Kentucky Judges Part 2 ©
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By R. G. DUNLOP - Staff Writer for the Courier Journal - edited for html by Robert Hedges

LEXINGTON, Ky. - District Judge John Paul Moore solicited sexual favors from a female defendant whose case had recently been dismissed in his court. For that and other ethical violations, Moore was suspended without pay for three months in 1991.
Then he returned to the bench in Madison and Clark counties. He's still there.
As district judge, Sam Long protected bootleggers in Morgan County. That earned him a six-month suspension in 1980. Less than three years later, Long's pay was suspended for 30 more days after he wrongly dismissed four drunken-driving convictions in Carter County.
Then Long continued on the bench. In 1987 he was promoted to Circuit Judge by Gov. Martha Layne Collins. He's still there.
While serving as circuit judge in Perry County, Calvin Manis improperly met with two coal-company attorneys to discuss a pending case. He received only a public reprimand after the state Judicial Retirement and Removal Commission, which oversees judges, concluded that Manis had no "corrupt motivation."
But according to a sworn statement filed by the attorneys as part of the case, Manis told them he was in a tough re-election battle in the fall of 1991 andwould have to rule against them and contrary to law - because the other side commanded more votes.
Manis already had issued one injunction against the coal company, only to have it dissolved by the state Court of Appeals. Nevertheless, a week after his meeting with the lawyers, Manis issued a second injunction against the company. The Supreme Court eventually ruled that it, too, was erroneously granted.
Manis was not re-elected as Circuit judge. But he later was appointed, and then elected, to the district court bench. He's still there.
Jefferson District Judge Tom McDonald solicited campaign contributions from attorneys he appointed as guardians for children who appeared before him in juvenile court.
The state paid the guardians, who represented the interests of children or their parents, $250 per case.
In 1990, after agreeing to drop out of the race for Kentucky Court of Appeals and return the $4,830 he'd raised, McDonald was publicly reprimanded for his misconduct. He's still on thebench.
The cases of Moore, Long, Manis and McDonald, along with others, seem to cast doubt on whether the Public's interests are always adequately safeguarded by Kentucky's system of disciplining judges.
Its defenders argue that the commission's integrity is beyond reproach; that it has no qualms about punishing misconduct; and that its two lay members help ensure that, wrongdoers aren'tshown favoritism by its three judicial members.
"We take it very seriously; we don't want judges to do the improper thing," said retired Fayette Circuit Judge N. Mitchell Meade, a commission member from its inception until he left the bench last year.
But in the legal community, stories persist about judges seeking slots on the commission to protect' their colleagues. Three authorities who reviewed some published commission decisions concluded that the penalties favored the accused judges. And commission members themselves say its proceedings should be more open to the public.


Light penalties?


The punishment for Moore, the judge who solicited sexual favors, seemed light to Geoffrey Hazard, a professor of legal ethics at the University of Pennsylvania. And Long should have been removed from the bench, said Hazard, who is also executive director of the American Law Institute.
Jeffrey Shaman, a law professor at DePaul University and an authority on judicial ethics, said McDonald's penalty for soliciting campaign gifts struck him as somewhat lenient.
Commission Chairman Joe C. Savage declined to discuss specific cases or whether certain sanctions were appropriate.
But he noted that shortly after the commission's creation,the state Supreme Court said penalties im should represent the "least severe sanction necessary to remedy the situation." The intent, the court said not to punish the offending judge.
However, Supreme Court J Charles Leibson has since a that punishment is a legitimate part of the commission's purpose. And Savage said the commission considers both deterrence and punish when imposing penalties.


Secrecy


The commission describes itself as the "primary safeguard for acceptable judicial conduct in Kentucky" and seeks to promote public confidence in the judiciary.
It also serves as a buffer between the public and the state's 244 judges, protecting them from unfounded criticism.
Indeed, the vast majority of complaints, many of them from disgruntled litigants, are dismissed,
But whether a complaint is bogus or valid, Kentucky Supreme Court rules governing the commission shield the accused from full public view. Its hearings and files, for example, are closed to the public unless the accused judge wants them open - which rarely occurs.
Kentucky is one of just six states whose judicial discipline proceedings are closed until penalties are Imposed. About 30 lift the veil of secrecy once formal charges are filed.
Savage, a Lexington attorneys said he and the five other commission members would prefer a more open system, and they asked the Supreme Court about two years ago to institute it. So far, however, the court has not acted.
Under the existing rules, there is no way to know what if anything the commission did about a widely publicized letter Manis wrote in 1992 to the Kentucky Parole Board. The letter urged leniency for a convicted murderer he'd sentenced to life in prison eight months earlier.
The defendant later was granted a new trial after the defendant's relatives swore that Manis had promised him leniency:
Savage said recently it would be a "very bad mistake" for a judge to write such a letter, but he had no recollection of the commission reviewing such a case.


Sketchy opinions

Full disclosure also suffers when the commission issues one if its infrequent published opinions.
There have been about two dozen over the years, and they are sketchy at best.
In Moore's case, for example, the commission's ruling contained just two general sentences about his misconduct. They said:
District Judge John Paul Moore solicited sexual favors from a female defendant whose case had recently been dismissed in hiscourt. The commission further determined that Judge Moore considered ex-parte communications conceming a pending proceeding and, in fact, administratively dismissed a charge pending against a defendant without ever placing the charge on the docket."
Savage said that he thought the commission's orders detailed judges' misconduct "pretty specifically," and that it is not the commission's intent to conceal information from the public with incomplete statements of judicial misdeeds. Doing so, he said, would hamper the commission's efforts to deter others.


Judges who quit


The commission also encourages some accused judges to quietly resign or retire, rather than face charges and possible public condemnation. About a dozen have accepted that offer since the early 1980s. Some resumed law practices.
"I think the public is well-served by plea-bargaining,"Savage said. "If we couldn't get a resignation unless the public knew about it, and if the judge remained on the bench as a result, I'm not sure whose interests would be served."
But accused judges who leave the bench without the commission's blessing also escape the most severe sanctions. That's because once they've left the bench, the most serious penalty they can receive from the commission is a public reprimand.
In theory, the Kentucky Bar Association, which oversees lawyers, could still investigate a former judge's fitness to practice law. In practice, however, such investigations appear to be rare.
Ray Clooney, the bar association's disciplinary counsel for six years until late 1993, , said he couldn't recall receiving a single referral from the commission. And neither Savage nor James Lawson, the commission's Executive secretary could cite specific cases referred to the bar association. The bar association did seek to discipline former Daviess District Judge Thomas F. Hardesty, who resigned after allegations that he made improper advances to two female defendants in his chambers.
In 1989, however, the Supreme Court dismissed the bar association's case against Hardesty.
In at least two other cases, the bar association apparently did not seek to punish serious ethical violations by former judges.
The commission's hands were tied because Hardin County Trial Commissioner Phillip R. Warf resigned after improperly dismissing or amending three dozen drunken driving cases. And District Judge Wayne Fitzgerald was defeated for re-election after vacating a drunken-driving conviction entered in Nicholas County by another judge.
The commission publicly reprimanded both men, the maximum penalty it could impose. There is no public record of the bar association investigating their misconduct on the bench.
Shaman, of DePaul University, said commissions in most states can investigate and discipline former judges for misconduct on the bench.
"The judicial agency has the most expertise and should continue the regulation," Shaman said. "If a judge resigns, it should have authority to penalize the judge as a lawyer, up to and including disbarment."
Commission Chairman Joe C. Savage says it has asked the state Supreme Court for a more open system, but nothing has happened. By 1990, Wayne W. Fitzgerald already was a three-time loser.
As a district judge in 1986 he'd undermined the integrity of the court system by secretly setting aside two drunken-driving convictions and some traffic citations.
And he'd failed to disqualify himself from cases involving close friends in his four-county district near Lexington.
The Kentucky Judicial Retirement and Removal Commission, which oversees the state's judges, had suspended his pay for 15 days and publicly reprimanded him for those offenses.
Fitzgerald also had been reprimanded twice for unethical behavior as a lawyer.
Now, in April 1990, he was before the commission a second time. Once again he improperly dismissed a drunken-driving case, an offense the commission deemed all the more serious due to Fitzgerald's track record.
So wasn't this the commission's golden opportunity to rid the legal system of Fitzgerald once and for all?
No.
In fact, the commission was virtually powerless to act. That's because Fitzgerald was no longer a judge when the commission decided his case in April 1990. He'd been defeated for re-election and had left the bench.
In many other states, removal commissions have broader powers. For instance, some can deprive offenders of certain benefits, or prohibit future judicial races.
But all Kentucky's commission could do was publicly reprimand Fitzgerald which it did.
His career didn't miss a beat; he simply continued his law practice in Harrison County.
Fitzgerald's is not the only case in which the commission, during its nearly 20 years of existence, has been unable or unwilling to exercise its full authority.
It has imposed relatively light sanctions for some serious offenses. It has plea-bargained with accused judges, allowing about a dozen to resign or retire without making their transgressions public.
In two cases besides Fitzgerald S, the commission may have wanted to impose strong penalties but couldn't because the offenders were no longer in office.
And since 1978, six of nine commission rulings appealed to the state Supreme Court have been reversed or modified.
Notwithstanding this track record, current and former commission members generally strongly support its mission and defend its results.
Independently assessing the commission's effectiveness is difficult, because it works almost exclusively in secret.
Nevertheless, available evidence raises serious questions about how well the public's interests are being protected by Kentucky's system of disciplining judges.


Despite improperly dismissing or amending three dozen drunken driving cases in 1988, Hardin County's trial commissioner escaped with only a public reprimand.
Trial Commissioner Phillip R. Warf's handling of the cases violated a basic principle of American jurisprudence: Both sides in a legal matter have the right to be present when it's being considered.
Warf, however, dismissed or amended the cases in his chambers, without notifying prosecutors or giving them a chance to be heard.
But by the time the state Judicial Retirement and Removal Commission caught up with Warf, he'd already resigned and resumed his law practice in Elizabethtown. All the commission could do was publicly condemn his actions, which it did in January 1989.
A few months later, Warf tried to return to the bench as district judge.
He said he expected voters to support County Attorney Steve Bland, his opponent, if they believed Warf was guilty of wrongdoing. Bland won nearly 70 percent of the votes cast.
Although the Kentucky Bar Association also could have challenged Warf's fitness to practice law, there is no indication that it did so.
Warf refused recently to discuss his handling of the cases or whether the bar association probed his misconduct on the bench.
"It was not a happy time, and I really don't want to rehash the whole thing," Warf said.
Warf and attorney Roger Rigney, who represented the defendants in all but two of the 36 drunken driving cases, were friends as well as colleagues in Hardin County.
Rigney denied recently that Warf dismissed or amended the cases as a favor to him. But he wouldn't say why they were disposed of that way.


Old guilty plea vanished at hand of Wayne Fitzgerald

CARLISLE, Ky. In 1989, when Donnie Beach was in hot water because of a previous drunken driving conviction, District Judge Wayne W. Fitzgerald was right there to help.
And why not, Fitzgerald already had been disciplined three times for ethical lapses. He'd even established a precedent for improperly disposing of drunken-driving cases.
In 1986, Fitzgerald had dismissed two drunken-driving convictions and some traffic citations for no good legal reason. And he hadn't disqualified himself from cases involving close friends.
Sure, he'd gotten caught. But he was only docked two weeks' pay by the state Judicial Retirement and Removal Commission, which could have ousted him from the bench.
Besides, Beach's problem was just one drunken-driving case. Maybe no one would even notice if the conviction disappeared.
And just like that, it did, thanks to an unusual ruling by Fitzgerald.
At first, District Judge Robert McGinnis, who'd convicted and sentenced Beach in 1988, didn't notice. But when someone alerted him, he wasted no time.
After telling Fitzgerald what he was about to do, McGinnis went straight to the commission.
The commission later found that Fitzgerald had dismissed Beach's case outside the courtroom, without the county attorney's knowledge and for reasons unrelated to the facts of the case.
The commission said it viewed Fitzgerald's actions as all the more erious because they were strikingly similar to those for which he had been disciplined in 1986.
But the commission could levy only a public reprimand, because residents of the 18th judicial district had voted Fitzgerald out of office November 1989. He was no longer on the bench when the commission considered his case in April 1990.
Contacted recently at his Harrison County law office about his handling of Beach's case, Fitzgerald said: "I don't think it's anybody's business." Then he hung up.
Fitzgerald took care of Beach,s case after Beach was stopped twice in Bourbon County for traffic offenses in mid-1989, records show. The charges included driving with a license that had been suspended after his 1988 drunken-driving conviction in Nicholas County.
After six continuances, Beach's Bourbon County cases finally were set for a pretrial conference. By then, however, Fitzgerald had done his dirty little deed-ruling that Beach's guilty plea in Nicholas County was "unconstitutional.
Once that happened, Beach's license suspension vanished and the suspended-license charges in Bourbon County were dismissed. Instead of facing jail time, Beach paid $94.50 in fines and costs.
Available records don't show under what circumstances Fitzgerald deep-sixed Beach's conviction.
Guy Ormsby of Paris, who initially represented Beach in the Bourbon County cases, withdrew after smelling something rotten in Carlisle.
"Beach was confident that he could get a new trial granted on the charge in Nicholas County," Ormsby said. "It appeared to me that something was about to take place that I didn't have any control over and didn't want to be part of."
Beach denied any knowledge of the cases.
Nor did Michael Triplett, the Grant County attorney who replaced Ormsby and represented Beach in all three cases, shed any light.
"I don't think I can help you on that," said Triplett, who was himself censured by the commission in 1992 for a campaign violation during an unsuccessful race for district judge in Kenton County.
McGinnis, now the circuit judge in Nicholas and three other counties, said turning Fitzgerald in was not easy.
"He and I were and still are colleagues and friends," McGinnis said. "My reporting what happened speaks to what I thought about it thought it was wrong."
Once the commission learned what Fitzgerald had done in Beach's case and began investigating, the judge quickly reversed himself and restored the conviction.
This order said simply that his previous ruling had been made "erroneously and mistakenly."


============Comment

Recently a KY Supreme Court Justice received a DUI. I personally would rather he spent his time studying case law for quality rulings to benefit us KY citizens, rather than wasting time in a "DUI class". People do accidentally go past the low legal limit without being actully impaired to the point of danger to self or others.


Go to the first part of the Strollin' Pettifoggers article which describes wrong-doing of the named Kentucky judges, and read how cases in Federal Court may remedy these constitutional torts, and how Congress should draft the legislation to define clearly the exact procedures leading to these required suits.
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Last modified: July 1998