HONORABLE TAMRA GORMLEY, FAMILY COURT JUDGE, FOURTEENTH JUDICIAL CIRCUIT V. JUDICIAL CONDUCT COMMISSIONAnnotate this Case
MODIFIED: JANUARY 20, 2011
RENDERED : AUGUST 26, 2010
TO BE PUBLISHED
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HONORABLE TAMRA GORMLEY,
FAMILY COURT JUDGE,
FOURTEENTH JUDICIAL CIRCUIT
IN SUPREME COURT
JUDICIAL CONDUCT COMMISSION
MEMORANDUM OPINION OF THE COURT
The Honorable Tamra Gormley, Judge of the Fourteenth Judicial
Circuit,' Family Court Division, pursuant to SCR 4 .290, appeals from two final
orders2 of the Judicial Conduct Commission, which found three counts
wherein Judge Gormley violated the Kentucky Code of Judicial Conduct.3 For
the violations in Counts I and II, the Commission imposed a public reprimand
and suspended Judge Gormley from her duties as Family Court Judge, without
pay, for a period of forty-five days . For the violations in Count V, the
Commission imposed a public reprimand . We affirm in both appeals .
The Fourteenth Judicial Circuit includes Bourbon, Scott, and Woodford Counties .
2009-SC-000736-RR covers the Order, dated October 30, 2009, containing
Counts I and II ; 2010-SC-000010-RR covers the Order, dated December 22, 2009,
containing Count V. The appeals were consolidated by this Court.
SCR 4 .300 .
Count I arose out of a marriage dissolution action4 and a domestic
violence actions in the Scott County Family Court. Judge Gormley received a
report from the Family Violence Project on December 19, 2007, concerning a
social worker's belief of the husband's dangerous propensities . A hearing was
scheduled for February 20, 2008, to consider a pro se motion filed by the wife
for a modification of the no contact provision of the domestic violence order
against her husband. Although both parties had counsel of record, both
parties appeared that morning without their lawyers. While the parties were
waiting in the hallway of the courthouse for their case to be called, they had a
A bailiff informed Judge Gormley that witnesses had reported that the
husband had contact with the wife in the hallway and had attempted to
convince her to leave the courthouse. Judge Gormley interviewed two of the
witnesses before the hearing and also heard that the previous night, the
husband, at the wife's invitation, had visited the wife at her home . Judge
Gormley had the parties called into the courtroom.
Neither party had his/her lawyer present. Judge Gormley, without
notice to the husband that a criminal contempt of court hearing was to be held,
proceeded to conduct the hearing. Judge Gormley failed to advise the husband
that he had the right to counsel, that he did not have to respond to questions
Case No. 07-CI-00726 .
Case No . 05-D-00153-002 .
by the Court, and that his answers to the Court's questions might be used to
subject him to criminal contempt sanctions . Judge Gormley conducted an
impromptu summary hearing by calling one witness for questioning about the
occurrence in the courthouse hallway. She did not allow the husband to
question this witness and denied the husband's request to review security
tapes from the hallway cameras that may have provided information about the
events in the courthouse hallway (then being denied by the husband) . Judge
Gormley questioned the husband under oath and learned that he had contact
with his wife the night before and again that day in the hallway of the
Based on the ex party information she had obtained from the two
witnesses, the bailiff, and the information obtained from the husband in her
questioning, Judge Gormley found the husband in contempt of court and
sentenced him to six months in jail for criminal contempt. On appeal, the
Kentucky Court of Appeals reversed Judge Gormley's contempt finding and
remanded the matter to the Scott Family Court "for an appropriate evidentiary
hearing concerning all the allegations of contempt ."
By a vote of 6-0, the Commission found that as to Count 1 :
Judge Gormley engaged in misconduct in office and failed to
observe high standards of conduct in violation of Canon 1, failed to
respect and comply with the law and to act in a manner that
promotes public confidence in the integrity and impartiality of the
judiciary in violation of Canon 2A, failed to adhere faithfully to the
law in violation of Canon 3A and B(2), failed to accord a party (the
husband) the right to be heard, considered ex parte
communications with witnesses, and independently investigated
facts in violation of Canon 3(B)(7), and failed to dispose of judicial
matters fairly in violation of Canon 3(B)(8) .
Count II arose out of a dissolution of marriage action in Woodford
County. The parties were divorced on March 26, 1998, in Woodford County.
The parties were awarded joint custody of their two minor children, a daughter,
age four, and a son, age two. The husband was designated primary custodian
of both children . Shortly after the divorce, the husband moved to Rowan
County with the children ; and the wife moved to Franklin County. On July 15,
2008, the husband still lived in Rowan County ; and the wife .still lived in
Franklin County. On this date, the wife visited the Circuit Clerk in Woodford
County seeking custody of the children. The wife received a blank motion
form, on which she wrote the following request: "Emergency temporary
custody order. Evaluation and Assessment for children for emotional, verbal
and physical abuse . Medical and psychological assessments." The wife signed
the form (not verified), and it was filed with the divorce case number. The wife
visited Judge Gormley the same date and requested emergency ex pane relief,
stating that her daughter, now fourteen, had recently called her to state that
her father, the husband, had physically abused her by yanking her out of bed
by her hair. The wife also stated that recently, when she picked up her
daughter from the husband's house to attend a church event, her daughter
Case No. 95-CI-00306 .
stated to her that she did not want to go back to her father's house because
she did not feel safe there. Based on these oral statements from the wife,
Judge Gormley converted the motion for a change of custody (in the divorce
case) to a petition for an emergency protective order (EPO), with a new case
number . 7 She issued an EPO and noticed the husband for a hearing on
July 24, 2008, to consider a domestic violence order (DVO) .
The husband appeared on July 24, 2008, with his attorney, who was a
bit confused as to why the husband had been summoned because there was no
petition for an EPO on file . Counsel's motions to dismiss or to transfer to
Rowan County (where the children lived) were denied by Judge Gormley. She
did, however, continue the case until August 14, 2008, to give the attorney
time to prepare for the DVO hearing.
On that date, the husband, through counsel, renewed his motions to
dismiss or to transfer the case to Rowan County. The motions were summarily
denied . At that point, Judge Gormley announced that she was ready to go
forward on the DVO but would rather get an agreement from everybody for a
modification of custody in the divorce case .$ She explained that if there were
an agreed order in the divorce case, she would convert the DVO to a restraining
order, dismiss the DVO, and take it out of the court's electronic database . She
would then give the wife primary custody of her daughter with certain
conditions for visitation with the father, such as counseling for the father and
Case No. 08-D-00050-001 .
Case No. 95-CI-00306 .
the daughter. Counsel resisted an agreed order, informing the judge that if
that was going to be the order, to enter it as the court's order. Judge Gormley
was irritated with that suggestion, insisting that it had to be an agreed order
with no right to appeal and that it had to be settled that day, once and for all.
When counsel again declined to agree, Judge Gormley addressed the husband
directly, informing him there would be an agreed order (in the divorce case)
changing custody to the mother with visitation under certain conditions, with
no appeal, or she would enter a DVO with no contact between the father and
his daughter. The father quickly consented to an agreed order. The father
explained to Judge Gormley that "you're all talking a lot of things I don't
understand," but he would agree to whatever it took to get visitation with his
daughter. Judge Gormley then had the daughter brought into the courtroom
and worked out the conditions of visitation and related matters.
On September 2, 2008, the Woodford County Attorney made a motion to
transfer the case to Rowan County for purposes of determining the mother's
child support arrearages . Judge Gormley denied the motion and sua sponte
suspended support payments for the daughter.
Sometime after the September 2, 2008, hearing, Judge Gormley learned
that the mother had been arrested on a flagrant nonsupport warrant and was
still in jail . Judge Gormley sua sponte scheduled a hearing on custody for
September 11, 2008. At that hearing, counsel for the father inquired of Judge
Gormley the purpose of the hearing. Judge Gormley explained that she was
upset that the father had started the nonsupport action because he lost the
custody battle for the daughter and that she (Judge Gormley) was going to have
the Cabinet investigate the father's relationship with his son because she
(Judge Gormley) was of the opinion that the father should not have custody of
When the Woodford County Attorney explained that the flagrant
nonsupport case started long before the start of the change of custody hearing,
Judge Gormley put the father under oath and demanded to know what actions
he took concerning the non-support, both before and after the August 14, ,
2008, custody hearing . Judge Gormley did order a "[h]ome evaluation of [the
father's] home re: safety and well being of son"; and because the mother was
in jail, Judge Gormley transferred custody of the daughter to friends of the
mother with a provision of no contact with the father until further order of the
The father's attorney received an emergency stay and eventually a writ of
prohibition from the Court of Appeals (which this Court affirmed), 9 prohibiting
the Woodford County Family Court from enforcing its orders in this case and
from any further action stemming from the motion for a change of custody .
The daughter was ordered returned to her father's custody immediately .
The Judicial Conduct Commission, by a 5-1 vote, found
by clear and convincing evidence that Judge Gormley's actions in
the litigation described in Count II violated SCR 4 .020(1) (b) (i)
and (v) and constitutes misconduct in office and violations of the
Gormley v. Dameron, No. 2009-SC-000292-MR, 2009 WL 3526500 (Ky. Oct. 29,
Code of Judicial Conduct. Specifically, the Commission finds that
Judge Gormley failed to observe high standards of conduct in
violation of Canon 1, that she failed to respect and comply with the
law and to act in a manner that promotes public confidence in the
integrity and impartiality of the judiciary in violation of Canon 2A,
that she failed to maintain faithful obedience to the law and
impartiality in violation of Canon 3A and B(2), .that she acted with
bias and prejudice and was not impartial in violation of
Canon 313(5), that she failed to accord a party (the father) the right
to be heard according to law and considered ex parte
communications with the mother in violation of Canon 313(7), and
failed to dispose of judicial matters fairly in violation of
Canon 313(8) .
Count V arose as a result of a standing order (Standing Order Re : Toyota
Child Support Modification) dated May 8, 2009, of Judge Gormley for the
Fourteenth Judicial Circuit. The standing order arose as a result of concerns
that the Scott County Attorney's Office had in its child support office . Based
on a rumor that a semi-annual bonus was not going to be paid by Toyota that
year, the office staff was afraid of being inundated with requests by Toyota
workers for child support modifications . The Scott County Attorney requested
a written order be entered providing no modification of child support would be
considered for Toyota employees until after December 31, 2009 . Judge
Gormley signed an Order on May 8, 2009 ; and it was entered May 11, 2009, in
the Scott Circuit Court Clerk's Office. The Order was also entered May 12,
2009, with the Bourbon Circuit Court Clerk and entered May 14, 2009, with
the Woodford Circuit Court Clerk . The Order was styled, "STANDING ORDER
RE : TOYOTA CHILD SUPPORT MODIFICATION ." The body of the Order
IT IS HEREBY ORDERED that no modifications of child support
shall be considered until December 31, 2009[,] for employees of
Toyota Motor Manufacturing. If at that time the statutory 15% has
been met[,] then the Court may consider modification at that time.
The Order was an outright prohibition on child support modifications . Even
though the original concern was with the anticipated increase in filings due to
the possibility of no semi-annual bonuses, the Order contained no reference to
said bonus issue nor did the Order exempt modification for other reasons, such
as salary increases, medical expenses, or other changes in circumstances that
are normally considered by a court.
Within days of the Order being entered, Toyota announced that it would
be paying the bonuses. Also, near the end of May 2009, the Executive
Secretary of the Judicial Conduct Commission notified Judge Gormley of. the
Commission's concern over the May 8, 2009, Order. Nevertheless, Judge
Gormley waited some six weeks, until July 13, 2009, to rescind the May 8,
As a result of entering the May 8, 2009, Order in the three counties, the
Judicial Conduct Commission found, by a 5-1, vote that Judge Gormley
violated SCR 4 .020(1)(b)(i) and (v) in that her actions constituted
misconduct in office and violated SCR 4.300, the Code of Judicial
Conduct. Specifically, she failed to observe high standards of
conduct in violation of Canon l ; she failed to respect and .comply
with the law and to act at all times in a manner that promotes
public confidence in the integrity and impartiality of the judiciary
in violation of Canon 2A; she failed to be faithful to the law in
violation of Canon 3A and B(2) ; she failed to accord every person
who has a legal interest in a proceeding, or that person's lawyer,
the right to be heard according to law in violation of Canon 3B(7)
and she failed to dispose of all judicial matters promptly, efficiently
and fairly in violation of Canon 3B(8) .
For the violations in Count I and Count II, the Commission imposed a
public reprimand and suspended Judge Gormley from her duties as a Family
Court Judge, without pay, for a period of forty-five days. For the violations in
Count V, the Commission imposed a public reprimand . The Commission found
Judge Gormley not guilty of the remaining counts, which need not be
Judge Gormley appealed from both Final Orders of the Judicial Conduct
Commission . 10 We consolidated the appeals .
A. Standard of Review.
Section 121 of the Kentucky Constitution authorizes the Commission to
suspend without pay, or to remove, a judge or justice for good cause, with
judicial review directly to the Supreme Court. The evidence to sustain the
charges before the Commission must be "clear and convincing."' 1 On appeal,
this Court must accept the findings and conclusions of the Commission
Pursuant to SCR 4.290 .
SCR 4.160; Wilson v. Judicial Retirement & Removal Comm'n, 673 S.W.2d 426, 427
(Ky. 1984) .
"unless they are clearly erroneous" or "unreasonable ." 12 This Court has the
power to affirm, modify, set aside, or remand orders of the Commission. 13
B. We Affirm as to Count I.
On appeal, Judge Gormley argues that the Judicial Conduct Commission
does not have jurisdiction over what should have been appeals ofjudicial
decisions. That is, the Commission reviewed judicial decisions for alleged legal
errors and sought to impose sanctions by calling it judicial misconduct.
1 . Improper Summary Criminal Contempt.
More specifically, as to Count I, Judge Gormley asserts that she had the
authority and the right to punish the husband in a summary proceeding for
direct criminal contempt ; and that if any errors were made, the husband's
remedy was through an appeal, not through the Judicial Conduct Commission .
She cites for authority SCR 4 :020(2), which provides that "[ajny erroneous
decision made in good faith shall not be subject to the jurisdiction of the
An explanation of a court's contempt powers is in order . "Contempt is
the willful disobedience toward, or open disrespect for, the rules or orders of a
court." 14 Contempt can be classified as civil or criminal . Civil contempt is
when someone fails to follow a court order to do something. 15 That something
Id. at 427-28.
Kentucky Judicial Conduct Comm'n v. Woods, 25 S .W.3d 470, 472 (Ky. 2000) ;
SCR 4 .290(5) .
Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996) .
is usually for the benefit of a party litigant (e.g., pay child support, allow
visitation, fix something by a certain date, move a driveway, clean up a spill,
close a business by a certain hour, provide discovery, etc .) . A judge may
incarcerate someone for civil contempt in order to motivate the person to obey
the court order, but the contemptuous one is entitled to be released upon
compliance with the court's order. 16 Criminal contempt, on the other hand, is
when a person disobeys a court order out of disrespect for the rules or orders
of court . A contemptuous person can be incarcerated for criminal contempt ;
but unlike civil contempt, the primary purpose of criminal contempt is to
punish the contemptuous conduct. .17
Criminal contempt can be either direct or indirect . A direct
contempt is committed in the presence of the court and is an
affront to the dignity of the court. It may be punished summarily
by the court, and requires no fact-finding function, as all the
elements of the offense are matters within the personal knowledge
of the court. In re Terry, 128 U.S . 289,9 S.Ct. 77, 32 L.Ed . 405
(1888) . Indirect criminal contempt is committed outside the
presence of the court and requires a hearing and the presentation.
of evidence to establish a violation of the court's order . It may be
punished only in proceedings that satisfy due process. Cooke v.
United States, 267 U .S . 517, 45 S .Ct. 390, 69 L.Ed. 767 (1925) . 18
Judge Gormley summarily held the husband in contempt of court for his
actions that occurred, outside of her perception, in the hallway and at the
wife's home. However, as this was a case of indirect criminal contempt,
summary proceedings were inadequate . 19 As the Commission correctly held:
While a court undoubtedly has the power to hold a person in
contempt of court for actions that occur outside the sensory
perception of the judge (as was true in this situation), the court
may not exercise that power without holding a hearing that
provides the person with advance notice of the contempt
proceeding and with a full opportunity to be heard and that is
conducted in full accord with a person's rights to due process of
law (including right to assistance of counsel, right not to answer
questions that could result in criminal sanctions, the right to cross
examine witnesses, and the privilege against self-incrimination) .
Judge Gormley clearly erred in holding a summary criminal contempt
proceeding for indirect criminal contempt in Count I, and the Commission so
2. SCR 4.020(2) is Inapplicable to the Misconduct in this Case.
Finding Judge Gormley clearly erred on the law is only the first half of
the analysis. 21 Judge Gormley, citing SCR 4 .020(2), asserts that she made the
decision in good faith and cannot be subject to the Commission's jurisdiction
for good faith, but erroneous, decisions . To err is human. Our present
Kentucky Constitution, Section 115, recognizes that a judge may err by
providing most judgments are subject to at least one appeal. A party that
believes the judge erred has the right to appellate review to seek a change in
See In re Oliver, 333 U .S. 257, 275 (1948) .
See Nicholson v. Judicial Retirement & Removal Comm'n, 573 S .W.2d 642 (Ky. 1978)
(the decision on remand) .
the judgment - that is judicial review. If the judge erred, the judgment can be
corrected . Incompetent judges can be eliminated at the ballot box. 22
i. Judge Gormley acted in bad faith.
Judicial. misconduct is different . The Judicial Conduct Commission's
review is not focused merely on the judge's findings, conclusions, and ultimate
judgment, but on the judge's demeanor, motivation, or conduct in following (or
in not following) the law. The Commission conducted its review and concluded
the errors in Count I were so egregious that Judge Gormley could not claim the
errors were made in good faith . We believe Judge Gormley's handling of the
matter, together with the egregious rulings, displayed a bias or preconception
or a predetermined view against the husband so as to impugn the impartiality
and open-mindedness necessary to make correct and sound rulings in the
case. . In other words, we agree with the Commission's implicit finding that
Judge Gormley acted in bad faith.
ii. Judge Gormley engaged in a pattern of misconduct .
Judge Gormley argues that precedent requires her to have engaged in a
pattern of misconduct before she may be subjected to sanctions . 23 Although
Nicholson v. Judicial Retirement & Removal Comm'n, 562 S.W.2d 306, 310 (Ky.
See Hinton v. Judicial Retirement and Removal Commission, 854 S .W.2d 756, 759
(Ky. 1993) ("The Commission did not find the trial judge had engaged in a pattern
of impatient, undignified or discourteous conduct so as to merit public
censure . . . . The audio tapes in this case reveal that the exchange between
Anderson and Judge Hinton never went beyond normal conversational tone . In
view of the fact that this is the first report of alleged misconduct, we believe that
public reprimand is an inappropriate sanction .") .
Hinton does seem to suggest such a requirement, we refuse to continue to
adhere to an inflexible rule that a judge must have engaged in a pattern of
misconduct before being subjected to sanctions . Instead, although a judge
may properly be sanctioned for engaging in a pattern of misconduct, we now
affirmatively hold that even one egregious or bad faith incident ofjudicial
misconduct may properly subject a judge to discipline . 24 To the extent that it
holds to the contrary, Hinton is overruled. But, regardless, we believe Judge
Gormley's commission of three serious acts of misconduct within
approximately fifteen months is sufficient to support a conclusion that she
engaged in a pattern of misconduct .
iii. The "egregious error" method,of committing sanctionable judicial
We agree with Judge Gormley that SCR 4 .020(2) prevents a judge from
being sanctioned for committing a good faith legal error. Something more than
committing a good faith legal error is obviously required before a judicial officer
The preamble to SCR 4 .300 (the Kentucky Code of Judicial Conduct), relied upon
by Judge Gormley to demonstrate the necessity of proving that a judge engaged in
a pattern of misconduct before sanctions may be imposed, merely provides that
whether sanctions are appropriate, and the degree of any sanctions to be imposed,
should be determined "on such factors as the seriousness of the transgression,
whether there is a pattern of improper activity and the effect of the improper
activity on others or on the judicial system." We construe that preamble as
meaning only that the existence of a pattern of improper conduct is one of the
factors that may be considered in determining if sanctions are appropriate (and is
also a factor that can be used to determine the severity of any sanctions) . We
disagree with Judge Gormley's argument that the preamble requires the presence
of a pattern of misconduct before a judicial officer may be subjected to sanctions .
may be properly disciplined.25 But Courts have sometimes struggled to define
precisely what that "something more" must be and have used various formulas
to attempt to explain what differentiates a good faith, legal error from
sanctionable misconduct. 26 Perhaps what constitutes misconduct would be
apparent to the members of this Court and the Commission . But we agree
with the Maine Supreme Judicial Court's observation that "[w]hile it may
always be possible for this or any court to determine on an `I know it when I
see it' basis whether judicial conduct violates [the Kentucky Code of Judicial
Conduct], that approach is plainly unsatisfactory." 27
Judge Gormley contends that the Commission erred by finding her guilty
of misconduct without having found that she engaged in a pattern of
misconduct or acted in bad faith . She also takes issue with our purported
failure in our original opinion in this matter to set forth clearly when a judicial
officer may be subjected to sanctions . So, for the benefit of the bench, bar, and
citizens of the Commonwealth, we shall expressly set forth when a judicial
officer may be properly sanctioned for legal error.
Matter ofBenoit, 487 A. 2d 1158, 1162-63 (Me. 1985) ("Every trial judge will from
time to time commit legal errors in decisions later reversed on appeal, but judicial
discipline would be in order in almost none of those cases. Something more than a
mere error of law is required to constitute misconduct . . . .") .
See CYNTHIA GRAY, THE LINE BETWEEN LEGAL ERROR AND JUDICIAL MISCONDUCT.
BALANCING JUDICIAL INDEPENDENCE AND ACCOUNTABILITY, 32 Hofstra L. Rev. 1245,
1270-75 (2004) .
Matter of Benoit, 487 A.2d at 1163 .
As previously discussed, a judicial officer may be properly sanctioned for
acting in bad faith or having engaged in a pattern of misconduct. 28 Because
the bad faith and pattern of misconduct methods of committing sanctionable
misconduct do not sufficiently address all improper conduct that crosses the
line into being sanctionable judicial misconduct, we now join the Commission
in expressly adopting the rationale of our sister court in Louisiana that a judge
may be disciplined for "a legal ruling or action made contrary to clear and
determined law about which there is no confusion or question as to its
interpretation . . .
Accordingly, a judicial officer may be sanctioned if the judge committed
at least one serious, obvious, egregious legal error that is clearly contrary to
settled law. Judge Gormley argued on rehearing of our original opinion that we
had essentially de facto adopted a new "egregious error" standard without
openly so stating and without affording her an adequate opportunity to defend
herself under that "new" standard. But our express adoption on rehearing of
the Louisiana court's egregious error standard causes Judge Gormley to suffer
no prejudice because we affirm the Commission's conclusions that Judge
Gormley acted in bad faith and engaged in a pattern of misconduct, both of
which were already established methods of committing sanctionable judicial
misconduct . Although we believe Judge Gormley's actions fall precisely within
it, our adoption today of the "egregious error" standard utilized in Louisiana
8 See Hinton, 854 S .W.2d at 759 .
29 In re Quirk, 705 So.2d 172, 180-81 (La. 1997) .
courts does not really affect the outcome of Judge Gormley's cases. We
address whether Judge Gormley's actions fall within the egregious error
standard only as an illustrative guide for future cases.
iv. Application of egregious error standard.
A Family Court judge must not only graduate from law school, but pass
the bar examination, and have practiced law for at least eight years before
becoming a Family Court judge .30 All Kentucky judges are provided with
computers and a subscription for online legal research . Most, if not all, Family
Court judges are given support staff, one of whom is a licensed attorney. 31
Judge Gormley knew, or should have known, that she was acting erroneously
in this case but proceeded to plow forward seemingly without regard for
fundamental rights and with a seeming disregard for the law . In other words,
even if we had determined that Judge Gormley's actions in Count I did not
constitute bad faith, we would conclude- that Judge Gormley violated the Code
of Judicial Conduct by making egregious "legal ruling[s] . . . contrary to clear
and determined law about which there is no confusion or question as to its
interpretation . . . . "32 Also, Judge Gormley's actions in Count I are a
component of her having engaged in a pattern of misconduct. In short, as a
reviewing court, we cannot say the Judicial Conduct Commission was clearly
See Ky. Const. § 122.
Judge Gormley acknowledged her staff included a licensed attorney .
In re Quirk, 705 So .2d at 180-81 .
erroneous in its finding of fact, misconstrued the law, or was unfair in its
judgment against Judge Gormley as to Count I .
C. We Affirm as to Count II.
Count II stems from a case similar to Count I . In Count II, the husband
filed for a writ of prohibition from the Court of Appeals to prevent enforcement
of Judge Gormley's order changing custody. The legal question before the
Court of Appeals was whether the Woodford Family Court was the proper
venue/forum for a change of custody when the parties no longer had any
connection with Woodford County (the dissolution forum) . Both
parents/ parties had moved out of Woodford County ten years before, and
neither had had contact with Woodford County until the wife filed the motion
for a change of custody. Both children had lived in Rowan County since
shortly after the 1998 divorce . The Court of Appeals decided that the proper
forum would be Rowan County, and this Court affirmed .33
Again, an erroneous ruling by Judge Gormley; but was it a good faith
erroneous ruling on the law, or something more (i.e., bad faith, part of a
pattern of misconduct, or a sanctionable egregious error)? The Commission
reviewed the record and concluded that
Judge Gormley failed to provide the father even the most basic
elements of procedural due process. She acted without assuring
him notice and an opportunity to be heard, she thwarted his every
attempt to present evidence in support of his position (revealed in a
video transcript of the August 14 proceeding), and most
importantly acted as judge of a Family Court that had no
Dameron, 2009 WL 3526500.
jurisdiction over the matter that had been presented to her
through an unusual and extraordinary procedure (an unverified
form or motion containing no statement of facts and no grounds
for relief) . And, most egregiously, Judge Gormley took actions on
August 14, 2008[,] that were intended (although unsuccessfully) to
have the effect of denying to the father a right to appeal decisions
of the Woodford Family Court to a higher judicial authority.
We agree with the Commission's implicit finding that Judge Gormley
acted in bad faith. When the father's counsel would not be bullied into going
along with Judge Gormley's attempts to circumvent procedures and the law,
she excluded the attorney and dealt directly with the father, threatening him
with the loss of custody of his other child unless he accepted Judge Gormley's
"agreed" order. Judge Gormley knew, or should have known, that she was
acting erroneously but pushed on . Even if we did not find that Judge
Gormley's actions rose to the level of bad faith, Judge Gormley's actions in
Count II also constitute the type of outrageous and egregious error that may
properly subject a judicial officer to sanctions . Finally, Judge Gormley's
actions in Count II also are one component of a pattern of judicial misconduct.
We cannot say the Commission's findings in Count II were clearly erroneous or
that the Commission misunderstood the law or the significance of the
violations as compared to the sanction.
D. We Affirm as to Count V.
Count V dealt with the "standing order" which denied a class of persons
(Toyota employees, and any person looking at the employee's salary to increase
or lower support payments) access to the judicial system. The "standing order"
was nothing more than an administrative order which attempted to deal with
the rumored influx of "motions for modification of child support orders." While
it is true that administrative matters may be dealt with by local rules, local
rules must be approved by the Chief Justice ;34 and rules, especially local rules,
cannot deny individuals access to the courts or decline jurisdiction in matters
where there is clear statutory authority for filing said motions . There is no
doubt that it was error for Judge Gormley to promulgate the standing order.
That being said, did the judicial error cross over to judicial misconduct?
The Order was entered May 8, 2009 . Less than a week later, Toyota
announced the semi-annual bonuses would be paid. The Order was not
rescinded . When a representative of the Judicial Conduct Commission
contacted Judge Gormley in May about its concerns over the Order, the Order
was not rescinded . Not until six weeks later was the Order rescinded . Judge
Gormley offered no explanation for her delay in rescinding the Order. The
Judicial Conduct Commission thought the evidence was clear and convincing
of Judge Gormley's lack of good faith in handling the matter in Count V. We
cannot say its decision was clearly erroneous .
Had the questionable Order been rescinded immediately after the
announcement of the bonuses (or shortly thereafter), or within a reasonable
time after the Commission expressed its concerns to Judge Gormley, we would
be more sympathetic to the "good faith" argument . But when a judge waits,
without explanation, another six weeks to rescind a highly questionable order,
SCR 1 .040(3)(a) .
an order that was based on a rumored (and now moot) fear, we can only
conclude that the Commission did not err by concluding that Judge Gormley's
actions in Count V crossed over to judicial misconduct (i.e., we again accept
the Commission's implicit finding that Judge Gormley acted in bad faith). We
also note that even if Judge Gormley's actions in Count V were not made in
bad faith, those actions were of a sufficiently outrageous and egregious nature
as to satisfy the egregious error standard for judicial misconduct. Moreover,
her actions in Count V also are a component of her having engaged in a pattern
of misconduct . Although a public reprimand seems light, we will defer to the
Judicial Conduct Commission .
For the foregoing reasons, we cannot say the Judicial Conduct
Commission was clearly erroneous or unreasonable in holding Judge Gormley
guilty of judicial misconduct in Count I, Count II, and Count V. Therefore, we
AFFIRM the Judicial Conduct Commission's order of suspension and public
reprimand . The forty-five day suspension without pay shall commence at a
date to be set by the Chief Justice by order after this opinion becomes final .
Minton, C .J . ; Abramson, Cunningham, Schroder, Scott, and Venters,
JJ ., sitting. Minton, C .J . ; Abramson, Cunningham, and Venters, JJ., concur.
Schroder, J., concurs in result only by separate opinion in which Scott, J .,
joins . Noble, J., not sitting.
SCHRODER, J ., CONCURRING IN RESULT ONLY: As the author of the
original Opinion of the Court in the case, rendered August 26, 2010, which
upheld the Judicial Conduct Commission's imposition of a 45-day suspension
and public reprimand for Judge Gormley's violations of the Kentucky Code of
Judicial Conduct, I concur in result with the majority opinion as modified,
because it upholds the sanctions as well. I disagree, however, with the
majority's decision to modify the previously rendered Opinion. CR 76
requires that a petition for rehearing be granted only when it appears the court
has overlooked a material fact in the record, or a controlling statute or
decision, or has misconceived the issues presented on the appeal or the law
applicable thereto . The majority agrees that there should be no rehearing.
CR 76 allows a modification or extension, but it is only to be
used to simply point out and have inaccuracies corrected, or to have the
opinion extended to address matters that were in issue but not discussed.
Neither party requested modification or extension, and no basis for
modification exists . Nevertheless, the Court, on its own motion, proceeds to
modify the opinion to
the opinion. The new opinion muddles the
distinction between misconduct in general (sanctionable conduct per
SCR 4 .020(1) (b))
and sanctionable "legal errors" per SCR
4 .020(2) ;
holding; and eliminates language from the original
Opinion, which the majority decided was too harsh for a fellow judge .
Judge Gormley argues in her petition for rehearing that Hinton v. Judicial
Retirement and Removal Commission, 854 S .W.2d 756 (Ky. 1993), requires a
pattern of misconduct before she may be subject to sanctions. The majority
misreads Hinton to say it "suggests" such a requirement and then announces
we refuse to continue to adhere to an inflexible rule
that a judge must have engaged in a pattern of
misconduct before being subjected to sanctions .
Instead, although a judge may properly be sanctioned
for engaging in a pattern of misconduct, we now
affirmatively hold that even one egregious or bad faith
incident of judicial misconduct may properly subject a
judge to discipline .
This paragraph contains a number of errors. First, this Court has never had a
rule that a judge must have engaged in a pattern of misconduct before being
subjected to sanctions. See SCR 4 .020(1)(b) . The majority's holding that it
now takes one egregious or bad faith incident to be subject to discipline is
actually a limitation on SCR 4 .020(l)(b), which has no such requirement.
Judge Gormley, and the majority, are misreading Hinton. The Hinton
Court discussed two issues : whether or not Judge Hinton was guilty of
violating the Code of JudiciaI Conduct; and, if guilty, whether a public
reprimand (the sanction imposed by the Judicial Conduct Commission) was
appropriate where there was not a pattern of misconduct. After reversing the
Judicial Conduct Commission and opining that Judge Hinton was "not guilty"
of misconduct,35 the Court added, in dicta, that had Judge Hinton been found
guilty, a public reprimand would be too harsh a sanction for the isolated
The Hinton Court deemed the judge's action in jailing an attorney for contempt in
that case appropriate and held that the judge did not violate any standards of
incident at issue, without a pattern of misconduct. The majority forgets that
there are sanctions below a public reprimand (a private reprimand or an
admonition), and the Hinton Court did not say there can be no sanctions unless
there is a pattern of misconduct. The dicta regarding the pattern of conduct
was in the context of addressing the severity of the sanction .
To understand the errors in the majority opinion, one must refer back to
SCR 4 .020, which is divided into two sections . SCR 4 .020(1)(b) defines a
sanction to be an "admonition, private reprimand, public reprimand or
censure" all the way up to "suspension without pay or removal or retirement
from judicial office." SCR 4 .020(1)(b) gives the Judicial Conduct Commission
authority to sanction judges and justices for the following conduct:
Misconduct in office .
Persistent failure to perform his duties .
Violation of The Code of Judicial Conduct, Rule 4.300 .
Any willful refusal or persistent failure to conform to official
policies and directives . . . .
Conviction of a crime punishable as a felony .
Subsections (i) and (v), the first part of subsection (vi), and
subsection (vii), all require but a single incident or infraction to merit a
sanction . The presence of a pattern of misconduct may be considered in
determining the appropriate sanction, but has never been a requirement for
finding guilt and grounds for sanctions. Nor is bad faith a requirement. In
this regard, the majority's reading of Hinton is in error. Subsections (ii), (iii),
(iv), and the second part of subsection (vi), require persistent or habitual
conduct to merit a sanction .
SCR 4.020(2) covers erroneous rulings made by a judge and exempts
from sanctions those erroneous decisions or rulings made in good faith.
SCR 4 .020(2) does not distinguish between single or multiple instances of
erroneous legal rulings (hereinafter referred to as legal errors) . A single legal
error made not in good faith may subject a judge to sanctions. A pattern of
legal errors (good faith notwithstanding) may also subject a judge to
sanctions . 36 By substituting the general term "pattern of misconduct" for
"pattern of legal errors" throughout the opinion, the majority creates a mur
rule. The original Opinion concluded that Judge Gormley's legal errors were
not made in good faith.
Finally, I disagree with the majority's omission of language in the original
Opinion which it believed was too harsh on Judge Gormley. Modifications are
not for writing style and the language was appropriate for the conduct involved .
Scott, J., joins .
SCR 4 .020(l) (b)(iii) sanctions incompetence . Nicholson v. Judicial Retirement and
Removal Commission, 573 S.W.2d 642, 644 (Ky. 1978), recognizes a pattern of legal
errors as incompetence .
COUNSEL FOR APPELLANT:
John Wickliffe Hays
William A. Hoskins, III
Jackson Kelly PLLC
P. O. Box 2150
175 East Main Street
Lexington, Kentucky 40588-9945
COUNSEL FOR APPELLEE :
James D. Lawson
Judicial Conduct Commission
P. 0 . Box 21868
Lexington, Kentucky 40522-1868
George F . Rabe
167 West Main Street
Lexington, Kentucky 40507-1708
'Suprtmt (burf of ~6ufurhv
HONORABLE TAMRA GORMLEY,
FAMILY COURT JUDGE,
FOURTEENTH JUDICIAL CIRCUIT
IN SUPREME COURT
JUDICIAL CONDUCT COMMISSION
ORDER DENYING PETITION FOR REHEARING
AND MODIFYING OPINION
The Appellant having filed a Petition for Rehearing of the Opinion of the
Court by Justice Schroder, rendered August 26, 2010; and having reviewed the
record and being otherwise fully and sufficiently advised ;
The Court ORDERS that the Appellant's Petition for Rehearing is
DENIED ; and, on the Court's own motion, the Opinion of the Court by Justice
Schroder, rendered August 26, 2010, is MODIFIED, and the attached
Memorandum Opinion of the Court is SUBSTITUTED in lieu of the original .
The modification does not affect the holding.
Minton, C .J . ; Abramson, Cunningham, Schroder, Scott, and Venters,
JJ ., sitting . Minton, C .J. ; Abramson, Cunningham, and Venters, JJ ., concur .
Schroder and Scott, JJ., concur in denying the petition but dissent as to
modification . Noble, J ., not sitting .
ENTERED : January 20, 2011 .