing feud between him and the Harlan County Judge-Executive. At this level of review, it is impossible for us to accurately assess the local political and social intrigue entangled in these acts. I do not believe this Court can tell from the record whether Judge Alred’s running gun battle with the judge-executive originated from a genuine concern for law and order in his community — regressing into a political street brawl — or whether it was born on the wings of a personal vendetta from the start. That’s why it is best that the hearts of the protagonists be searched by the electorate rather than by us.

It does appear that Judge Aired was not alone in his attention to the judge-executive. The Harlan County Sheriff conducted an investigation into alleged drug dealing by the judge-executive, and the Commonwealth’s Attorney independently decided to present this information to a special grand jury — apparently for the purpose of formally exonerating the county chief executive officer. Judge Aired jumped into the affray in an inappropriate manner. His timing and motive for calling the grand jury may have been unacceptable, but we go too far in our opinion in condemning ex parte communication with law enforcement.

I dissent from this Court’s treatment of the issue concerning Judge Alred’s personal settlement-with Kentucky Utilities after he filed a complaint -with the Public Service Commission. I read nothing in the opinion of the majority that would indicate that this was anything but a private matter. He apparently dismissed the claim without requesting any compensation for himself, but “urged” Kentucky Utilities to *449donate $12,500 for the purchase of playground equipment at the local elementary school. Such a dastardly deed chills the blood. If Judge Aired had demanded the money for himself as settlement of his claim, then it apparently would not have justified our discipline. But because he sought a donation for playground equipment it does. The general public will not understand this logic, and neither do I.

The U.S. Sixth Circuit Court of Appeals has ruled that the bar on political solicitation is “overbroad and thus invalid on its face.” Marcus Carey v. Stephen D. Wolnitzek, et al., 614 F.3d 189, 207 (6th Cir.2010). See also SCR 4.300, Canon 5(B)(1)(c). I would suggest that Canon 4(C)(3)(b)(i) and (iv) which prohibits judges from personally participating in fund-raising for worthy causes has to be on constitutional life support.

It is inconceivable to me that the Sixth Circuit Court of Appeals is going to hold that a judge can solicit money for his or her own personal and political gain, and deny that judge the right to solicit money for an altruistic purpose. Therefore, I suggest that, in all likelihood, the Judicial Canon under which Judge Aired is condemned in this charge is on its way to the U.S. Constitutional trash bin.

I strongly dissent to disciplining Judge Aired for firing a public defender who was constantly a no-show in his court, thereby placing indigent defendants and the court system at risk. We condemn his acts with a lot of form and scripture. Judges have a duty to run their courts in a fair and efficient manner. This includes the attempt to bar incompetent and irresponsible public defenders. Granted, that authority is not unbridled and the Court correctly points to the legal impediments to that end. Judge Aired did not follow the playbook word for word. But the entering of the order dismissing the offensive public defender from his court was simply a procedural error and not an ethical violation. Regional and state directors of our public defenders are, in my opinion, able and competent lawyers and administrators, plenty capable of taking care of themselves. There was not a breach of judicial canons worthy of our attention or the attention of the commission. It seems to me to be a case of “piling on.”

The majority upholds the punishment of Judge Aired for viewing videotape evidence in the Harlan County Sheriffs office regarding the investigation of the Harlan County Judge-Executive. It appears from the footnote, as well as other parts of the opinion, that this videotape was watched before he convened the special grand jury. The Chief Justice states on page 440 of the majority opinion the following: “The commonwealth’s attorney even agreed with Judge Aired that it would be a good idea to call a special grand jury with jurors from a different county” to consider the investigation of the judge-executive. Whether it was Judge Alred’s intent at the time, watching the video definitely provided, in part at least, the basis for calling the special grand jury. It is only logical that seeing the evidence would come before any discussion of calling a special grand jury. Since this apparently was the case, there was nothing at all wrong with Judge Aired viewing the evidence which formed the basis for calling the special grand jury.

Special grand jury investigations are expensive, both in the money they expend and the human toil and trouble they cause. Regular grand juries are established by law. Special grand juries are convened solely at the discretion of the Chief Circuit Judge. KRS 29A.220. This convening authority cannot operate in a vacuum. Special grand juries are limited to ninety days, unless extended by the judge. How does the judge know if one needs to be called? *450Through ex parte communications with law enforcement, the Commonwealth’s Attorney, or other citizens. How does the judge know when one needs to be extended? Through ex parte conversations with the Commonwealth’s Attorney.

During my fifteen years on the circuit court bench, I never convened a special grand jury. However, as Commonwealth’s Attorney, I worked with one which lasted for two weeks and was convened by then circuit judge and future Federal District Court Judge Edward H. Johnstone. We were in constant communication with each other as to the status of the special grand jury. Judge Johnstone was continually prodding me to “wrap it up.” He was simply taking care of business.

I fear that our Court’s opinion today says far too much in our effort to support a charge against Judge Aired. No circuit judge should ever call a special grand jury without good cause. Therefore, it is not only appropriate, but good judgeship, to become fully acquainted with the need for such action before calling one. This could include viewing a videotape of the investigation in the sheriffs office.

Judge Aired can seemingly do no good. He is condemned for calling a grand jury in retaliation against the judge-executive, and also for viewing the evidence which the sheriff had that might have provided a legitimate reason for calling the grand jury. Ex parte communication with a judge by law enforcement before calling a special grand jury is not unlike the ex parte communication of law enforcement with a judge before the issuance of a warrant. It was not inappropriate for Judge Aired to watch the videotape of the investigation. It was his duty. The majority opinion misguides circuit judges as to their duties regarding special grand juries.

One charge condemns Judge Aired for urging the criminal investigation of two defendants suspected of illegal gambling. The two were indicted, but he dismissed the charges upon agreement of the parties. On the surface, it doesn’t look good. But when examined closely, it was totally innocuous. No defense lawyer ever asked for his recusal, and he dismissed the indictment long before it proceeded to any critical stage of the proceeding. It appears to me to show a total lack of bias concerning the two parties in that he agreed to dismiss the charges.

Let’s place this holding against Judge Aired in a much larger context. Canon 3(E)(1)(a) and KRS 26A.015 provide that a judge shall recuse himself in any proceeding in which he has a personal bias concerning a party or where he has knowledge of any other circumstance in which his impartiality might reasonably be questioned. On a daily basis in this state, trial judges sitting in drug courts find defendants have violated probation by consuming illegal drugs. As a result, the judges terminate the defendants’ drug court status. Yet, these same judges then proceed to sit in subsequent revocation hearings which are based on the same misconduct. I cannot think of a situation where a trial judge has more “knowledge of any other circumstances in which his impartiality might reasonably be questioned” than this. Yet, such a practice has been upheld by the Ethics Committee of the Kentucky Judiciary as not violating KRS 26A.015, the statute under which Judge Aired has been condemned. See Formal Judicial Ethics Opinion JE-122. Judge Alred’s specific conduct in this case seems far less fraught with potential for bias.

Other misconduct includes obvious overreaching and inappropriate use of his judicial influence. His appearance before the fiscal court to direct that drug money donated by drug offenders in his court be used for a water park for the community, *451or at least for “youth programs and facilities,” was not acceptable behavior by a judge. And neither was ordering that the use of monies donated by a criminal defendant to the fiscal court for the purpose of alleviating drug abuse in Harlan County be subject to his veto. But these acts do not merit removal from office.

Judge Aired has blundered. And he has blundered to a serious degree. Like all the others on this Court, I do not condone much of his behavior. I especially join the majority in their condemnation of his reaction to the recusal affidavit and the apparent retaliatory calling of the grand jury. This offends me greatly. For this he deserves not only rebuke, but punishment. For his other mishandling of judicial authority, he deserves rebuke. For his wrongdoing, I recommend sixty days suspension without pay. As to our rebuke, I leave that to the electorate to decide.

My brothers and sisters on this Court have agonized mightily over the removal of Judge Aired from office. For this, I respect them. But only two of us stand against the disenfranchisement of almost 30,000 citizens of Harlan County, Kentucky by invalidating their selection for circuit judge. His removal is without benefit of even a criminal charge, let alone the conviction of “high Crimes and Misdemeanors.” And without benefit of an election which looms just two years away.

To this, I strongly dissent.

SCOTT, J., joins.