Summe v. Judicial Retirement & Removal Commission

947 S.W.2d 42, 1997 Ky. LEXIS 69, 1997 WL 336322

• Court: Kentucky Supreme Court
• Decided: June 19, 1997
• Docket: 96-SC-000034-RR
• Status: Published

Opinions

OPINION

STEPHENS, Chief Justice.

This appeal from a decision of the Judicial Retirement and Removal Commission [hereinafter “Commission”] involves two counts brought against Circuit Judge Patricia M. Summe, 16th Judicial District, Fourth Division, Kenton County, Kentucky, stemming from her campaign for circuit judge in the general election held November 8, 1994. Count I charges that appellant depicted the Kenton County Citizen’s Conner as an independent publication of regular or periodic issue for citizens of Kenton County, Kentucky, when it was in fact campaign material, prepared and distributed by appellant, or on her behalf, solely for the specific purpose of supporting her campaign. Count II regards a letter written by Mary Gregory in support of appellant’s 1994 campaign which was distributed or allowed to be distributed to members of the medical profession in Kenton County, Kentucky by appellant.

After a hearing on the matter, the Commission found appellant to be in violation of the Code of Judicial Conduct on both charges. Specifically, the Commission unanimously determined that the format of the Kenton County Citizen’s Courier was designed to give the impression to voters that an independent organization advocating child abuse issues supported appellant in her race for circuit judge and, thus, was a misrepresentation of fact in violation of Canon 7B(l)(c) of the Code of Judicial Conduct, SCR 4.300. The Commission also determined that the statements in the letter from Ms. Gregory to nurses in Kenton County constituted a pre-election commitment on the issue of probation in child abuse cases in violation of Canon 7B(l)(e). The Commission further concluded that use of both of these documents in the campaign was in violation of SCR 4.300, Canons 1 and 2A, in that appellant failed to observe high standards of conduct in her campaign and failed to conduct herself in a manner that promoted pub-lie confidence in the integrity and impartiality of the judiciary.

Finally, the Commission noted that both documents were released within one to two weeks of the election which effectively prevented appellant’s opponent from making any response to the advertisements or from getting any relief by filing a complaint with the Commission. The Commission asserted that while it was impossible to determine the exact effect these documents had on the outcome of the election, it believed the advertisements surely contributed to appellant’s victory. The Commission believed that such campaign tactics were “unacceptable and blatantly unfair to those candidates who attempt to comply with both the letter and spirit of the Canons of Judicial Ethics.” As a result, the Commission ordered appellant to be suspended for a total of sixty (60) days, thirty (30) days on each count to run consecutively.

In her appeal to this Court, appellant acknowledges responsibility for use of the two documents in her campaign, but contends that the Commission’s determination is clearly erroneous for two reasons: (1) it is arbitrary and capricious as not being based on clear and convincing evidence, and (2) it is unconstitutional. Consequently, she now requests this Court to vacate and set aside the Commission’s order and to dismiss all charges against her.

Count I — Newspaper Format

As previously stated, appellant was a candidate in the general election held on November 8, 1994. She was subsequently elected to the position of Kenton County Circuit Judge by a margin of 15,302 votes to 13,861 votes. Nearly one week prior to the election, between 5000 and 6000 copies of the Kenton County Citizen’s Cornier were distributed to potential voters in Kenton County. The following appears on the front page of the distributed material:

a. The name “Kenton County Citizen’s Courier” with the caption “Today’s News For Concerned Citizens of Kenton County” directly below the name.

b. The designations “Four Pages” and “Oct/Nov 1994”.

c. An article with the lead-in “Through the eyes of a child ...” which contained a photograph, of a young battered child.

d. A bolded “Editor’s Note” at the bottom of the article which reads:

Editor’s Note: The child’s grandmother and legal guardian gave permission to use the photo in this article, explaining that due to excessive bruising and swelling, the child cannot be identified.

e. Another article captioned “Study shows child abuse affects go beyond childhood.”

The following appears on the back page of the document:

a. A column headed “Viewpoint ... To the editor of the Citizen’s Courier.”

b. A letter purporting to be to the editor, supporting appellant and containing the statement: “I will vote for Patricia M. Summe for Circuit Court Judge because I know Pat Summe is concerned about crime.”

c. A letter to voters from Judge Summe which is inset on the top right half of the back page.

d. A return address of “3384 Madison Pike, Ft. Wright, KY 41017” without any identifying- name or organization above it.

Appellant maintains that the distributed material was appropriately identified as being campaign literature. She contends that the Kenton County Citizen’s Courier was folded for delivery so that her letter and logo on the back page were clearly visible and would surely inform the voters that this was a campaign advertisement. She further asserts that the newspaper type mailer displayed her campaign logo, a “paid-for” acknowledgement, and contained a return address. Appellant also claims that the wording of her letter which was contained within the mailer clearly identified the whole mailer as being campaign material.

We agree with the Commission’s conclusion that nearly all of the Kenton County Citizen’s Courier’s features, both individually and collectively, portray the publication as something other than campaign literature. Basically, this was a newspaper-type publication which resembled a tabloid. While appellant’s letter to voters within the mailer does indicate her campaign as its source, the way in which the letter is inset does not make it appear that the entire mailer is a “paid-for” campaign advertisement. More importantly, as the Commission noted, there is absolutely nothing on the front page of this supposed campaign literature which identifies its source or indicates who is paying for it.

Likewise, other than appellant’s letter, there is not one indication on the back page of the document that it is campaign literature. Instead, on both the front and back of the publication, words and phrases like “Editor’s Note”, “Viewpoint” and “To the editor of the Citizens Courier ” are used. Even the name of appellant’s campaign was left off the return address on the back page. Such a format could have only been used for one purpose — to mislead voters into believing that the Kenton County Citizens Courier was something other than campaign literature. In fact, appellant’s own brother, Peter Summe, even testified that he suggested the format of the ad because most people do not like to read campaign material.

Clearly, a voter who received this information in the mail, took it out of the mailbox with the address facing toward them, and then proceeded to open it and read it, would have no idea that this was campaign material. The only voters that would possibly come to this revelation would be those who subsequently turned over the document and noticed the inset campaign logo and “paid-for” acknowledgment. Even then, however, it is speculative whether a voter would realize that the inset campaign letter was not just a campaign advertisement in a publication, and actually applied to the entire mailer.

Additionally, appellant argues that the format of the Kenton County Citizen’s Courier was not misrepresentative as it was one commonly used in elections in Kenton County and her attorneys and campaign advisers had advised her that it was legal and appropriate. Multiple documents do exist in the record which indicate this format was used by many candidates who have run for office in the Northern Kentucky area. However, a careful examination of these documents indicates that unlike the present document, they are clearly marked as campaign material. For example, all of these documents contain some type of indication on the front of the mailer identifying them as campaign material. Additionally, an identifying name or source is provided above virtually all of the return addresses in these documents.

It is also important to note that many of the additional documents in the record do not relate to judicial campaigns and, thus, are not governed by the Code of Judicial Conduct. In fact, if appellant had not “distilled down” the format she adopted from others who have run for office in the Kenton County area, we probably would not be here today as the mailer would have unquestionably resembled campaign material.

Moreover, appellant maintains that it would not constitute a misrepresentation of facts under our decision in Doyle v. Judicial Ret. and Removal Comm’n, Ky., 885 S.W.2d 917 (1994), because a reasonable person would know that the mailer was campaign literature. Contrary to appellant’s assertion, Doyle, supra, is distinguishable from the present case. One of the issues this Court determined in Doyle was that an altered newspaper photograph used in a campaign advertisement did not amount to clear and convincing evidence of a “deliberate misrepresentation of fact.” Id. at 918. Clearly, what failed to constitute a misrepresentation in Doyle is different from what is alleged as a misrepresentation in the present case.

Finally, we assert that the responsibility for the accuracy and fairness of the campaign advertisement ultimately lies with appellant. Neither appellant nor members of her campaign attempted to have the Kenton County Citizen’s Courier reviewed by the Judicial Ethics Committee, although such service was available. While appellant did testify before the Commission that she did not present a request to the Judicial Ethics Committee because it took seven weeks for her to receive a response to a previous inquiry, the fact that she did not have enough time before the election to seek the Committee’s opinion, should not provide her with a way to totally avoid the Code of Judicial Conduct. Thus, using the “clear and convincing” standard we set forth in Wilson v. Judicial Ret. and Removal Comm’n, Ky., 673 S.W.2d 426 (1984), we affirm the decision of the Commission as to Count I against appellant.

Count II — Mary Gregory Letter

Appellant’s cousin and supporter, Mary Gregory, prepared a letter in support of appellant which was mailed to 800 nurses in Kenton County. The letter detailed the specifics of a child abuse case which had been before appellant’s opponent, the current circuit judge. The letter reads in full as follows:

October 24,1994

[picture inset, of a battered child]

Dear Medical Professional,

This child was born on August 25, 1989 into a world where she thought she would be loved and protected. Instead on November 26, 1992 she was brought to St. Luke West seriously battered. This small innocent child had multiple abrasions and contusions including bilateral raccoon eyes and a perforated eardrum.

Her abuser is the mother’s 41 year old boyfriend. He was found guilty and sentenced to only five years by Judge Trusty though the prosecutor argued for ten years. Judge Trusty then probated this criminal’s sentence, and he actually only served 153 days.

In 153 days her physical injuries were healed but the emotional scar will last a lifetime.

As medical professionals who witness abuse daily, it is time to judge our judges. How many times have you filled out abuse forms? How many times have you seen repeat abuse by repeated abusers? It is time to stop the abuse instead of treating it.

Please join me in stopping the abuse and vote for a person who will let no one walk away before justice is served. She has concern for the victim.

Vote for Patricia M. Summe, November 8,1994 for Circuit Court Judge.

Sincerely,

Mary S. Gregory, R.N., E.R.

St. Elizabeth North

[Caption stating that postage and stationary were paid for by appellant’s campaign committee]

Appellant argues that the Commission’s decision incorrectly holds that criticism alone of an incumbent judge amounts to a pre-election announcement and commitment to the voters regarding appellant’s position on the issue of probation in child abuse cases. She further contends that the Commission’s decision attempts to reverse this Court’s holding in J.C.J.D. v. R.J.C.R., Ky., 803 S.W.2d 953 (1991). We disagree.

Our holding in J.C.J.D., supra, does not even apply to the ease sub judice as it is based on the former version of Canon 7B(l)(c) which has now been replaced by the version presently at issue. In addition, the letter at issue in the present case clearly goes beyond criticism of appellant’s opponent, which was the primary issue in J.C.J.D., as it contains a graphic picture of an abused child and states that her opponent sentenced the child’s abuser to five years even though the prosecutor had requested ten. The letter goes on to state that her opponent probated that particular sentence after the abuser served only 153 days and that “it is time to judge our judges” and “to stop repeated abuse instead of treating it.” The letter concludes by encouraging voters to “join me in stopping the abuse and vote for a person who will let no one walk away before justice is served,” which is followed by a “paid-for” acknowledgment.

The obvious crux of the letter is that appellant’s opponent lets child abusers off easy and that if appellant was elected, she would not. As was aptly stated in a treatise on the various rules of judicial conduct throughout the United States:

Ethics advisory opinions have addressed the propriety of numerous statements and pledges candidates have proposed to use in the course of a campaign. The general sense of these opinions is that anything that could be interpreted as a pledge that the candidate will take a particular approach in deciding cases or a particular class of cases is prohibited.

Jeffrey M. Shaman et al., Judicial Conduct and Ethics, Section 11.09, p. 372 (Michie 2nd ed., 1995). While in isolation, a judge who “will let no one walk away before justice is served” is something to which all should aspire, in the context of the present judicial campaign, it represented appellant’s commitment to prevent the probation of child abusers. The evidence fully supports this conclusion and, therefore, we affirm the decision of the Commission as to Count II.

Constitutional Arguments

Appellant raises additional arguments concerning the constitutionality of both the Commission’s decision and Canon 7B(l)(c). First, appellant argues that the Commission’s prohibition against the use of a newsletter format and the use of the Mary Gregory letter is unconstitutional in that it infringes on appellant’s constitutional right to freedom of speech under the First Amendment of the United States Constitution and Section 8 of the Kentucky Constitution. Second, appellant contends that the language in Canon 7B(l)(c) is unconstitutionally overbroad and vague. In support of her arguments, appellant again cites to J.C.J.D., supra, and also to Buckley v. Judicial Inquiry Board, 997 F.2d 224 (7th Cir.1993).

As previously mentioned, J.C.J.D., supra, is not controlling in the present case as it was based on the former version of Canon 7B(l)(c). Furthermore, Buckley, supra, is not persuasive as that opinion addressed an Illinois rule similar to our former Canon 7B(l)(c). However, our present Canon 7B(l)(c) was challenged under the First, Fifth and Fourteenth Amendments to the United States Constitution as overbroad or vague in Ackerson v. Kentucky Judicial Ret. and Removal Comm’n, 776 F.Supp. 309 (W.D.Ky.1991). In Ackerson the federal district court upheld the Canon with respect to its prohibition against campaign statements committing or appearing to commit a candidate with respect to legal issues which were likely to come before it. Id. at 315. Specifically, the court stated:

This interest [the necessity of maintaining the impartiality of the legal process] is simply too great to allow judicial campaigns to degenerate into a contest of which candidate can make more commitments to the electorate on legal issues likely to come before him or her.

We therefore find that the canon is sufficiently and closely drawn so as to avoid unnecessary abridgment of a judicial candidate’s right of free speech during the campaign. We also find the canon is neither vague nor overbroad in this regard.

Id.

Later, in this Court’s decision in Deters v. Judicial Ret. and Removal Comm’n, Ky., 873 S.W.2d 200 (1994), we also reviewed the constitutionality of our present Canon 7B(l)(c) and rejected the challenge as follows:

The language of our present canon 7B(l)(c) has, however, been specifically upheld by a Federal Court as having been “sufficiently and closely drawn so as to avoid unnecessary abridgment of a judicial candidate’s rights of free speech during the campaign.” Ackerson v. Kentucky Judicial Retirement and Removal Commission, 776 F.Supp. 309 (W.D.Ky.1991). The opinion recognized that, while candidates for elective judicial office are not without the protection of the First Amendment, their campaign conduct has nevertheless been regulated to a greater degree than non-judicial candidates.

Id. at 204. We further noted that the present Canon was promulgated after J.C.J.D., supra, and specifically emphasized that the present Canon was more narrowly tailored than its predecessor. Id. at 204. Moreover, in adopting the federal court’s decision in Ackerson we stated:

There is a compelling state interest in so limiting a judicial candidate’s speech, because the making of campaign commitments on issues likely to come before the court tends to undermine the fundamental fairness and impartiality of the legal system.

Deters, 873 S.W.2d at 205. Thus, we uphold the constitutionality of the Commission’s decision and Canon 7B(l)(c).

Commission’s Lack of Jurisdiction

Appellant further argues that review of the Kenton County Citizen’s Courier by at least eight different lawyers involved in appellant’s campaign and review of the Mary Gregory letter by her attorney established that appellant necessarily acted in good faith with respect to both documents. Consequently, she contends that the charges are beyond the jurisdiction of the Commission under SCR 4.020(2).

SCR 4.020(2) provides: “Any erroneous decision made in good faith shall not be subject to the jurisdiction of the Commission.” It is obvious that “erroneous decision” is a term of art which refers to judicial decisions made by judges in the course of their official duties. We clarified this in Nicholson v. Judicial Ret. and Removal Comm’n, Ky., 562 S.W.2d 306 (1978), decided thirty (30) days after the effective date of the above rule, where we stated:

The purpose of this addition was to make explicit that which we recognized to be implicit in our constitution and the rule. In a state which has an elected judiciary incompetence which is not gross and persistent can be safely left to elimination at the ballot box. Error can be adequately corrected by the appellate courts. Any other approach to the problem would destroy judicial independence by causing judges to keep one eye on their reversal rate and the other on the Commission. Both judicial eyes should be trained on the just disposition of the case at hand and not on the welfare of the sitting judge.

Id. at 310.

Certainly, SCR 4.020(2) does not exclude from the jurisdiction of the Commission campaign violations committed under claims of ignorance of the law or of advice of counsel. Neither document at issue in the present case was submitted to the Ethics Committee for its prior approval, and no Supreme Court rule excuses noncompliance based on the advice of attorneys working in a candidate’s campaign.

Conclusion

In conclusion, we affirm the Commission’s determination finding appellant violated both Count I and Count II. However, we find the Commission’s remedy for the violation of Count I and Count II as excessive and inappropriate in light of our assertion in Nicholson, supra, that:

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 office and correcting any deficiencies found by taking the least severe action necessary to remedy the situation. The target is not punishment of the judge.

Id. at 308. We later reiterated this same objective in Doyle, 885 S.W.2d at 919. Accordingly, the order of the Judicial Retirement and Removal Commission is affirmed as to the guilt of Patricia M. Summe on Count I and Count II and, pursuant to SCR 4.290(5), the original thirty (30) day suspension on each count to run consecutively is modified to a thirty (30) day suspension on each count to run concurrently, effective as of the date of this opinion.

LAMBERT and STUMBO, JJ., concur. COOPER and JOHNSTONE, JJ., concur with the majority opinion except they would run the sentences consecutively as recommended by the Commission. GRAVES, J., dissents and files a separate dissenting opinion. WINTERSHEIMER, J., joins this dissenting opinion.