Wednesday, June 23, 2021

Recusal In Kentucky: The Green Canoe And Law Clerk Spouses

The Kentucky Supreme Court noted that a judge of the Court of Appeals should have recused himself in a property dispute

We are less troubled by the circumstances, perhaps even in the aggregate, that Judge Johnson happened to live in the same gated community, that his wife and Rosquist were officers in a non-party HOA, and that the judge may have overheard but then forgot when this case was mentioned at an HOA meeting two years before. We ultimately require disqualification of Judge Johnson in this case because an uncontroverted affidavit stated Rebecca Johnson gave Rosquist the judge’s personal number to discuss this case, that the order describes the judge and his wife as “friends” with Rosquist, the affidavit states they are “obviously friends,” not merely acquaintances, and where the judge or his wife seemingly allowed Rosquist to keep case-related belongings, a green canoe removed pursuant to an order, for storage at the judge’s home. Given his denial, we need not question whether Judge Johnson actually spoke with Rosquist about the case or even knew about the canoe on his property, or whether this was in fact Rosquist’s canoe, although such inferences could reasonably arise. We need not wonder whether Judge Johnson actually possessed material knowledge or recollection of the facts of this case, because the circumstances reasonably support that inference. We need not find Judge Johnson harbored an actual bias, strong or subtle, simply because this case arose from a neighborhood dispute, he was friends with the party-neighbor, and his wife presumably had some discretion in enforcing the covenants allegedly violated. We need not necessarily conclude Judge Johnson himself was party to an “ex parte transaction” to store Rosquist’s green canoe on his property, because, again, that reasonably appears to be a possibility.

Judge Johnson’s assurance of impartiality might have sufficed under the more subjective standard of KRS 26A.015(2)(a). But the totality of circumstances permitted a reasonable conclusion of bias in Rosquist’s favor, so Judge Johnson was required to recuse under KRS 26A.015(2)(e).

The court also issued an opinion concerning recusal when a law clerk's spouse appears as counsel

Our opinion is that the judge’s isolation of the law clerk plus disclosure of the marital relationship dictate that a reasonable observer, being aware of all the facts and circumstances, would NOT reasonably question the judge’s impartiality. In other words, the trial judge would not be required to recuse. The other inquiry addressed whether
this procedure, isolation plus disclosure, would extend to other attorneys working out of the same office as the spouse attorney. We hold that this procedure should be followed for the particular Legal Aid of the Bluegrass office out of which the spouse attorney works but is not required with respect to the other three Legal Aid of the Bluegrass offices.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/06/the-kentucky-supreme-court-noted-that-a-judge-of-the-court-of-appeals-should-have-recused-himself-in-a-property-dispute-we-a.html

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