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Ed Springston has written two posts raising ethical issues relating to a sitting judge on the Jefferson Circuit Court - Judge Charlie Cunningham and his rulings and comments from the bench in a partisan challenge to a Kentucky State Senate race. For your information.
Here are Mr. Springston's posts:
"Does Judge Charlie Cunningham have ethics problems?"
and
"Judge Charlie Cunningham screws up the 37th State Senate District race"
In Jefferson County there were two incredibly close judicial elections decided by just a few hundred votes! Out of over 185,000 plus votes cast. My oh my!!!
Anyone besides me wondering if there will be a re-canvas or a re-count?
| CIRCUIT JUDGE 11 | |||
|---|---|---|---|
| Total | |||
| Number of Precincts | 537 | ||
| Precincts Reporting | 537 | 100.0 % | |
| Total Votes | 195304 | ||
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| John J. VANDERTOLL | 97071 | 49.70% | |
| Brian C. EDWARDS | 97741 | 50.05% | |
| Write-in Votes | 492 | 0.25% | |
| DISTRICT JUDGE 17 | |||
|---|---|---|---|
| Total | |||
| Number of Precincts | 537 | ||
| Precincts Reporting | 537 | 100.0 % | |
| Total Votes | 184032 | ||
|
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| Erica Lee WILLIAMS | 92058 | 50.02% | |
| A. Christine WARD | 91457 | 49.70% | |
| Write-in Votes | 517 | 0.28% | |
For those interested in the money raised up through 10/18/2010 for the primary and the general elections for these four candidates:
John J. Vandertoll $339,496.96
Brian C. Edwards $119,918.93
Erica Lee Williams $94,030.56
A.Christine Ward $85,010.55
Of course, this does no reflect the moneys raised and disbured in the weeks before the general election.
Now, that's a lot of money raised for positions that pay $120,000 or so per year.
Well, today is the day.
Please vote.
Don't let others make choices you have to live with.
Once upon a time the political in-fighting took place in closed and smoke-filled backrooms with slug fests on the campaign trial and their final culmination at the ballot box with the candidate garnering the most votes prevailing.
However, a new political reality is finding prime time publicity with pre-emptive political strikes being plastered in the courtrooms of this Commonwealth as suits are filed contesting a candidates qualifications to appear on the ballot.
Although it may make "cents" financially, it makes little sense when the voters are denied a choice because a person or a candidate or a political party or even a political pundit lawyers up and seeks to have a single person (eg., judge) kick a candidate off the ticket.
Tomorrow (Oct. 13, 2010) will see this drama unfurl in Division 5 Court room of the Jefferson Circuit Court with Judge Mary Shaw presiding. The case is styled Greg Reddington vs. Michael P.W. Lewis et al, Civil Action No. 10-CI-006645, filed on 9/24/2010. The named defendants include:
The plaintiff is Greg Reddington who apears to be a former assistant to Mayor Abramson in Louisville who is represented by Jennifer Moore, Kentucky Democratic Party attorney. According to a story by Nancy Rodriguez with the Courier-Journal, Lewis' name is already on the ballot so should Reddington and the Kentucky Democratic party prevail, then votes for Lewis would not count.
What makes this legal slug fest even more interesting is that Independent candidate for Governor Gatewood Galbraith is reportedly making an appearance at this hearing on behalf of Michael P.W.Lewis.
The basis for the lawsuit surrounds the validity of 84 voter signatures on nominating papers for Michael P.W. Lewis.
For more details on the House race involving Michael P.W. Lewis (I) and Jim Wayne (D), see the Courier-Journal story entitled "Independent seeks House District 35 seat held by long-time Democratic incumbent" dated Oct. 5, 2010.
Now for some more of the legal stuff surrounding this use of the courtroom to win at the ballot box.
A Jefferson Circuit judge has ruled that votes for the Republican candidate for the 44th District House seat won't count because of an invalid signature on her candidacy paperwork.
Judge Irv Maze ruled last week that one of the two required signatures on Gail Powers' petition is invalid because the individual does not live in the 44th District, which encompasses portions of Valley Station, Pleasure Ridge Park and the city of Shively, said Stephen Fein, who filed the challenge.
Powers, who owns a custom automobile restoration business, is challenging incumbent Democratic Rep. Joni Jenkins, who has held the seat since 1994.
“If you run for office in a certain legislative district, you have to have both signatures from that district,” said Fein, who is legislative chairman with the Jefferson County Democratic Party.
[Note Fein's involvement with the Jefferson County Democratic Party and Judge Irv Maze was formerly the Jefferson County Attorney (and a Democrat too)].
A similar challenge has been filed against the Democratic candidate in the 37th District.
Louisville
resident Paul Holliger states in a complaint filed in Jefferson Circuit Court that Democratic candidate Jeff Donohue is ineligible because one of the signatures on his petition is from someone who does not live in the district.
Donohue, 56, a retired union negotiator, is in a race against Republican Wade Hurt, 43, a former official with the Jefferson County Republican Party, for the seat currently held by Democrat Ron Weston, who is retiring.
The district stretches across parts of southwestern Jefferson County.
Holliger's attorney, Robert Heleringer, said a hearing date for the challenge has not yet been set.
Donohue said his campaign is dealing with the matter.
“The state of Kentucky has certified me as the candidate not only in the primary but in the general election and we are going to move forward,” he said.
[Note Heleringer the attorney representing Holliger is a former Republic House member from Jefferson County.]
And for the record, this ain't Jennifer Moore's first rodeo as noted by a post from the Old Bluegrass Report which is noted in one of our old posts entitled: Courts: Judicial Candidate Challenge Fails in Jefferson County and CJ Editorial: Wood to the woodshed.
We also posted on the legal challenges in judicial elections in 2006 entitled Jefferson County Judicial Elections: Beat 'em In Court if You Can't Beat 'em in the Ballot Box.
And you wonder why we still have the no dueling provision in the oath of office?
Due to the unique relevance to lawyers, judges, and the current campaign season, I have posted substantial portions of this story by Andrew Wolfson.
One comment on the story posted on-line basically sees the writing on the wall if the changes continue in the current direction; eg., "So much for justice being blind. "For Sale" signs out in judiciary campaigns - Can't wait for that one." One can't argue much with the portent of things to come with this decision and the decision last year by SCOTUS which opened the corporate coffers for campaign contributions.
Here is another development in the continuing changes in judicial elections with a further partisan politicization of the process. Soon we will be seeing party endorsements, if not slates, of candidates.
The above image is from the book by C. harles Ashman, "The Finest Judges Money Can Buy and Other Forms of Judicial Polution". Click on this link to obtain the book from Amazon.com.
For the full text of Marcus Carey v. Stephen Wolnitzek, click here.
And for some commentary from Marcus Carey's blog at BlueGrassBulletin.com:
I Stood Up For The Constitution, And Won
I am thrilled to announce that the United States District Court for the Sixth Circuit has affirmed the decision in my case wherein I challenged the Canons of Judicial Ethics in 2006 as violating the First Amendment to the U.S. Constitution.
Here are a few highlights from today's decision, Carey vs. Wolnitzek:
From the Courier Journal:
Kentucky judicial hopefuls get right to solicit funds, reveal party
Judicial candidates in Kentucky have a First Amendment right to announce their political party affiliation and to directly solicit campaign contributions, a federal appeals court ruled Tuesday.
"Elections are elections, and the same First Amendment applies to all of them," a 6th U.S. Circuit Court of Appeals panel said.
The panel also questioned another rule that bars judicial candidates from pledging to rule a certain way on issues likely to come before them, but sent that back to a federal judge for additional consideration.
Marcus Carey, a former Republican Party leader from Northern Kentucky who lost a Kentucky Supreme Court race in 2006 and challenged the rules, said: "It's a great day for the Constitution."
But two candidates for Jefferson District Court said that they won't take advantage of either portion of the ruling because they think the changes will erode confidence in the impartiality of the courts.
"Just because you have a right to do something doesn't mean you should go out and do it," Judge Claude Prather said.
He and challenger Sandy McLaughlin, a former prosecutor, said they will continue to use committees to seek campaign contributions, rather than soliciting donations themselves.
"I just don't believe in putting pressure on people to do that," Prather said.
McLaughlin said litigants would be uncomfortable appearing before somebody who had advertised that he belonged to a different political party.
District court seats in Kentucky are up for election this year; circuit judges don't run for re-election until 2014.
Under the ruling, judicial candidates will still run in nonpartisan elections and their political party won't be identified on the ballot.
Steve Wolnitzek, chairman of the state Judicial Conduct Commission, a defendant in Carey's suit, said it would be up to the state Supreme Court, which sets judicial election rules, to decide whether to ask the U.S. Supreme Court to hear the case.
Carey also challenged a portion of a rule that bars judicial candidates from making statements committing them to rule a certain way "in a case, controversy, or issue that is likely to come before the court."
Judge Katie King and her father, mayoral candidate (and metro councilman) Jim King, were fined $15,000 each today (3/25/2010). His violation was giving $130,000 to her campaign, and her violation was accepting it. Although, the Kentucky Registry of Finance concluded the violations were "not knowing", the Kentucky Attorney General has referred the matter to Special Prosecutor Hart McGibben for investigation (and he has been sitting on this for months!). Justice delayed is justice denied. McGibben needs to get off his duff and get us past this for Judge Kings' sake and/or the voters. Letting this hang over everyone's heads throughout the election is unfair to all concerned. The issues are just not that complicated.
This post follows my earlier post entitled More on the Katie King - Jim King Campaign Finance Story as Legislation Proposed to Clear up the mess from January 25, 2010. And if you wonder how much pain is being felt by this fine, then take a look at this post from January 17, 2010 -ELECTIONS: Jim King throws $760,000 of his own money into his mayor's campaign. And, back on Nov. 17, 2010, we referenced a Page One post in Judicial Campaigns: "Jim King’s Campaign Finance Lawyers Respond" from PageOne
What some might not realize is that the "knowing" is the difference between criminal conduct and bad legal advice from their attorneys and is typically not a defense to criminal violations. [CHAPTER 121 CAMPAIGN FINANCE REGULATION]
In any event, here is the Fox 41 story with a link to the newscast:
Jim and Katie King settle their election finance case with the state. Each has paid a $15,000 dollar fine.
But this does not end the investigations into Katie King's campaign for district judge two years ago. The people who regulate campaign money in Kentucky, members of the Registry of Election Finance, approved the settlement with the Kings in Frankfort on Thursday.
It called for two $15,000 fines and ends the registry's probe, at least, into $135,000 Jim King gave his daughter Katie King for her successful run for Jefferson district judge in 2008. The state limit for everyone -- family members included -- is $1,000 per person.
"A $15,000 fine for each allegation for a total of a $30,000 result, quite frankly, is one of the largest in recent years. So, again, I would say that speaks to the severity of the violation, if you will," said registry chairman Craig Dilger.
* * *
For those who might wonder about the acceptance of this conciliation agreement, it is noteworthy that the consequences of failing to agree would be a political nightmare for an officeholder or a candidate seeking re-election. Imagine a sitting judge coming under the scrutiny of the Chief Justice of the Supreme Court of Kentucky and at least five other retired or former justices about their campaign conduct?!!! The damage to the public's perception, respect and confidence for the judiciary would be terrible. And coincidentally, this would be following the criminal conviction of a Senior Status Judge (Cletus Maricle) in another county on a totally unrelated matter (Jury convicts all 8 defendants in Clay vote-buying case) but both incidents involve campaign irregularities involving members of our judiciary.
CAVEAT: Before going further, I confess I am NOT an elections or campaign finance lawyer. Nor, am a civil liberties lawyer. I practice personal injury and insurance law, plus continue to assist those in claims or actions involving the military (short of criminal law). I offer this as an analysis of someone who campaigned for judge once back in 2002 but does not devote his practice to this subject.
Meanwhile, back to the failure to accept the conciliatory agreement would result in the Supreme Court's involvement in the resolution of the allegations:
For example,
If the alleged violator declines to accept the conciliation agreement or fails to respond within the time allowed, the registry shall submit a written request to the Chief Justice of the Kentucky Supreme Court to recommend not fewer than five (5) nor more than ten (10) retired or former justices or retired or former judges of the Court of Justice who are qualified and willing to conduct a hearing to determine if a violation has occurred. KRS 121.140(4).
And if the KREF believed the violation was knowing (and per some individuals the statute is pretty clear that it is knowing and if clear enough for non-lawyers it should be pretty clear to those who went to law school and are licenses to practice law in the Commonwealth), then the matter is referred for criminal investigation:
If the registry concludes that there is probable cause to believe that the campaign finance law has been violated knowingly, it shall refer the violation to the Attorney General or the appropriate Commonwealth's or county attorney for prosecution. The Attorney General may request the registry's attorney or the appropriate county or Commonwealth's attorney to prosecute the matter and may request from the registry all evidence collected in its investigation. KRS 121.140(5).
Furthermore, the fact that the Kings received some obscure response to an email which was vague and ambiguous should be immaterial to the conclusion on the "knowing" violation as KRS 121.135(3) provides that "(3) No advisory opinion shall be issued by the registry or any of its employees except in accordance with the provisions of this section." Since this same section provides that reliance upon an advisory opinion would not result in a punishment under the same section did not apply (since the Kings were in fact fined), then there is acknowledgement by all that there was no advisory opinion upon which they relied! Translation - nothing official was forthcoming from the KREF prior to the conduct, and most attorneys would have know that an informal remark in an unofficial capacity is of little weight and legal efficacy. However, that misses the point.
More importantly, "It shall be no defense in any civil or criminal proceeding regarding a violation of any provision of this chapter or any administrative regulation promulgated by the registry for a person or committee to claim that he relied upon and acted in good faith based upon any provision or finding of an advisory opinion if the person or committee was not the person or committee involved in the specific transaction or activity with respect to which the advisory opinion was rendered." KRS 121.135(4)(c). Thus no opinion, no out. And the opinion only applies to the person seeking it.
And, what are the consequences of a knowing violation of the campaign finance law (besides the criminal penalties)? The election can be voided and the office declared vacant!!!
The nomination for, or election to, an office of any candidate or slate of candidates who knowingly violates any provision of KRS 121.150 to 121.220, or whose campaign treasurer knowingly violates any provision of KRS 121.150 to 121.220, with the knowledge of that candidate or slate of candidates, shall be void, and, upon a final judicial determination of guilt, the office shall be declared vacant and the officeholder shall forfeit all benefits which he would have been entitled to receive had he continued to serve, and the office or candidacy shall be filled as provided by law for the filling of a vacancy. An action to declare a vacancy under this subsection may be brought by the registry, the Attorney General, any candidate or slate of candidates for the office sought to be declared vacant, or any qualified voter. KRS 121.990(4).
And what does KRS 121.150(6) provide about the contribution?
KRS 121.150 Campaign contribution and loan restrictions and expenditure limitations.
No candidate, slate of candidates, campaign committee, political issues committee, nor anyone acting on their behalf, shall accept a contribution of more than one thousand dollars ($1,000) from any person, permanent committee, or contributing organization in any one (1) election; except that no candidate for school board, his campaign committee, nor anyone acting on their behalf shall accept a contribution of more than one hundred dollars ($100) from any person or more than two hundred dollars ($200) from any permanent committee or contributing organization in any one (1) election. No person, permanent committee, or contributing organization shall contribute more than one thousand dollars ($1,000) to any one (1) candidate, campaign committee, political issues committee, nor anyone acting on their behalf, in any one (1) election; except that no person shall contribute more than one hundred dollars ($100) and no permanent committee or contributing organization shall contribute more than two hundred dollars ($200) to any one (1) school board candidate, his campaign committee, nor anyone acting on their behalf, in any one (1) election.
Although Craig Dilger in the newscast likes to make these rules sound complex, are they really that hard to figure out? Not really. And those reading this include a certified public account and a few lawyers.
You will also note from the news cast that Dilger said that Jim King's contributions were out there for all to see. Let's look at the KREF data base, and you will note that in the publicly filed documents there is no record of those contributions in the amount of $145,000 from Jim King to Katie King as a family contribution:
JAMES (JIM) KING'S 2008 FINANCIAL CONTRIBUTIONS TO KATIE KING AS REPORTED TO KREF [The combined contributions were almost overlooked in the search and may still be two different individuals since the names are different and the occupations different and the addresses different.]
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KING,
JAMES 403 GABLEWOOD CIRCLE LOUISVILLE, KY, 402450000 Employer : KING SOUTHERN BANK Occupation : BANKER |
INDIVIDUAL Contribution $250.00 on 05/15/2008 KING, KATIE for DISTRICT COURT JUDGE - 30TH DISTRICT-16TH DIVISION UNEXPIRED - PRIMARY - 05/20/2008 |
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KING,
JAMES 403 GABLEWOOD CIRCLE LOUISVILLE, KY, 402450000 Employer : KING SOUTHERN BANK Occupation : BANKER |
INDIVIDUAL Contribution $1,000.00 on 09/08/2008 KING, KATIE for DISTRICT COURT JUDGE - 30TH DISTRICT-16TH DIVISION UNEXPIRED - GENERAL - 11/04/2008 |
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KING,
JIM 3400 DUTCHMANS LANE LOUISVILLE, KY, 402050000 Employer : KING SOUTHERN BANK Occupation : EXECUTIVE |
INDIVIDUAL Contribution $1,000.00 on 04/04/2008 KING, KATIE for DISTRICT COURT JUDGE - 30TH DISTRICT-16TH DIVISION UNEXPIRED - PRIMARY - 05/20/2008 |
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KING,
JIM 3400 DUTCHMANS LANE LOUISVILLE, KY, 402050000 Employer : KING SOUTHERN BANK Occupation : EXECUTIVE |
INDIVIDUAL Contribution $1,000.00 on 07/01/2008 KING, KATIE for DISTRICT COURT JUDGE - 30TH DISTRICT-16TH DIVISION UNEXPIRED - GENERAL - 11/04/2008 | ||
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The list of Katie King's contributions to her own campaigns are below the fold of this post and total $243,489.08 for 2008 and $10,000 (thus far) for 2010. You will also note that the timing of a very large portion of those contributions were so late in the campaign cycle that they were not reported until after the election! With the effect that the opponent did not even know the amount of money available to his opponent, AND he did not know where that money was coming from!
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election date receipts disbursements |
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| KING,
KATIE DISTRICT COURT JUDGE - 30TH DISTRICT-16TH DIVISION |
11/04/2008 | UNEXPIRED - GENERAL | 295,931.73 |
250,965.92 | ||
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| KING,
KATIE DISTRICT COURT JUDGE - 30TH DISTRICT-16TH DIVISION |
05/20/2008 | UNEXPIRED - PRIMARY | 111,072.35 |
111,072.35 | ||
And in the general election, the following dates and amounts from Katie King to Katie King were for AFTER the election:
$40,000 on 11/6/08
$11,000 on 11/20/08
$10,000 on 12/04/09
$48,807.35 on 1/6/10 (for debt assumption)
$193,681.73 on 1/6/10 (for debt assumption)
Thus, these contributions were not out there for all to see, including the opponent.
However, McGibben's delay is not fair to either Katie King or the voters; not to mention the fact that the $130,000 (or actually $145,000 in total contributions by Jim King to Katie King) in illegal contributions may very well have been the key to Katie King defeating the sitting judge who was lawfully appointed by the governor and running to retain that seat.
Other bloggers throughout the state are scrutinizing this issue closely:
