Steven D. Combs Circuit Court Judge, 35th Judicial Circuit v. Judicial Conduct Commission

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: MARCH 23, 2017 NOT TO BE PUBLISHED

~ttpmtt~o~!!~o3![R?i~HN ~ [L [Q) ~if ~'-1/131,7 K,.;, (k/.-, t>C.. HON. STEVEN D. COMBS APPELLANT CIRCUIT COURT JUDGE 35TH JUDICIAL CIRCUIT

ON APPEAL FROM V. JUDICIAL CONDUCT COMMISSION

JUDICIAL CONDUCT COMMISSION APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Steven D. Combs, Judge of the Thirty-Fifth Judicial Circuit of

Kentucky, pursuant to Supreme Court Rule (SCR) 4.290, appeals from an

order of the Judicial Conduct Commission ("Commission") denying his request

to deem portions of his Kentucky Lawyer Assistance Program ("KYLAP")

Confidential Recovery Agreement as invalid. After a careful review, we affirm

the order of the Commission.

FACTUAL AND PROCEDURAL BACKGROUND

On April 27, 2015, the Commission charged Judge Combs with ten

counts of violations of the Kentucky Code of Judicial Conduct. Subsequently,

on June 2, 2015, and August 7, 2015, the Commission amended the charges

against Judge Combs by alleging three additional violations. After the issuance

of the initial charges, Judge Combs was referred to Paul D. Dalton of Lexington Counseling & Psychiatry for an assessment. In his June 2015, assessment

Dalton concluded that Judge Combs met the criteria for "Alcohol Use Disorder-

Mild." This diagnosis was based on Judge Combs's disclosure that he

"regularly drinks 2-3 drinks of vodka, 3-4 nights per week, alone" and that

'[h]is reason for drinking is to take the stress of the day off, to relax and to cope

with other issues." Further, Dalton noted that Judge Combs's "drinking has

led to allegations, misconduct charges, and suspension of his job as a Circuit

Court Judge." Ultimately Dalton recommended "ongoing assessment and

counseling by either a qualified program or a Master's level Certified Alcohol

and Drug Counselor in Kentucky." Additionally, in light of the allegations of

judicial misconduct lodged against Judge Combs, Dalton recommended that he

discontinue drinking immediately . 1

On September 21, 2015, the Commission was scheduled to hear the

allegations lodged against Judge Combs. However, prior to the commencement

of that hearing, an agreement to resolve the charges was reached between

Judge Combs (represented by counsel) and counsel for the Commission. As

part of the October 2015, Agreed Order of Suspension ("Agreed Order"), Judge

Combs admitted that he ·committed ten violations of the Code of Judicial

Conduct. 2 For these violations, Judge Combs was suspended from his duties

1 In response to Dalton's evaluation, in July 2015, Judge Combs underwent a 24-hour Alcohol Use Evaluation at The Ridge Addiction Recovery Center. Dr. Marc Whitsett examined Judge Combs and concluded that "[t]here is insufficient objective evidence to establish an alcohol use disorder based on available records and provided information." 2 Specifically, Judge Combs admitted that he engaged in the conduct alleged in

all or portions of counts I, II, Ill, IV, V, VI, VIII, IX, XI, and XII as enumerated in the 2 as circuit court judge, for a period of one-hundred-eighty days. In addition to

his suspension from office, Judge Combs agreed to the following conditions

regarding KYLAP:

[E]nroll in the Kentucky Lawyers Assistance Program ("KYLAP") for evaluation and assessment within 30 days of the date of this order; follow the instructions and procedures recommended by KYLAP; and waive the confidentiality of the KYLAP reports only as to the Commission, so that the Commission can be informed as to any and all results of such evaluation and assessment and as to his progress in following any instructions and procedures recommended for him. Judge Combs' failure to comply with the provisions of this paragraph will constitute a breach of this Agreed Order of Suspension.

Following the entry of the agreed order, KYLAP required Judge Combs to be

assessed by the Clarity Professional Evaluation Center ("Clarity"). As noted in

the report prepared by Clarity's Director, James S. Walker, Judge Combs

disputed the need for the Clarity evaluation, arguing that it was unwarranted

and that it "represented an undue burden upon him." Ultimately, Director

Walker determined that there was insufficient evidence to diagnose Judge

Combs with a formal alcohol use disorder. However, Director Walker

recommended that Judge Combs refrain from the use of alcohol altogether for

the following reasons:

The fact that he is taking Crestor, a medication which can cause serious medical complications in the presence of alcohol use, should preclude alcohol use on his part. The fact that he has engaged in some unwise activities in the course of drinking, his prominent social position, and the concerns raised in his community also leads us to believe that he would be better served

Notice of Formal Proceedings. For the portions of counts II, Ill, XI, XIII, which Judge Combs did not admit to, he agreed that the Commission had a good faith basis and proof to support the charges. Counts VII and X were dismissed in their entirety.

3 by not consuming alcohol at all. In this regard, we join Dr. Dalton's recommendation from last year. We are concerned that Judge Combs has not followed this recommendation. KYLAP may wish to consider a period of diagnostic monitoring in this regard.

In February 2016, Yvette Hourigan the Director of KYLAP, sent a letter to

the Commission regarding Judge Combs's treatment. In the letter, Director

Hourigan advised that "Judge Combs should follow the recommendations of

Dr. Paul Dalton and Clarity Professional Evaluation Center's integrated team

and remain abstinent from the use of alcohol altogether." Additionally, due to

concerns that Judge Combs had not followed Dalton's recommendations,

Director Hourigan recommended that diagnostic monitoring was appropriate,

in the form of random alcohol and drug testing for a period of one year.

Subsequently, Judge Combs objected to alcohol abstinence and monitoring. In

overruling Judge Combs's objection, the Commission reminded him that the

terms of the Agreed Order mandated full compliance with KYLAP instructions

and procedures and that failure to comply would constitute a breach of the

agreement.

On April 29, 2016, Judge Combs signed a Confidential Recovery

Agreement with KYLAP, which mandated that he abstain from alcohol and be

subjected to random drug and alcohol screens to ensure compliance.3

However, on May 24, 2016, Judge Combs filed a motion requesting that the

"provisions of the KYLAP agreement, requiring abstinence, alcohol testing, that

3 While Judge Combs signed the KYLAP Confidential Recovery Agreement, he also wrote that "[t)his Document has been signed only under protest and duress."

4 Judge Combs report to KYLAP regarding medications prescribed for him and

that he allow KYLAP unfettered access to his medical records be stricken from

the KYLAP Agreement." On June 1, 2016, the Commission overruled Judge

Combs's motion. This appeal followed.

ANALYSIS

By Entering into the Agreed Order of Suspension With the Commission Judge Combs Waived His Right to Challenge His Participation in the KYLAP Program.

Judge Combs contends that the Commission's order denying his request

to be relieved of his obligation to follow the requirements of the KYLAP

Confidential Recovery Agreement was erroneous and unreasonable.

Specifically, Judge Combs argues that it would be impossible for the Court to

find that the Commission's findings and conclusions were reasonable, as the

Commission denied his motion without elaboration as to their reasoning.

Additionally, Judge Combs contends that KYLAP substituted its judgment for

that of the medical professionals that evaluated him. Further, Judge Combs

alleges that the Commission failed to identify the relationship between his

unethical conduct and KYLAP's requirements. In response, the Commission

argues that these issues were waived by Judge Combs when he entered into

the Agreed Order. We agree with the Commission.

"The common definition of a legal waiver is that it is a voluntary and

intentional surrender or relinquishment of a known right, or an election to

forego an advantage which the party at his option might have demanded or

insisted upon." Greathouse v. Shreve, 891 S.W.2d 387 (Ky. 1995) (quoting

5 Barker v. Steams Coal & Lumber Co., 163 S.W.2d 466 (Ky. 1942)). While

waiver is similar in nature to estoppel, it differs in that it does not require

proof, "of the other party having been misled." Id. As such, "[w]aiver is

essentially unilateral, resulting as a legal consequence from some act or

conduct of [the] party against whom it operates, and no act of [the] party in

whose favor it is made is necessary to complete it." Id. (citing BLACK'S LA w

DICTIONARY (6th ed.1990)).

In the case at bar, Judge Combs elected to forgo a hearing concerning his

violations of the Code of Judicial Conduct, and instead entered into an

agreement with the Commission. This agreement, as memorialized in the

Agreed Order, mandated the suspension of Judge Combs from his duties as

circuit court judge, for a period of one-hundred-eighty days. Additionally,

Judge Combs explicitly agreed to enroll in KYLAP for an evaluation and to

abide by KYLAP's instructions and recommendations. These requirements

were material conditions of the Agreed Order and by accepting the agreement

Judge Combs was obligated to abide by its terms. Further, his acceptance of

the terms of the agreement constitutes an explicit waiver which serves to bar

review of the claims he now raises on appeal.

It is clear that Judge Combs considers the requirements imposed by

KYLAP to be inconvenient and a detriment to the enjoyment of his time off the

bench. However, these requirements must be viewed in the context of the

agreement that Judge Combs entered into to resolve his numerous ethical

violations. The Agreed Order's sanctions suspending Judge Combs from his

6 judicial duties and requiring him to be monitored by KYLAP were not designed

solely to punish or deter Judge Combs from future wrongdoing. Rather, Judge

Combs's actions constituted a breach of faith with the public, necessitating the

Commission's actions to restore trust in the judiciary. As such, it is

paramount to the administration of justice that Judge Combs comply fully with

his public pledge to take responsibility for his violations of the Code of Judicial

Conduct.

There is nothing unfair about holding Judge Combs to a higher standard

than that expected of an ordinary citizen, as "[a]ll judges are held to a higher

standard by virtue of the Code of Judicial Conduct." Thomas v. Judicial

Conduct Commission, 77 S.W.3d 578, 580 (Ky. 2002); see also, Cone v. Cone,

68 So. 2d 886, 888 (Fla. 1953) ("From the time he is clothed with judicial

authority he is a marked man. His words and his conduct should inspire

confidence; he might well strive to honor the bench instead of having it honor

him. The judiciary is the capstone of our democracy but it will be so no longer

than its deportment warrants."). This expectation of exemplary conduct is also

reflected in the Commentary to SCR 4.300, Canon 2, which states in part, "(a]

judge must expect to be the subject of constant public scrutiny. A judge must

therefore accept restrictions on the judge's conduct that might be viewed as

burdensome by the ordinary citizen and should do so freely and willingly."

Finally, while Judge Combs has sought the opinions of other substance

abuse professionals their conclusions do not render the KYLAP requirements

unreasonable. The evaluations by Paul Dalton and Clarity both included

7 alcohol abstinence and monitoring. The judge's numerous violations of the

Code of Judicial Conduct included behavior apparently affected by his alcohol

use. Thus, even if we looked past Judge Combs's waiver, we cannot find that

the KYLAP Agreement imposes unreasonable requirements.

CONCLUSION

For reasons explained herein, we conclude that the Commission properly

denied Judge Combs's request to invalidate portions of the KYLAP

Confidentiality Recovery Agreement.

Minton, C.J.; Cunningham, Hughes, and Venters, JJ., concur. Keller, J.,

concurs in result only. Wright, J., dissents without separate opinion.

VanMeter, J., not sitting.

COUNSEL FOR APPELLANT:

Richard A. Getty Danielle Brown The Getty Law Group, PLLC

COUNSEL FOR APPELLEE:

Jeffrey C. Mando Louis Kelly Adams, Stepner, Woltermann & Dusing, PLLC

Jimmy Adell Shaffer Executive Secretary Judicial Conduct Commission