A retired Kentucky Supreme Court justice said concerns about a possible conflict of interest if Rob Johnson is elected circuit court judge while his wife, Sharon Muse is the commonwealth attorney are misplaced.
“These situations exist and responsible judges chosen by the people can find a way to manage the docket fairly and efficiently,” said retired Justice Daniel J. Venters. Venters’ comments were made in an email to Muse, but verified by the News-Graphic. Venters retired from the Kentucky Supreme Court in January 2019, after serving since 2008 on the state’s highest court. Before that Venters served as a district judge, circuit court judge and in private practice spanning 35 years in the judicial system.
Johnson has filed to run for the 14th Circuit Judge, Division Two which serves Scott, Bourbon and Woodford counties in 2022. He had previously served as 14th Circuit Judge for 12 years which included winning an eight-year term in 2014, but was appointed to the Kentucky Court of Appeals, Fifth Appellate District, by former Gov. Matt Bevin. Johnson lost in the 2018 general election for the appeals court position. Johnson has been working as an assistant commonwealth attorney since 2019.
To date, no one has filed to run against Johnson. Brian Privett is the incumbent for the 14th Circuit, Division Two, and he has announced he does not plan to seek re-election. Incumbent Jeremy Maddox has filed to run for 14th Circuit Court Judge, Division One.
Muse was elected as Commonwealth Attorney for the 14th Judicial District in 2018. Muse and Johnson were married earlier this year.
“From our first date we have studied this possibility,” Muse said. “Rob is passionate about being a judge and the law. I’m passionate about prosecution. Yes, we discussed the possibility that he would run for circuit judge and any possible conflicts.”
Prior to filing for office, Johnson contacted the state Judicial Ethics Committee for an interpretation if his marriage to Muse would be a conflict were he elected.
“They don’t normally give an opinion until you are actually a candidate, but the indication was this situation is not that unusual,” he said. “I got the impression it could be worked out.”
Now that he is a candidate, Johnson said he has requested a written Judicial Ethics Committee opinion.
“I expect it any time now, but honestly I don’t anticipate it will be any different,” Johnson said.
Spouses as judge and prosecutor are rare in the judicial system, but that is likely to change. Muse is the first female Commonwealth Attorney for the 14th Judicial District in memory, and the number of female judges and attorneys in Kentucky is increasing. In 2006, the number of women in the judiciary in one election cycle soared from about 10 percent to nearly 33 percent, according to a 2020 article in the Kentucky Bar Association “Bench & Bar” magazine.
Some have questioned how it might work with a spouses as judge and prosecutor, but Venters said having family members in a single courtroom setting is not as unusual as one may believe. A 1980 Judicial Ethics Opinion was asked if a judge’s son is an assistant Commonwealth Attorney then should the judge recuse himself from all criminal cases or just the ones in which his son is involved.
“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,” states the 1980 opinion.
The opinion goes on to state a judge should disqualify himself if his impartiality is reasonably questioned, and if his spouse is acting as a lawyer in the proceeding.
However, the 1980 opinion goes on to state, “Moreover, the Commonwealth Attorney’s office is not a law firm and it is not ‘substantially affected’ by the outcome of the proceeding, for the Commonwealth Attorney does not represent clients nor does he have a financial interest in the outcome of the litigation. The distinction between a prosecutor and an attorney in a civil action is well stated in Berger v. United States, 295 U.S. 78 at 88 (1934).
“Although made in a different context, it is relevant here. The Court points out that the prosecutor is the ‘representative not of an ordinary party to a controversy, but of a sovereignty’…whose interest in a criminal prosecution is not that it shall win a case, but that justice shall be done.”
Even so, state law would prohibit Johnson from presiding over a case prosecuted by Muse or even her office. He could preside over criminal cases prosecuted by others beside the Commonwealth Attorney’s Office.
“I would never face him in court,” she said.
The 14th Circuit has two judicial divisions, which according to several legal experts would make it easier managing having spouses as commonwealth attorney and circuit court judge. One division could take only civil cases while the other would take the criminal cases. In other words, if Johnson were elected, he could agree to accept the civil cases, avoiding presiding over a court proceeding in which Muse is the prosecutor. The Administrative Office of Courts and the Kentucky Supreme Court would make the ultimate court assignments, but with two divisions in the district, Johnson said the solution is obvious.
“Assigning one judge to manage civil cases and another assigned to criminal cases makes perfect sense,” Johnson said. “Because people are in jail, civil cases are almost always pushed for criminal cases, and rightfully so. Some civil cases go on for years because they keep getting pushed.”
Some states even require that civil and criminal cases be organized and separated into different divisions with judges managing one or the other. Civil cases can be broad in scope and require much outside research, while much of a judge’s work in a criminal case actually takes place in the courtroom, said an attorney who asked not to be identified. Many criminal trials involve juries, which decide the verdict, while many civil cases are bench trials with the judge rendering the verdict.
The Louisville Courier-Journal published a front page article this week about Johnson’s candidacy and interviewed Frankfort attorney William “Big Bill” Johnson who was described as the “dean of criminal defense bar.” He is no relation to Rob Johnson.
“It’s going to be hard for me to see how the judge will sit in cases with his wife as the commonwealth’s attorney,” Johnson said. “I know he would attempt to be extremely fair, but I’m just afraid there is an appearance of impropriety — not that there is any.”
Bill Johnson then goes on to tell the Courier-Journal that if a single judge was required to take “every felony case in the district, that would likely be one of the heaviest criminal case loads for a circuit judge in the state. As Scott County was the fastest growing county in the state in the 2020 Census, and the district’s population now exceeds 100,000.”
According to the AOC, the 14th Circuit leans heavily towards civil filings with 860 in 2019, compared to 495 criminal filings. In 2020, there were 711 civil filings, compared to 565 criminal filings in the 14th Judicial Circuit. Year-to-date in 2021, the 14th Circuit has 400 criminal filings and 576 civil filings, according to AOC records.
As a comparison to other circuit court districts with two judicial divisions, the 14th Circuit Court had less than a third criminal filings in 2019 than Clark and Madison which had 1,735 or Warren County which had 1,707 or half as many as Boone County, which had 961 criminal filings. Kenton County, which has three judges, had 2,025 criminal filings in 2019. The News-Graphic selected 2019 as a comparison year because it predates the COVID pandemic.
A circuit criminal case is initiated by a grand jury indictment or by prosecutor’s information including at least one felony charge as well as any related charges. Charges are punishable by incarceration greater than one year or death, according to the AOC website.
A circuit civil action involves more than $5,000 and pertaining to contract, personal injury, property damage, land title, right of way, condemnation or medical malpractice, according to the AOF website.
The civil or criminal filings listed above do not include Family Law cases such as domestic relations, adoptions, domestic violence, juvenile cases involving minor children such as paternity, abuse, neglect, etc.
Mike Scogin can be reached at firstname.lastname@example.org.