Com. v. Brandenburg

• Decision Date: 18 September 2003
• Docket Number: No. 2001-SC-0722-DG.,2001-SC-0722-DG.
• Citation: 114 S.W.3d 830
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Elizabeth BRANDENBURG, Appellee.
• Court: Supreme Court of Kentucky

114 S.W.3d 830

COMMONWEALTH of Kentucky, Appellant, v. Elizabeth BRANDENBURG, Appellee.

No. 2001-SC-0722-DG.

Supreme Court of Kentucky.

September 18, 2003.

A.B. Chandler, III, Attorney General, Ian G. Sonego, Assistant Attorney General, Susan Roncarti, Assistant Attorney General, Office of the Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellant.

Thomas Keith Hollon, Beattyville, Counsel for Appellee.

Opinion of the Court by Justice STUMBO.

Elizabeth Brandenburg was indicted for one count of trafficking in a controlled substance, one count of possession of drug paraphernalia, and one count of possession of marijuana in the Lee Circuit Court. She entered a conditional guilty plea to the charges after the trial court refused her motion to suppress the evidence recovered during the search of her home pursuant to a search warrant issued by the Lee District Court trial commissioner, Margie Shuler. Brandenburg argued at the suppression hearing that the trial commissioner was not a neutral and detached magistrate because the trial commissioner's husband was employed by the Lee County Commonwealth Attorney's office as the Victim Advocate. The trial court overruled Brandenburg's motion to suppress. The Court of Appeals reversed the trial court and held that the trial commissioner was not a neutral and detached magistrate as required by United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and adopted by this Court in Crayton v. Commonwealth, Ky., 846 S.W.2d 684 (1992), because "she, through her husband's employment, is receiving an indirect pecuniary benefit from the Commonwealth Attorney, who regularly submits warrant applications for probable cause determination." We granted discretionary review and hereby affirm the Court of Appeals' decision.

On February 2, 1999, Brandenburg's son contacted police and advised them that he believed there to be stolen property at his mother's home and that she had also been trafficking in prescription medication. The Lee County Commonwealth Attorney and a police officer prepared an affidavit detailing the information provided by Brandenburg's son and the officer took the affidavit to the home of trial commissioner, Margie Shuler, to obtain a search warrant for Brandenburg's home. The trial commissioner signed the warrant and it was executed the same day. The officers seized numerous items including: a large amount of the prescription medication Tylox, drug paraphernalia, and a small amount of marijuana. No stolen property was recovered.

The sole issue before us is whether a trial commissioner who is married to an employee of the Commonwealth Attorney's office, "manifest[s] that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure." Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326, 99 S.Ct. 2319, 2324, 60 L.Ed.2d 920, 928 (1979). We hold that in the case sub judice, the trial commissioner, due simply to her marital status, was not the neutral and detached magistrate that the Fourth Amendment to the United States Constitution, Section 10 of the Kentucky Constitution, and the United States Supreme Court guarantee.

The Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution protect our citizens from unreasonable search and seizure. Inherent in this protection is the guarantee that the determination of probable cause to search is to be made by a neutral issuing authority rather than by the law enforcement officers responsible for its execution. Leon, 468 U.S. at 914, 104 S.Ct. 3405; Rooker v. Commonwealth, Ky., 508 S.W.2d 570, 571 (1974).

Judges and trial commissioners are also governed by a code of ethics. Section 121 of the Kentucky Constitution authorizes the Supreme Court to promulgate rules governing judicial conduct. Pursuant to that authority, this Court issued the Code of Judicial Conduct (Code) codified at Supreme Court Rule (SCR) 4.300. Canon 2 of the Code states, "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." Canon 3E(1) requires that a judge disqualify himself when his impartiality "might reasonably be questioned."

SCR 5.070 makes trial commissioners of the district court subject to the Supreme Court's rules governing the retirement and removal of judges. Also, SCR 5.050 governs the disqualification of trial commissioners and holds that "[a] trial commissioner shall disqualify himself in all matters in which he has an interest, relationship or bias that would disqualify a judge."

First, we note that this Court has not previously addressed whether a violation of the canons of the Code of Judicial Conduct, namely, a judge's failure to avoid the "appearance of impropriety," amounts to a finding that the judge is not a neutral and detached magistrate, thus requiring suppression of any evidence obtained pursuant to a search warrant issued by that judge.

The Court of Appeals has addressed such a situation in Dixon v. Commonwealth, Ky.App., 890 S.W.2d 629 (1994), wherein it held that a trial commissioner who was the law partner of the County Attorney was not a neutral and detached magistrate capable of making probable cause determinations for search warrants. Id. at 630. The court in Dixon found that the mere association with the County Attorney created an appearance of impropriety, in violation of Canon 2 of the Code, which destroyed the trial commissioner's character as a neutral and detached issuing authority. Id. at 631. We agree with the Court of Appeals' reasoning in Dixon, and hereby extend the holding of that case to apply to situations such as in the case at bar, where the trial commissioner is the spouse of an employee of the Commonwealth Attorney's office.¹

Here, as in Dixon, the very nature of the circumstances suggests that the trial commissioner may "be partial to the requests of" her husband's employer, who as the Commonwealth Attorney, certainly participates in the prosecution of criminal cases. Id. A trial commissioner who is not a lawyer, such as in the case at bar, may also give further credence to a search warrant prepared by the Commonwealth Attorney, whom she feels may be better qualified to make probable cause determinations. It is important to note that there has not been an accusation of any real impropriety against the trial commissioner in this case. It is enough that the public might perceive that the trial commissioner is not impartial due to her husband's employment with the Commonwealth Attorney's office, thereby creating an appearance of impropriety. In such an instance, recusal is mandatory.

Several advisory opinions of the Judicial Ethics Committee have found an appearance of impropriety when addressing similar situations where a judge or trial commissioner (or an employee of) has a close relationship with either an attorney who practices before the judge, or an employee of that attorney's office. See e.g., Judicial Ethics Opinion (JE)—13 (stating that a judge may not hire a part-time secretary who also works for a former law partner because it may appear to others that the former law partner may be able "to exert a subtle influence on the judge" by sharing a secretary); JE—47 (stating that a trial commissioner must disqualify from all matters in which his former law partner, who was also the County Attorney, appeared); JE—101 (stating that a judge whose secretary is married to an attorney appearing before the judge must recuse himself because of the appearance of impropriety). Other advisory opinions have stated that a judge could sign arrest warrants prepared by his daughter in her capacity as County Attorney if there was no other judge on hand to issue the warrant (JE—34); and that a judge must disqualify himself only in those cases in which his son, as an assistant Commonwealth Attorney, actually participates (JE—8).

However, this Court has spoken to this issue on only a few instances. In O'Hara v. Kentucky Bar Association, Ky., 535 S.W.2d 83 (1975), we affirmed an ethics opinion adopted by the Kentucky Bar Association that stated a trial commissioner could not be a member of the same law firm as the Commonwealth Attorney. In Sanderson v. Ethics Committee of the Kentucky Judiciary, Ky., 804 S.W.2d 10 (1991), we upheld the Committee's opinion that found a violation of Canon 2 of the Code of Judicial Conduct when an assistant County Attorney also held the position of Domestic Relations Commissioner "because of the potential for public distrust ...."

Today's opinion takes a harsher stance against the propriety of judges and trial commissioners having close personal relationships with others who may be in a position to influence their decision-making. We reiterate that there need not be an actual claim of bias or impropriety levied, but the mere appearance that such an impropriety might exist is enough to implicate due process concerns.

Appellant refers us to a Seventh Circuit case that interpreted numerous United States Supreme Court opinions dealing with judicial recusal as standing for the proposition that the mere appearance of injustice is not enough to implicate the Due Process Clause. See Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363 (7th Cir.1994). We, however, are not inclined to agree with this reasoning. In fact, the Supreme Court has several times stated to the contrary:

A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that `every procedure which would...