Camille E. Dean Co-Personal Representative of the Estate of David H. Dean, Sr. v. John T. Bondurant

TO BE PUBLISHED
uyrrritr Courf o
2005-SC-000872-D
CAMILLE E. DEAN, CO-PERSONAL
REPRESENTATIVE OF THE ESTATE OF DAVID
H . DEAN, SR. ; DAVID H . DEAN, JR ., CO-
PERSONAL REPRESENTATIVE OF THE ESTATE
OF DAVID H. DEAN, SR. ; ROBERT J . BURNS, SR.,
CO-PERSONAL REPRESENTATIVE OF THE
ESTATE OF DAVID H. DEAN, SR. ; CAMILLE E.
DEAN, INDIVIDUALLY ; CAMILLE E . DEAN,
BENEFICIARY OF THE ESTATE OF DAVID H .
DEAN, SR.; DAVID H . DEAN, JR ., INDIVIDUALLY;
DAVID H . DEAN, JR., BENEFICIARY OF THE
ESTATE OF DAVID H . DEAN, SR. MOVANTS
ON APPEAL FROM COURT OF APPEALS
V. NO. 2004-CA-001345
JEFFERSON CIRCUIT COURT NO . 2000-CI-5764 AND 2000-Cl-
7505
JOHN T. BONDURANT ; WINSTON E. MILLER;
FROST, BROWN & TODD, LLC; FROST, BROWN &
TODD, LLC, AND ITS PREDECESSORS IN
INTEREST ; BROWN, TODD & HEYBURN, PLLC, A
PARTNERSHIP RESPONDENTS
ORDER
The Order of Recusal entered June 6, 2006 and attached hereto, is
hereby designated To Be Published .
All Concur, except Roach, J ., not sitting.
Entered : June 7, 2006.
,iuyrrum Courf of ~6nfurhV
2005-SC-000872-DR
CAMILLE E . DEAN, CO-PERSONAL
REPRESENTATIVE OF THE ESTATE OF DAVID
H. DEAN, SR. ; DAVID H. DEAN, JR., CO-
PERSONAL REPRESENTATIVE OF THE ESTATE
OF DAVID H. DEAN, SR. ; ROBERT J. BURNS, SR.,
CO-PERSONAL REPRESENTATIVE OF THE
ESTATE OF DAVID H. DEAN, SR.; CAMILLE E.
DEAN, INDIVIDUALLY ; CAMILLE E . DEAN,
BENEFICIARY OF THE ESTATE OF DAVID H.
DEAN, SR. ; DAVID H. DEAN, JR., INDIVIDUALLY;
DAVID H . DEAN, JR., BENEFICIARY OF THE
ESTATE OF DAVID H. DEAN, SR.
ON APPEAL FROM COURT OF APPEALS
V. NO. 2004-CA-001345
JEFFERSON CIRCUIT COURT NO. 2000-CI-5764 AND 2000-CI-
7505
JOHN T. BONDURANT ; WINSTON E. MILLER ;
FROST, BROWN & TODD, LLC; FROST, BROWN &
TODD, LLC, AND ITS PREDECESSORS IN
INTEREST; BROWN, TODD & HEYBURN, PLLC, A
PARTNERSHIP
ORDER OF RECUSAL
On December 6, 2005, the Movants filed a motion to disqualify me from
participating in the decision whether to grant their Motion for Discretionary
Review, filed on November 7, 2005, and any further proceedings, should they be
necessary. While the Movants fail to cite any legal authority in their motion, they
appear to claim that my "impartiality might reasonably be questioned." SCR
4 .300, Canon 3E(1) . The Movants base their claim on the fact that Respondents'
counsel, James E . Milliman, and some Respondents, including Winston E. Miller
and certain other members of the law firm Frost, Brown Todd, LLC (" BT"), were
designated as hosts of a fundraiser for my campaign.' The inquiry under. Canon
3E(1) "is an objective one, made from the perspective of a reasonable observer
who is informed of all the surrounding facts and circumstances ." Microsoft Corp.
v. United States, 530 U .S . 1301, 121 S. Ct. 25, 26 (2000).2
The decision to recuse should not be made lightly by a Kentucky Supreme
Court Justice . The unnecessary disqualification of a single justice has a
significant practical impact. In a matter where one justice recuses, the Court will
hear the case with only six justices. In order for a motion for discretionary review
to be granted by the Kentucky Supreme Court, the movant must receive at least
four votes . The four-vote requirement remains, regardless of whether six or
seven justices actually hear the case. Thus the recusing justice is effectively
casting a vote against the petitioning party. See Cheney v. U .S. Dist. Cour
t for
Dist. of Columbia, 124 S. Ct. 1391, 1394 (2004) ("Moreover, granting the motion
[to recuse] is (insofar as the outcome of the particular case is concerned)
' I find it particularly ironic that counsel for Movants has characterized this case
as "David versus Goliath," arguing that my recusal is necessary to create "a level
playing field ." Tom Loftus, Motion asks Supreme Court to block justice from
hearing Louisville case , Courier-Journal , December 8, 2005. While such rhetoric
makes for good newspaper copy, it ignores and obscures the complexity of this
situation. After all, as a private attorney, I represented an individual that sued
Respondents' predecessor in interest, Brown, Todd & Heyburn, and argued
successfully before this Court that my client had been improperly denied
discovery by the trial court . See Morrow v. Brown, Todd & Heyburn, 957 S .W.2d
722 (Ky. 1997) .
2 I have determined that the bench and bar could benefit from a thorough
analysis of the issues raised by Movants . Although substantial portions of this
order address issues which are unique to a Supreme Court justice, much of my
analysis regarding campaign contributions is applicable to all judges. Therefore,
I have departed from my usual practice of issuing short orders on recusals .
effectively the same as casting a vote against the petitioner. The petitioner needs
five votes to overturn the judgment below, and it makes no difference whether
the needed fifth vote is missing because it has been cast for the other side, or
because it has not been cast at all."); Steven J . Lubet, Disqualification of
Supreme Court Justices : The Certiorari Conundrum , 80 Minn . L. Rev. 657, 658
(1996) ("Recusal often appears to be the perfect judicial prophylactic in these
situations: if there is a hint of bias, disqualify the judge . At the certiorari stage,
however, the disqualification of a Supreme Court Justice actually may harm the
very party it was intended to protect . Thus, the right of the petitioner to apparent
impartiality may be secured, but only at the cost of actual disadvantage when it
comes to obtaining Supreme Court review.").
Additionally, one recusal creates the risk of the Court being equally
divided. See Microsoft Corp. , 530 U .S . at 1301, 121 S .Ct. at 26-27 ("Not only is
the Court deprived of the participation of one of its nine Members, but the even
number of those remaining creates a risk of affirmance of a lower court decision
by an equally divided court.") . This concern is no less valid when applied to the
Kentucky Supreme Court. Unlike the other levels of the Kentucky Judiciary,
where, for example, another trial judge can hear the case or a different judge can
be added to the Court of Appeals panel, there is no remedy for the recusal of a
single justice . A 3-3 decision on the issue of discretionary review would mean
that the case would not be reviewed and the decision of the lower court would be
upheld . Thus, "it is important that we not lightly recuse ourselves ." Ruth Bader
Ginsburg, An Open Discussion with Ruth Bader Ginsburg , 36 Conn . L. Rev.
1033, 1038-39 (2004) (footnote omitted) ; see also 1993 Statement of Recusal
Policy by Justices of the United States Supreme Court ("We do not think it would
serve the public interest to go beyond the requirements of the statute, and to
recuse ourselves, out of an excess of caution, whenever a relative is a partner in
the firm before us or acted as a lawyer at an earlier stage . Even one
unnecessary recusal impairs the functioning of the Court.").
Despite these important concerns, 1 will recuse when the circumstances
demand it. See, e.4 . , Baze v. Crittenden, No. 2005-SC-000162-OA (Ky. July 13,
2005) (order of recusal from Baze's challenge to the constitutionality of
Kentucky's lethal injection method). Given the special practical difficulties that
arise with the recusal of a Kentucky Supreme Court Justice, however, any
decision to recuse demands the full consideration of all relevant factors .
At the outset, it is important to note that, in this case, the party seeking
discretionary review is also the party seeking my recusal . As I have explained,
they are essentially requesting that I vote against them. The factual basis for
Movants' claim is that I have received campaign contributions from both
Respondents' counsel, James E . Milliman, and from Respondents themselves,
Winston E. Miller and several other members of FBT, which is also designated as
a party in this case .
First, under Kentucky's campaign election finance system, it is obvious,
even expected, that lawyers will make most of the contributions to judicial
candidates . In fact, Kentucky Bar Association Ethics Opinion E-277 states:
EC 8-6 states that lawyers, because of their opportunity for
personal observation and investigation, have a special
responsibility to aid in the selection of those who are qualified for
judicial office . This responsibility includes endorsements and
contributions made by attorneys to campaigns .
(internal quotation marks omitted)(emphasis added) . E-277 also explains that
"[I]awyers are under an affirmative duty to take an active role in selecting
qualified judicial candidates both publicly and monetarily ." Hundreds if not
thousands of lawyers regularly contribute to judicial campaigns across the
Commonwealth . Such conduct by an attorney representing a party is simply not
improper and is an insufficient basis to demand a judge's recusal.
This is the view adopted by other states that also elect their judges.
Moreover, most of these states make no distinction between donations made by
parties and those made by attorneys . See MacKenzie v. Super Kids Bargain
Store, Inc. , 565 So. 2d 1332, 1335 (Fla . 1990) ; City of Las Vegas Downtown
Redevelopment Agency v. Eighth Judicial Dist. Court ex rel. County of Clark, 5
P.3d 1059, 1062 (Nev. 2000); Adair v. State, Dep't of Educ. , 709 N.W.2d 567,
579-81 (Mich . 2006). The Florida Supreme Court .explained:
It cannot be denied that some persons may perceive that the
judge will be biased in favor of the contributing litigant or attorney
based solely on the fact that a contribution was made . As noted
above, however, the standard for determining whether a motion is
legally sufficient is whether the facts alleged would place a
reasonably prudent person in fear of not receiving a fair and
impartial trial. We conclude that an allegation in a motion that a
litigant or counsel for a litigant has made a legal campaign
contribution to the political campaign of the trial judge, or the trial
judge's spouse, without more, is not a legally sufficient ground . A
judge is not required to disqualify himself or herself on motion
based solely upon such alleged facts. Our conclusion is based
upon the interplay of our state constitution, code of judicial conduct,
and campaign statutes .
MacKenzie , 565 So.2d at 1335 (emphasis in original)(citation, internal quotation
marks and footnote omitted) ; see also Cherradi v. Andrews , 669 So. 2d 326,
327 (FIa.App. 4 Dist. 1996) ("Judges are not required to disqualify themselves
solely upon an allegation that an attorney for a party had made .a campaign
contribution to the judge's political campaign ." (citations omitted)). Florida is not
alone in rejecting Movants' view. A Texas appellate court explained :
It is not surprising that attorneys are the principal source of
contributions in a judicial election . We judicially know that voter
apathy is a continuing problem, especially in judicial races and
particularly in contests for a seat on an appellate bench . A
candidate for the bench who relies solely on contributions from
nonlawyers must reconcile himself to staging a campaign on
something less than a shoestring . If a judge cannot sit on a case in
which a contributing lawyer is involved as counsel, judges who
have been elected would have to recuse themselves in perhaps a
majority of the cases filed in their courts. Perhaps the next step
would be to require a judge to recuse himself in any case in which
one of the lawyers had refused to contribute or, worse still, had
contributed to that judge's opponent.
Thus, there is a sound basis in law for the presiding judge's
decision denying recusal, where the sole ground was that the judge
solicited and accepted campaign contributions from a lawyer
representing parties in his court.
Aguilar v. Anderson , 855 S .W.2d 799, 802 (Tex . App. 1993)(citations omitted) ;
see also Roe v. Mobile County Appointment Bd. , 676 So. 2d 1206, 1233
(Ala . 1995), overruled on other -grounds , Williamson v. Indianapolis Life Ins. Co . ,
741 So. 2d 1057, 1061 (Ala. 1999)( "The reasoning of the Texas court is
applicable in Alabama as well ."). Even a federal district court has acknowledged
that "Texas courts have repeatedly rejected the notion that a judge's acceptance
of campaign contributions from lawyers creates bias necessitating recusal or that
such acceptance of campaign donations even creates the appearance of
impropriety ." Public Citizen, Inc. v. Bomer, 115 F. Supp. 2d 743, 746 (W.D .Tex .
2000).
The Nevada Supreme Court has explained :
In the context of campaign contributions, we have
recognized that a contribution to a presiding judge by a party or an
attorney does not ordinarily constitute grounds for disqualification .
Indeed, we commented that such a rule would "severely and
intolerably" obstruct the conduct of judicial business in a state like
Nevada where judicial officers must run for election and
consequently seek campaign contributions .
In recognition of this recurring problem of campaign
contributions, this court recently amended the commentary to
NCJC 3(E)(1) to include the following guidance: "The mere receipt
of a campaign contribution from a witness, litigant or lawyer
involved with a proceeding is not grounds for disqualification ."
NCJC Canon 3(E)(1) Commentary (2000).
In the present matter, the campaign contributions to Judge
Denton, which ranged from $150.00 to $2,000.00, are not
extraordinary in amount and, without more, constitute only an
"insignificant interest" that does not raise a "reasonable question as
to a judge's impartiality ." While we commend Judge Denton's
efforts to carefully balance his duty to preside with his duty to
uphold the integrity of the judiciary, we conclude that the campaign
contributions to Judge Denton do not serve as grounds for
disqualification under Canon 3(E).
City of Las Vegas Downtown Redevelopment Agency, 5 P .3d at 1062 (citations
omitted) .
In a lengthy opinion discussing the effect of campaign contributions on the
recusal issue, two Michigan Supreme Court Justices explained :
That a judge has at some time received a campaign
contribution from a party, an attorney for a party, a law firm
employing an attorney for a party, or a group having common
interests with a party or an attorney, cannot reasonably require his
or her disqualification . For there is no justice in Michigan in modern
times who has not received campaign contributions from such
persons . Nor is there a justice whose opponents have not received
campaign contributions from such persons . And, increasingly,
"opposition" campaigns have arisen in which contributions are
specifically undertaken against particular justices . It is simply
impossible for the Supreme Court, as well as most other courts in
Michigan, to function if a lawful campaign contribution can
constitute a basis for a judge's disqualification . For if a contribution
to a judicial candidate can compel a judge's disqualification, then a
contribution to an opponent, or the funding of an opposition
campaign, must operate in a similar fashion . If so, it would be a
simple expedient for a party or a lawyer to "mold" the court that will
hear his or her cases by tailorinq contributions and opposition
contributions .
Even more fundamentally, however, "We, the people, of the
State of Michigan," through the Constitution, have created a system
of judicial selection in our state in which candidates are nominated
by, and elected through, a political process. It is a different system
of judicial selection than that which exists in other states and in the
federal system, and reasonable persons can debate the merits and
demerits of this system . Each of us in different forums has urged
various reforms of this system . Nonetheless, the present system
has been ordained by our Constitution, and it defines the
environment in which those aspiring to judicial office must
undertake their efforts .
The premise of our system of judicial selection in Michigan is
that judges will periodically beheld accountable for their
performance . There are no lifetime appointments to judicial
positions, and there are no unaccountable committees who
determine whether judges should be maintained in office . Thus, the
most notable strength of our system of judicial selection is that it
requires candidates for judicial office to go out among the
electorate and explain why they should be placed in office . This
system fosters communication with the electorate, speech-making,
debate, the search for support and endorsements, campaign
advertising, expressions of judicial philosophy, and efforts to
persuasively explain why the election of one or the other candidate
ought to be preferred.
Such campaigns must be directed toward an electorate in
excess of four million people. In the case of Supreme Court
justices, such campaigns will typically involve the expenditure of
hundreds of thousands, or even millions, of dollars on television,
radio, newspaper, and other advertising, with opposition campaigns
expending similar amounts . These expenditures are not funded
magically, but are raised from among the electorate, and from
organizations that represent those among the electorate .
Indeed, given the premise of our system of judicial selection
that there should be periodic elections for judicial office, it would
seem that it is better that campaigns be well-funded and
informative, and that candidates be afforded the fullest opportunity
to explain their differing perspectives on the judicial role, than that
campaigns be poorly funded and result in candidates securing
election on the basis of little more than a popular surname .
There will simply be no end to the alleged "appearance of,
impropriety" if every contribution to a candidate, or every
contribution to an opposing candidate, or every independent
opposition campaign, is viewed as raising an ethical question
concerning a fudge's participation in .a case in which a contributor or .
an opposition contributor is involved . Again, while cogent
arguments have been made in favor of judicial selection reform,
until such reforms are adopted by the people of Michigan, there is
little alternative to active judicial participation in the electoral
process and the concomitant need to raise funds in order to
effectively participate and communicate in this process . If justices
of the Supreme Court, in particular, were to recuse themselves on
the basis of campaign contributions to their or their opponents'
campaigns, there would be potential recusal motions in virtually
every appeal heard by this Court, there would be an increasing
number of recusal motions designed to effect essentially political
ends, and there would be a deepening paralysis on the part of the
Court in carrying out its essential responsibilities .
Of considerable relevance to the subject of campaign
contributions as a basis for recusal is the Legislature's
establishment of limits on individual and political action committee
contributions to Michigan judicial candidates. MCL 169.252 and
169.269. Such limits must be understood as clearly reflecting the
Legislature's, and the people's, understanding that contributions in
these amounts will not supply a basis for disqualification . That is,
lawful contributions made within these limits, lawfully reported and
lawfully disclosed, cannot fairly constitute a basis for judicial
disqualification . Otherwise, these statutes, just as MCR 2.003 and
Canon 3(C), would be little more than cleverly devised snares to be
exploited by those wishing to undermine individual judges. A judge
who plays by the rules should not be required to recuse himself or
herself on the basis of such conduct . Thus, we assume, as have all
the justices before us, that the Legislature decided that lawful
campaign contributions would not give rise to a basis for judicial
recusal .
Adair, 709 N.W.2d at 579-81 (emphasis added) .
Simply put, I have yet to find a case that required recusal merely based on
a campaign contribution within the state's campaign donation limits. To the
contrary, the cases that require recusal all involve the existence of a substantial
donation coupled with other activities that reasonably raise questions of
impartiality. See Pierce v. Pierce , 39 P.3d 791, 798 (Okla. 2001)(requiring
recusal when "(1) a lawyer makes a campaign contribution to that judge in the
maximum amount allowed by statute [$5,000 .00], and (2) a member of that
lawyer's immediate family makes a comparable maximum contribution, and (3)
that lawyer further assists the judge's campaign by soliciting funds on behalf of
the judge, and the contributions and solicitations occur during a pending case in
which the lawyer is appearing before that judge"); Caleffe v. Vitale , 488 So .2d
627, 629 (FIa .App . 4 Dist. 1986)(holding that disqualification was required where
the party's "attorney is actually running the judge's ongoing reelection
campaign").
Aside from the existence of campaign contributions from Respondents
and their counsel, Movants have not asserted any additional facts which would
raise an appearance of impartiality. Since lawyers and parties who have cases
before the courts of this Commonwealth will certainly continue to contribute to
judicial campaigns, I believe that the frequent disclosure of campaign
contributions is the best course to be followed by a judicial candidate in
combating any perception of improper influence. The Florida Supreme Court
agrees, stating:
-10-
The United States Supreme Court recognized that disclosure
requirements deter actual corruption and avoid the appearance of
corruption by exposing large contributions and expenditures to the
light of publicity. This exposure may discourage those who would
use money for improper purposes either before or after the election.
A public armed with information about a candidate's most generous
supporters is better able to detect any post-election special favors
that may be given in return. Buckle 424 U .S. at 67, 96 S .Ct. at
657 .
MacKenzie , 565 So.2d at 1337.
I would be remiss if I failed to note the dangerous logic underlying
Movants' motion . Were this Court to conclude that the mere existence of
campaign contributions mandated a judge's recusal in all cases, it is difficult to
predict where this line of reasoning might end.
[W]e cannot operate a judicial system, or indeed a society, on the
basis of the factually unsubstantiated perceptions of the cynical and
distrustful. There are countless factors which may cause some
members of the community to think that a judge would be biased in
favor of a litigant or counsel for a litigant, e.g., friendship, member
of the same church or religious congregation, neighbors, former
classmates or fraternity brothers . However, such allegations have
been found legally insufficient when asserted in a motion for
disqualification . The same is true of the ground for disqualification
asserted at bar. Contributions such as the one at issue are normal
incidents in a campaign for public office . As long as it appears that
a contribution was a normal incident in such a campaign, it does
not tend to indicate any closer relation between the contributor and
the recipient than would ordinarily exist between members of the
same local bar.
Id . at 1335 (citations, internal quotation marks and brackets omitted) .
Nevertheless, in this particular situation there is more than the mere
existence of campaign contributions. Therefore . I will grant the Motion. In
reaching this decision, I have relied primarily on two factors : (i) that I have
received numerous campaign contributions from many of FBT's attorneys ; and,
perhaps most importantly, (ii) that the party requesting my recusai is the party
that is actually harmed by my decision to step aside. As to the first factor, FBT is
not a law firm representing clients in this matter, but is a party and, when
considered cumulatively, the donations to my campaign that can be associated
with the firm are not minimal . Whether or not the first factor is completely
dispositive, however, my decision is further confirmed given the Movants'
position in this case. As I have noted above, the parties seeking discretionary
review herein are the same parties who insist that I recuse. As one commentator
has observed, recusai ensures that "the right of the petitioner to apparent
impartiality may be secured, but only at the cost of actual disadvantage when it
comes to obtaining Supreme Court review ." Lubet, supra, at 658.
Finally, I must note that I take great umbrage with Movants' choice of
words in their recusai motion. Officers of the court should refrain from using
words such as "misconduct" when describing the activities of an opposing party if
there is no basis for leveling such a charge . No such basis exists.
Entered: June 6, 2006.
OHN C. ROACH
ASSOCIATE JUSTICE
COUNSEL FOR MOVANTS:
Sandra L. Bennett
101 North Seventh Street
Louisville, Kentucky 40202
Peter F. Ervin
1000 Cherokee Road, Suite 06
Louisville, Kentucky 40204
COUNSEL FOR RESPONDENTS :
James E . Milliman
Middleton & Reutlinger
401 South Fourth Avenue
2500 Brown & Williamson Tower
Louisville, Kentucky 40202-3410
Rebecca Grady Jennings
Middleton & Reutlinger
401 South Fourth Avenue
2500 Brown & Williamson Tower
Louisville, Kentucky 40202-3410