Justia.com Opinion Summary: The Jefferson County District Court Judges and Trial Commissioners petitioned the Supreme Court to review Judicial Ethics Opinion JE-212, in which the Ethics Committee of the Kentucky Judiciary determined that a judge's staff attorney or law clerk could not be appointed to the additional position of trial commissioner even if the time spent in each position would be separately accounted for, or if the staff attorney/law clerk did not work on anything she had worked on as a trial commissioner, and vice versa. The Supreme Court vacated the Opinion, holding (1) in this case there was no violation of the trial commissioner's ethical requirement to give first place to his judicial duties because the position of a trial commissioner is part-time; and (2) although there is a potential appearance of impropriety where a district court trial commissioner also serves as a staff attorney for a court of the same judicial district, the limited situations in which this may arise does not justify the blanket exclusion of all judicial staff attorneys from serving as trial commissioners.
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RENDERED: NOVEMBER 23, 2011
TO BE PUBLISHED
S5uprattr (Court of Ifirttfuritv
2011-SC-000384-OA
IN RE: JEFFERSON DISTRICT COURT JUDGES
AND TRIAL COMMISSIONERS
V.
MOVANTS
IN SUPREME COURT
(REVIEW OF JUDICIAL ETHICS OPINION JE-121)
ETHICS COMMITTEE OF THE
KENTUCKY JUDICIARY
RESPONDENT
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
VACATING
The Jefferson County District Court Judges and Trial Commissioners
("Movants") petition this Court, pursuant to SCR 4.310(4), to review Judicial
Ethics Opinion JE-121, dated March 29, 2011.
The following question was presented to The Ethics Committee of the
Kentucky Judiciary ("the Committee"):
Whether a judge's staff attorney or law clerk could be
appointed to the additional position of trial commissioner if:
(A) the two positions are kept "separate," that is, time
spent in each position would be separately accounted
for, and
. (B) the staff attorney/law clerk did not work on anything
he or she had worked on as a trial commissioner, and
vice versa.
The Committee responded in the negative as follows:
First, a judge is required by Canon 3A to give first place
to his or her judicial duties and as the position of staff
attorney or law clerk is full-time, the trial commissioner
would not be able to comply with this ethical,requirement.
Second, there is an appearance of impropriety. The dual
employment would create concerns in the minds of the
public about the relationship between the Judge and the
Trial Commissioner. The Committee did not believe that the
appearance problem could be solved by having the trial
commissioner recuse from any project he or she had
worked on as staff attorney or law clerk, or vice versa.
An additional element of the inquiry was whether the
appointment could be made if the staff attorney or law clerk
for Judge A were appointed as the trial commissioner for
Judge B. The Committee does not believe that this scenario
would alter the situation.
The Movants challenge both of these positions. First, they disagree with
the conclusion that Canon 3A is violated. The Jefferson District Court Trial
Commissioners' duties are conducted between 11 p.m. and 7 a.m. In no way
do these hours overlap with the normal business hodrs of the Jefferson Family
Court. Because of this separation in working hours, the trial commissioners
are able to fulfill their responsibilities and duties. The Movants also challenge
the notion that an appearance of impropriety is created. They argue primarily
that any appearance of impropriety is cured by the fact that the trial
commissioners are Family Court staff attorneys, as opposed to District Court
employees.
Analysis
Trial commissioners serve pursuant to SCR 5.010, which allows the
Chief District Judge to appoint trial commissioners upon certification of
2
necessity by the Supreme Court. The powers of a trial commissioner are set
forth in SCR 5.030, and include the authority to perform judicial functions in
criminal, civil, juvenile, probate, and mental health cases. However, the
authority of any individual trial commissioner may be limited by this Court or
by the Chief District Judge. SCR 5.030.
In the interest of fashioning a rule that would be applied consistently
throughout the Commonwealth, the Committee considered those situations
where the trial commissioner exercises the full panoply of duties authorized by
SCR 5.030. This is a legitimate consideration and we are respectful of this aim.
However, we disagree with that approach, as applied to this matter, and believe
it appropriate to consider the particular circumstances presented on a case by
case basis. See Caudill v. Judicial Ethics Committee, 986 S.W.2d 435, 436-37
(Ky. 1998) ("Rather than considering the particular facts and circumstances to
determine whether nepotism exists, JE-90 issues a blanket prohibition which,
in this case, would have terminated the employment of apparently qualified
persons."). Indeed, the Committee seems to acknowledge that, as the two
Jefferson District Court Trial Commissioners currently function, there is no
indication that an actual violation of the Code has occurred.
We find there is no violation of Canon 3A under the facts presented by
the Jefferson District Court Trial. Commissioners. The position of a trial
commissioner is part-time. As such, a trial commissioner is "permitted by law
to devote time to some other profession or occupation." SCR 4.300 Application
of the Code of Judicial Conduct (A). Though subject to certain limitations, the
Supreme Court Rules and the Code of Judicial Conduct certainly anticipate
that a trial commissioner will maintain a separate legal practice. SCR 5.060.
See also Judicial Ethics Opinion JE-17 ("By placing certain limitations on the
practice of law by trial commissioners, the Kentucky Supreme Court , impliedly
placed its stamp of approval on all other types of practice."); Judicial Ethics
Opinion JE-22 (Code of Judicial Conduct does not ethically bar trial
commissioner from simultaneously serving as city attorney.). We know of no
authority prohibiting a trial commissioner from litigating non-criminal matters
before an appointing district judge.
We find no rationale under which Canon 3A would so clearly permit an
outside legal practice, but uniformly prohibit employment as a staff attorney.
Further, we find no actual violation of Canon 3A under the particular
circumstances of this case. It is undisputed that the Jefferson District Court
Trial Commissioners conduct business outside the normal working hours of
the Jefferson Family Court. As any other trial commissioner maintaining a
separate legal practice, the Jefferson District Court Trial Commissioners are
able to comply with the duty under Canon 3A by simply limiting their work to
those hours during which the Jefferson Family Court is closed.
Turning to the issue of Canon 2, we agree with the Committee's general
proposition that there is a potential appearance of impropriety where a district
court trial commissioner also serves as a staff attorney for the circuit or family
court of the same judicial district. For example, SCR 5.030 permits a trial
commissioner to issue search warrants. An appearance of impropriety would
certainly arise if the validity of that search warrant was later challenged in the
circuit court in which the issuing trial commissioner serves as staff attorney.
The impartiality of the circuit judge could reasonably be questioned where he
or she is reviewing a search warrant issued by his or her own employee.
However, we again disagree with the Committee that the existence of
certain limited situations in which an appearance of impropriety may arise
justifies the blanket exclusion of all judicial staff attorneys from serving as trial
commissioners. Instead, we find instructive the case of Dixon v.
Commonwealth, 890 S.W.2d 629 (Ky.App. 1994), where limitations were placed
on the authority of a trial commissioner to avoid an appearance of impropriety,
rather than disqualifying the commissioner altogether. There, the Court of
Appeals considered the validity of a search warrant that was issued by a
district court trial commissioner who maintained a private law practice with
the county attorney. Recognizing the appearance of impropriety that arose
from such a relationship, the appellate court concluded that the appropriate
remedy would be to prevent the trial commissioner from issuing search
warrants, "for the exercise of that duty gives rise to the appearance of
impropriety that she as an officer of the court performing judicial functions
must avoid." Id. at 632.
We believe a similar remedy - that is, of simply limiting the trial
commissioner's duties - is appropriate in this case. The trial commissioner
only performs those specifically designated judicial functions. When the trial
commissioner also serves as a staff attorney in another branch of the same
judicial district, careful attention must be paid to the functions performed by
the commissioner. In the situation presented herein, such duties would
include, for example, the issuance of emergency custody orders and domestic
violence orders, as these matters could potentially be the subject of or
pertinent to a family court action. Additionally, the trial commissioner should
not perform any judicial function on a matter previously worked on in his or
her capacity as staff attorney.
Even when these types of limitations are in place, the possibility still
exists that a matter considered by a trial commissioner will end up before the
judge for whom he or she works as a staff attorney. In those cases, the judge
for whom the staff attorney works must recuse from such case. It is
inadequate for the staff attorney alone to recuse himself or herself from
working on the case, as the Movants propose. The potential for influence and
the appearance of impropriety lies also with the judge adjudicating the matter,
who may appear to be influenced by the prior decision of his or her staff
attorney.
For the reasons outlined above, Judicial Ethics Opinion JE-121 is hereby
vacated.
Abramson, Schroder, Scott and Venters, JJ., concur. Minton, C.J., and
Noble, J., concur in result only.
6
COUNSEL FOR MOVANTS:
Sean Robert Delahanty, Chief Judge
Jefferson District Court
Hall of Justice
600 W. Jefferson St.
Louisville, KY 40202
Catherine Smith Duffy, Trial Commissioner
and Law Clerk/ Staff Attorney
700 W. Jefferson, Ste. 220
Louisville, KY 40202
Richard Owen Lewis, Trial Commissioner
and Law Clerk/ Staff Attorney
700 W. Jefferson, Ste. 220
Louisville, KY 40202
.
COUNSEL FOR RESPONDENT:
Arnold S. Taylor
Chairperson, Ethics Committee of the Kentucky Judiciary
Administrative Office of the Courts
100 Millcreek Park
Frankfort, Kentucky 40601-9230
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