Thomas v. Judicial Conduct Commission

WINTERSHEIMER, Justice.

This appeal is from a decision of the Judicial Conduct Commission which held that Judge Don Thomas of the Marshall District Court, Benton, Kentucky, had violated four charges of the eight-count charge against him. The Commission imposed a 180-day suspension.

Judge Thomas is a district judge for the Fifty-Eighth Judicial District which consists of Marshall County. The Judicial Conduct Commission authorized an investigation into complaints regarding the conduct of the judge and he was invited to appear before an informal conference. After two informal conferences, the Commission provided Judge Thomas with the factual information it had and gave him the opportunity to present other information bearing on the investigation. Formal charges were initiated and a hearing was held at which Judge Thomas appeared with counsel. He testified and offered evidence in his own behalf. Four of the original charges were dismissed and will not be considered by this Court in our review.

Judge Thomas contends that the position of the Commission is based on a flawed review and analysis of the applicable law and facts and that the Commission erred as a matter of law in failing to dismiss all counts. He argues that the conclusions of the Commission were based on speculation and innuendo and were contrary to the actual evidence and testimony. Judge Thomas claims that the case presented by the Commission did not reach the standard of clear and convincing evidence.

The following is a brief overview of the factual basis relating to each charge:

Count I alleges that Judge Thomas received ex parte communications from a defendant, Nick Hatfield, and his attorney in a pending misdemeanor criminal action. Following those communications, Judge Thomas entered an order suspending a nine-day jail sentence conditioned on the paying of child support by the defendant to his ex-wife, Carrie Hatfield. At that time Judge Thomas was having a personal relationship with the ex-wife. The order suspending sentence was entered without notice or involvement of the attorney for the Commonwealth.

Count III alleges that in January 2001, Judge Thomas asked, as a personal favor, a state trooper to be present when Carrie Hatfield retrieved her personal belongings from the residence of Jim Wilson, an ex-boyfriend with whom she was living, in order to move in with Judge Thomas.

Count IV alleges that in January 2001, Judge Thomas called Jim Wilson to complain of certain telephone calls which Wilson had been making. The count alleges that during this conversation, Judge Thomas threatened to inform law enforcement authorities that Wilson, who was the owner of a used-car dealership, was altering odometer readings.

Count VI alleges that Judge Thomas, during an informal appearance before the Commission, made a representation of material fact that he did not have a personal relationship with Carrie Hatfield until November 2000. Whereas, the Commission found that the personal relationship began at least as early as August 1998.

I.

Standard of Review

The standard of review on appeals from the Judicial Conduct Commission is set out in Wilson v. Judicial Retirement and Removal Com’n, Ky., 673 S.W.2d 426 (1984). That case recognized that the discipline of members of the judiciary was the responsibility of the Commission and as the finder of fact it may make reasonable conclusions based upon the facts. Review by the Supreme Court is available on appeal but this Court must accept the findings and conclusions of the Commission unless they are clearly erroneous; that is to say, unreasonable. Wilson, supra: see also Long v. Judicial Retirement & Removal Com’n, Ky., 610 S.W.2d 614 (1980).

II.

Count One: Ex parte Communications

We do not find that the Commission was clearly erroneous or unreasonable in reaching its conclusion, as based on the evidence in the record, that Judge Thomas had violated SCR 4.300, Canon 3, Kentucky Code of Judicial Conduct, when he engaged in ex parte communications with Nick Hatfield and his attorney. Judge Thomas spoke to the individuals, signed and executed an order prepared by Hatfield’s attorney without first notifying the county attorney and permitting him either to approve or make objections to the order. The defense by Judge Thomas that his actions should be permitted because of a “long-standing judicial policy in Marshall County” which permits such ex parte communications is without merit.

Although there are certain limited exceptions to the rule against ex parte communications, the mere reference to a so-called “local policy” does not come within the enumerated exceptions outlined in Canon 3B(7)(a). It should be pointed out that the claim of a personal relationship with Carrie Hatfield is not crucial to the finding by the Commission that Judge Thomas violated the Code of Judicial Conduct in regard to ex parte communications.

III.

Count Three: Personal Favor

The Commission was not clearly erroneous in determining that Judge Thomas had asked a state trooper to do him a personal favor that advanced his personal interests in violation of SCR 4.300, Canon 2D. Judge Thomas had asked the state trooper to assist Carrie Hatfield in moving from her ex-boyfriend’s home to the home of Judge Thomas. Judge Thomas does not deny the facts surrounding this count. He argues that there is a policy of the Kentucky State Police that allows ordinary citizens to request police ' escorts in situations where one spouse is moving out.

It should be recognized that there is no unfairness in holding Judge Thomas to a higher standard than an ordinary citizen. All judges are held to a higher standard by virtue of the Code of Judicial Conduct. The arguments by Judge Thomas to the contrary are totally without merit. There was no emergency protective order involved in this situation.

Judge Thomas has not offered any evidence to clearly establish a policy of the Kentucky State Police with respect to move-outs in domestic matters. A defense witness, a state trooper who did not participate in this move-out, testified that the most common procedure for this type of situation is to get an emergency protective order from the appropriate court. The trooper also testified that had Carrie Hatfield, and not Judge Thomas, made the request, he would have required her to get some sort of paperwork. Judge Thomas also acknowledged that when a private individual comes to his court and explains that they want to get their belongings from an estranged spouse, he tells them that they must see a private attorney or the county attorney. This procedure was not followed in regard to Carrie Hatfield.

Thus, we agree with the Judicial Conduct Commission that Judge Thomas violated the Code of Judicial Conduct when he used his influence to obtain the assistance of the state trooper in the Hatfield move from the Wilson home into the home of Judge Thomas.

IV.

Count Four: Telephone Call by Judge Thomas

This count involves a telephone call from Judge Thomas to James Wilson, Hatfield’s ex-boyfriend, during which Judge Thomas threatened to inform law enforcement authorities that Wilson; the owner of a used car dealership, was altering odometer readings. Judge Thomas admits that on January 22, 2001, he called Wilson and asked him, “how he would like it if the state police or FBI started looking into your rolling back odometers on cars.” Judge Thomas denies that the telephone call was made to intimidate Wilson and that it did not constitute an ethical violation. We agree with the Commission that this defense is without merit. The findings and conclusions of the Commission on this count were not clearly erroneous.

V.

Count Six: Comments to Commission

This count alleges that Judge Thomas, during an informal appearance before the Commission misrepresented a material fact to the effect that he did not have a “personal relationship” with Hatfield until November 2000. The Commission believes that his personal relationship began at least as early as August 1998. Judge Thomas contends that he misunderstood the questions of the Commission and that there is no audio or video record to establish the actual language used in the context of his misstatements.

The record of this meeting was kept by the executive secretary of the Commission as minutes of all such meetings are compiled. The executive secretary testified that he kept such minutes and stated that the minutes reflect that Judge Thomas denied being.with Carrie Hatfield or having any type of personal relationship prior to November 2000. At the hearing, Judge Thomas admitted making those statements to the Commission and that the minutes were accurate.

We must agree with the Commission that Judge Thomas misled the Commission regarding his relationship with Hatfield. Thus, he violated Canons 1 and 2A of the Kentucky Code of Judicial Conduct because he failed to observe the high standards of conduct that preserve the integrity and independence of the judiciary, and he failed to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Subsequent disclosures by Judge Thomas do not exonerate him from this violation.

VI. •

Past Conduct

It was not error for the Commission to take judicial notice of its own prior rulings regarding disciplinary action it took against Judge Thomas. Here, the prior sanctions imposed on Judge Thomas were relevant in considering the new charges. Within a year of the current charges, Judge Thomas had been sanctioned for committing violations of the same disciplinary rules, Canons 2B and 3B(7). The fact that these prior sanctions did not deter him from committing- further violations was an important consideration in determining the appropriate punishment for the current misbehavior.

Judge Thomas has failed to demonstrate in any way that he was unduly prejudiced by the failure of the Commission to formally introduce the prior offenses into evidence at the hearing. In order to find reversible error in an administrative decision, a reviewing court must determine that the error was prejudicial. See 2 Am.Jur.2d Administrative Law § 622 (2001), citing Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955).

Upon a consideration of the totality of the circumstances, the charges filed against him, and the responses made by Judge Thomas, we find the Order of the Judicial Conduct Commission suspending Judge Thomas for 180 days is reasonable and proper. There is no reason to modify the Order of Suspension.

• The decision of the Judicial Conduct Commission is affirmed.

LAMBERT, C.J., COOPER and JOHNSTONE, JJ„ concur. KELLER, J., dissents by separate opinion and is joined by GRAVES and STUM-BO, JJ.

GRAVES, J., also dissents by separate opinion.