dissenting.
I respectfully dissent on the basis that the majority extends our previous decisions too far. Though we recognize that, “the appearance of impartiality is next in importance only to the fact [of impartiality],” Wells v. Walter, Ky., 501 S.W.2d 259 (1973), the situation in this case only appears partial at first glance. Even though the trial commissioner’s husband works for the Commonwealth Attorney in the capacity of a victim advocate, he is not involved in prosecuting criminal defendants beyond counseling victims and is precluded from practicing law in any capacity. KRS 15.760. Though the defendant may believe a trial commissioner in this situation would be biased, this alone does not constitute bias, and we require that the appearance of bias be objective. Webb v. Commonwealth, Ky., 904 S.W.2d 226, 230 (1995), citing Howerton v. Price, Ky., 449 S.W.2d 746, 748 (1970); Sommers v. Commonwealth, Ky., 843 S.W.2d 879, 882 (1992).
The majority presumes that the trial commissioner may be partial to the requests of her husband’s employer. However, since the Commonwealth Attorney does not involve victim advocates in the capture or prosecution of criminals, her husband’s knowledge of these affairs would be sufficiently limited to prevent bias. Further, the majority’s argument that a trial commissioner who is not a lawyer will give, more credence to warrants prepared by the Commonwealth Attorney suggests that a trial commissioner must be a lawyer to be unbiased. Such contravenes Section 113 of Kentucky’s Constitution, as well as KRS 24A.100, allowing non-attorneys to serve as trial commissioners in counties where an unbiased attorney cannot be found.
The Judicial Ethics opinions (JE) cited by the majority as support can be distinguished from the case at hand. A secretary’s intimate knowledge of a law firm cannot compare to a victim advocate’s limited access to the business of a Commonwealth Attorney, making any subtle influence negligible. JE — 13, 101. JE — 34 (stating that a judge can only sign warrants prepared by his daughter in her capacity as County Attorney if there is no other judge available) serves as a good example of why trial commissioners may be neutral and detached, though married tó a victim advocate. The trial commissioner in this case is not only more detached than the judge in JE — 34, but the Kentucky Constitution created the post specifically for counties without a judge to perform those duties. Lastly, requiring that a judge only disqualify himself from cases in which his son, as Commonwealth Attorney, actually participates, JE — 8, is a perfect analogy to this case because the victim advocate had no involvement with the issuance of the search warrant. Presumably, one can infer from JE — 8 that attorneys working in the Commonwealth Attorney’s office could argue before the father of their employer; the victim advocate’s interest in the trial commissioner’s dealing with the Commonwealth Attorney would be even less.
The trial commissioner is not a judge and the victim advocate is not the Commonwealth Attorney, therefore, considering the Judicial Ethics Opinions and cases cited herein, I cannot join with the majority holding that this case involves an appearance of bias sufficient enough to remand.
COOPER, and WINTERSHEIMER, J.J., join this dissenting opinion.