JUDGE MICHAEL MCDONALD, Kentucky Court of Appeals (Retired) CHIEF JUDGE JOHN P. HAYES, Kentucky Court of Appeals (Retired) JUDGE EARL O'BANNON, JR., Jefferson Circuit Court (Retired) JUDGE ELLEN B. EWING Jefferson Circuit Court (Retired) CHIEF JUDGE CHARLES B. LESTER, Kentucky Court of Appeals (Retired) JUDGE BENJAMIN F. SHOBE, Jefferson Circuit Court (Retired), CHIEF JUDGE RICHARD A. REVELL, Jefferson Family Court (Retired) JUDGE MICHAEL J. O'CONNELL, Jefferson Circuit Court (Retired) V. THE ETHICS COMMITTEE OF THE KENTUCKY JUDICIARY
Annotate this Case
Download PDF
I
.
AMENDED:
November 15, 1999
RENDERED: OCTOBER 21,1999
TO BE PUBLISHED
99-SC-00531-OA
JUDGE MICHAEL MCDONALD,
Kentucky Court of Appeals (Retired)
CHIEF JUDGE JOHN P. HAYES,
Kentucky Court of Appeals (Retired)
JUDGE EARL O’BANNON, JR.,
Jefferson Circuit Court (Retired)
JUDGE ELLEN B. EWING
Jefferson Circuit Court (Retired)
CHIEF JUDGE CHARLES B. LESTER,
Kentucky Court of Appeals (Retired)
JUDGE BENJAMIN F. SHOBE
Jefferson Circuit Court (Retired)
CHIEF JUDGE RICHARD A. REVELL
Jefferson Family Court (Retired)
JUDGE MICHAEL J. O’CONNELL
Jefferson Circuit Court (Retired)
V.
MOVANTS
IN SUPREME COURT
(REVIEW OF ETHICS OPINION JE-95)
THE ETHICS COMMITTEE OF THE
KENTUCKY JUDICIARY
OPINION OF THE COURT
BY JUSTICE KELLER
RESPONDENT
Eight retired judges who previously served as elected regular Judges at various
levels of the Kentucky Court of Justice move this Court pursuant to Supreme Court
Rule 4.310(4) to review Kentucky Judicial Ethics Committee Opinion JE-95. We must
determine whether Supreme Court Rule 4.300, Canon 5A(l)(h) of the Kentucky Code
of Judicial Conduct prohibits retired judges who subjectively intend to accept future
appointments as special judges from endorsing nonpartisan judicial political candidates.
Kentucky Constitution Section 121 gives the Kentucky Supreme Court the
authority to regulate judicial conduct. Pursuant to that authority, the Court issued
Supreme Court Rule IV which governs Judicial Retirement and Removal. This rule
includes the Kentucky Code of Judicial Conduct (Code), codified at SCR 4.300, which is
intended “to state basic standards which should govern the conduct of all judges in
establishing and maintaining high standards of judicial and professional conduct.” SCR
4.300.
We are asked to examine the Code’s application to a class of judges referred to
as special judges. Kentucky Constitution Section 110(5)(b) empowers the Chief Justice
of the Kentucky Supreme Court to “assign temporarily any Justice or Judge of the
Commonwealth, active or retired, to sit in any court other than the Supreme Court,
when he deems such assignment necessary for the prompt disposition of causes.” @.
Historically, the Chief Justice of the Kentucky Supreme Court has appointed special
judges to the bench to address situations where a judge is unavailable because of
vacancies or conflicts. In Jacobs v. Commonwealth, Ky.App., 947 S.W.2d 416 (1997),
the Court of Appeals noted the Chief Justice has authority “to appoint retired Judges as
Special Judges” pursuant to both Kentucky Constitution Sections 110 and 112(4) and
KRS 26A.020(1). u. at 418. KRS 26A.020(1)
refers to a retired judge who replaces a
disqualified regular judge as a special judge. Chief Justices have traditionally and
logically turned to experienced, retired judges when the need for an appointment arises.
The Code recognizes that retired judges sitting as special judges may draw their
income from other sources, and it exempts special judges from certain judicial canons:
All judges should comply with this Code except as provided
below
A. Part-Time Judge or Special Judge’. A part-time judge is
a judge who serves on a continuing or periodic basis, but is
permitted by law to devote time to some other profession or
occupation and whose compensation for that reason is less
than that of a full-time judge.
(1) is not required to comply with Canon 4D(3), E, F, and G*.
SCR 4.300.
The issue before the Court hinges, however, on a Canon from which SCR 4.300 does
not provide exemption. Canon 5A(l)(h) reads:
A Judge or a candidate for election to judicial office shall not
make speeches for or against a political organization or
candidate or publically endorse or oppose a candidate for
public office.
This matter arises out of Judicial Ethics Opinion JE-95 issued by the Ethics
Committee on April 20, 1999, in response to a question sent to the Committee by a
candidate for judicial office:
‘We walk that this Court has indicated in the past that Special .ludges wcrc to bc treated
as.judgcs pro tempore under the Kentucky Code of.ludicial Conduct. Recenc~ Pheasant 1-h I,td
L’. Karcm. Kj,.. 860 S.W.2d 755 ( 1993). That portion of Rtwncv Pheasant Run is no Ionget
correct because the amended SCR 4.300 has a specific classification for Special .ludges.
‘Ef‘fectively. this allows retired judges who intend to act as special judges on a continuing
or periodic basis to expand their business interests. act as an arbitrator or mediator. and practice
ia~ sub.jcct to some restrictions.
-;-
Question: May retired judges who intend to act as Special
Judges endorse judicial candidates?
Answer: No. Retired judges are bound by Canon 5 which
prohibits any judge from endorsing candidates for public
office.
A majority of the Judicial Ethics Committee agrees
that retired judges who intend to act as Special Judges are
prohibited from endorsing candidates for public office. The
test is a subjective one. If, after retiring, a judge intends to
serve as a Special Judge, he must forego whatever
opportunities he has to endorse candidates for public office.
/s/ Chairman
The movants in this action seek review of JE-95 in this Court and argue that JE95 interprets Canon 5A(l)(h) in a manner inconsistent with the free speech guarantees
in the Kentucky and United States Constitutions. We agree free speech issues are
relevant to this analysis, but we frame our review of Judicial Ethics Opinion JE-95 as an
issue of interpretation. Specifically, we address whether the Code applies to retired
judges who subjectively intend to serve as special judges in the future, as construed by
JE-95, or whether the Code applies only to special judges while they are serving as
such. The question we answer is “when is a special judge a special judge?”
JE-95
interprets the Code to treat as special judges all retired judges who subjectively intend
to accept future appointments as special judges. We conclude that the interpretation in
Judicial Ethics Opinion JE-95 is incorrect, and hold that the Code applies only to special
judges during the period of time they are performing judicial duties. In other words, we
conclude that a person is only a special judge, for Code purposes, during the period of
time he or she is then serving as special judge.
-4-
Supreme Court Rule IV contains language in a number of places which
evidences an intent to apply the disciplinary rules of the Code only to those persons
who are currently performing judicial functions or are seeking judicial office. First, SCR
4.000, which defines the scope of Rule IV governing the Judicial Retirement and
Removal Commission applies Part IV:
to all proceedings before the Judicial Conduct
Commission involving the discipline, retirement or removal of
justices of the Supreme Court and judges of the Court of
Appeals, circuit court, and district court. SCR 4.000.
The very next section, SCR 4.010, clarifies that current judicial activity is implicit in Rule
IV’s definition of “judge” as “any judge or justice of the Court of Justice or other officer
of the Court of Justice performina iudicial functions.” SCR 4.010 (emphasis added).
SCR 4.025(3) goes even further and explains that the Judicial Retirement and Removal
Commission cannot discipline former judges after they have left the bench and a brief
period of time has passed:
For any violation other than a campaign violation, the
authority of the Commission to take action against a judge
who has left office shall be barred unless notice of
preliminary investigation pursuant to SCR 4.170 has been
issued within 180 days after the judge leaves office. SCR
4.025(3).
Additionally, the final section of the Kentucky Code of Judicial Conduct, SCR 4.300,
titled “Application of the Code of Judicial Conduct” limits its application to “[alnyone,
whether or not a lawyer, who 13 an officer of a judicial system performina iudicial
functions.” SCR 4.300 (emphasis added). Our use of the present tense in drafting the
rule was intentional. The Kentucky Code of Judicial Conduct applies to judges currently
engaged in judicial functions, and Judicial Ethics Opinion JE-95’s interpretation which
I
’
expands the Code’s scope to include “dormant” judges ignores the plain language of
the rule.
We also note that the preamble to SCR 4.300 is explicit that it should be “applied
consistent with constitutional requirements . .‘I SCR 4.300. Although we feel the
language of Supreme Court Rule IV alone is sufficient to demonstrate that JE-95
misinterprets the scope of the Kentucky Code of Judicial Conduct we examine the
movants’ claims that JE-95’s interpretation is inconsistent with free speech guarantees.
We do so for the purpose of comparing what we find is the proper interpretation of
Supreme Court Rule IV’s application to the public political participation of special judges
and determining whether any such speech restrictions are constitutionally permissible
As this Court has determined that the Kentucky Constitution provides protection
no greater than but co-extensive with the First Amendment to the United States
Constitution in Commonwealth v. Foley, Ky., 798 S.W.2d 947 (1990), we consider both
state and federal precedent in our analysis of movants’ claim and reach the conclusion
that JE-95’s interpretation is constitutionally invalid.
The right to free speech is not absolute and states are permitted to regulate it
within certain limitations if the regulation is within the public interest. Valentine v.
Chrestensen, 316 U.S. 52 (1942). Necessarily, examination of a free speech claim
requires a determination of the level of scrutiny proper for a particular restriction.
Movants argue that JE-95’s interpretation of the relevant Canons creates a contentbased speech restriction which requires the strictest of scrutiny. a, e.q., Cohen v.
California, 403 U.S. 15 (1971). Respondent argues that we should evaluate the opinion
under the more lenient sliding scale perspective drawn from Morial v. Judiciary
Commission of the State of Louisiana, 565 F.2d 295 (5th Cir. 1977) and ultimately
-6-
determine whether the restriction on speech contemplated in JE-95 is “reasonably
necessary” to further a substantial state interest. We conclude strict scrutiny review is
proper in this case.
Judicial Ethics Opinion JE-95 unquestionably contemplates a content based
restriction on speech. Prohibiting retired judges from endorsing judicial candidates.
restricts their messages and not the media by which they choose to communicate.
Accordingly, the courts must examine the restriction and determine whether it is
supported by a compelling state interest and “narrowly drafted so as to avoid
unnecessary abridgement of constitutional rights.” Ackerson v. Kentuckv Judicial
Retirement and Removal Commission, 776 F.Supp. 309, 313 (W.D.Ky. 1991); J.C.J.D.
v. R.J.C.R., Ky., 803 S.W.2d 953 (1991). As the Kentucky Code of Judicial Conduct is
intrinsically connected to discipline issues, we also note regulations connected with
potential sanctions are closely scrutinized. In re Primus, 436 U.S. 412 (1978).
We find respondent’s argument that we should examine Judicial Ethics Opinion
JE-95 under Morial’s sliding-scale approach unpersuasive. After a careful reading of
Morial, we remain unconvinced the Fifth Circuit’s interpretation of United States
Supreme Court free speech precedent is correct. While we admire the Morial court’s
attempt to bring order from apparent chaos, a review of the United States Supreme
Court precedent cited in the Morial opinion leaves us with little confidence those
Justices intended to embrace the perspective found by the Morial court. The Fifth
Circuit frankly admits the United States Supreme Court “has not articulated the
applicable test in precisely this way.” u. at 300, Note 5. We would note in the more
than twenty years since Morial was written, our nation’s highest Court has still not
endorsed its perspective.
-7-
Having made the decision to apply strict scrutiny to the speech restriction
outlined in JE-95, we must presume it unconstitutional and place the burden of proof
upon the state, here the Judicial Ethics Committee, to demonstrate the restriction is
necessary to further a compelling interest and is narrowly drawn toward that end.
Widmar v. Vincent, 454 U.S. 263 (1981). We begin with an analysis of the state’s
interest in restricting this speech and proceed to discuss the appropriateness of the
connection between the stated interest and the language of JE-95.
The Judicial Ethics Committee defends its interpretation as important to maintain
the independence and integrity of the judicial branch. Specifically, the Committee
argues retired justices who are politically active in behalf of a judicial candidate,
especially in fund raising situations, may unknowingly exert pressure on attorneys and
litigants who recognize the future possibility of practicing in front of the retired judge
sitting as special judge. Particularly, in a situation in which a retired judge assisted a
judicial candidate in fund raising, the “veil of ignorance” between bench and contributor
would be absent, The Committee submits politicking by retired judges risks
undermining public confidence in the judiciary by piercing this barrier and potentially
creating the impression that political tithes can influence the rule of law.
Without question, preservation of the integrity, independence and objectivity of
the judicial system is a compelling state interest. J.C.J.D. v. R.J.C.R., Ky., 803 S.W.2d
953, 956 (1991). In fact, “[a]n even-handed, unbiased and impartial judiciary is one of
the pillars upon which our system of government rests.” Ackerson at 313. Further, it is
axiomatic that public confidence in the authority of the courts is instrumental to the
continued rule of law. The Kentucky Code of Judicial Conduct identifies the importance
of this value in its opening paragraph:
-8-
I
.
Our legal system is based on the principle that an
independent, fair and competent judiciary will interpret and
apply the laws that govern us. The role of the judiciary is
central to American and Kentucky concepts of justice and
the rule of law. Intrinsic to all sections of this Code are the
precepts that judges, individually and collectively, must
respect and honor the judicial office as a public trust and
strive to enhance and maintain confidence in our legal
system. The judge is an arbiter of facts and law for the
resolution of disputes and a highly visible symbol of
government under the rule of law. SCR 4.300. PREAMBLE.
We agree with the Committee that protection of the integrity and independence of the
judiciary is a compelling state interest.
We are not convinced, however, the restriction on retired judges’ speech
described in Judicial Ethics Opinion JE-95 is sufficiently tailored to the stated
compelling state interest, and we therefore find the opinion constitutionally inadequate.
First, an examination of the types of speech proscribed under JE-95 reveals it
prohibits some speech which could jeopardize judicial integrity and independence only
under the most hypothetical of situations. While the Committee focuses on the risks
associated with fund raising by retired judges, JE-95 expresses the opinion that the
Code of Judicial Conduct prevents those judges from “endorsing candidates for political
office.” This includes a large amount of potential speech (such as allowing one’s name
to be printed on campaign literature with a list of other persons who endorse a particular
judicial candidate or appearing in a television advertisement) which does not plausibly
jeopardize judicial integrity when engaged in by persons no longer in the day-to-day
exercise of judicial functions, Even if there were some residual risks relating to judicial
integrity, however, we fail to see the internal coherence of an interpretation which would
prohibit such speech by retired judges who subjectively intend to serve as special
judges at undetermined future times, but allow the same speech by retired judges who
-9-
have, proverbially, hung up their robes permanently. Under the logic of JE-95, it would
be permissible for a retired judge to have her name listed as “Retired Circuit Judge
Jane Doe” on a judicial candidate’s campaign paraphernalia listing her notable
endorsements only if that retired judge had no intention of returning to the bench as a
special judge. A retired judge who intends to answer the call to service as a special
judge would be prohibited from allowing his same endorsement to be included in
campaign literature. If we fear the public will lose faith in the judiciary because of
biases they perceive in retired judges’ public expressions of their opinions, a scheme
which depends on a razor-thin subjective intent distinction is incoherent.
In contrast, the interpretation we see consistent with the language of Supreme
Court Rule IV, that the Kentucky Code of Judicial Conduct only applies to those
persons currently performing judicial responsibilities or those seeking judicial office,
survives constitutional scrutiny. Those persons currently sitting as judges are prohibited
from public endorsements of judicial candidates, regardless of which level of the Court
of Justice on which they perform their judicial responsibilities, and regardless of whether
they hold their seat on the bench until the next election or only temporarily as a special
judge. This strikes a constitutionally adequate balance between the risks of
undermining public confidence in the bench by jeopardizing judicial integrity and
independence and limiting no more speech than necessary to maximize the compelling
state interest. Without doubt, the state’s concerns regarding judges’ public involvement
in the campaigns of others are most real when the actions of visible, currently sitting
judges are involved. Judicial Ethics Opinion JE-95’s interpretation of the Code’s
application simply misreads the scope of Supreme Court Rule IV and attempts to
regulate speech which is, at best, tenuously connected to the state interest involved. In
-lO-
order to be consistent with the language of Supreme Court Rule IV and constitutional
guarantees of free speech, the Code must apply to special judges only during the
period of time they are performing judicial functions.
For the reasons outlined above, Judicial Ethics Opinion JE-95 is hereby vacated.
Lambert, C.J.; Cooper, Graves, Johnstone, Keller and Wintersheimer, JJ.;
concur. Stumbo, J., concurs in part and dissents in part by separate opinion.
COUNSEL FOR APPELLANT:
Peter L. Ostermiller
500 Kentucky Home Life Building
239 South Fifth Street
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE:
Byron L. Hobgood
Franklin, Gordon & Hobgood
24 Court Street
P.O. Box 547
Madisonville, Kentucky 42431
9. M. Westberry
The Ethics Committee of the Kentucky Judiciary
P.O. Box 1516
Paducah, Kentucky 42002-I 516
-1 l-
RENDERED: October 21, 1999
TO BE PUBLISHED
99-SC-53 1 -0A
JUDGE MICHAEL MCDONALD,
Kentucky Court of Appeals (Retired);
CHIEF JUDGE JOHN P. HAYES,
Kentucky Court of Appeals (Retired);
JUDGE EARL O’BANNON, JR.,
Jefferson Circuit Court (Retired);
JUDGE ELLEN B. EWING
Jefferson Circuit Court (Retired);
CHIEF JUDGE CHARLES B. LESTER,
Kentucky Court of Appeals (Retired);
JUDGE BENJAMIN F. SHOBE
Jefferson Circuit Court (Retired);
CHIEF JUDGE RICHARD A: REVELL
Jefferson Family Court (Retired); and
JUDGE MICHAEL J. O’CONNELL
Jefferson Circuit Court (Retired)
V.
MOVANTS
IN SUPREME COURT
(REVIEW OF ETHICS OPINION JE-95)
THE ETHICS COMMITTEE OF THE
KENTUCKY JUDICIARY
RESPONDENT
OPINION CONCURRING IN PART AND DISSENTING IN PART
BY JUSTICE STUMBO
While I concur in part with the result reached by the Majority, I must write
separately to express my concerns with the practical effect of this resolution. The
United States
and Kentucky Constitutions guarantee the right to free political speech to
every citizen. In choosing the judiciary as our livelihood, however, we also choose to
live with certain restrictions on our rights. In Morial v. Judiciarv Comm’n of Louisiana,
565 F.2d 295 (5th Cir., 1977), cert. denied, 435 U.S. 1013 (1978) the federal court
found it was not a violation of the First Amendment to require a judge to resign from
office upon becoming a candidate for elective non-judicial office. The court considered
three interests of the state in reaching the conclusion that the restriction was not
inappropriate:
The specific evils targeted are three. First, the state wishes
to prevent abuse of the judicial office by a judge[] during the
course of the campaign. The state also wishes to prevent
abuse of the judicial office by judges who have lost their
electoral bids and returned to the bench. Finally, Louisiana
asserts an interest in eliminating even the appearance of
impropriety by judges both during and after the campaign.
Id. at 302.
While the second factor does not come into play in the present situation, the
others are fully involved. The majority acknowledges the first by limiting the retired
judge’s political activity on behalf of other judicial candidates to those periods during
which he or she is not actually serving as a special judge. The difficulty with this
resolution is that one can be called uponat any time to serve as a special judge without
notice and at a time when one’s political support for a candidate is being advertized as
part of a campaign.
Once the retired judge’s support is so publicized, is he or she then required
either to renounce the endorsement or, alternatively, to refuse any appointments until
-2-
after election day? The first alternative is at best impractical, and at worst a
misrepresentation of the true state of affairs to the public monitoring the progress of the
candidate’s campaign. A sitting judge is not permitted to endorse a candidate
publically, but may only offer a private opinion. Yet how can one “unendorse” without
seeming to offer a public opinion ? Withdrawing an endorsement with no explanation
could lead to the perception that for some reason the candidate no longer merits the
endorsement. Yet if it is explained that the endorsement is being withdrawn simply
because the endorser is serving as a special judge, then practically speaking, the
endorsement will remain in effect and the aforementioned evils of possible abuse of
office and appearance of impropriety will not have been avoided at all. Either of these
scenarios poses problems that are readily avoidable by a simple, easily enforceable
rule stating that when a retired judge lets it be known that he or she will serve as a
special judge if appointed, he or she likewise agrees that no political endorsements will
be made.
Most importantly, I think it is crucial that we prohibit activity that has the
appearance of impropriety. While such activity is difficult to actually define and pinpoint
with accuracy, an effort to avoid it is vital to the health of the legal community. Ours is a
profession that is necessary to the maintenance of the constitutional guarantees of
personal and civic rights and responsibilities. To retain the respect of the public and
maintain the integrity of the bench it is important that the members of the judiciary,
-whether regularly sitting or special judges, keep their distance from elections other than
their own. The absolute need for a bench that is, both in fact and in appearance,
completely impartial and independent is undermined by anything less than a system
that clearly separates the political from the judicial.
-3-
Thus I concur with the majority opinion’s conclusion that a retired judge may
endorse judicial candidates under limited circumstances. I, however, would implement
a system whereby any retired judge may give written notice to this Court or the
Administrative Office of the Courts of his or her willingness to serve as a Special Judge
with full knowledge that doing so will mean that no political endorsements may be
publicly made until such notification has been withdrawn.
-4
99-SC-00531-OA
JUDGE MICHAEL MCDONALD,
Kentucky Court of Appeals (Retired)
CHIEF JUDGE JOHN P. HAYES,
Kentucky Court of Appeals (Retired)
JUDGE EARL O’BANNON, JR.,
Jefferson Circuit Court (Retired)
JUDGE ELLEN B. EWING
Jefferson Circuit Court (Retired)
CHIEF JUDGE CHARLES B. LESTER,
Kentucky Court of Appeals (Retired)
JUDGE BENJAMIN F. SHOBE
Jefferson Circuit Court (Retired)
CHIEF JUDGE RICHARD A. REVELL
Jefferson Family Court (Retired)
JUDGE MICHAEL J. O’CONNELL
Jefferson Circuit Court (Retired)
V.
MOVANTS
IN SUPREME COURT
(REVIEW OF ETHICS OPINION JE-95)
THE ETHICS COMMITTEE OF’THE
KENTUCKY JUDICIARY
RESPONDENT
ORDER
The Opinion of the Court By Justice Keller rendered October 2 1, 1999 shall be amended
I
l
on page 9, line 1, by changing the word “Or” to “Our” and adding the word “PREAMBLE” to the
end of line eleven. as attached hereto.
ENTERED: November 15.1999.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.