Kentucky's Legal Headlines for January  2002

• 2002 Louisville Bar Association Officers
  • Martha Hasselbacher, President
  • Michael Luvisi, President-Elect
  • D. Scott Furkin, Vice-President
  • Cynthia Young, Secretary
  • Does anyone know how the officers are elected?
      
• Local Attorneys Participate in Civil Liberties Roundtable
  Jan. 16, 2002
  
  Several local lawyers and historians participated in a recent round table discussion addressing civil liberties and the recent war on terrorism.  Discussion was sponsored by the Courier-Journal at the Speed Art Museum at University of Louisville. Participants were Jonathan Dyar, a local prosecutor; Jon Fleischaker, a Louisville attorney who wrote the state's open records laws; David Friedman, general counsel for the American Civil Liberties Union of Kentucky; Thomas Mackey, chairman of the University of Louisville History Department; Stephen Pence, U.S. Attorney for the Western District of Kentucky; and Paul Weber, a U of L political science professor and author of numerous books and articles about civil liberties.
  • Click here for CJ article.
  • Click here for video clip from CJ.
     
• DUI Warning Causing Headaches for Prosecutors As Supreme Court Hears Arguments
  LouisvilleLaw.Commentary, Jan. 13, 2002.
  
  You can please some of the lawyers all of the time, and all of the lawyers some of the time, but you can't please em all, all of the time.  Last year Kentucky changed the punishment and warnings required under its DUI laws, then some defense lawyers around the state won some local rulings in circuit court dismissing DUI charges against their clients on the grounds that the warning was defective.  
  
  Defense attorneys in Jefferson County had questioned the warning because they say it misleads first-time offenders into believing their mandatory minimum jail time will double if they refuse to take the test. However, there is no mandatory jail time for first offenders, unless aggravating circumstances exist.
  
  Consequently, Jefferson County Attorney Irv Maze attempted to clean up the legislative oversight and preserve the arrests under the new law by adding - ''The Jefferson County Attorney's Office has determined that there is no mandatory minimum jail time for a DUI first offense.''  
  
  Local law enforcement and prosecutors are now in a conundrum as defense counsel challenge not only the warning as worded in the statute, but also the warning as modified by Irv Maze.  See the recent story where the modified warning is being attacked in Jefferson County (click here).  

  The sentence added by Maze is being challenged by Emerson Baynard of Louisville, whose blood-alcohol level was tested at 0.18.  If Bayard loses, he would serve a mandatory four days in jail because of the alcohol level in his blood -- even though he was a first-time offender.  Baynard wants a Jefferson district judge to block prosecutors from seeking the mandatory four days in jail for that aggravating circumstance.  ''The County Attorney's office tricked [ Baynard] to submit to a breath test by promising no jail time,'' John Olash, Baynard's attorney, said in his motion.

  Meanwhile, Kentucky Supreme Court now has to address the warning as prescribed by statute and which arises from a Jefferson County District Court Case wherein Judge Judge James Green ruled that the warning misrepresented the potential penalty facing first-offense DUI suspects.  Other judges elsewhere had issued rulings similar to Green's, dismissing blood-alcohol test results as evidence and making it difficult to prosecute cases.  
  

  • Click here for Courier-Journal story regarding the district court dismissal.
  • Click here for the Courier-Journal story on the arguments before the Kentucky Supreme Court.

  In the meantime, Jefferson County has over 900 DUI cases affected by the ruling under the old warning (the one required by the legislature). 
  
  Jefferson County Attorney Irv Maze is now left with the monumental task of cleaning up after the legislature and convincing the Supremes that the warning given to drunken-driving suspects about taking a blood-alcohol test is really an issue of penalties, rather than a constitutional problem.  Any problems with the warning are ''harmless,''.  Of course, he has to fight the current onslaught of the modified warning.  Some days it's tough to be a prosecutor and see that justice is done.
  
  Click here for the search results on other Courier-Journal articles on the DUI Warning issues.
    

• Epilogue On Radolovich Story - It's really a tale of three tales or which tale is wagging which dog?
  LouisvilleLaw.Commentary
  Jan. 13, 2002, Mike Stevens .
  
  The beauty of the internet is that it is interactive.  After publishing a commentary on the Courier-Journal story on allegations against a local Louisville lawyer telling some whoppers, another attorney mentioned to me that there were actually THREE stories on Fred Radolovich - the first was a critical piece highlighting the malicious prosecution suit brought against Radolovich by local neurosurgeon Dr.John Guarnaschelli as a result of a dismissed malpractice suit earlier (this story was by Andrew Wolfson who published the third story); the second story was the puff piece on Radolovich highlighting his war crimes and barrister status which hit the press just weeks after the first (author unknown to me at this time, but I am told she is no longer with the Courier); and the third story correcting factual errors in the second story (by Andrew Wolfson).  I did not hit up on this series in too much detail because Wolfson did an outstanding factual recitation of these in his third story with the obvious implications behind the puff piece. 
  
  It's only a shame the other stories are no longer on line to give the reader a complete picture of the scenario.  
  • Kudos to Wolfson; 
  • Raspberry to the CJ overseers. 
    
• A Tale of Two Tales - Courier-Journal Articles on 
  Louisville Lawyer Fred Radolovich
  LouisvilleLaw.Commentary
  January 10, 2002, Mike Stevens
  
  The January 8, 2002 Courier-Journal had a front page article on local lawyer Fred Radolovich - "Tribunal officials say Louisville lawyer lied about war-crimes work".  Unfortunately, the on line story from July 4, 2000 was no longer available and was only summarily reviewed.
  
  However, what is the real story here? Lawyer lied or Louisville newspaper posted front page story without verifying facts in the first article?  Or is neither headline really a headline?
  
  If the first reporter had simply checked the sources that Andrew Wolfson did in his second article, then there would have been no story other than lawyer tells tall tales to friends and reporter.  Big deal.  
  
  However, this does raise an interesting issue regarding the newspaper.  The earlier story was obviously designed as a flattering piece and the contents of the story were newsworthy (if true); and heaven knows lawyers can use all the favorable publicity they can get, individually and professionally.  But without verifying the facts in a story, then the story becomes the fact. 
  
  • "Once a newspaper touches a story, the facts are lost forever, even to the protagonists." Norman Mailer.
  • "A newspaper is a device for making the ignorant more ignorant and the crazy crazier." H.L. Mencken.

  Now what is the point I am trying to make?  The rest of the story is that there should have been no story on July 4, 2000.  Failure to investigate produced not one but two headlines, and the second headline still focused on the lawyer and ignored the newspaper's conduct.
  
  Make no doubt about it - I do not sanction lawyers lying.  But keep in mind who was the victim of these alleged tall tales?  Was an individual client hurt?  No.  Was the public hurt? A little (but let us put it in perspective in today's environment). Was the legal profession tarnished?  You bet.  Should he lose his license or be sanctioned?  No way.  Drop it, and drop it now.

  However, the Courier-Journal should take another look and give kudos to Mr. Wolfson for correcting the error which really amounts to a left-handed retraction and a slap on the wrist to whoever allowed the first story to hit the print.  Mr. Wolfson laid what appears to be an organized and factual story on Mr. Radolovich and his alleged involvement in war crimes prosecution.   Now let's see if the Courier tells the rest of the story regarding the part they played, or more importantly - how the newspaper became the story too.

  For other Courier-Journal articles which mention Fred Radolovich and his representation of clients here in the local courts (much easier to verify don't you think), then click here.
  

• Jefferson Commonwealth's Attorney Dave Stengel Assumes Presidency Of Kentucky's Commonwealth's Attorneys

  Dave Stengel, Commonwealth’s Attorney for Jefferson County, Kentucky, assumed the Presidency of Kentucky’s Commonwealth’s Attorneys at their Winter Conference in Lexington for year 2001. As leader of Kentucky’s 56 elected felony prosecutors, Stengel will work closely with the Legislature when it convenes in January, 2002. He brings experience to his new position, having previously served as a member of the Kentucky General Assembly.

• Franklin Circuit Court stops way state rules reviewed
  Courier Journal Story Jan. 12, 2002

  Franklin circuit judge Judge William Graham ruled lawmakers have exceeded their authority by, in effect, vetoing regulations between legislative sessions. This ruling affects issues from the state's regulation of huge hog farms to the cost of prescription drugs in the Medicaid program to insurance practices.  Administrative regulations often 'flesh' out laws implemented by the legislature.

  State agencies can not reinstate regulations previously rejected by a single committee. If the legislature doesn't like the regulation, then the legislature (not a single committee) can make that decision during a session and not allow the single committee to do so between sessions.

  • Toyota Manufacturing, Kentucky, Inc. v. Williams, 
    No. 00-1089 (Jan. 8, 2002)

    EMPLOYMENT DISCRIMINATION -- HANDICAP DISCRIMINATION
    In an employee's suit under the Americans with Disabilities Act of 1990 claiming to be disabled by carpal tunnel syndrome from performing her automobile assembly line job, the Sixth Circuit did not apply the proper standard in determining that the employee was disabled where it analyzed only a limited class of manual tasks and failed to ask whether the employee's impairments prevented or restricted her from performing tasks that are of central importance to most people's daily lives.

    Link: http://www.usscplus.com/current/cases/PDF/9920009.pdf
    

• Louisville Lawyers on the Move in December
  • Courtney Howell-Kidd opens her own office in Dupont Circle. 
  • Edward J. Smith, Richard A. Greenberg, and Dan Deetsch form new partnership together.
  • Heather Hughes joings Pedley Zielke & Gordinier.
  • David Bowles joins Landrum & Shouse.
  • Kevin Norris & Ashley Pack join Disnmore & Shohl.
  • Jennifer Frazier joins Donald H. Smith.
  • Carolyn Bauer & Thomas Fenton join Morgan & Pottinger.
  • Martin A. Arnett member of Phillips Parker Orberson & Moore (who adds Deirdre MacCarthy and Tricia Le Meur as associates).
  • Tom McMahon hired by Greater Louisville Health Enterprises Network.  
• Who Pays For Police Misconduct? We do.
  But is it really police misconduct or just a 'cop out' by the insurers and the city???
  The cost? $1.15 million in legal settlements in Rodney Abernathy, Desmond Rudolph, and Adrian Reynolds' deaths.  
  Series of headlines of settlements reviewed.
  Jan. 20, 2002
  
  Over the last year, there have been headlines over the Rodney Abernathy, Desmond Rudolph, and Adrian Reynolds deaths that occurred in situations involving Louisville law enforcement or jail personnel.  In the last month or so, these suits have been settled for a total or $1.15 million dollars.  Although these settlements may have been paid by the city's insurer, the money ultimately comes out of the citizens' pockets whose taxes are used to pay the insurance premiums which are surely going to go up - so all of us will be paying for quite some time.  

  Let's go one step further.  Why are they paying?  The series of articles in the papers seem to favor the police in Abernathy and Rudolph; so why pay?  If the police did nothing wrong in these deaths, then don't pay.  Let a local jury decide the issue and either exonerate or blame the police.  However, when the cases are settled it looks like the city did something wrong even though all lawyers know that liability is not the only reason cases settle.  Other factors come into play such as the costs of defense, problems of proof, avoidance of bad publicity, putting the matter behind, avoid bad press, etc. etc. etc. 
  
  The past is the past, but as the old saw goes - those who forget the past are doomed to repeat it.  It would be nice if the city and the law enforcement agencies would institute some type of publicity campaign to let us know what has been learned by these incidents and how they are going to be avoided again. I know they are out there;  I have read about them on the back pages of the newspapers.  But the bad news hits the front page, but the good news gets much less print and visibility.

  Even if the individual police officer is in error, most of the police officers in Jefferson County are the finest in the nation.  But even the best have some bad days and some bad situations.  However, three deaths under controversial circumstances are three too many.  And I am not convinced based upon the news articles that the police are entirely wrong in causing these deaths.  I am sure something has been done, is being done, and continues to be done.  Let's see some of the positive works make it to print.  Even if it does not sell newspapers, it can sell the public that the police force is working hard for all of us and needs our respect and support. 
  
  But the news stories continue -  Patricia Lewis, mother of 18-yearold Clifford Lewis, said she was hurt and disappointed after learning Detective Johann Steimle would not be disciplined for her son's death on Jan. 9, 2001 and that she plans to sue the city.  Again, an upset mother who claims she will sue is news and only represents one side of the story.  But, it does make the job for those on the front line harder to do.  Click here for Courier-Journal story on Clifford Lewis. 
  

  • Rodney Abernathy:
    • City to pay $600,000 in police-shooting suit
    • Click here for Courier Journal stories on this case
  • Desmond Rudolph:
    • City will pay $200,000, settle suit in shooting
    • Click here for Courier Journal stories.
  • Adrian Reynolds:
    • Reynolds settlement $350,000, Maze says
    • Click here for Courier Journal stories.
  • How about some online stories culled from the archives of the Courier-Journal on:
    • Police misconduct
    • Police shooting
  • Epilogue (Jan. 27, 2002) - Here are some responses per news articles:
    • Jefferson to test police for drugs
  • 
    
• Crazed Cats Fans File A "No Class" Action Suit Against Lawry Minors - Local Sports Celebrity and Former Shock Jock
  The following parody was prompted by the recent online onslaught against Terry Meiners a/k/a Lawry Minors.
  • PIE HOLE SPECIAL EDITION:
    CATS LOSE TO U of L, END OF THE WORLD IMMINENT
    Lexington, Ky. ----December 29, 2001, 6pm
  • Web site satire of UK fans sparks outrage in Eastern Kentucky - Lexington Herald-Leader Article January 4, 2002
  • David Hawpe's Opinion from Janl 6, 2001 Courier-Journal - "Humor" That Hurts
  • LouisvilleLaw's Special Satire Edition January 4, 2002

    Krazed Katz Fans Klaim No Klass in Kruel Karikature
    January 5, 2002 6:00 p.m.

    Local Louisville celebrity and fabled cat-smasher Lawry Minors has jest been served papers in a " No-Class" Action Lawsuit for his libelous and slanderous remarks about UK Basketball and its adoring fans. . . .
      

• New Local Chief Judges for 2002

  Chief Judge James Shake Jefferson Circuit Court	Chief Judge Kevin Garvey Jefferson District Court
  Chief Judge John G. Heyburn, II    U.S. District Court for the Western District of Kentucky

• Civil-rights group files suit over secession issue
  The Justice Resource Center's suit asks that a Jefferson Circuit Court judge remove the state law's legal barriers that greatly limit residents' ability to form a new municipality within Louisville.  The suit claims that residents have been denied the right to choose their own leaders and contends that Louisville services are inadequate. 12.29.2001 Courier-Journal.
  
• Jury awards $30,000 in excessive-force case
  Testimony of 2 Jefferson officers is shown to have changed at trial.  A man who says he was kicked, punched and beaten by two Jefferson County police officers after they thought he made a wisecrack about ''cops and doughnuts'' has won $30,000 in damages from a jury that found the officers used excessive force. 12.29.2001 Courier-Journal.
• Suit over DUI arrest removed to federal court
  Woman with Multiple Sclerosis alleges officer's acts malicious.  The case of a Pewee Valley woman with multiple sclerosis who claims an Oldham County police officer falsely arrested and maliciously prosecuted her on a charge of driving under the influence of drugs has been removed to federal court at the request of Dave Whalin, an attorney for Officer Aaron Gutermuth, because it involves federal constitutional claims. Courier-Journal 12.28.2001.
  
• $80 million Humana verdict re-examined by Florida court
  An appeals court that threw out a nearly $80 million verdict against a Kentucky-based health insurance company for terminating treatment for a girl with cerebral palsy will rehear the case. The 4th District Court of Appeals said  it will hold a rehearing before a three-judge panel, but denied a hearing before its full 11 judges, or en banc. Herald Leader 12.28.2001.
  
• Judge Forester Dismisses Ashland Actor Sonny Landham's Lawsuit in Federal court
  U.S. District Court Eastern Kentucky District Chief Judge Karl S. Forester dismissed a civil rights suit against his former wifeBelita Adams, former Lewis County Commonwealth's Attorney Lloyd Spear and two officials with the Lewis County Child Welfare Agency, for failure to state a claim. Landham, representing himself, had alleged the defendants violated his civil rights during and after his 1998 divorce and custody fight and during his prosecution on felony non-support charges.
  
  The alleged civil rights allegations arose from the defendants' conduct which resulted in a federal criminal case that led to Sonny's conviction on charges of threatening to injure and kidnap Adams and making lewd and harassing interstate calls. The criminal case was overturned on appeal after Landham had served three years in prison.

The decision held there was no civil rights claim again the ex-wife who was not a state official and did not act under color of state authority; claims against Spear were dismissed since the commonwealth attorney is immune from suit;.

Sonny Landham starred in such movies:
Taxi Dancers  (1993); Maximum Force  (1992);Lock Up  (1989); CondenaçãO Brutal  (1989);Predator  (1987); Firewalker  (1986); Fortune Dane  (1986); Northstar  (1986); Aventureiros Do Fogo  (1986); Dirty Dozen: The Next Mission  (1985); Fleshburn  (1983); 48 HRS.  (1982); The Switch  (1979).

• Two Louisville Lawyers pedalled away across America this summer - Nancy McElwain & Christina Norris.

• Jury recommends life in prison for Quarels

• Dawahare's manslaughter conviction tossed

• Three to be tried over fliers mocking public figures

• Tina Quarles found guilty of murder in arson death of her  2-year-old child

• Former Oldham police officer sues over her dismissal

• Woman's plea ends harassing e-mail case in Bullitt County

• Basketball players take stand in trial

• Sex used to lure murder victim in Anderson, prosecutor says

• Trying to overcome the bad dreams

• Murder suspect has waited for trial since 1987

• Ex-Harlan sheriff, guilty in murder plot, seeks election

• Tippecanoe judge's suicide puzzles friends, colleagues

• Town reaches out to law school in wake of shooting

• At 92, lawyer is still practicing

• Ragland murder trial postponed until March

• Suspect mentally ill, both lawyers agree
• Couple held on charge of setting fire at church
• Cheerleader at UK charged in rape case
• Lawyer says woman was insane when she killed son
• Doctor goes on trial on charges he prescribed OxyContin without 
• Order on abortion counseling is filed in court
• Roger Holsey's fight for justice hits close to home
• Bill would expand use of DNA evidence in Kentucky courts
• Law student kills 3 at Appalachian college
  • Student held in killings asked for help, got it, classmates say
  • Law school's dean remembered as kind, eager to help others
• Prisoner claims denial of speedy trial
• Teen gets life sentence in killing
• Ignatow sentenced to 9 years for perjury
• Order on abortion counseling is filed in court
• City to pay $600,000 in police-shooting suit
  • Suit settled in police shooting
• Funeral directors' board bans man for life
• Psychologist says woman charged with sex abuse not fit for trial
• Family says it will sue over police shooting
• Judge allows tests of bullets as evidence in DiGiuro murder case
• Former UK professor gets 3 years' probation
• Ex-Indiana trooper's trial in slaying of wife, kids begins
• Jefferson corrections officer charged with drug possession
• Homicide total falls sharply in Louisville, rises by one in Jefferson
• Group takes on ACLU over postings
• Judge sets aside verdict that awarded deputy $762,000
• Doctor accused of overprescribing wants license back
• Suit targets prospect of free electricity
• 16 indicted for policies sold to Kelco in Lex.
• Ex-Garrard official sentenced in theft
• Judge fines women who return to their alleged abusers
• Suit says body was buried in wrong grave deliberately
• OxyContin maker wins round in court
• Man sentenced in drug-test bribery case
• Lawyer was colorful figure
• City will pay $200,000, settle suit in shooting
• Reynolds settlement $350,000, Maze says
• Foreclosures up in Jefferson County
• Bullet tests may be key to Ragland trial
• Lexington officer sues firm over mall shooting
• Poster often last resort for child support
• Ex-friends say Wilkinson got loans by fraud
• Security firm sued for hiring of guard
• Ex-Lowe's worker's bias suit reinstated
• Commandments litigation hinges on U.S. history
• Patton staff member is accused of burglary
• Taulbee told to enter prison on Jan. 7
• Court approves property manager
• Florida appeals court to revisit its verdict in $80 million Humana case

*953 Frank E. Haddad, Jr., George Salem, Jr., Louisville, for movant.
George F. Rabe, James D. Lawson, Executive Secretary, Retirement and Removal Com'n, Lexington, for respondent.

 Freedom of speech extends to a candidate for public office, including judicial offices. "The candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues *955 and vigorously and tirelessly to advocate his own election...." Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). This right of free speech is not absolute, however. States have the authority to regulate this conduct within certain limitations if in the public interest. Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). "(A) person does not (however) surrender his constitutional right to freedom of speech when he becomes a candidate for judicial office. A state cannot require so much." American Civil Liberties Union of Florida, Inc., et al. v. The Florida Bar, et al., 744 F.Supp. 1094 (1990).

The courts are charged with reviewing state regulations to determine if a regulation is necessary to serve a compelling state interest, and if it has been narrowly written to protect against the evil that the government can control. Brown v. Hartlage, 456 U.S. 45, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982). Where a regulation extends so far as to completely outlaw speech because of the subject matter of its content, there is a strong presumption of its unconstitutionality. Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981).

Moreover, restrictions affecting free speech that can result in disciplinary action to the speaker are subject to an even stricter scrutiny. In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978). The question then becomes whether the enacted regulation has been so narrowly drafted, and strictly applied, that the compelling state interest is served without unnecessarily burdening the exercise of free speech? See, First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978).  By Section 121 of the Kentucky Constitution, the authority to regulate the conduct of the judiciary was conferred upon the Kentucky Supreme Court. The Code was adopted, effective January 1, 1978, through Supreme Court Rule, drawing upon the text of the 1972 American Bar Association ("ABA") Model Code of Judicial Conduct. The ABA Model Code was substituted for the "Canons of Judicial Ethics" which had been originally formulated some 50 years earlier to provide judges with minimum ethical standards of conduct. Although minor amendments have been made to Kentucky's Code since its adoption, there have been no substantive changes in its provisions since that time, nor has this Court previously considered the more recent Model Code of Judicial Conduct adopted by the ABA House of Delegates on August 7, 1990.

The focus of the allegations against Justice Combs centers on Canon 7(B)(1) of the Code. These sections provide in pertinent part that a candidate for judicial office:

(a) should maintain the dignity appropriate to judicial office, ...; (and)
(c) should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; (or) announce his views on disputed legal or political issues.... SCR 4.300, Canon 7(B)(1).
The Commission found that the statements made by Justice Combs announced his views on conflicting judicial opinions which it termed "disputed issues," giving him an "unwarranted and illegal advantage in the election over his primary opponents." Commission Findings at 7. It further determined that his criticism of a Supreme Court personal injury decision, and his opponent's vote on the case, was an indirect pledge or promise of conduct in office other than the faithful and impartial performance of his duties of office. Id. at 9. Moreover, because Justice Combs had been "explicitly warned" in the Commission's informal conference after the primary election that his campaign conduct may be in violation of the Code, and he subsequently continued to speak out on such issues, the Commission found his actions were "undertaken deliberately and in bad faith, and constituted misconduct in office in violation of SCR 4.020(1)(b)(i)." Id. at 10-11.

Justice Combs argues that by becoming a judicial candidate, subject to the Code, he did not lose his right to exercise his free speech. By discussing opinions that he has authored, criticizing his opponent's position *956 on legal issues, and explaining to the public his judicial philosophy, he was, he submits, informing the electorate of his views so that an informed decision could be reached at the ballot box. Justice Combs asserts that to restrict his political speech from all "disputed legal or political issues" unconstitutionally deprives him of free speech without a compelling state interest.

There can be no question that the state has a compelling interest to protect and preserve the integrity and objectivity of the judicial system. "The state's interest in ensuring that judges be and appear to be neither antagonistic nor beholden to any interest, party or person is entitled to the greatest respect." Morial v. Judiciary Com'n., 565 F.2d 295 (5th Cir.1977), cert. denied, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978). Untruthful or misleading statements, or pledges of specific judicial conduct on pending cases, cannot be tolerated. Nor can judicial candidates be allowed to make promises or predispositions of cases or issues that are likely to come before the courts that might reflect upon a judge's impartiality.

 However, SCAR 4.300 Canon 7(B)(1)(c) is not so narrowly drawn as to limit a candidate's speech to such specific prohibitions. Instead, the section prohibits all discussion of a judicial candidate's views on disputed legal or political issues, and thus unnecessarily violates fundamental state and federal constitutional free speech rights of judicial candidates.

It should be noted that Kentucky's Constitution provides for the selection of its judiciary by popular election. [FN2] Ky. Constitution, Section 117. Accordingly, we "... must recognize the candidates' right to make campaign speeches and the concomitant right of the public to be informed about the judicial candidates." American Civil Liberties, supra at 1097. Other than allowing a judicial candidate to state a professional history, and promise faithful and impartial performance of duties if elected, the existing Canon strictly prohibits dialogue on virtually every issue that would be of interest to the voting public. Inasmuch as the purpose of an election is to give the electorate the opportunity to become informed on a judicial candidate's qualifications for the position, which would include, among other things, knowledge of the law, and personal views and beliefs, the Canon fails in this respect. Instead, we are encouraging the public to judge candidates for our judiciary by not much more than their personal appearances. We believe a well informed electorate is essential to the democratic election process guaranteed by the Kentucky Constitution. The rights of the voting public to hear what a candidate has to say is a compelling one. We further believe candidates for judicial office can announce their views on legal and political issues without jeopardizing the integrity and independence of the legal system or undermining the impartiality of the judiciary. See, Code, Canons 1 and 2. [Kentucky is one of 10 states that utilize a nonpartisan election for selection of its judges at all court levels. The merit selection method is utilized by the majority of the states.]

Finally, we must address the Commission's determination that Justice Combs' campaign conduct failed to uphold the integrity of the judiciary, did not promote the impartiality of the judiciary, and did not maintain the dignity appropriate to judicial office. See, Code, Canons 1 and 2; 7(B)(1)(a); Commission Findings at 7-9. The basis for these Findings again centers on speech which falls within constitutional protections. We can find no evidence that violations of these Canons occurred, especially when viewed in the context of Justice Combs' right to free speech. To criticize the provisions of the Code and published court decisions does not in our view, in and of itself, undermine the public's confidence and respect for the judiciary.
 
Because of our ruling herein, we find it unnecessary to address the other issues raised by the parties herein in their briefs.
Accordingly, IT IS HEREBY ORDERED that the Findings of Fact, Conclusions and Order of the Commission are vacated and set aside, and all of the charges against Justice Combs should be, and are hereby, dismissed.

RUTH H. BAXTER, Special Chief Justice, and ROBERT L. BERTRAM, WILLIAM DONALD OVERBEY, PATRICK W. MATTINGLY, DAVID F. PRATT, THOMAS J. MEYER, and WILLIAM H. JONES, Jr., Special Justices, sitting.

All concur.

ROBERT L. BERTRAM, Special Justice, files a concurring opinion.


ROBERT L. BERTRAM, Special Justice, concurring.
I agree with the rationale and result reached by the majority; however, I do not think the opinion goes far enough in that the Commission materially misrepresented what the advertisements actually said. A body such as the Commission should use extreme diligence to insure that the quotes they attribute to a candidate are accurate. One of the Commission members had obviously formed an opinion at the informal conference and, having done so, should have disqualified himself from serving. 

As the Judicial Canon has been determined unconstitutional, it should be rewritten by this Court.

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