Supreme Court of Kentucky

FROM THE 30th JUDICIAL CIRCUIT

JEFFERSON CIRCUIT COURT, DIVISION 6
IN RE: MOTION TO DISQUALIFY THE HONORABLE OLU A. STEVENS
FROM PRESIDING IN ALL CRIMINAL MATTERS
IN THE 30th JUDICIAL CIRCUIT, DIVISION 6
OPINION AND ORDER
Kentucky Revised Statute (KRS) 26A.020 is Kentuckys statutory
mechanism for trial-judge disqualification. Under this statute, a party who
believes a judge will not afford a fair and impartial trial may file with the circuit
clerk an affidavit stating the factual basis for that belief. The circuit clerk in
turn certifies the partys affidavit to the Chief Justice for immediate review and
a decision whether grounds exist to appoint a different judge for the case.
Consistent with that statutory process, the Jefferson Circuit Clerk has
certified to the Chief Justice the affidavits of Jefferson County Commonwealths
Attorney Thomas B. Wine requesting the assignment of a new judge to preside
in all criminal cases prosecuted by the Commonwealths Attorney or his
assistants in the 30th Judicial Circuit, Division 6, because Judge Olu A.
Stevens, the regular judge of that division, cannot preside fairly and
impartially.
The Commonwealths Attorney filed his first affidavit on November 18,
2015, asking for Judge Stevenss disqualification from all criminal cases
pending in Jefferson Circuit Court. In an attempt to resolve this controversy in
a manner respectful of both the Commonwealths Attorney and Judge Stevens,
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avoid disruption in the criminal justice system, and safeguard the dignity of
the courts of the Commonwealth, the Chief Justice deferred ruling on the
disqualification of Judge Stevens and ordered the parties to participate in
mediation.
The mediation occurred on December 4, 2015, and resulted in an
agreement signed by Judge Stevens, the Commonwealths Attorney, and the
four appointed mediators. Among other things, the parties agreed that they
would, in essence, stop using social media as the vehicle to influence public
support for their personal grievances.
In filings since the mediation agreement, the Commonwealths Attorney
asserts that Judge Stevens has breached the mediation agreement to the
extent that its terms are now meaningless. The Commonwealths Attorney also
renews his argument that Judge Stevens must be removed from presiding in
any criminal prosecutions because his continued violations of the Code of
Judicial Conduct prove his inability to preside without bias against the
Commonwealths Attorney or his assistants.1
The facts underlying the Commonwealths Attorneys original affidavit
and his later filings are complex. The dispute arose, at least initially, from
Judge Stevenss comments on social media regarding the jury-selection process

In his response, Judge Stevens erroneously argues that there is no longer a KRS
26A.020 affidavit for disqualification pending before the Chief Justice because the
Commonwealths Attorney withdrew the request as a part of the mediation agreement.
But nothing in the record furnished by the Jefferson Circuit Clerk indicates that the
request has been withdrawn, and the Commonwealths Attorneys supplemental
motion and affidavit clearly show that the disqualification request is viable.
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in Jefferson County and the Commonwealth Attorneys decision to ask the

Supreme Court of Kentucky to certify the law with respect to jury selection in a
specific case.
The Commonwealths certification-of-law request was granted, and that
case now pends in the Kentucky Supreme Court. But the certification of law is
not the subject of the current controversy between Judge Stevens and the
Commonwealths Attorney nor the basis for the decision today. And it is worth
noting that Kentuckys court rules and Constitution permit the Commonwealth
to request the Supreme Court to clarify the state of the law through the
certification process in cases where there has been an acquittal.2
The only issue before the Chief Justice today relates to Judge Stevenss
actions taken after the Commonwealths Attorney asked the Supreme Court to
certify the law. As demonstrated in the Commonwealths Attorneys affidavits,
Judge Stevens reacted to the certification request by launching a social-media
campaign to disparage the Commonwealths Attorney and intentionally
mischaracterize a legitimate legal question. Judge Stevenss ensuing public
discourse appears to flout the directives of the Code of Judicial Conduct,
creating a social-media firestorm calculated to aggrandize himself by exploiting
the deep-seated and widespread distrust of the criminal-justice system by
minority communities.
The list of offending posts highlighted by the Commonwealths Attorney
includes accusations by Judge Stevens questioning the Commonwealths

Ky.Const. 115; Kentucky Rules of Civil Procedure (CR) 76.37(10).

Attorneys motives for filing the request for certification of law, including
statements made on Judge Stevenss personal Facebook page alleging that the
certification is the Commonwealths Attorneys attempt to impanel all-white
juries. Judge Stevens accused the Commonwealths Attorney of calling him a
racist and suggested that if people would stand up and call [the
Commonwealths Attorney] out, he would go right back in the corner. Judge
Stevens further accused the Commonwealths Attorney of trying to deceive the
people.
In later posts and letters allegedly written by Judge Stevens, he again
accused the Commonwealths Attorney of seeking to seat all-white jury
panels. In a November 3, 2015, post on his personal Facebook page, Judge
Stevens accused the Commonwealths Attorney of complaining to the
Kentucky Supreme Court about [his] entitlement to the all-white jury panel the
trial judge set asidea complaint that Judge Stevens claimed made the
Commonwealths Attorneys purpose readily apparent. Judge Stevens again
referred to the Commonwealths Attorney complaining he should have had an
all-white jury panel after losing a trial in a later Facebook comment, noting
that the action was poor form at the very least or, [a]t most, something much
more sinister.
Judge Stevens further questioned the Commonwealths Attorneys
motives by arguing that he requested the certification of law only because he
wants to and because he is seeking to influence a change in my approach and
decisions. Judge Stevens also posted on his personal Facebook page that
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[h]istory will unfavorably judge a prosecutor who loses a jury trial in which a
black man is acquitted and then appeals the matter claiming his entitlement to
an all-white jury panel. No matter the outcome, he will live in infamy.
All of these posts appeared before the parties mediation. The lengthy
mediation produced to the Chief Justice a report, signed by the parties, which
included a provision stating issues concerning the parties should no longer be
addressed by posts or comments on social media.3 The parties signed
mediation agreement further reduced to writing their promise that all
information disclosed during the mediation would be confidential, with the
exception of the written agreement, should they reach one.4
The Commonwealths Attorneys supplemental affidavit and motion to set
aside the mediation agreement alleges that Judge Stevens breached the
mediation agreements provisions on the use of social media. The supplemental
documents reference the Support Judge Olu Stevens Facebook page, which
included a post minutes after the ten-hour mediation session ended that
boasted of victory for Judge Stevens. The post included a photo of Judge
Stevens with the words I am back on the bench Thank You! imposed on top
of his image.
The Commonwealths Attorney further alleges that Judge Stevens
granted several interviews in the days following the mediation during which he
remained silent, nodded affirmatively, and/or failed to correct misinformation

3
4

Report to Chief Justice John D. Minton, December 4, 2015.

Agreement to Mediate, In re: Motion to Disqualify, December 4, 2015.

in response to statements and questions from the interviewers regarding both

the certification-of-law matter and the issue of jury selection generally. The
supplemental affidavit and motion also argue that Judge Stevens violated the
mediation agreement by failing to remove the previous Facebook posts that
were the subject of the Commonwealths Attorneys original affidavit.
Finally, the Commonwealths Attorney references a December 11, 2015,
post on the Support Judge Olu Stevens Facebook page that was written in a
first-person narrative and appears to have been created by Judge Stevens. That
post, while not mentioning the Commonwealths Attorney or the certification of
law matter specifically, references the efforts of others to silence him and the
attempts to remove him from his elected position as a circuit judge. The post
further states that concerns over Judge Stevenss method of communication
were misplaced, purposely by many who sought to distract from [his]
message.
While the mediation initially appeared to be successful, it is now clear to
the Chief Justice that it failed to achieve its intended goals. In the minutes,
hours, and days since the mediation occurred, Judge Stevens has repeatedly
demonstrated that he does not intend to comply with the letter or spirit of the
agreement. His failure to remove offending posts from his Facebook page and
his continued public comments, even if not directly in reference to the
Commonwealths Attorney or the pending certification-of-law case, give a clear
indication that he intends to continue violating the Code of Judicial Conduct,

despite assurances to the contrary given privately to the Chief Justice and
during the course of the mediation.
The requirement that judges act fairly and impartially is manifest
throughout the Kentucky Code of Judicial Conduct. Equally plain is the
principle that judges, by the nature of their positions, are subject to greater
public scrutiny and restrictions on their conduct. As noted in the commentary
to Canon 2 of the Code:
Public confidence in the judiciary is eroded by irresponsible or
improper conduct by judges. A judge must avoid all impropriety
and appearance of impropriety. A judge must expect to be the
subject of constant public scrutiny. A judge must therefore accept
restrictions on the judges conduct that might be viewed as
burdensome by the ordinary citizen and should do so freely and
willingly.5
Judges are required to act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary.6 The Code requires
judges to be patient, dignified and courteous to litigants, jurors, witnesses,
lawyers and others with whom the judge deals in an official capacity.7 And a
judge is required, both by the Code and by statute, to disqualify himself in
proceedings where his impartiality might reasonably be questioned, including
situations where the judge has a personal bias or prejudice concerning a party
or a partys lawyer.8

Rules of the Kentucky Supreme Court (SCR) 4.300, Kentucky Code of Judicial
Conduct, commentary to Canon 2(A).
6 Id., at Canon 2(A).
7 Id., at Canon 2(B)(4).
8 Id., at Canon 2(E)(1)(a); see also, KRS 26A.015(a) and (e).
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Judges are also prohibited from commenting on any matter pending

before any court. Canon 2(B)(9) specifically states that [a] judge shall not,
while a proceeding is pending or impending in any court, make any public
comment that might reasonably be expected to affect its outcome or impair its
fairness . . .
Perhaps most importantly, Canon 1 of the Code of Judicial Conduct,
charges judges with the responsibility to actively participate in establishing,
maintaining and enforcing high standards of conduct and to personally
observe those standards so that the integrity and independence of the judiciary
will be preserved.9
The Code of Judicial Conduct places very specific and necessary
restrictions on the behavior of judgesrestrictions that Judge Stevens has
continued to violate, despite the best efforts of the Chief Justice and four
neutral mediators to remedy the situation. Rather than provide leadership on
an important issue worthy of wide discussion, deliberation, and action, Judge
Stevens has detracted from the conversation by choosing instead to malign the
Commonwealths Attorney and mischaracterize his motives in pursuing his
constitutional right to seek clarification on an issue of law before the Supreme
Court on behalf of the Commonwealth.
The motion to disqualify Judge Stevens in all criminal cases in the 30th
Judicial Circuit, Division 6, was filed via KRS 26A.020. Illustrative of how KRS
26A.020 motions traditionally operate, on November 17, 2015, the

Id., at Canon 1.

Commonwealths Attorney filed individual motions to disqualify Judge Stevens

in two cases: Commonwealth of Kentucky v. Chauncey Sellers, 14-CR-03357,
and Commonwealth of Kentucky v. Daisy Hodges, 15-CR-00621. The Chief
Justice granted the motions on the same day, concluding that the
Commonwealths Attorney has demonstrated disqualifying circumstances that
require the appointment of a special judge under KRS 26A.020. Those motions
were filed in two specific criminal cases that were set for trial before Judge
Stevens.
The sweep of the matter currently before the Chief Justice is significantly
broader because it seeks the blanket disqualification of Judge Stevens in all
criminal casesboth current and futureprosecuted by either the
Commonwealths Attorney or any of his assistants. Beyond simple
disqualification, this is tantamount to a request for removal from office. A
disqualification of this magnitude would effectively remove Judge Stevens from
his criminal docket for the foreseeable future and render him unable to fulfill
the constitutional duties of a circuit judge.10 This request exceeds the scope of
KRS 26A.020.
Under KRS 26A.020, a party may file with the circuit clerk an affidavit
that the judge will not afford him a fair and impartial trial. This affidavit
prompts the Chief Justice to review the facts and determine whether to
designate a regular or retired justice or judge of the Court of Justice as special
judge. With regard to the authority given the Chief Justice when making such

10

See Ky.Const. 112; KRS Chapter 23A.

a determination, KRS 26A.020 is relatively vague, and there is a paucity of case

law to illustrate or develop the Chief Justices authority. But the underlying
purpose of KRS 26A.020 is clearthe judges disqualification.11 From the days
of common law, disqualification has been equated to recusalthat is, the
removal of a judge from a particular case because of bias, financial interest, or
personal interest.12 But disqualification has not been equated with removal. So
at the very least, the statute implies that the Chief Justices statutory authority
is limited to designating a special judge in a specific case where disqualification
is warranted because the regular judge is unable to afford a party a fair or
impartial trial in a specific case.
Section 121 of the Kentucky Constitution gives the power to suspend or
remove a judge to a commission whose actions are subject to judicial review by
the Supreme Court. That commission, which is referred to in the enabling
statute as the Judicial Retirement and Removal Commission and by Supreme
Court Rule as the Judicial Conduct Commission, is the only entity authorized
under the Kentucky Constitution to undertake temporary or permanent
disciplinary action against a sitting Kentucky judge. KRS 34.340 provides that

This is evident by the operation of KRS 26A.020 in para materia with KRS 26A.015,
the general disqualification statute. KRS 26A.015 outlines when a judge should selfdisqualify; KRS 26A.020, on the other hand, operates as a backstop to provide the
Chief Justice the authority to disqualify a judge who may not self-disqualify.
12 See, e.g., John P. Frank, Disqualification of Judges, 56 YALE L.J. 605 (1947)
(discussing the origin of disqualification and its development from English common
law); Note, Disqualification of Judges Because of Bias and Prejudice, 51 YALE L.J. 169
(1941) (using disqualification and recusal interchangeably); see also, Bryan A. Garner,
Garners Dictionary of Legal Usage (3d. ed. 2011) (equating disqualify with recuse: A
disqualified judge must withdraw from hearing a case when one of the parties is, for
example, a close relative.).
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[n]o justice or judge shall be retired for disability or suspended without pay or
removed for good cause except upon a majority vote of members of the Judicial
Retirement and Removal Commission. Supreme Court Rule 4.020 sets forth
the jurisdiction of the Judicial Conduct Commission, which includes the
authority to impose various remedial and punitive disciplinary actions based
on a variety of offenses, including violations of the Code of Judicial Conduct.13
Given the serious implications of imposing discipline on an elected
official, the Judicial Conduct Commission is charged with following specific
procedural rules to protect the due process rights of a judge.14 This includes
the judges right to defend against charges, to be represented by counsel, and
to examine and cross-examine witnesses.15 A judge under investigation by the
Judicial Conduct Commission also has the right to subpoena witnesses and
produce evidence in support of the judges defense.16
None of these procedural processes exist under KRS 26A.020. This raises
significant constitutional concerns about the Chief Justices authority under
KRS 26A.020 to take the extraordinary step of disqualifying a judge from all
criminal cases.17 Such action potentially violates the judges due process rights
To the extent that Section 121 and SCR 4.020 can be viewed as conflicting with KRS
26A.020 (that is, if 26A.020 is read to permit the Chief Justice to remove a judge), the
specific controls the general. Section 121 and SCR 4.020 specifically deal with judicial
discipline and removal from office while KRS 26A.020 is a general disqualification
statute.
14 SCR 4.000, et seq.
15 SCR 4.210(1).
16 Id.
17 These concerns are universal, it seems, because no state in the country permits a
Chief Justice, acting alone, to remove a sitting judge. The federal government, of
course, does not give the Chief Justice such authority either. See 28 U.S.C. 455;
U.S. Const. Art. III. To the contrary, the normal procedure for removal involves a
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and limits the judges ability to defend his constitutional authority as a dulyelected state official.18 A motion to disqualify a judge in a specific case that is
limited in both time and scope does not diminish a judges ability to fulfill the
constitutional duties of the judges elected office. But the disqualification of a
judge from potentially hundreds of criminal cases pending now or in the future
amounts to the removal of the judge from a significant portion of the judges
docket and renders the judge unable to satisfy the constitutional obligations of
his elected office.19 The Commonwealths Attorneys request is not properly
before the Chief Justice under KRS 26A.020.
The Code of Judicial Conduct requires a judge who receives information
indicating a substantial likelihood that another judge has committed a
violation of [the] Code to take appropriate action. The Chief Justice finds that
the Commonwealths Attorneys motion sufficiently details facts indicating a
substantial likelihood that Judge Stevens has committed violations of the Code

commission akin to Kentuckys Judicial Conduct Commission. See NATIONAL CENTER

FOR STATE COURTS, Methods of Judicial Selection, Removal of Judges,
http://www.judicialselection.us/judicial_selection/methods/removal_of_judges.cfm?st
ate.
18 See, e.g., Arkansas Judicial Discipline and Disability Comn v. Proctor, 360 S.W.3d
61, 95 (Ark. 2010) ([S]tate judges do have protected due-process rights, the basic
components of which are fairness, meaningful notice of charges, and a meaningful
opportunity to defend oneself.).
19 This authority is notably absent from the text of KRS 26A.020. While the Chief
Justice is vested with the authority to appoint a special judge, the Chief Justice is not
vested with the authority effectively to appoint a new circuit judge for the 30th Circuit.
This is evidenced, of course, by the simple fact that the people, not the Chief Justice,
select circuit judges at the ballot box. Further evidence is provided by the process in
which a vacant judicial seat is filledthe Chief Justice, as part of a larger commission,
recommends three names to the Governor who makes the appointment. In other
words, nowhere in our law, KRS 26A.020 or otherwise, is the Chief Justice, alone,
vested with the authority to remove a duly elected sitting judge.

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of Judicial Conduct. Accordingly, this matter must be referred to the Judicial

Conduct Commission for immediate action in accordance with its
constitutional and statutory duty to investigate complaints and impose
sanctions on judges found to have committed disciplinary violations.
Based on the reasons stated, the Chief Justice ORDERS that:
(1)

The Commonwealths Attorneys request to disqualify Judge

Stevens from presiding all criminal cases arising in the 30th
Judicial Circuit of Kentucky, Division 6, is DENIED.

(2)

The Commonwealths Attorneys affidavits and all related

documents are referred to the Judicial Conduct Commission for
immediate action under SCR 4.170; and

(3)

The Jefferson Circuit Clerk shall place a copy of this order in

the record.

ENTERED: December 18, 2015.

______________________________
CHIEF JUSTICE
Copies to:

Judge Olu A. Stevens, 30th Judicial Circuit, Division 6

Thomas B. Wine, Commonwealths Attorney, 30th Judicial Circuit
David Nicholson, Clerk, Jefferson Circuit Court
Judge A. C. McKay Chauvin, Chief Judge, Jefferson Circuit Court
Honorable Stephen D. Wolnitzek, Chair, Judicial Conduct
Commission
Ms. Jimmy Shaffer, Executive Secretary, Judicial Conduct
Commission
James L. Deckard, Esq., Counsel for Judge Olu A. Stevens

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