J.C.J.D. v. R.J.C.R.

803 S.W.2d 953, 1991 Ky. LEXIS 11
CourtKentucky Supreme Court
DecidedFebruary 14, 1991
DocketNo. 90-SC-000130-RR
StatusPublished
Cited by35 cases

This text of 803 S.W.2d 953 (J.C.J.D. v. R.J.C.R.) 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.

Bluebook
J.C.J.D. v. R.J.C.R., 803 S.W.2d 953, 1991 Ky. LEXIS 11 (Ky. 1991).

Opinions

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.

[954]*954Seven (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(l)(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(l)(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(l)(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(l)(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(l)(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(l)(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 [955]*955and 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.

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Bluebook (online)
803 S.W.2d 953, 1991 Ky. LEXIS 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jcjd-v-rjcr-ky-1991.