SCOTT COUNTY, Ky. (LEX 18) — Amid concerns of a potential conflict of interest, Commonwealth's Attorney Sharon Muse is defending her husband's decision to run for judge in the same circuit.
"The question makes sense because if all you hear is there's a prosecutor married to a judge. Well, of course, people are gonna say well, what does that look like," said Muse.
Muse's husband Rob Johnson currently works in her office as an Assistant Commonwealth's Attorney, but filed to run for 14th Circuit Judge, Division Two in early November. He had previously served as 14th Circuit Judge for 12 years before he was appointed to the Kentucky Court of Appeals.
Johnson has requested a written Judicial Ethics Committee opinion for an interpretation on if his marriage to Muse would be a conflict if he were elected.
"We looked up judicial ethics opinions, we got on AOC and looked at the caseload. We read and talked to other judges, what would this look like? And we found that it's not unique to have family members in the same circuit across the state," said Muse.
They're mainly relying on a 1980 judicial ethics opinion involving a father-son duo. The question, in that case, was whether a judge should disqualify himself from all criminal cases if his son is an Assistant Commonwealth's Attorney.
That opinion says, "he should (if possible) disqualify in those cases in which his son is involved, but it is not necessary to disqualify himself in other criminal cases."
It also adds that a prosecutor or Commonwealth's attorney isn't a part to an action or "someone 'substantially affected' by the outcome of the proceeding, for the commonwealth's attorney does not represent clients nor does he have a financial interest in the outcome of the litigation."
"There's literally no room for confusion. The dockets can and should be arranged so the relative does not have to appear before the judge to whom he or she is related. So, I would simply not ever appear in front of Rob," said Muse.
The pair are hoping if Johnson is elected, he would only preside as judge over civil cases. While the only other judge in the circuit handles all the criminal cases.
"I never appear in front of them. We have two divisions. I stay in one, he stays in the other. Our paths don't cross there's no conflict," explained Muse.
According to the Administration Office of the Courts, in 2019 the 14th circuit court had 860 civil filings and 495 criminal filings. In 2020, there were 711 civil filings and 565 criminal filings. Typically, those are split between the two judges.
"Sixty-three percent of casework is civil. That's what Rob would have to do. Thirty-seven percent is criminal. Not only is it a much smaller number, almost 400 more cases, the way these cases are practiced are completely different," said Muse.
Muse says she doesn't feel that would be unfair to the other judge.
"You would hope that reasonable people who are elected would honor the will of voters," said Muse.
She says they've been doing research on the legality of this since their first date, making sure that if they got married, they could continue to pursue their individual career goals.
"The reason we gave ourselves permission to get married and love each other passionately, is because we knew the law allowed us to do this," said Muse.
Legal expert Cary Howard says the situation may not be as simple as that 1980 opinion.
"The law is different now. The court has made rulings and changed the rules since 1980. In a way that makes it clear that what we are interested in is maintaining an appearance of propriety and or avoiding an appearance of impropriety to the whole community," explained Howard.
Howard knows ethics in and out and served as counsel to the Kentucky Bar Association in proceedings for the enforcement of ethical standards. He says the Kentucky Supreme Court will have the final say. But if they allow Johnson to preside over civil cases only, that will eliminate a conflict.
"There could be a blanket recusal or a blanket redirection of those cases to another judge in the circuit or something else. But it's not going to be that judges' individual decision as to how that's handled. It's because others are involved. I mean, the other judge in the circuit may not want to have his criminal case docket doubled," said Howard.
If that judge could not or would not handle all the criminal cases, a special judge would need to step in to help. If it's a sitting judge from another circuit, they have to be paid for their travel mileage. If it's a retired judge they're paid $400 a day plus mileage.
The Judicial Ethics Committee can respond only to formal requests for opinions from judges or judicial candidates on matters affecting them.
Muse says Johnson is expecting a formal written opinion next week.
"If there was a situation where it was a choice between me doing this job and him doing his, it would break my heart but I would step down so he could do his, because this job is important. But he is the best judge we've ever had, and we do need him," said Muse.
Retired Justice "Daniel J Venters" also weighed in on the issue in an email to Muse, which LEX 18 obtained.
"These situations exist, and responsible judges chosen by the people can find a way to manage the docket fairly and efficiently."
Muse was kidnapped by a client in 2006. The judge who presided over her criminal's case was Johnson.
