Alred v. Commonwealth, Judicial Conduct Commission
This text of 395 S.W.3d 417 (Alred v. Commonwealth, Judicial Conduct Commission) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
Opinion of the Court by
Chief Justice MINTON.
Russell D. Aired, Judge of the 26th Judicial Circuit of Kentucky, became the focus of a lengthy investigation by the Judicial Conduct Commission, culminating in formal charges consisting of twenty allegations of misconduct in office. Following an adversarial hearing on these charges, the commission found official misconduct on nine of the charges and ordered Judge Aired removed from office.
On review by this Court, Judge Aired urges us to overturn the commission’s order. He contends:
1) He was denied fundamental due process because “misconduct in office” is an unconstitutionally vague standard, and the provisions of Kentucky’s Code of Judicial Conduct relied upon by the commission lack specificity, rendering those provisions unconstitutional facially and as applied;
2) He was denied his rights under the Sixth Amendment of the United States Constitution;
3) His rights under Supreme Court Rules (SCR) 4.170 were violated; and
4) The commission’s findings are the clearly erroneous result of the misapplication of law, and the order is not supported by the evidence and is generally indicative of the commission’s lack of. impartiality.
After reviewing the lengthy record, we affirm the order of the commission as to eight counts of official misconduct and the commission’s decision to remove Judge Aired from office. We reverse the commission’s findings and legal conclusions as clearly erroneous as to Count V.
I. PROCEDURAL HISTORY.
After receiving an initial complaint, the commission authorized an investigation of Judge Alred’s activities. The commission notified Judge Aired of the investigation, and he appeared at several informal conferences with the commission at which he either represented himself or had counsel assist him. At these informal conferences, Judge Aired received factual information gathered in the investigation, and the commission gave him an opportunity to present other information bearing on the investigation.
At the conclusion of the investigation, the commission issued formal charges against Judge Aired, consisting of twenty counts of violating the Kentucky Code of Judicial Conduct. Ultimately, the commission dismissed eleven of those counts.1
Following issuance of the charges, the commission conducted a formal hearing. Judge Aired attended the hearing and, acting as his own counsel, presented his defense.2
[423]*423One month later, the commission issued its ruling. The commission found by clear and convincing evidence that Judge Aired committed nine violations of the Code of Judicial Conduct. The order from the commission also expressed concern over Judge Alred’s lack of candor in his testimony before the commission. Specifically, the commission stated that “even when confronted with videotapes of his actions and orders which were clear on their face, [Judge Aired] continued to assert positions which were, at best, disingenuous and, at worst, blatant misrepresentations.” And, ultimately, the commission concluded that Judge Alred’s actions “show[ed] a blatant and persistent failure to uphold the impartiality and integrity of the judiciary.”
In its Findings of Fact, Conclusions of Law, and Final Order, the commission voted unanimously to remove Judge Aired from office in accordance with its authority under Section 121 of the Kentucky Constitution 3 and SCR 4.020.4 It is from Judge Alred’s timely appeal of the commission’s order that we review this matter.
II. ANALYSIS.
A. Judge Aired was not Denied Due Process. SCR 4.020 and 4.300 (Judicial Canons 1 and 2A) are not Unconstitutional Facially or as Applied.
Although this Court has addressed some due process and constitutional issues with respect to the commission’s removal authority and our judicial canons, we have not done so with respect to the particular rules and canons that Judge Aired calls into question. Judge Aired contends that his removal for “misconduct in office,”5 which he was found to have committed on nine counts, is impermissible because “misconduct in office” is an unconstitutionally vague standard. And he claims Canon 16 and Canon 2A7 lack the necessary specificity to define an objective standard, thereby allowing the commission too much discretion to determine when a violation occurs.
Although Kentucky has not discussed whether these particular rules violate the Constitution and due process, published [424]*424opinions in other states have addressed similar issues. Other state courts have found that “[t]he test for determining whether the [judicial conduct standards] are vague is whether they convey to a judge a sufficiently definite warning of the proscribed conduct when measured by common understanding and practice.”8 “The constitutionality of necessarily broad standards of professional conduct has long been recognized.”9 And it is generally understood that “a greater degree of flexibility and breadth is permitted with respect to judicial disciplinary rules and statutes than is allowed in criminal statutes,” because they are meant to achieve different goals — maintenance of judicial standards as opposed to punishment for criminal conduct.10
In support of his position, Judge Aired cites some limited case law on vagueness with respect to the law; but his leading authority discusses a city ordinance.11 Judge Aired correctly asserts that Grayned v. City of Rockford stands for the proposition that a law must be written so that a person of ordinary intelligence would have a reasonable opportunity to know what act is prohibited.12 But our Code of Judicial Conduct is not a general criminal or civil statute designed to guide the average citizen. Our Code of Judicial Conduct is an established set of professional standards that are in place to ensure the fitness of the judiciary. With this important distinction in mind, we turn to SCR 4.020 and Canons 1 and 2A of the Kentucky Code of Judicial Conduct.
I. SCR 4.020(1) (b)(i).
The authority to impose discipline upon judges for misconduct in office arises from Section 121 of the Kentucky Constitution, which says that a judge may be suspended without pay or removed from office “for good cause.” This constitutional provision is codified in SCR 4, including SCR 4.020(l)(b)(i), which allows the commission to impose sanctions against a judge who engages in misconduct. The Kentucky Code of Judicial Conduct defines misconduct through its canons and commentary.
In 1978, this Court concluded that the words “for good cause” found in Kentucky’s Constitution supply sufficiently definite notice to inform a judge of the type of conduct for which the judge could be disciplined.13 In Nicholson v. Judicial Retirement and Removal Comm’n, Judge S. Rush Nicholson challenged his censure on the grounds that the standard “for good cause” was too vague to identify what type of behavior might subject him to censure.14 The Nicholson court stated,
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Opinion of the Court by
Chief Justice MINTON.
Russell D. Aired, Judge of the 26th Judicial Circuit of Kentucky, became the focus of a lengthy investigation by the Judicial Conduct Commission, culminating in formal charges consisting of twenty allegations of misconduct in office. Following an adversarial hearing on these charges, the commission found official misconduct on nine of the charges and ordered Judge Aired removed from office.
On review by this Court, Judge Aired urges us to overturn the commission’s order. He contends:
1) He was denied fundamental due process because “misconduct in office” is an unconstitutionally vague standard, and the provisions of Kentucky’s Code of Judicial Conduct relied upon by the commission lack specificity, rendering those provisions unconstitutional facially and as applied;
2) He was denied his rights under the Sixth Amendment of the United States Constitution;
3) His rights under Supreme Court Rules (SCR) 4.170 were violated; and
4) The commission’s findings are the clearly erroneous result of the misapplication of law, and the order is not supported by the evidence and is generally indicative of the commission’s lack of. impartiality.
After reviewing the lengthy record, we affirm the order of the commission as to eight counts of official misconduct and the commission’s decision to remove Judge Aired from office. We reverse the commission’s findings and legal conclusions as clearly erroneous as to Count V.
I. PROCEDURAL HISTORY.
After receiving an initial complaint, the commission authorized an investigation of Judge Alred’s activities. The commission notified Judge Aired of the investigation, and he appeared at several informal conferences with the commission at which he either represented himself or had counsel assist him. At these informal conferences, Judge Aired received factual information gathered in the investigation, and the commission gave him an opportunity to present other information bearing on the investigation.
At the conclusion of the investigation, the commission issued formal charges against Judge Aired, consisting of twenty counts of violating the Kentucky Code of Judicial Conduct. Ultimately, the commission dismissed eleven of those counts.1
Following issuance of the charges, the commission conducted a formal hearing. Judge Aired attended the hearing and, acting as his own counsel, presented his defense.2
[423]*423One month later, the commission issued its ruling. The commission found by clear and convincing evidence that Judge Aired committed nine violations of the Code of Judicial Conduct. The order from the commission also expressed concern over Judge Alred’s lack of candor in his testimony before the commission. Specifically, the commission stated that “even when confronted with videotapes of his actions and orders which were clear on their face, [Judge Aired] continued to assert positions which were, at best, disingenuous and, at worst, blatant misrepresentations.” And, ultimately, the commission concluded that Judge Alred’s actions “show[ed] a blatant and persistent failure to uphold the impartiality and integrity of the judiciary.”
In its Findings of Fact, Conclusions of Law, and Final Order, the commission voted unanimously to remove Judge Aired from office in accordance with its authority under Section 121 of the Kentucky Constitution 3 and SCR 4.020.4 It is from Judge Alred’s timely appeal of the commission’s order that we review this matter.
II. ANALYSIS.
A. Judge Aired was not Denied Due Process. SCR 4.020 and 4.300 (Judicial Canons 1 and 2A) are not Unconstitutional Facially or as Applied.
Although this Court has addressed some due process and constitutional issues with respect to the commission’s removal authority and our judicial canons, we have not done so with respect to the particular rules and canons that Judge Aired calls into question. Judge Aired contends that his removal for “misconduct in office,”5 which he was found to have committed on nine counts, is impermissible because “misconduct in office” is an unconstitutionally vague standard. And he claims Canon 16 and Canon 2A7 lack the necessary specificity to define an objective standard, thereby allowing the commission too much discretion to determine when a violation occurs.
Although Kentucky has not discussed whether these particular rules violate the Constitution and due process, published [424]*424opinions in other states have addressed similar issues. Other state courts have found that “[t]he test for determining whether the [judicial conduct standards] are vague is whether they convey to a judge a sufficiently definite warning of the proscribed conduct when measured by common understanding and practice.”8 “The constitutionality of necessarily broad standards of professional conduct has long been recognized.”9 And it is generally understood that “a greater degree of flexibility and breadth is permitted with respect to judicial disciplinary rules and statutes than is allowed in criminal statutes,” because they are meant to achieve different goals — maintenance of judicial standards as opposed to punishment for criminal conduct.10
In support of his position, Judge Aired cites some limited case law on vagueness with respect to the law; but his leading authority discusses a city ordinance.11 Judge Aired correctly asserts that Grayned v. City of Rockford stands for the proposition that a law must be written so that a person of ordinary intelligence would have a reasonable opportunity to know what act is prohibited.12 But our Code of Judicial Conduct is not a general criminal or civil statute designed to guide the average citizen. Our Code of Judicial Conduct is an established set of professional standards that are in place to ensure the fitness of the judiciary. With this important distinction in mind, we turn to SCR 4.020 and Canons 1 and 2A of the Kentucky Code of Judicial Conduct.
I. SCR 4.020(1) (b)(i).
The authority to impose discipline upon judges for misconduct in office arises from Section 121 of the Kentucky Constitution, which says that a judge may be suspended without pay or removed from office “for good cause.” This constitutional provision is codified in SCR 4, including SCR 4.020(l)(b)(i), which allows the commission to impose sanctions against a judge who engages in misconduct. The Kentucky Code of Judicial Conduct defines misconduct through its canons and commentary.
In 1978, this Court concluded that the words “for good cause” found in Kentucky’s Constitution supply sufficiently definite notice to inform a judge of the type of conduct for which the judge could be disciplined.13 In Nicholson v. Judicial Retirement and Removal Comm’n, Judge S. Rush Nicholson challenged his censure on the grounds that the standard “for good cause” was too vague to identify what type of behavior might subject him to censure.14 The Nicholson court stated,
Such phrases as ... ‘for good cause’ are terms of art which possess a special meaning manifest to the [legal] profession when used in this context. These terms denote a legal cause which affects [425]*425the ability and fitness of a judge to perform the duties of the office.15
The same is true of the term misconduct found in SCR 4.020(l)(b)(i).
In addition, “ample guidelines for the determination of proper conduct may be found in the ethical standards applicable to lawyers and judges adopted by national and state bar associations and in the moral standards expected of judicial officers by the public.”16
A judge can readily discern what constitutes misconduct within the meaning of SCR 4.020(l)(b)(i) by referring to the Kentucky Code of Judicial Conduct, which contains broad canons, specific rules, and commentary. Guidance is also available from the Judicial Ethics Committee, which publishes advisory opinions regarding “the propriety of any act or conduct and the construction or application of any canon ... upon request from any justice, judge, trial commissioner!],] or by any judicial candidate.”17 So we find that the term misconduct found in SCR 4.020(l)(b)(i) is not unconstitutionally vague.
2. Canons 1 and 2A.
Judge Aired contends that Canons 1 and 2A contain language that provides no reasonable opportunity for a person of any level of intelligence to know what conduct is prohibited. We disagree.
Canon 1 says,
A judge shall uphold the integrity and independence of the judiciary. An independent and honorable judiciary is indispensable to justice in our society. A judge should actively participate in establishing, maintaining!]] and enforcing high standards of conduct!] and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.18
Canon 2 states, “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”19 And the rules set forth in Sections A through E under Canon 2 offer further guidance on what is required of judges.
Because the Kentucky Code of Judicial Conduct is modeled closely after the American Bar Association’s Model Code of Judicial Conduct, it is strikingly similar, if not identical, to the judicial codes of conduct adopted by other states that have also adopted codes similar to the Model Code. For example, Canons 1 and 2A of Virginia’s, Mississippi’s, and North Dakota’s codes of judicial conduct are identical to the same canons in Kentucky’s Code of Judicial Conduct. These states’ supreme courts have concluded that the canons furnish a sufficient amount of detail to apprise judges of what is required of them in terms of abiding by the law and promoting the public confidence in the integrity and impartiality of the judicial system.20
In Judicial Inquiry and Review Comm’n v. Taylor, the Virginia Supreme Court addressed Canons 1 and 2A when a judge challenged her sanctions by claiming [426]*426the canons were invalid because they failed to describe meaningful standards of conduct. The Virginia Supreme Court stated:
The Commentary to Canon 1 includes the following language: “Although judges should be independent, they must comply with the law.... Violation of this Canon diminishes public confidence in the judiciary and thereby does injury to the system of government under the law.” Canon 2A requires a judge to comply with the law in a manner that promotes public confidence in the integrity and impartiality of the judiciary.... The relevant Canons clearly prohibit a judge’s failure to follow the law in such a manner as to fail to promote public confidence in the integrity and impartiality of the judiciary. There can be no “vagueness” in the application of the relevant Canons to the conduct in question.21
The Virginia Supreme Court concluded that these items, when read together, clearly defined what judges were required to do to promote public confidence in the integrity and impartiality of the justice system. The Mississippi Supreme Court also determined that identical canons were sufficient to put people of common intelligence on notice of what type of conduct is prohibited.22 And North Dakota’s Supreme Court found, for similar reasons, that the canons were not unconstitutionally vague.23
Kentucky’s Code of Judicial Conduct contains a set of canons, which are broad statements, specific rules set forth in sections beneath each canon, and commentary. The broad canons and more specific sections are authoritative. And the commentary supplies guidance regarding the meaning and purpose of the canons and sections.24 Given the guidance of the commentary, along with the clear mandate of the canons and sections, we believe Judge Aired was well aware that he was required to follow the law and that if he chose not to do so, he might be disciplined for engaging in behavior that was detrimental to the public’s perception of the integrity and impartiality of the bench. We hold that Canons 1 and 2A are not unconstitutionally vague or overbroad.
B. Judge Aired was not Denied his Rights Under the Sixth Amendment.
Judge Aired makes several arguments that the commission’s investigation and hearings abridged his rights under the Sixth Amendment to the U.S. Constitution. We are unpersuaded by his argument on any of the Sixth Amendment issues.
[427]*427 1. In the Course of These Proceedings, Judge Aired was not Entitled to the Protections of the Sixth Amendment.
The Sixth Amendment applies in the context of criminal prosecutions.25 This Court held in Nicholson that judicial disciplinary proceedings are different from criminal proceedings.26 The Nicholson court considered whether the ex post facto prohibition in the U.S. and Kentucky Constitutions applied to judicial disciplinary matters.27 The court concluded:
It is clear that the “ex post facto” prohibition applies only to criminal matters. A proceeding before the Commission is not a criminal matter.
The purpose of Section 121 of our constitution is the regulation of the conduct of those persons charged with the administration of justice. The aim of proceedings instituted pursuant to this section is to improve the quality of justice administered within the Commonwealth by examining specific complaints of judicial misconduct, determining their relation to a judge’s fitness for offiee[,] and correcting any deficiencies found by taking the least severe action necessary to remedy the situation. The target is not punishment of the judge. Consequently, the action of the Commission does not constitute a violation of the “ex post facto” prohibitions of the federal and state constitutions.28
Because the Sixth Amendment only applies in criminal proceedings and a judicial disciplinary proceeding is not a criminal proceeding, Judge Aired does not have any specific Sixth Amendment rights in connection with his disciplinary proceeding.
2. Judge Alred’s Rights are not Violated bg the Commission’s Dual Investigative and Adjudicatory Functions.
Judge Aired takes issue with the commission’s twofold investigative and adjudicatory roles. He contends his due process rights were violated because the commission performing these two roles produced a biased tribunal. Judge Aired refers us to Caperton v. A.T. Massey Coal Co., Inc.,
More analogous to Judge Alred’s assertions is a case that the United States Supreme Court considered several years ago in the context of a doctor’s objecting to the procedures used to suspend his medical license.31 In Withrow v. Larkin, the Court ruled that the “combination of inves[428]*428tigative and adjudicative functions does not, without more, constitute a due process violation.”32
When the Withrow Court spoke to the issue of what “more” would be required to give rise to a constitutional violation, it said that an individual who complained about the combination of investigative and adjudicative functions
must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that[] under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.33
And, in our own case, this Court determined in Nicholson that Judge Nicholson did not
overcome the presumption of honesty and integrity of the members of the Commission, most of whom are members of the bench or bar and cognizant of the proper standards applicable at each stage of the proceedings. The case law, both federal and state, generally rejects the idea that the combination of judging and investigating functions is a denial of due process.34
In Judge Alred’s case, the commission dismissed Counts I, VIII, X, and XVI because they were not proven by clear and convincing evidence. In accordance with Nicholson, this indicates that the commission was aware of the different standards applicable to bringing charges to a formal hearing versus those applicable to the adjudication of those charges.
We are persuaded by the United States Supreme Court’s observation in Withrow that “experience teaches us that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable” where “the adjudicator has a pecuniary interest in the outcome ... [or] ... has been the target of personal abuse or criticism from the party before him.”35 Judge Aired does not allege or prove that the commission or any of its members would receive a pecuniary benefit as a result of his removal from office. He also fails to demonstrate that the commission or any particular member would be so incensed as a result of any criticism he leveled at them as to be unable to perform their functions in accordance with the law and rules of the forum.36 Because both federal law and Kentucky law have found that the combination [429]*429of investigative and adjudicative functions in administrative bodies is not inherently flawed and Judge Aired offers no persuasive evidence to overcome this presumption, we find no violation of his constitutional due process rights.
C. No Commission Members were Required to Disqualify.
On numerous occasions after the commission issued the formal charges, Judge Aired demanded that the chairman of the commission and the commission as a whole recuse themselves. In each instance, the chairman and commission members declined; and those decisions were upheld by vote.37 Because the chairman and the commission members did not recuse themselves, Judge Aired asserts that his rights were violated.38 We disagree.
A commission “member or alternate member shall disqualify from participation as a member in all matters in which the member has an interest, Relationship];,] or bias that would disqualify a judge in a judicial proceeding.”39 Canon 3(E) states, in pertinent part, that a judge shall disqualify in a judicial proceeding “in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer[] or personal knowledge of disputed evidentiary facts concerning the proceeding.”40
“The burden of proof required for recusal of a trial judge is an onerous one. There must be a showing of facts of a character calculated seriously to impair the judge’s impartiality and sway his judgment.”41 And, “[o]n appeal, this Court must accept the findings and conclusions of the commission unless they are clearly erroneous or unreasonable.”42 We find that Judge Aired is unable to establish any type of relationship, interest, or bias that would prevent the commission or any of its members from hearing the matter.43 So [430]*430the chairman and commission members did not clearly err by declining to recuse themselves from Judge Alred’s proceedings.
1. The Chairman’s Association with the Investigator.
Judge Aired believes the chairman should have recused himself because of his relationship with the commission’s investigator, Gene Weaver. In his brief to this Court, Judge Aired summarily states that the chairman and Weaver have known each other for thirty years and have been involved in a “personal relationship for the benefit of the other.” In his various motions filed with the commission requesting disqualification of the commission’s chairman, Judge Aired supported this “good faith belief’ with evidence that Weaver was a member of the city council and was Mayor of Fort Wright, Kentucky, for several years while a member of the chairman’s family also served on the city council. So he alleged that the chairman could not be fair and unbiased when ruling on motions alleging misconduct by the investigator. On review, Judge Aired now claims that their association creates an appearance of impartiality rather than actual bias.
As discussed above, a judge is required to disqualify from a proceeding in which the judge’s impartiality might reasonably be questioned. The goal of this provision is to avoid even the appearance of partiality so as to promote public confidence in the integrity of the judicial process.44 “The inquiry under Canon 3E(1) is an objective one, made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.” 45
In a written response to Judge Alred’s motion for disqualification,46 the chairman acknowledged that he and the investigator are friends. But this alone did not require the chairman to recuse himself from Judge Alred’s proceedings.
Recusal is generally required by Canon 3E(1) in a proceeding in which the judge’s impartiality might reasonably be questioned.... Thus, the intensity of a judge’s relationships might be viewed on a continuum. On the one side is the judge’s complete unfamiliarity with a lawyer, a witness[,] or a litigant, except in a judicial setting. No recusal is required. On the other extreme is a judge’s close personal relationship with a lawyer, a party[,] or a witness, such as a family member or a spouse. Recusal is required under Canon 3E(1). At some point between these two extremes, a judge and a participant in a case may have such a close social relationship that a judge should disclose the relationship to attorneys and parties in a case and, if need be, recuse.47
[431]*431There is no evidence that the relationship between the chairman and the investigator constituted a close social relationship that would require the chairman’s disqualification from this case.
Moreover, the investigator was not a party or attorney in Judge Alred’s proceedings. In a somewhat unorthodox maneuver, Judge Aired called the investigator as a witness to testify at the formal hearing concerning his investigatory techniques. Among other accusations, Judge Aired claimed the investigator engaged in devious investigative practices because he did not interview Judge Alred’s witnesses. But the investigator was not a key witness at the formal hearing. An investigator’s role in judicial conduct proceedings is to take witness statements and perform information-gathering services for the commission. The commission determined that Judge Aired violated the Code of Judicial Conduct based on the witnesses’ testimony and evidence presented at the formal hearing, not based on the investigator’s conduct. Judge Aired was free to present witnesses on his own behalf at the formal hearing, even those whom the investigator did not interview.
Accusations alone will not lead to a conclusion that the relationship between the chairman and the investigator was inappropriate in any manner, much less to the degree that would require the chairman to be disqualified from Judge Alred’s proceedings.48 And we find that a reasonable person with knowledge of all the relevant circumstances would not question the chairman’s impartiality.
2. Contract Attorney.
Judge Aired asserts that the chairman and the commission as a whole should have recused themselves because one of the attorneys presenting evidence against Judge Aired in this proceeding also represented the commission in at least two federal court eases. Judge Aired does not assert that the chairman or the commission members displayed any partiality in favor of this contract attorney. He merely claims that the chairman and the commission members’ impartiality might reasonably be questioned because of the attorney’s dual roles. We find no error in the chairman’s and the commission’s decisions not to recuse themselves from Judge Al-red’s proceedings on the basis of the attorney’s participation in other litigation.
We find Judicial Ethics Opinion 96 helpful on this issue.49 This advisory opinion of the Judicial Ethics Committee states that where a judge is sued in his official capacity as executive head of an administrative body and he hires outside counsel to represent him, there is no automatic, mandatory disqualification from other cases brought before the judge by that attorney or the attorney’s law firm.50 The committee distinguished this situation from one in which a judge hires an outside attorney to represent him in personal litigation. Where the attorney represents the judge only in his official capacity, “the appearance of bias and prejudice is not the same and disqualification is not required.” 51 Likewise, the committee advises that where a judge is sued in his official capacity and the Attorney General’s office represents him, the judge need not auto[432]*432matically disqualify himself from cases in which the Attorney General participates.52
“Kentucky’s Court of Justice and the federal court system share virtually identical standards of judicial conduct regarding disqualification and recusal 53 A federal judge must also recuse “in any proceeding in which his impartiality might reasonably be questioned.”54 Federal case law generally does not require a judge to recuse under this statute where the attorney appearing before the judge has represented the judge only in his official capacity.55 But recusal may be necessary where a judge’s personal attorney is before him in a judicial proceeding.56
We are satisfied by the Judicial Ethics Opinions and federal case law that a judge is not required to recuse himself merely because an attorney appearing before the judge in an adversarial proceeding represented the judge at another time in his official capacity. SCR 4.110 authorizes the commission to employ any member of the Kentucky bar to gather and present evidence before the commission. The attorney hired by the commission to gather and present evidence regarding Judge Aired represented the chairman and commission members in federal litigation only in their official capacity. Both federal actions related to commission proceedings against judges under the Kentucky Code of Judicial Conduct. The attorney’s representation here would not cause a reasonable person with knowledge of all the relevant facts to doubt the chairman’s or the commission members’ partiality. So the chairman and commission members properly declined to recuse themselves on this ground.
3. Comments During Informal Hearing.
According to Judge Aired, at one of the informal conferences before the issuance of formal charges, the chairman told Judge Aired, “You are not the avenging angel of Harlan County!” and said, “Everybody in Harlan County is a liar. They lie six different ways!” Judge Aired asserts that the chairman and commission members expressed a belief that Judge Aired violated the Code of Judicial Conduct while “acting as both the ‘grand jury’ and the tribunal.”57
A judge must recuse himself from any proceeding in which the judge has expressed an opinion concerning the merits of the proceeding or in which the judge has a personal bias against a party.58 A federal judge must also disqualify from a proceeding in which the judge has a [433]*433personal bias concerning a party.59 The general rule, as articulated by the Sixth Circuit Court of Appeals, is that “[a] predisposition acquired by a judge during the course of the proceedings will only constitute impermissible bias when it is so extreme as to display clear inability to render fair judgment.60 We hold that the chairman did not clearly err in declining to recuse himself on this ground because Judge Aired failed to carry the burden of showing the chairman expressed an opinion concerning the merits of Judge Alred’s proceeding or displayed a clear inability to render a fair judgment.
There are no recordings or transcripts from the informal hearings in the record before us. Without providing the necessary context, Judge Aired cannot meet the “onerous burden” of showing facts of a character calculated seriously to impair the chairman’s impartiality and sway his judgment. The chairman’s alleged statements alone, although perhaps ill advised and harsh, do not show that his impartiality was impaired, his judgment swayed, or that he prejudged Judge Alred’s case.
In response to Judge Alred’s allegation, the chairman said that his comments were prompted by statements from individuals saying contradictory things. He said this would necessitate a hearing to determine the truth.61 And the chairman asserted that he made the avenging-angel of Harlan County analogy while discussing in an informal hearing allegations that involved Judge Alred’s stepping outside the bounds of his role as circuit judge. The chairman maintained that he remained committed to keeping an open mind and basing any decision on the evidence presented at the hearing.
As discussed above, it is appropriate for the commission to determine whether there is sufficient proof to bring formal charges and then adjudicate the charges. Comments regarding the existence of proof that tends to support the bringing of formal charges are not expressions of a belief that a judge is guilty of the charges. And, in Withrow v. Larkin, the Supreme Court explained that it would not “be a violation of procedural due process for a judge to sit in a case after he had expressed an opinion as to whether certain types of conduct were prohibited by the law.”62 We are persuaded that the chairman’s comments addressed the existence of proof requiring a formal proceeding, and they are not indicative of an opinion that Judge Aired violated the Code of Judicial Conduct.
Nor do the chairman’s comments reveal such a high degree of antagonism or bias that a fair judgment in Judge Alred’s proceedings was impossible. The Supreme Court has held,
[Ojpinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, [434]*434or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they mil do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.63
And this Court has held that even when a trial judge makes an intemperate remark, “whether [the defendant’s] rights [are] violated must be determined from the whole record.”64
The fact that eleven of the counts against Judge Aired were dismissed, four because of insufficient evidence at the formal hearing, shows that the commission was aware of the varying standards applicable at each stage of the proceedings and belies Judge Alred’s contention that a fair judgment was impossible. Moreover, as discussed below, with one exception, the commission’s findings were supported by the facts; and its legal conclusions were supported by law. And Judge Aired was found to have violated the Code of Judicial Conduct in a majority of the charges by a unanimous vote of 6-0, of which the chairman comprised just one vote.65
At no point before issuing its final order did the chairman or commission members express a belief that Judge Aired was guilty of violating the Code of Judicial Conduct. Nor did they display a bias or antagonism toward Judge Aired that prevented him from receiving a fair judgment. So the commission members and the chairman did not clearly err by declining to recuse themselves from Judge Alred’s proceedings.
4. Pre-Hearing Information.
Judge Aired also contends it was error for the chairman and commission members not to recuse themselves because they received substantial prehearing information in the form of ex parte investigative reports and hearsay. According to Judge Aired, “[t]his alone is grounds for recusal for presumed, not actual, bias.”66
Judge Aired relies on Ice v. Commonwealth67 to support his argument. But, in Ice, a district court judge had lengthy ex parte conversations with prosecutors and investigating law enforcement officers to discuss whether a teenager accused of murder should be transferred to circuit court.68 Judge Aired again fails to distinguish between the rights inherent to a defendant in a criminal prosecution and those in an administrative proceeding. Ice concerned a criminal prosecution, which entitled the defendant to the full array of procedural safeguards associated with a criminal prosecution. Judge Alred’s proceeding was an administrative proceeding. And, as discussed in Nicholson, judicial disciplinary proceedings are administrative in nature, so they do not require the same type of procedural protections as criminal proceedings.69 It is acceptable for an administrative agency to combine investigative and adjudicative functions.
[435]*435SCR 4.170 specifically permits the commission to initiate a preliminary investigation and determine whether formal charges should be filed. So we see no irregularity in the commission’s being aware of investigative reports before the formal hearing. In fact, it would be inappropriate for the commission to initiate formal proceedings against a judge without first reviewing the basis for bringing formal charges. So the chairman and commission members did not clearly err by declining to recuse on this ground.
D. Because Judge Aired was Given a Sufficient Opportunity to Examine the Factual Information Before Formal Proceedings Began, his Rights Under SCR 4.170 were not Violated.
Judge Aired alleges that the commission erroneously denied by order his request for the name of the complainants. SCR 4.170(4) states, “After the preliminary investigation is completed and before formal proceedings are initiated under Rule 4.180, the commission shall afford the judge under investigation an opportunity to examine all factual information, including the name of the complainant[,] if relevant.” Without question, Judge Aired requested that the commission identify the original complainant. And although his motion to compel was denied, Judge Aired was sufficiently apprised of the identity of the complainants. On November 3, 2010, the commission provided Judge Aired with the only two complaints that were filed against him.70 The complaints contained the identities of the complainants. For this reason, the commission denied Judge Alred’s later motion.
Judge Aired also alleges that the commission’s investigator obtained exculpatory information before formal proceedings were initiated and failed to report that information to the commission or to Judge Aired in violation of SCR 4.170(4). He claims that the Harlan County Judge-Executive ultimately recanted his initial incul-patory statement to the investigator. But, at the formal hearing, the investigator testified that the judge-executive’s comments concerned the Harlan County Commonwealth’s Attorney’s and the Harlan County Sheriffs personal preferences and religious beliefs. The investigator described these as personal attacks, and he testified that the judge-executive did not recant his previous statement. For this reason, he did not formally report the conversation to the commission or to Judge Aired, nor did he record the judge-executive’s statements.
The judge-executive testified at the formal hearing that he no longer believed that Judge Aired retaliated against him. And the judge-executive wished the commission would dismiss the charges against Judge Aired that related to him. But the judge-executive’s personal opinion about whether Judge Aired violated the Code of Judicial Conduct is not information bearing on the investigation, nor is it exculpatory. And the judge-executive did not recant any facts relevant to whether Judge Aired violated the Code of Judicial Conduct.
[436]*436Because the judge-executive’s personal comments had no bearing on the merits of the investigation, Judge Alred’s rights under SCR 4.170 were not violated when he was not made aware of the judge-executive’s opinions before the hearing.71
E. The Commission’s Findings are not Clearly Erroneous or Unreasonable.
Section 121 of the Kentucky Constitution authorizes the commission to remove a judge for good cause and designates the Supreme Court as the forum for judicial review.72 For the commission to sanction a judge, the charges must be supported by “clear and convincing” evidence.73 And a judge’s conduct must be more than an erroneous legal decision made in good faith.74 Accordingly, a judge may be properly sanctioned for a legal error when the judge acted in bad faith, engaged in a pattern of misconduct, or when the judge’s “legal ruling or action [was] made contrary to clear and determined law about which there is no confusion or question as to its interpretation.”75 We must accept the findings and conclusions of the commission “unless they are clearly erroneous” or “unreasonable.”76
Judge Aired contends that the commission’s findings that he violated SCR 4.020 and the Kentucky Code of Judicial Conduct were clearly erroneous and resulted from a misapplication of the law. He also contends that the order itself is indicative of the commission’s lack of impartiality.
We uphold the commission’s findings regarding eight counts of misconduct, but we find that the commission’s findings regarding Count V are clearly erroneous.
5. Count II.
Judge Aired appeared at a Harlan County Fiscal Court meeting and advocated the use of $500,000, a sum donated by criminal defendants under a guilty-plea agreement in a Harlan Circuit Court case, to fund a water park. The commission found:
[t]he proof of what occurred at the Harlan Fiscal Court meeting establishes that those in attendance were aware that [Judge Aired] was Judge of the Harlan Circuit Court[;] that [Judge Aired] spoke of the preliminary work which he had performed in regard to a water park for which [Judge Aired] was advocating the use of the funds[;] and during the course of the meeting, [Judge Aired] asserted that he had veto power over the use of the funds.
Accordingly, by unanimous vote, the commission concluded that Judge Aired violated SCR 4.020 and: (1) Canon 1, because he failed to maintain and enforce high standards of conduct and did not personally observe those standards so that the integrity and impartiality of the judiciary would be preserved; (2) Canon 2A, in that he did not respect and comply with the law and did not act at all times in a manner [437]*437that promoted public confidence in the integrity and impartiality of the judiciary; (3) Canon 2D, by allowing family, social, political, or other relationships to impair his objectivity and by lending the prestige of his judicial office to advance the private interests of himself or others; and (4) Canon 4C(1), by improperly appearing at a public hearing that was not concerned with issues of fact or policy on matters of improvement of the law, the legal system, or the administration of justice, and in which he was not acting pro se in a matter involving him or his interests.
Judge Aired claims these findings are clearly erroneous because he appeared at the fiscal court meeting in his private-citizen capacity, not as a circuit court judge. And he personally advocated, as a citizen of the county and a father of young children, for the Harlan County Fiscal Court to use the money for a water park. We disagree and uphold the commission’s findings under Count II.
The transcript from the Harlan County Fiscal Court meeting contains more than adequate proof that Judge Aired used his judicial office to advance his personal objectives. Judge Aired advocated that the fiscal court use the $500,000 donation to establish a water park in the county. Judge Aired explained that he engaged in preliminary discussions with the owners of other water parks, and one company expressed interest in conducting a feasibility study for a water park in Harlan County.
When an attendee at the meeting suggested the fiscal court allocate part of the donation to a program run by the sheriffs department, Judge Aired immediately interrupted him saying, “I would object wholeheartedly, absolutely not. I did retain the court’s ability to veto something like that ... there is a court order giving me absolute veto power over that....” When asked whether he had final authority over the fiscal court’s use of the funds, Judge Aired replied, “I can approve. I can veto anything that goes outside of that domain that you have in there, youth programs and facilities.”
We are unconvinced by Judge Alred’s assertions that he was merely personally advocating that the Harlan County Fiscal Court use the donation for a water park. He invoked his judicial authority under the circuit court order to veto the suggestion that the fiscal court use the money in a manner with which he personally disagreed. In doing so, Judge Aired violated Canons 1, 2A, 2D, and 4C(1). We find that the commission’s findings under Count II are not unreasonable or clearly erroneous.
6. Count III.
Judge Aired issued an order in January 2010 allowing a criminal defendant to make a $250,000 donation through the Harlan County Fiscal Court to alleviate drug abuse in Harlan [C]ounty, with use of the funds “subject to the approval of the Judge of the Harlan Circuit Court.”77 Later, Judge Aired attended the Harlan County Fiscal Court meeting — as discussed above — during which he asserted that he retained veto authority over the donation. When the issue was made public in the media, the Executive Secretary of the Judicial Conduct Commission sent Judge Aired a letter requesting the legal authority that permitted him to retain oversight of the funds. After receiving the letter in March 2010, Judge Aired issued an order amending the January 2010 order. The amended order removed the lan[438]*438guage granting oversight of the donated funds to the Judge of Harlan Circuit Court. The amended order stated that the “language was inadvertently put into [the January 2010] order by counsel for the [defendants and the [c]ommon-wealth[’s] [ajttorney’s [ojffíce” and “was neither solicited nor approved by this Judge.”
By unanimous vote, the commission found that these statements in the amended order were blatant misrepresentations and concluded that Judge Aired violated SCR 4.020 and: (1) Canon 1, by failing to observe high standards of conduct; (2) Canon 2A, by failing to respect and comply with the law and to act in a manner that promotes confidence in the integrity and impartiality of the judiciary; and (3) Canon 3A78 and B(2),79 by being unfaithful to the law.
Judge Aired maintains that he inadvertently included in the January 2010 order the language granting him oversight of the donated funds. This, he claims, was a legal error that cannot be grounds for punishment. And he asserts that he simply modified the order after the commission brought the mistake to his attention. Again, we are unconvinced by Judge Al-red’s contentions.
By way of background: The criminal defendants moved the circuit court for leave to make a donation “through the Harlan Fiscal Court to alleviate drug abuse in Harlan [C]ounty, with the use of these funds to be subject to the approval of the Judge of the Harlan Circuit Court.” The terms of the motion were discussed in open court.80 And this language appears verbatim in the January 2010 order signed by Judge Aired.
Proof that Judge Aired knew and approved of the language granting him oversight of this substantial gift comes from his participation in the Harlan County Fiscal Court meeting. As discussed above, Judge Aired unequivocally informed the fiscal court that he retained “absolute veto power” over the funds. So we hold that the commission did not clearly err by finding that Judge Alred’s March 2010 amended order, stating that oversight of the funds “was neither solicited nor approved by this Judge,” was a misrepresentation rather than a legal error, in violation of the Code of Judicial Conduct.
7. Count V.
On two occasions, Judge Aired questioned the principal of his children’s elementary school about why a certain defendant continued to work as a substitute teacher at the school while she had pending fraud charges in the Harlan Circuit Court. When the principal informed him [439]*439that the pending charge did not prevent the defendant from working as a substitute teacher, Judge Aired changed the conditions of the defendant’s pretrial release to specify that she could not work as a substitute teacher and remain free on bond,
The commission found that Judge Aired changed the defendant’s bond conditions without a hearing or giving notice to the defendant. And, by a vote of 4-2, the commission found that Judge Aired violated SCR 4.020 and: (1) Canon 1, by failing to observe high standards of conduct; (2) Canon 2A, by failing to respect and comply with the law and to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary; (3) Canon BA and B(2), because he was not faithful to the law; and (4) Canon 3B(8),81 by failing to dispose of judicial matters fairly.
Judge Aired contends that he imposed the additional bond condition in open court, with the defendant represented by counsel. He asserts that he was entitled to act as he did because judges have wide discretion in setting the terms of pretrial release. Essentially, he claims he did not commit a legal error, let alone a bad faith or egregious error.
We hold that the commission’s findings regarding Count V are clearly erroneous because they are not supported by sufficient evidence. If Judge Aired believed that the defendant’s work as a substitute teacher constituted a material change in her circumstances, the appropriate procedure was to hold an adversary hearing.82 After the hearing, he was entitled to change the defendant’s terms of release only if clear and convincing evidence of the material change existed and a substantial risk of nonappearance was present. Counsel for the commission did not present any evidence at the formal hearing that Judge Aired changed the offender’s terms of pretrial release without holding a due process hearing. So we must hold that the commission’s determination that Judge Aired violated the Code of Judicial Conduct under Count V is clearly erroneous.83
8. Count VI.
During the course of a hearing in Harlan Circuit Court related to a civil action for wrongful-death, the defendant presented Judge Aired with an affidavit signed by the Harlan County Judge-Executive supporting the defendant’s motion for Judge Alred’s recusal. The affidavit stated that Judge Aired had requested that the judge-executive use the county’s power to regain control of certain county-owned property leased to the defendant. According to the affidavit, Judge Aired wanted the property for use as a site for drug testing.
Upon reading the affidavit, the video record of the Harlan Circuit Court showed that Judge Aired became visibly upset.84 Later that day, Judge Aired issued an order to convene a special grand jury to “investigate illegal drug trafficking by the [440]*440Harlan County Judge[-]Executive from the Harlan County Judge[-]Executive’s Office as a result of an ongoing investigation by the Harlan County Sheriffs Department.” The date for prospective grand jurors to appear in response to the summons was one week after the primary election, in which one of Judge Alred’s cousins was a candidate opposing the incumbent for the office of county judge-executive.
The commission found, by unanimous vote, that Judge Aired violated SCR 4.020 and: (1) Canon 1, by fading to observe high standards of conduct; (2) Canon 2A, by failing to respect and comply with the law and to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary; (3) Canon 3A and B(2), by not being faithful to the law; (4) Canon 3B(8), by failing to dispose of judicial matters fairly; and (5) Canon 3E(l)(a),85 by failing to disqualify in a proceeding in which his impartiality might reasonably be questioned because he had a personal bias or prejudice concerning a party.
Again, Judge Aired does not dispute the pertinent facts. But he claims his issuance of the special grand jury order identifying the judge-executive’s office as the subject of the investigation is unrelated to the judge-executive’s affidavit presented earlier in the same day. Although he admits that the affidavit angered him, Judge Aired asserts that he was merely carrying out his duties as circuit judge by issuing the special grand jury order. According to Judge Aired, he and the Harlan County Commonwealth’s Attorney agreed to call a special grand jury before he was presented with the affidavit. It was simply a coincidence, Judge Aired claims, that he issued the order on the same day he received the upsetting affidavit.86
Despite Judge Alred’s assertions, we hold that it was not clearly erroneous or unreasonable for the commission to find that Judge Alred’s actions violated Canons 1, 2A, 3A, 3B(2), 3B(8), and 3E(1)(A). The record does not support Judge Alred’s version of the events. The judge-executive’s office was investigated for drug trafficking by the Harlan County Sheriffs Department, who consulted the Attorney General’s Office. After several months, the Attorney General’s Office closed their investigation, finding no evidence of wrongdoing. The Harlan County Commonwealth’s Attorney testified that he initially agreed that the case should proceed to the grand jury. Although he expected the grand jury to return a no true bill, he considered it necessary to avoid the appearance of a political cover up. The commonwealth’s attorney even agreed with Judge Aired that it would be a good idea to call a special grand jury with jurors drawn from a different county in order to avoid the potential for political bias. At the time he discussed this with Judge Aired, the investigation was not publicly known. So he did not think it necessary to present the matter to the grand jury before the primary election.
The commonwealth’s attorney testified that he did not see the special grand jury [441]*441order before Judge Aired issued it. And he disapproved of naming specifically the judge-executive’s office in the order on the eve of the election and timing the convening of the special grand jury a week after the primary election. He also testified that the order’s statement that there was an ongoing investigation was misleading because, for all intents and purposes, the investigation was over.
When the commonwealth’s attorney learned of the special grand jury order, he brought the case to the regular grand jury before the occurrence of the primary election. He did so because he knew the grand jury would return a no true bill, and he thought it was fair that the incumbent judge-executive’s name be cleared before the primary election.
The commission found that Judge Aired issued the special grand jury order with the intent of discrediting the incumbent judge-executive on the eve of the primary election, in which Judge Alred’s cousin was also a candidate, and in retaliation for the judge-executive’s affidavit in the civil case. Based on the record, we cannot say that the commission’s findings are clearly erroneous or unreasonable.87
9. Count VIL
Judge Aired viewed videotapes in the office of the Harlan County Sheriff regarding the investigation of the Harlan County Judge-Executive referred to above.88 Judge Aired reviewed this evidence lacking any request for issuance of an arrest warrant or a search warrant and before any related matter was pending in the circuit court. By unanimous vote, the commission found that Judge Aired violated SCR 4.020 and: (1) Canon 1, by failing to observe high standards of conduct; (2) Canon 2A, by failing to respect and comply with the law and to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary; (3) Canon 3A and B(2), by being unfaithful to the law; and (4) Canon 3B(7), by initiating ex parte communications with regard to an impending proceeding.
Judge Aired admits that he viewed the evidence in the sheriffs office, but he claims the sheriff initiated the encounter. He also asserts that the ex parte communication was not prohibited because the communication was with law enforcement, not parties or attorneys. So Judge Aired contends that the commission clearly erred by basing its findings on an erroneous application of the law. We disagree.
Canon 3B(7) prohibits a judge from initiating, permitting, or considering ex parte communications with attorneys or parties [442]*442concerning a pending or impending proceedings. The accompanying commentary says that this prohibition includes communications from lawyers and other persons who are not participants in the proceeding. The commentary further warns that a “judge must not independently investigate facts in a case and must consider only the evidence presented.”
The record supports the commission’s finding that Judge Aired violated Canon 3B(7). It was not clearly erroneous for the commission to conclude that Judge Aired initiated the ex parte communication. And whether or not the sheriff initiated the ex parte communication, Judge Aired permitted and considered the communication. Ex parte communication with law enforcement officers regarding an impending case is prohibited by Canon 3B(7).89 The same objections to ex parte communications between judges and attorneys involved in an impending criminal matter apply to ex parte communications between judges and law enforcement, including the concern that “the trial judge may form an opinion as to the truth of the evidence before it may be answered and challenged.”90 Although there is some evidence in the record that Judge Aired stopped by the sheriff’s office on that occasion to sign an arrest or search warrant, the warrant was unrelated to the investigation into the judge-executive’s office. And contrary to the dissent’s claim, Judge Aired did not watch the videotape in anticipation of calling a special grand jury. When Judge Aired viewed the evidence, this was the first time he learned of the allegations against the judge-executive. This ex parte contact occurred before Judge Aired discussed the possibility of calling a special grand jury with the commonwealth’s attorney. We hold that the commission’s findings regarding Count VII are not clearly erroneous of unreasonable.
10. Count IX.
The commission found that Judge Aired urged the Kentucky State Police to investigate and the Harlan Commonwealth’s Attorney to pursue criminal charges that ultimately became two Harlan Circuit Court cases. Judge Aired then presided over these cases despite the fact [443]*443he was the initial complaining witness.91 Based on these findings, the commission concluded, by unanimous vote, that Judge Aired violated SCR 4.020 and: (1) Canon 1, by failing to observe high standards of conduct; (2) Canon 2A, by failing to respect and comply with the law and to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary; (3) Canon 3A and B(2), by being unfaithful to the law; (4) Canon 3B(8), by failing to dispose of judicial matters fairly; and (5) Canon 3E(1)(A), by failing to disqualify in a proceeding in which his impartiality might reasonably be questioned because of his personal bias or prejudice concerning a party.
Judge Aired claims the commission’s findings on this count are clearly-erroneous because he did not urge law enforcement to investigate the matter. Rather, he merely passed along allegations of illegal gambling machines at gas stations. Judge Aired asserts that he was not required to recuse himself from the resulting criminal cases because there was no objection to his sitting, and the only related proceeding before him was an agreed order of dismissal from the commonwealth’s attorney before the defendant was arraigned.
Again, we hold that the commission’s findings regarding this count are not clearly erroneous. Judge Aired testified that he received several complaints from citizens concerning the alleged gambling operations. And he admitted that he called law enforcement’s attention to the very defendant who later appeared before him in court on charges arising from the investigation. Although judges should alert the authorities to potential criminal activity, it is incumbent the judge recuse himself from criminal cases that arise from those allegations. Judge Aired specifically identified the defendant to law enforcement, received that same defendant’s indictment when returned by the grand jury, and disposed of the ease by approving an agreed order of dismissal.92
While it is true that a party must move for recusal immediately after discovering the facts upon which the disqualification rests, absent a timely motion for recusal, a trial judge is obligated to disqualify himself “when presiding over a matter that would violate statutory mandates for impartiality.” 93 Canon 3E(l)(a) and KRS 26A.015 provide that a judge shall recuse himself in any proceeding in which he has a personal bias concerning a party or where he has knowledge of any other cir[444]*444cumstances in which his impartiality might reasonably be questioned.94 Whether a defendant has properly preserved a disqualification issue for review is a separate issue from whether a judge violated the mandatory requirements of Canon 3E(l)(a) and KRS 26A.015.
This was an egregious error, not a good faith legal mistake. And it is yet another instance of Judge Alred’s pattern of misconduct. Based on the record, the commission did not clearly err by finding Judge Aired violated Canons 1, 2A, 3B(8), and 3E(l)(a).95
11. Count XII.
Judge Aired filed a complaint against Kentucky Utilities with the Public Service Commission. Early in the pen-dency of the case, Judge Aired decided to voluntarily dismiss his complaint. So he contacted counsel for KU to inform them that he wanted dismiss his complaint. While on the phone, he urged counsel for KU to agree to donate $12,500 for playground equipment at the elementary school that Judge Alred’s children attend.
By unanimous vote, the commission found that Judge Aired violated SCR 4.020 and: (1) Canon 1, by failing to observe high standards of conduct; (2) Canon 2A, by failing to respect and comply with the law and to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary; (3) Canon 2D, by lending the prestige of his office to advance his private interests; and (4) Canon 4C(3)(b)(i)96 and (iv),97 by personally participating in fund-raising and using the prestige of his office for fund-raising. On appeal, Judge Aired claims that he did not violate the Code of Judicial Conduct because he was merely settling a private claim, not fund-raising.
We find that the commission’s findings are not clearly erroneous or unreasonable. At the formal hearing, Judge Aired admitted that he did not dismiss the suit in exchange for the $12,500 donation that he redirected to the school. Rather, he was going to dismiss the suit whether or not KU donated the money for the playground. This testimony clearly supports the finding that Judge Alred’s solicitation was purely a fund-raising activity. Judge Aired personally solicitated the donation from counsel for KU. This constitutes personal participation in the solicitation of funds prohibited by Canon 4C(3)(b)(i).98 A judge is prohibited from using the prestige of judicial office as leverage for fund-raising for any cause, no matter how worthy or popularly appealing the judge may con-
[445]*445sider that cause to be. Because requesting funds for an organization is prohibited, it was improper for him to request a donation to a school.99
This solicitation is also part of a pattern of misconduct. As discussed below, Judge Aired admitted to other instances in which he personally participated in fund-raising activities for the school’s playground in violation of the Code of Judicial Conduct. So we uphold the commission’s findings regarding Count XII.
12. Count XIII.
Judge Aired participated in fund-raising activities in which he raised funds from companies and individuals for the purchase of playground equipment for the elementary school his children attended. The commission found, by unanimous vote, that he violated SCR 4.020 and: (1) Canon 1, by failing to observe high standards of conduct; (2) Canon 2A, by failing to respect and comply with the law and to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary; (3) Canon 2D, by lending the prestige of his judicial office to advance his private interests or the private interests of others; and (4) Canon 4C(3)(b)(i) and (iv), by personally participating in fundraising and using the prestige of his judicial office.
Judge Aired admits that he violated the Kentucky Code of Judicial Conduct by personally participating in fund-raising. He claims only that he should not be removed from office for this violation. Because we uphold the commission’s findings regarding the other counts of misconduct, Judge Aired is not being removed from office based only on the violation of the Code of Judicial Conduct in Count XIII. Rather, this violation is part of a pattern of misconduct by Judge Aired that justifies his removal from office.
13. Count XVII.
Judge Aired summarily removed an assistant public defender as counsel in all cases she had pending in Harlan Circuit Court. The order was entered on the judge’s own initiative, without a legal basis, and without an opportunity for the assistant public defender to be heard. By a vote of 5-1, the commission found that Judge Aired violated SCR 4.020 and: (1) Canon 1, by failing to observe high standards of conduct; (2) Canon 2A, by failing to respect and comply with the law and to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary; and (3) Canon 3A and B(2), by being unfaithful to the law.
Judge Aired asserts that the attorney had a long history of nonappearance in his and other courts. And he claims he had the discretion to remove the assistant public defender in order to protect criminal defendants’ Sixth Amendment rights. We disagree.
Indigent representation in Harlan County is overseen by the Department of Public Advocacy (DPA) under Chapter 31 of the Kentucky Revised Statutes.100 KRS [446]*44631.030(12) authorizes the DPA to assign a substitute attorney “for good cause.” Whether good cause exists to substitute an assistant public defender lies within the discretion of the trial court.101 But a trial court must make a good cause determination before DPA can provide substitute counsel.102 A trial court may invoke its inherent judicial power and step outside this statutory framework only as a last resort.103 Only “when the Department fails or refuses to act, and all other means are exhausted, may the circuit court go outside of the statutory framework.” 104 A trial court must “proceed according to the mandates of the statute until there is simply no other option.”105
Judge Aired did not remove the assistant public defender from 24 cases on his docket as a last resort. Regardless of whether the attorney was consistently absent from court, Judge Aired was required to work within the statutory framework of Chapter 31 and make a good cause determination to allow DPA to assign a substitute attorney in her cases. Judge Aired testified that he discussed the assistant public defender’s non-attendance with the local DPA directing attorney. But he did not pursue further measures, such as a show cause hearing or contempt finding. Nor did he make a good cause determination.
It was not clearly erroneous or unreasonable for the commission to find implicitly that Judge Alred’s actions constituted an egregious legal error for which a sanction is appropriate. Judge Aired made no attempt to discover or comply with the law concerning removal of appointed counsel. He simply entered an order on his own initiative, without citing legal authority for his actions. Contrary to the dissent’s protestation that this is not an ethical breach worthy of the Court’s attention, Judge Al-red’s actions display a blatant disregard for the orderly processes of the law. Moreover, this is yet another instance in a pattern of misconduct.
III. CONCLUSION.
We uphold the commission’s order as to eight counts of misconduct by Judge Aired, and we reverse the commission’s findings as to Count V. From our review of the record, it is clear that Judge Aired engaged in a pattern of misconduct, displaying disregard for the law and the Kentucky Code of Judicial Conduct. He continually refuses to accept responsibility for his actions or acknowledge his wrongdoing. Accordingly, we agree with the commission that there is good cause under Section 121 of the Kentucky Constitution to remove Judge Aired from his judicial office for misconduct, as defined in the Kentucky Code of Judicial Conduct.
Related
Cite This Page — Counsel Stack
395 S.W.3d 417, 2012 WL 3000383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alred-v-commonwealth-judicial-conduct-commission-ky-2012.