The Kentucky commission responsible for investigating judicial misconduct has the fewest resources available to it in comparison to neighboring states, and before 2010, the commission was run out of its secretary’s basement in Lexington.
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Kentucky’s Judicial Conduct Commission employs one part-time investigator and the occasional attorney to investigate roughly 250 complaints made yearly against judges. Five states analyzed by the Herald-Leader —West Virginia, Ohio, Mississippi, Indiana and Tennessee — have at least one full-time attorney or investigator dedicated to investigating judicial misconduct.
The two states with comparable yearly complaint loads are Mississippi and West Virginia, with 280 and 200 cases, respectively. Mississippi employs one full-time investigator and has two staff attorneys to assist in investigations. West Virginia has two full-time attorneys and three contract investigators. That is two to four times more staff on the payroll than Kentucky has.
Kentucky’s JCC resources have been “enough for 20-plus years,” said Stephen Wolnitzek, the commission’s chairman. There have been 25 suspensions issued by the commission since its inception.
“The bulk of complaints do not fall under our jurisdiction,” Wolnitzek said. “We’re not an appellate court. We may disagree with what the judge does, but that is not our role. If we got a complaint like that, obviously there’s nothing we can do.”
In 2016, Kentucky suspended three judges and reprimanded one. West Virginia issued five admonishments, and Mississippi recommended four judges for discipline, publicly reprimanded two, suspended one, and fired one judge.
Of the neighboring states, the one with the highest number of complaints was Ohio, with more than 600 a year. The complaints are handled by two separate organizations that have a combined staff of one full-time investigator, one full-time attorney, and 55 staff attorneys who are asked to assist as necessary.
In Kentucky, the last two complaints the JCC took action on involved Fayette County Family Court Judge Kathy Stein, who returned to the bench Thursday after a 30-day suspension.
Stein was suspended March 20 for violating the due process rights of two families. In one case, which is confidential, Stein removed 5-year-old twins from their parents in February 2015 and placed them in foster care without “conducting a formal hearing, taking any sworn testimony, or affording the parents basic due process,” the JCC stated. The female twin would end up being sodomized two months later by her foster father, according to court and child protection records provided to the Herald-Leader.
The suspension in March was the second that Stein faced in less than a year. She was suspended in September for seven days for violating the due-process rights of a mother by granting emergency joint custody to the child’s father. That father, who had not had unsupervised visitation with the child in more than seven years, took their daughter to Mississippi.
Stein is the only Kentucky judge to have been suspended twice in less than a year. She also is the only Fayette County judge to ever be suspended by the JCC, which was established in 1976 by a change to the Kentucky Constitution.
All complaints made to the commission are reviewed, and if a violation of the code of judicial conduct occurred, a notification is sent to the judge asking for a response. The complainant’s identity is not released, although the judge can often figure it out, Wolnitzek said.
If the commission considers the complaint worth investigating, the judge is invited in for an informal conference.
After that conference, if the commission determines that the judge violated the code of conduct, an “offer, for lack of a better term,” is made, Wolnitzek said. In March, Stein’s offer was a 30-day suspension and more training. Stein accepted the offer, but in 20 other investigations that the JCC has conducted since Wolnitzek joined the commission in 1996, judges have rejected the offers.
If a judge rejects the offer, the commission holds a hearing to obtain more information and interview witnesses.
“The judge is permitted to provide us additional information that would bear on the matter,” Wolnitzek said. “In my experience, the evidence that is produced at the hearing is frequently worse than what we initially knew.”
The conduct commission has six members: one Court of Appeals judge appointed by that court; one circuit and one district judge selected by vote of circuit and district judges respectively; one member of the bar appointed by its governing body; and two people, not attorneys or judges, appointed by the governor. Terms are for four years.
The JCC’s 2016 budget is $422,000, of which $371,000 is spent on personnel. The bulk of the personnel budget is eaten up by legal fees, the salary for the executive secretary (full-time), executive assistant (full-time), and the part-time investigator (who is paid $35 an hour), Wolnitzek said. The JCC’s operating budget of $50,000 covers office expenses and a $60 stipend that Wolnitzek and Kent Westberry, the commission’s alternate chairman, receive every time it meets.
Before 2010, the JCC had its office in the basement of Jim Lawson’s home, Wolnitzek said. Lawson was the JCC’s former executive secretary. The commission now has an office in Frankfort.
Fernando Alfonso III: 859-231-1324, @fernalfonso