J.C.J.D. v. R.J.C.R., 90-SC-000130-RR

• Decision Date: 14 February 1991
• Docket Number: No. 90-SC-000130-RR,90-SC-000130-RR
• Citation: 803 S.W.2d 953
• Parties: J.C.J.D., Movant, v. R.J.C.R., Respondent.
• Court: United States State Supreme Court — District of Kentucky

Page 953

803 S.W.2d 953

J.C.J.D., Movant, v. R.J.C.R., Respondent.

No. 90-SC-000130-RR.

Supreme Court of Kentucky.

Feb. 14, 1991.

As Amended March 11, 1991.

Frank E. Haddad, Jr., George Salem, Jr., Louisville, for movant.

George F. Rabe, James D. Lawson, Executive Secretary, Retirement and Removal Com'n, Lexington, for respondent.

OPINION AND ORDER

RUTH H. BAXTER, Special Chief Justice.

Disciplinary proceedings were initiated against J.C.J.D. ("Justice Combs") by the R.J.C.R. ("Commission") on November 7, 1988, pursuant to Supreme Court Rule 4.180, for conduct during his campaign for the Kentucky Supreme Court in the primary election, and thereafter as a candidate for justice of the Supreme Court in the general election. He was elected to the Court by the voters of the Seventh Judicial District in the 1988 November General Election.

Seven (7) separate violations of the Code of Judicial Conduct ("Code") were charged which can be summarized as follows:

Count I: Justice Combs violated SCR 4.020(1)(b)(i) and Canon 7(B)(1) by announcing his views on disputed legal and political issues by criticizing the "firemen's rule," laws against carrying handguns by felons, and the standard for court review of workers' compensation cases;

Count II: Justice Combs violated SCR 4.020(1)(b)(i) and Canon 7(B)(1)(b) and (c) when he allowed the Jefferson County Sheriff to send a letter on his behalf to sheriffs, police chiefs and fire chiefs in Seventh Judicial District discussing his position on the "firemen's rule";

Count III: Justice Combs violated SCR 4.020(1)(b)(i) and Canons 1, 2, and 7(B)(1) when he criticized the Code and the Supreme Court;

Count IV: Justice Combs violated SCR 4.020(1)(b)(i) and Canons 1, 2, and 7(B)(1) by challenging his opponent to a televised debate, and making statements concerning his opponent and the Supreme Court's ruling in a personal injury case;

Counts V, VI and VII: Justice Combs violated SCR 4.020(1)(b)(i) and Canon 7(B)(1) through statements that appeared in his campaign advertisements.

Counts I, II, III and IV resulted from a written complaint filed with the Commission, and Counts V, VI and VII were initiated by the Commission upon its own motion.

The Code violation charges followed a preliminary investigation by the Commission in June of 1988, and an informal discussion conference with Justice Combs on August 19, 1988. Notice of the alleged Code violations was given to him by letter dated August 23, 1988. Justice Combs denied the Commission's charges and further defended that the application of the Code to his campaign conduct was violative of his federal and state constitutional rights. Formal charges were subsequently filed on November 7, 1988. An amendment to the charges was made by the Commission, and a full hearing on all amended charges held on July 27, 1989. A Stipulation of Facts, with copies of the campaign material in question, was entered into by the parties and is filed with the record.

By order dated February 10, 1990, the Commission found Counts I, III, IV, V, VI, and VII proved by "clear and convincing evidence," and determined Justice Combs' campaign conduct violative of the Code. Count II was dismissed upon motion of counsel for the Commission on the basis that the charge could not be proved. The Commission further found that the conduct of Justice Combs was deliberate and in bad faith, and therefore constituted "misconduct in office" in violation of SCR 4.020(1)(b)(i). It ordered Justice Combs suspended from his elective office and his judicial duties without pay for a period of three (3) months.

Justice Combs appealed the Commission's Order to this Court, seeking review of the Findings of Fact, Conclusions of Law and Order of the Commission. We are required to accept the Commission's findings and conclusions unless they are clearly erroneous. Based upon the controlling case law and for the reasons cited herein, the Court hereby holds that the Findings and Order of the Commission relating to Counts I, III, IV, V, VI, and VII, are clearly erroneous, and further, are in contravention of state and federal law. ¹

The United States Constitution guarantees the right of an individual to free speech. Accordingly, Congress can make no law abridging the freedom of speech. First Amendment, U.S. Constitution. Similarly, Section Eight of the Kentucky Constitution provides that "(e)very person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty."

Freedom of speech extends to a candidate for public office, including judicial offices. "The candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election...." Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). This right of free speech is not absolute, however. States have the authority to regulate this conduct within certain limitations if in the public interest. Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). "(A) person does not (however) surrender his constitutional right to freedom of speech when he becomes a candidate for judicial office. A state cannot require so much." American Civil Liberties Union of Florida, Inc., et al. v. The Florida Bar, et al., 744 F.Supp. 1094 (1990).

The courts are charged with reviewing state regulations to determine if a regulation is necessary to serve a compelling state interest, and if it has been narrowly written to protect against the evil that the government can control. Brown v. Hartlage, 456 U.S. 45, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982). Where a regulation extends so far as to completely outlaw speech because of the subject matter of its content, there is a strong presumption of its unconstitutionality. Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981).

Moreover, restrictions affecting free speech that can result in disciplinary action to the speaker are subject to an even stricter scrutiny. In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978). The question then becomes whether the enacted regulation has been so narrowly drafted, and strictly applied, that the compelling state interest is served without unnecessarily burdening the exercise of free speech? See, First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978).

By Section 121 of the Kentucky Constitution, the authority to regulate the conduct of the judiciary was conferred upon the Kentucky Supreme Court. The Code was adopted, effective January 1, 1978, through Supreme Court Rule, drawing upon the text of the 1972 American Bar Association ("ABA") Model Code of Judicial Conduct. The ABA Model Code was substituted for the "Canons of Judicial Ethics" which had been originally formulated some 50 years earlier to provide judges with minimum ethical standards of conduct. Although minor amendments have been made to Kentucky's Code since its adoption, there have been no substantive changes in its provisions since that time, nor has this Court previously considered the more recent Model Code of Judicial Conduct adopted by the ABA House of Delegates on August 7, 1990.

The focus of the allegations against Justice Combs centers on Canon 7(B)(1) of the Code. These sections provide in pertinent part that a candidate for judicial office:

(a) should maintain the dignity appropriate to judicial office, ...; (and)

(c) should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; (or) announce his views on disputed legal or political issues.... SCR 4.300, Canon 7(B)(1).

The Commission found that the statements made by Justice Combs announced his views on conflicting judicial opinions which it termed "disputed issues," giving him an "unwarranted and illegal advantage in the election over his primary opponents." Commission Findings at 7. It further determined that his criticism of a Supreme Court personal injury decision, and his opponent's vote on the case, was an indirect pledge or promise of conduct in office other than the faithful and impartial performance of his duties of office. Id. at 9. Moreover, because Justice Combs had been "explicitly warned" in the Commission's informal conference after the primary election that his campaign conduct may be in violation of the Code, and he subsequently continued to speak out on such issues, the Commission found his actions were "undertaken deliberately and in bad faith, and constituted misconduct in office in violation of SCR 4.020(1)(b)(i)." Id. at 10-11.

Justice Combs argues that by becoming a judicial candidate, subject to the Code, he did not lose his right to exercise his free speech. By discussing opinions that he has authored, criticizing his opponent's position on legal issues, and explaining to the public his judicial philosophy, he was, he submits, informing the electorate of his views so that an informed decision could be reached at the ballot box. Justice Combs asserts that to restrict his political speech from all "disputed legal or political issues" unconstitutionally deprives him of free speech without a compelling state interest.

There can be no question that the state has a compelling interest to protect and preserve the integrity and objectivity of the judicial system. "The state's interest in ensuring that judges be and appear to be neither antagonistic nor beholden to any interest, party or person is entitled to the greatest respect." Morial v. Judiciary Com'n., 565 F.2d 295 (5th Cir.1977), cert. denied, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978). Untruthful or misleading statements, or pledges of specific judicial...