Judicial conduct panel needs complete overhaul

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The article “Kentucky’s judicial misconduct panel has fewer resources than nearby states” was seemingly simple and earnest enough, but it misses the mark.

Kentucky’s Judicial Conduct Commission doesn’t need more resources; it needs restructuring.

Because of the nature of its limited jurisdiction over only judges (and other judicial commissioners as well as judicial candidates), the reporter’s unawareness of the intricacies of the JCC is not surprising.

All Kentuckians would agree that the role of a judge is important and demands adherence to the absolute highest ethics and professional as well as personal conduct. However, a judge accused of misconduct, whether gross or minor, deserves no less due process than a typical criminal defendant receives in Kentucky’s courts.

Under the commonwealth’s criminal justice system, a prosecutor presents his or her findings to a grand jury who makes a determination whether or not to indict, a judge who acts a referee is assigned to the case and if it goes that far, a petit jury of the defendant’s peers determines the individual’s innocence or guilt.

Under the current structure, JCC itself, collectively, acts as prosecutor/investigator, grand jury, judge and petit jury. Unlike the processes of the Kentucky Bar Association that govern attorney discipline, separate entities do not investigate and prosecute as well as act as the trier of fact.

Kentucky can and should do better than this.

Under our current arrangement, four out of six people can overturn a vote of the people and remove a sitting judge from office, while an unscrupulous county clerk or other local official can only be removed by impeachment and conviction in the state legislature. Something is wrong under such a system.

The JCC currently employs two full-time staff members, at least one who is a trained attorney, as an executive secretary and executive assistant. The current executive secretary, Jimmy Shaffer, acts as a clerk and paralegal for the commission. The commission’s part-time investigator is Gene Weaver, a former Democratic mayor of Fort Wright in Northern Kentucky.

The attorneys utilized by the JCC work on a contract basis through billable hours. It would perhaps be more cost effective to hire two staff attorneys rather than incur the reoccurring expense of costly personal service contracts for legal work, which now accounts for the vast bulk of JCC’s annual budget of nearly half a million dollars.

When judges engage in true misconduct they should be reprimanded, suspended or removed from office, depending on the severity of their behavior. Some should even be criminally prosecuted if warranted. The JCC, however, should not be a multi-decade lily pad for one lawyer to act as chair and attain the benefits of the perceived power of his position over every elected judge in Kentucky in perpetuity.

The current chairman, attorney Stephen Wolnitzek, has served in his capacity for more than two decades since 1996. This is odious and unacceptable.

Gov. Matt Bevin is to be commended for replacing the JCC’s two non-attorney members for the first time since Gov. Brereton Jones and Gov. Paul Patton were in office. The JCC’s implicit fundamental fairness can benefit from fresh eyes, fresh ears and fresh faces to perform its critical role.

The legislature should act to make the JCC fairer and more effective. The model of the KBA and of many other states allowing for one entity to investigate/prosecute and another to hear evidence and make a factual determination should be implemented forthwith. The legislature should also set single term limits on all JCC members, both those elected by judges and KBA members as well as the governor’s two citizen appointees.

This would ensure no one individual can be perceived as maintaining a power hold over the fate of every judge in Kentucky.

As Justice Bill Cunningham wrote in his dissent in the 2011 Kentucky Supreme Court opinion Alred v. Commonwealth of Kentucky JCC, “… Our state judges, whose conduct is regularly being reviewed by the electorate, deserve equal protection from removal. The standard for ‘good cause’ should at least require being guilty of committing some crime, either felony or misdemeanor.”

Jarrad T. Smith of Phelps is a graduating student at Appalachian School of Law in Grundy, Va., and is a former trial commissioner in the Pike County District Court.