One Kentucky judge’s race is so contentious that it’s been taken to court, with the resulting decision being that it’ll be up to the voters to learn about the issues and make a choice.
In the state’s 14th Circuit – which is made up of Scott, Woodford and Bourbon counties – the decision comes down to candidates Rob Johnson and Katie Gabhart. A general circuit court judge makes $141,000 a year and usually presides over civil cases and felony criminal cases.
Gabhart is already sitting on the bench after being appointed to fill a vacancy. Before that, she served 11 years on the Executive Branch Ethics Commission, first as general counsel and then as executive director.
Johnson once held the circuit judge’s seat for 12 years, where he says he conducted over 100 trials. He then filled a vacancy on the state’s court of appeals for two years. He currently works as an assistant commonwealth’s attorney for the 14th circuit.
The complication
Johnson is married to Sharon Muse-Johnson, the current Commonwealth’s Attorney for the circuit he’s running to serve as judge in. Her office handles all of the felony criminal cases for the circuit, meaning Johnson would be unable to hear those cases if elected as circuit judge.
Legal experts have told LEX 18 that while Muse-Johnson leads the office, Johnson would not only be barred from presiding over criminal cases, but also be ethically unable to handle things like grand jury proceedings or signing warrants.
Johnson has assured that, if elected, he would be able to “fully discharge the duties of the office.”
Gabhart has disagreed, citing a canon from the Judicial Code of Ethics that says a judge shall not “participate in activities that will lead to frequent disqualification.”
“I could not sit idly by and let someone run for an office that they know they can not do based on their personal conflicts of interest,” Gabhart told LEX 18.
Johnson declined multiple requests by LEX 18 for a sit-down interview but did answer some questions in text.
In one response, Johnson cited a former Kentucky Supreme Court Justice as saying “these situations exist and responsible judges chosen by the people, find a way to manage the docket fairly and efficiently.”
The proposed solution
Johnson and Muse-Johnson have both said that Johnson could preside strictly over the circuit’s civil cases while the only other general judge in the circuit, Jeremy Mattox, could handle all of the three counties’ criminal cases.
Johnson has said that there are more civil cases in the circuit than criminal cases. A study by the Administrative Office of the Courts in recent years did find that there were more civil filings in the circuit, but that the criminal cases took up significantly more of a judge’s work hours.
When asked if there are any situations similar to what would unfold if Johnson were elected while Muse-Johnson led the prosecutors in the circuit, the Administrative Office of the Courts told LEX 18 that there are not “any judges on the bench who are conflicted out of an entire category of cases on a continual basis.”
“It won't be his problem at that point, all he'll do is recuse, that's easy,” Gabhart said. “Then the real work will have to be done by the chief judge of the circuit, the chief justice of the supreme court will have to scramble to find someone who can handle those cases.”
If Johnson is elected and there are more criminal cases than Mattox can handle alone, a special judge might have to be brought in for $400 a day, experts told LEX 18.
Johnson has cited a Kentucky Judicial Ethics opinion from the 1980sin which it was found that a judge could work in the same circuit where his son served in the commonwealth’s attorney’s office, recusing only from cases his son was directly prosecuting. But in that case, the judge’s son was an assistant commonwealth’s attorney who handled individual cases, not the head of the entire commonwealth’s attorney’s office.
Lawsuit filed
In August two residents of the circuit filed a lawsuit petitioning the court to have Johnson removed from the November 8 ballot.
The attorney for the voters, Greg Coulson, argued at a hearing earlier this month that Johnson should be removed from the ballot because he is not able to do the constitutional duties of the office.
Special Judge Hunter Daugherty, who presided over the case, said that he agreed with some of Coulson’s arguments. He also said that a complaint would likely be filed to the Judicial Conduct Commission if Johnson is elected and the circumstances don’t change. But Daugherty ruled that the decision should go to voters since the conflict could feasibly be remedied. Specifically, if Muse-Johnson were to resign if Johnson is elected as judge.
Coulson’s clients have appealed the decision.
The appeal argues that if Johnson is not removed from the ballot, then the case should go back to circuit court and Muse-Johnson should be called to testify whether she intends to resign as Commonwealth’s Attorney should Johnson be elected.
Gabhart told LEX 18 that she is not part of the lawsuit.
Both Gabhart and Johnson have said they believe that the issue should go to voters.
