Gentry v. Judicial Conduct Comm'n

• Decision Date: 17 December 2020
• Docket Number: 2020-SC-0434-RR
• Citation: 612 S.W.3d 832
• Parties: Dawn M. GENTRY, Appellant v. JUDICIAL CONDUCT COMMISSION, Appellee
• Court: United States State Supreme Court — District of Kentucky

612 S.W.3d 832

Dawn M. GENTRY, Appellant

v.JUDICIAL CONDUCT COMMISSION, Appellee

2020-SC-0434-RR

Supreme Court of Kentucky.

DECEMBER 17, 2020

COUNSEL FOR APPELLANT: Jeffrey Aaron Lawson, Franklin Todd Lewis, Lewis Laxw PLLC.

COUNSEL FOR APPELLEE: Bryan H. Beauman, Sturgill, Turner, Barker & Moloney PLLC, Lexington.

OPINION OF THE COURT BY JUSTICE VANMETER

This matter involves an appeal from a decision of the Judicial Conduct Commission which found misconduct on the part of Judge Dawn M. Gentry as charged in ten of twelve charged counts, and ordered that she be removed from office as a circuit judge for the 16th Judicial Circuit, 5th Division, a Family Court division serving Kenton County. Judge Gentry appeals, raising multiple claims of error. Finding no error warranting reversing the Commission's Final Order, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND.

Judge Gentry was appointed by Governor Matthew G. Bevin in December 2016. Ky. Exec. Order 2016-904. Due to the timing of her appointment, Judge Gentry stood for election in 2018.

Following her successful candidacy, a complaint was filed with the Judicial Conduct Commission alleging that she had used her judicial role to coerce attorneys who served as guardians ad litem (GAL) in her court to support her campaign, by either serving on her campaign committee or contributing money, had asked in the courtroom for a yard sign placement and had utilized court staff to perform campaign work during work hours.

Over the following months, additional allegations ensued, resulting in a twelve-count Formal Proceeding being brought against her. The original Notice of Formal Proceedings and Charges was filed in November 2019 and consisted of nine counts. In July 2020, an amended Notice was filed adding three additional counts.

Count I related to the actions occurring during Judge Gentry's 2018 campaign, noted above: 1) coercing members of her GAL panel to donate the maximum amount to the campaign and to use personal time to engage in campaigning on her behalf; 2) requiring GAL panel members to serve on her campaign finance committee; 3) in court, soliciting an attorney to put up a campaign sign; 4) utilizing court staff to work on her campaign during work hours, by placing and delivering campaign signs and having her case management specialist/mediator write thank-you notes for the campaign and publicly holding a campaign sign on Election Day, and taking steps to conceal this conduct; and 5) appointing attorney Delana Sanders to Judge Gentry's GAL panel in exchange for Ms. Sanders’ husband's agreement to support the campaign. The Count charged that these actions violated Canon 1, Rules 1.1 and 1.2; Canon 2, Rules 2.1, 2.2, 2.3(A), and 2.13(A); Canon 3, Rule 3.1(D); and Canon 4, Rules 4.1(A) and 4.1(B).¹

The Commission found Judge Gentry committed the actions charged in 1) and 4), above, based on her Amended Answer and Stipulations in which she acknowledged violating Rules 1.2, 1.3 and 3.1(D), and on the testimony of attorneys Michael Hummel and Katherine Schulz. The Commission noted that "[b]ased on [Judge Gentry's] testimony and the totality of the evidence presented, [she] had clear expectations of the level of participation by her panel members as to time, energy, effort and money contributed ... and insufficient participation led to retaliation." As a result, the Commission found violation of Rules 1.1, 1.2, 2.1, 3.1(D), and 4.1(B).

Count II alleged Judge Gentry, during or following the 2018 election, did the following: 1) retaliated against one of her staff, Meredith Smith, for not sufficiently supporting the campaign; 2) retaliated against attorney Mike Hummel for failing to make the maximum monetary donation to the campaign and declining to campaign on her behalf by removing Hummel from the GAL panel following the election; 3) retaliated against attorneys who did not support her campaign by delaying hearing dates for their cases; and 4) retaliated against school liaison officer Kelly Blevins for supporting Judge Gentry's opponent in the election. The Count charged that these actions violated Canon 1, Rules 1.1 and 1.2, Canon 2, Rules 2.2, 2.3(A), 2.3(B), 2.4(B), 2.6(A), 2.8(B), 2.11(A) and 2.13(A), and Canon 3, Rule 3.1(D).

The Commission found Judge Gentry retaliated against Hummel for failing to campaign on her behalf. The Commission did not find that the retaliation was for not contributing and did not find by clear and convincing evidence the other actions charged. The Commission found that the retaliation against Hummel violated Rules 1.1, 1.2, 2.2, 2.3(A), 2.4(B) and 2.13(A)

Count III charged that Judge Gentry engaged in the following conduct during office hours: 1) filled out and approved a false timesheet for Meredith Smith; 2) left the courthouse on numerous occasions with Stephen Penrose and Ms. Aubrey during regular court hours, leaving the office without any staff coverage; 3) knowingly approved inaccurate timesheets for Mr. Penrose and Ms. Aubrey that Judge Gentry knew did not accurately reflect the hours those employees worked; 4) brought her children to work and, on one occasion, one of her children witnessed a confidential proceeding and recognized the child involved in the proceeding, violating the confidentiality of proceedings in a family court case; 5) permitted Mr. Penrose to spend work hours playing his guitar and singing in his office, disrupting other court employees during the workday; and 6) permitted staff to store and consume alcoholic beverages in court offices and at times Judge Gentry consumed alcoholic beverages in the courthouse. The Count charged that these actions violated Canon 1, Rules 1.1 and 1.2, and Canon 2, Rules 2.1, 2.5(A), 2.12(A) and 2.13(B).

As to Count III, Judge Gentry admitted approving timesheets she knew to be inaccurate, leaving the courthouse during the workday on numerous occasions. The Commission found that Judge Gentry committed the actions described in 1) as to approving an inaccurate timesheet for Smith, 2), 3), 5) and 6) although not as to Judge Gentry herself consuming alcoholic beverages in the courthouse. The Commission found that these actions violated Rules 1.1, 1.2, 2.1, 2.5(A), 2.12(A), and 2.13(B).

In Count IV, the Commission alleged that Judge Gentry 1) directed Kelly Blevins and other school liaison officers to file school dependency, neglect, and abuse cases only once per month and only to file certain petitions as truancy cases rather than dependency, neglect, and abuse cases, and when Ms. Blevins followed her employer's instructions regarding how to file such cases, Judge Gentry retaliated against her; and 2) following these actions, Judge Gentry refused to recuse herself from Ms. Blevins’ cases, despite having previously expressed personal animosity toward Ms. Blevins. The Count charged that these actions violated Canon 1, Rules 1.1 and 1.2; and Canon 2, Rules 2.3(A), 2.3(B), 2.8(B), and Rule 2.11(A).

Judge Gentry, in her Amended Answer and Stipulations, admitted the Commission's factual allegations, although denying the conclusions. At the hearing, Smith testified that Judge Gentry referred to Blevins as "bitch," and Judge Gentry acknowledged she probably did so. Judge Gentry further admitted her conduct towards Blevins violated the Canons. The Commission found these actions violated Rules 1.1, 1.2, 2.3(A), 2.3(B), 2.8(B) and 2.11(A).

Count V charged that on multiple occasions, Judge Gentry held pretrial conferences in dependency, neglect, and abuse cases with members of her GAL panel to which private attorneys who represented parties in those cases were not invited and substantive decisions were made during these conferences, which were not held on the record. The Count charged that these actions constituted misconduct in office and violated Canon 1, Rules 1.1 and 1.2; and Canon 2, Rule 2.9. The Commission found that Judge Gentry did not commit the acts alleged in Count V.

In Count VI, the Commission alleged that Judge Gentry: 1) made inappropriate and unwanted sexual advances toward a female attorney;² 2) after making these unwelcomed sexual advances Judge Gentry sent one of her GAL panel attorneys to speak with the attorney, accusing her of gossiping about Judge Gentry and of taking GAL assignments in Boone County. This conduct was reasonably interpreted as warning the attorney to remain quiet regarding the sexual advances; 3) following these events, Judge Gentry refused to recuse from cases in which the attorney represented a party; and 4) engaged in Snapchat conversations with members of her GAL panel and Penrose, some of which were sexual in nature. The Count charged these actions constituted misconduct in office and violated Canon 1, Rules 1.1 and 1.2; Canon 2, Rules 2.2, 2.3(B), 2.8(B), 2.11(A), 2.12(A); and Canon 3, Rules 3.1(C) and 3.1(D).

The proof regarding this count was that Judge Gentry's conduct was inappropriate but not "unwanted." Judge Gentry, however, admitted to refusing to recuse on cases involving the attorney, and that her conduct violated Rules 1.2, 1.3 and 2.11. Judge Gentry argues that the proof was insufficient to establish the allegations in 2) and disputes 4) as well. The proof on these issues was established by testimony at the hearing and by Snapchat messages. The Commission found violations of Rules 1.1, 1.2, 2.2, 2.3(B), 2.8(B), 2.11(A), 2.12(A), 3.1(C) and 3.1(D).

Count VII alleged inappropriate conduct on Judge Gentry's part with respect to Penrose, specifically: 1) hiring him because the two were engaged in a personal, sexual relationship, not on the basis of merit, and terminating Meredith Smith by forcing her to resign to create a job opening for Penrose; 2) engaging in inappropriate workplace behavior with Penrose during work hours, including sexual activity with Penrose and Aubrey in a courthouse office; and 3) improperly delegating judicial functions to Penrose. The Count charged these actions constituted misconduct in office and violated Canon 1, Rules 1.1 and 1.2...