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.
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.
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.
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.
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.
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."
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.