uyrrritr Courf o

2005-SC-000872-D

ORDER

TO BE PUBLISHED

CAMILLE E. DEAN, CO-PERSONAL

REPRESENTATIVE OF THE ESTATE OF DAVID

H . DEAN, SR. ; DAVID H . DEAN, JR., COPERSONAL REPRESENTATIVE OF THE ESTATE

OF DAVID H. DEAN, SR. ; ROBERT J . BURNS, SR.,

CO-PERSONAL REPRESENTATIVE OF THE

ESTATE OF DAVID H. DEAN, SR. ; CAMILLE E.

DEAN, INDIVIDUALLY; CAMILLE E . DEAN,

BENEFICIARY OF THE ESTATE OF DAVID H .

DEAN, SR. ; DAVID H . DEAN, JR., INDIVIDUALLY;

DAVID H . DEAN, JR., BENEFICIARY OF THE

ESTATE OF DAVID H . DEAN, SR. MOVANTS

ON APPEAL FROM COURT OF APPEALS

V. NO. 2004-CA-001345

JEFFERSON CIRCUIT COURT NO . 2000-CI-5764 AND 2000-Cl7505

JOHN T. BONDURANT; WINSTON E. MILLER;

FROST, BROWN & TODD, LLC; FROST, BROWN &

TODD, LLC, AND ITS PREDECESSORS IN

INTEREST; BROWN, TODD & HEYBURN, PLLC, A

PARTNERSHIP RESPONDENTS

The Order of Recusal entered June 6, 2006 and attached hereto, is

hereby designated To Be Published.

All Concur, except Roach, J ., not sitting .

Entered : June 7, 2006.
CAMILLE E . DEAN, CO-PERSONAL

REPRESENTATIVE OF THE ESTATE OF DAVID

H. DEAN, SR. ; DAVID H. DEAN, JR., COPERSONAL REPRESENTATIVE OF THE ESTATE

OF DAVID H. DEAN, SR. ; ROBERT J. BURNS, SR.,

CO-PERSONAL REPRESENTATIVE OF THE

ESTATE OF DAVID H. DEAN, SR. ; CAMILLE E.

DEAN, INDIVIDUALLY; CAMILLE E. DEAN,

BENEFICIARY OF THE ESTATE OF DAVID H.

DEAN, SR. ; DAVID H. DEAN, JR., INDIVIDUALLY;

DAVID H . DEAN, JR., BENEFICIARY OF THE

ESTATE OF DAVID H. DEAN, SR.

V.

,iuyrrum Courf of ~6nfurhV

2005-SC-000872-DR

ON APPEAL FROM COURT OF APPEALS

NO. 2004-CA-001345

JEFFERSON CIRCUIT COURT NO. 2000-CI-5764 AND 2000-CI7505

JOHN T. BONDURANT; WINSTON E. MILLER;

FROST, BROWN & TODD, LLC; FROST, BROWN &

TODD, LLC, AND ITS PREDECESSORS IN

INTEREST; BROWN, TODD & HEYBURN, PLLC, A

PARTNERSHIP

ORDER OF RECUSAL

On December 6, 2005, the Movants filed a motion to disqualify me from

participating in the decision whether to grant their Motion for Discretionary

Review, filed on November 7, 2005, and any further proceedings, should they be

necessary. While the Movants fail to cite any legal authority in their motion, they

appear to claim that my"impartiality might reasonably be questioned." SCR

4.300, Canon 3E(1). The Movants base their claim on the fact that Respondents'

counsel, James E . Milliman, and some Respondents, including Winston E. Miller
and certain other members of the law firm Frost, Brown Todd, LLC (" BT"), were

designated as hosts of a fundraiser for my campaign.' The inquiry under. Canon

3E(1) "is an objective one, made from the perspective of a reasonable observer

who is informed of all the surrounding facts and circumstances ." Microsoft Corp.

v. United States, 530 U .S . 1301, 121 S.Ct. 25, 26 (2000). 2

The decision to recuse should not be made lightly by a Kentucky Supreme

Court Justice . The unnecessary disqualification of a single justice has a

significant practical impact. In a matter where one justice recuses, the Court will

hear the case with only six justices. In order for a motion for discretionary review

to be granted by the Kentucky Supreme Court, the movant must receive at least

four votes . The four-vote requirement remains, regardless of whether six or

seven justices actually hear the case. Thus the recusing justice is effectively

casting a vote against the petitioning party. See Cheney v. U .S. Dist. Court for

Dist. of Columbia, 124 S.Ct. 1391, 1394 (2004) ("Moreover, granting the motion

[to recuse] is (insofar as the outcome of the particular case is concerned)

' I find it particularly ironic that counsel for Movants has characterized this case

as "David versus Goliath," arguing that my recusal is necessary to create "a level

playing field ." Tom Loftus, Motion asks Supreme Court to block justice from

hearing Louisville case , Courier-Journal , December 8, 2005. While such rhetoric

makes for good newspaper copy, it ignores and obscures the complexity of this

situation. After all, as a private attorney, I represented an individual that sued

Respondents' predecessor in interest, Brown, Todd & Heyburn, and argued

successfully before this Court that my client had been improperly denied

discovery by the trial court. See Morrow v. Brown, Todd & Heyburn, 957 S .W.2d

722 (Ky. 1997).

2 I have determined that the bench and bar could benefit from a thorough

analysis of the issues raised by Movants . Although substantial portions of this

order address issues which are unique to a Supreme Court justice, much of my

analysis regarding campaign contributions is applicable to all judges. Therefore,

I have departed from my usual practice of issuing short orders on recusals.
effectively the same as casting a vote against the petitioner. The petitioner needs

five votes to overturn the judgment below, and it makes no difference whether

the needed fifth vote is missing because it has been cast for the other side, or

because it has not been cast at all .") ; Steven J . Lubet, Disqualification of

Supreme Court Justices : The Certiorari Conundrum, 80 Minn . L. Rev. 657, 658

(1996) ("Recusal often appears to be the perfect judicial prophylactic in these

situations: if there is a hint of bias, disqualify the judge. At the certiorari stage,

however, the disqualification of a Supreme Court Justice actually may harm the

very party it was intended to protect . Thus, the right of the petitioner to apparent

impartiality may be secured, but only at the cost of actual disadvantage when it

comes to obtaining Supreme Court review.") .

Additionally, one recusal creates the risk of the Court being equally

divided. See Microsoft Corp. , 530 U .S . at 1301, 121 S .Ct. at 26-27 ("Not only is

the Court deprived of the participation of one of its nine Members, but the even

number of those remaining creates a risk of affirmance of a lower court decision

by an equally divided court.") . This concern is no less valid when applied to the

Kentucky Supreme Court. Unlike the other levels of the Kentucky Judiciary,

where, for example, another trial judge can hear the case or a different judge can

be added to the Court of Appeals panel, there is no remedy for the recusal of a

single justice . A 3-3 decision on the issue of discretionary review would mean

that the case would not be reviewed and the decision of the lower court would be

upheld . Thus, "it is important that we not lightly recuse ourselves ." Ruth Bader

Ginsburg, An Open Discussion with Ruth Bader Ginsburg, 36 Conn . L. Rev.
1033, 1038-39 (2004) (footnote omitted); see also 1993 Statement of Recusal

Policy by Justices of the United States Supreme Court ("We do not think it would

serve the public interest to go beyond the requirements of the statute, and to

recuse ourselves, out of an excess of caution, whenever a relative is a partner in

the firm before us or acted as a lawyer at an earlier stage . Even one

unnecessary recusal impairs the functioning of the Court.") .

Despite these important concerns, 1 will recuse when the circumstances

demand it . See, e.4 . , Baze v. Crittenden, No. 2005-SC-000162-OA (Ky. July 13,

2005) (order of recusal from Baze's challenge to the constitutionality of

Kentucky's lethal injection method). Given the special practical difficulties that

arise with the recusal of a Kentucky Supreme Court Justice, however, any

decision to recuse demands the full consideration of all relevant factors .

At the outset, it is important to note that, in this case, the party seeking

discretionary review is also the party seeking my recusal . As I have explained,

they are essentially requesting that I vote against them. The factual basis for

Winston E. Miller and several other members of FBT, which is also designated as

a party in this case.

Movants' claim is that I have received campaign contributions from both

Respondents' counsel, James E . Milliman, and from Respondents themselves,

First, under Kentucky's campaign election finance system, it is obvious,

even expected, that lawyers will make most of the contributions to judicial

candidates. In fact, Kentucky Bar Association Ethics Opinion E-277 states:

EC 8-6 states that lawyers, because of their opportunity for

personal observation and investigation, have a special
responsibility to aid in the selection of those who are qualified for

judicial office . This responsibility includes endorsements and

contributions made by attorneys to campaigns.

(internal quotation marks omitted)(emphasis added). E-277 also explains that

"[I]awyers are under an affirmative duty to take an active role in selecting

qualified judicial candidates both publicly and monetarily ." Hundreds if not

thousands of lawyers regularly contribute to judicial campaigns across the

Commonwealth . Such conduct by an attorney representing a party is simply not

improper and is an insufficient basis to demand a judge's recusal.

This is the view adopted by other states that also elect their judges.

Moreover, most of these states make no distinction between donations made by

parties and those made by attorneys . See MacKenzie v. Super Kids Bargain

Store, Inc. , 565 So.2d 1332, 1335 (Fla . 1990); City of Las Vegas Downtown

Redevelopment Agency v. Eighth Judicial Dist. Court ex rel. County of Clark, 5

P.3d 1059, 1062 (Nev. 2000); Adair v. State, Dep't of Educ. , 709 N.W.2d 567,

579-81 (Mich. 2006). The Florida Supreme Court .explained:

It cannot be denied that some persons may perceive that the

judge will be biased in favor of the contributing litigant or attorney

based solely on the fact that a contribution was made. As noted

above, however, the standard for determining whether a motion is

legally sufficient is whether the facts alleged would place a

reasonably prudent person in fear of not receiving a fair and

impartial trial . We conclude that an allegation in a motion that a

litigant or counsel for a litigant has made a legal campaign

contribution to the political campaign of the trial judge, or the trial

judge's spouse, without more, is not a legally sufficient ground . A

judge is not required to disqualify himself or herself on motion

based solely upon such alleged facts. Our conclusion is based

upon the interplay of our state constitution, code of judicial conduct,

and campaign statutes .
MacKenzie, 565 So.2d at 1335 (emphasis in original)(citation, internal quotation

marks and footnote omitted); see also Cherradi v. Andrews , 669 So.2d 326,

327 (FIa.App. 4 Dist. 1996) ("Judges are not required to disqualify themselves

solely upon an allegation that an attorney for a party had made .a campaign

contribution to the judge's political campaign ." (citations omitted)). Florida is not

alone in rejecting Movants' view. A Texas appellate court explained:

It is not surprising that attorneys are the principal source of

contributions in a judicial election . We judicially know that voter

apathy is a continuing problem, especially in judicial races and

particularly in contests for a seat on an appellate bench . A

candidate for the bench who relies solely on contributions from

nonlawyers must reconcile himself to staging a campaign on

something less than a shoestring . If a judge cannot sit on a case in

which a contributing lawyer is involved as counsel, judges who

have been elected would have to recuse themselves in perhaps a

majority of the cases filed in their courts. Perhaps the next step

would be to require a judge to recuse himself in any case in which

one of the lawyers had refused to contribute or, worse still, had

contributed to that judge's opponent.

Thus, there is a sound basis in law for the presiding judge's

decision denying recusal, where the sole ground was that the judge

solicited and accepted campaign contributions from a lawyer

representing parties in his court.

Aguilar v. Anderson , 855 S .W.2d 799, 802 (Tex. App. 1993)(citations omitted);

see also Roe v. Mobile County Appointment Bd. , 676 So.2d 1206, 1233

(Ala . 1995), overruled on other -grounds, Williamson v. Indianapolis Life Ins. Co . ,

741 So.2d 1057, 1061 (Ala. 1999)( "The reasoning of the Texas court is

applicable in Alabama as well ."). Even a federal district court has acknowledged

that "Texas courts have repeatedly rejected the notion that a judge's acceptance

of campaign contributions from lawyers creates bias necessitating recusal or that

such acceptance of campaign donations even creates the appearance of
impropriety." Public Citizen, Inc. v. Bomer, 115 F.Supp.2d 743, 746 (W.D.Tex.

2000).

omitted).

The Nevada Supreme Court has explained :

In the context of campaign contributions, we have

recognized that a contribution to a presiding judge by a party or an

attorney does not ordinarily constitute grounds for disqualification .

Indeed, we commented that such a rule would "severely and

intolerably" obstruct the conduct of judicial business in a state like

Nevada where judicial officers must run for election and

consequently seek campaign contributions .

In recognition of this recurring problem of campaign

contributions, this court recently amended the commentary to

NCJC 3(E)(1) to include the following guidance: "The mere receipt

of a campaign contribution from a witness, litigant or lawyer

involved with a proceeding is not grounds for disqualification ."

NCJC Canon 3(E)(1) Commentary (2000).

In the present matter, the campaign contributions to Judge

Denton, which ranged from $150.00 to $2,000.00, are not

extraordinary in amount and, without more, constitute only an

"insignificant interest" that does not raise a "reasonable question as

to a judge's impartiality ." While we commend Judge Denton's

efforts to carefully balance his duty to preside with his duty to

uphold the integrity of the judiciary, we conclude that the campaign

contributions to Judge Denton do not serve as grounds for

disqualification under Canon 3(E).

City of Las Vegas Downtown Redevelopment Agency, 5 P .3d at 1062 (citations

In a lengthy opinion discussing the effect of campaign contributions on the

recusal issue, two Michigan Supreme Court Justices explained:

That a judge has at some time received a campaign

contribution from a party, an attorney for a party, a law firm

employing an attorney for a party, or a group having common

interests with a party or an attorney, cannot reasonably require his

or her disqualification . For there is no justice in Michigan in modern

times who has not received campaign contributions from such

persons . Nor is there a justice whose opponents have not received
campaign contributions from such persons. And, increasingly,

"opposition" campaigns have arisen in which contributions are

specifically undertaken against particular justices . It is simply

impossible for the Supreme Court, as well as most other courts in

Michigan, to function if a lawful campaign contribution can

constitute a basis for a judge's disqualification . For if a contribution

to a judicial candidate can compel a judge's disqualification, then a

contribution to an opponent, or the funding of an opposition

campaign, must operate in a similar fashion . If so, it would be a

simple expedient for a party or a lawyer to "mold" the court that will

hear his or her cases by tailorinq contributions and opposition

contributions.

Even more fundamentally, however, "We, the people, of the

State of Michigan," through the Constitution, have created a system

of judicial selection in our state in which candidates are nominated

by, and elected through, a political process. It is a different system

of judicial selection than that which exists in other states and in the

federal system, and reasonable persons can debate the merits and

demerits of this system. Each of us in different forums has urged

various reforms of this system . Nonetheless, the present system

has been ordained by our Constitution, and it defines the

environment in which those aspiring to judicial office must

undertake their efforts .

The premise of our system of judicial selection in Michigan is

that judges will periodically beheld accountable for their

performance . There are no lifetime appointments to judicial

positions, and there are no unaccountable committees who

determine whether judges should be maintained in office . Thus, the

most notable strength of our system of judicial selection is that it

requires candidates for judicial office to go out among the

electorate and explain why they should be placed in office . This

system fosters communication with the electorate, speech-making,

debate, the search for support and endorsements, campaign

advertising, expressions of judicial philosophy, and efforts to

persuasively explain why the election of one or the other candidate

ought to be preferred.

Such campaigns must be directed toward an electorate in

excess of four million people. In the case of Supreme Court

justices, such campaigns will typically involve the expenditure of

hundreds of thousands, or even millions, of dollars on television,

radio, newspaper, and other advertising, with opposition campaigns

expending similar amounts. These expenditures are not funded

magically, but are raised from among the electorate, and from
organizations that represent those among the electorate .

Indeed, given the premise of our system of judicial selection

that there should be periodic elections for judicial office, it would

seem that it is better that campaigns be well-funded and

informative, and that candidates be afforded the fullest opportunity

to explain their differing perspectives on the judicial role, than that

campaigns be poorly funded and result in candidates securing

election on the basis of little more than a popular surname .

There will simply be no end to the alleged "appearance of,

impropriety" if every contribution to a candidate, or every

contribution to an opposing candidate, or every independent

opposition campaign, is viewed as raising an ethical question

concerning a fudge's participation in .a case in which a contributor or .

an opposition contributor is involved . Again, while cogent

arguments have been made in favor of judicial selection reform,

until such reforms are adopted by the people of Michigan, there is

little alternative to active judicial participation in the electoral

process and the concomitant need to raise funds in order to

effectively participate and communicate in this process. If justices

of the Supreme Court, in particular, were to recuse themselves on

the basis of campaign contributions to their or their opponents'

campaigns, there would be potential recusal motions in virtually

every appeal heard by this Court, there would be an increasing

number of recusal motions designed to effect essentially political

ends, and there would be a deepening paralysis on the part of the

Court in carrying out its essential responsibilities .

Of considerable relevance to the subject of campaign

contributions as a basis for recusal is the Legislature's

establishment of limits on individual and political action committee

contributions to Michigan judicial candidates. MCL 169.252 and

169.269. Such limits must be understood as clearly reflecting the

Legislature's, and the people's, understanding that contributions in

these amounts will not supply a basis for disqualification . That is,

lawful contributions made within these limits, lawfully reported and

lawfully disclosed, cannot fairly constitute a basis for judicial

disqualification . Otherwise, these statutes, just as MCR 2.003 and

Canon 3(C), would be little more than cleverly devised snares to be

exploited by those wishing to undermine individual judges. A judge

who plays by the rules should not be required to recuse himself or

herself on the basis of such conduct. Thus, we assume, as have all

the justices before us, that the Legislature decided that lawful

campaign contributions would not give rise to a basis for judicial

recusal .
Adair, 709 N.W.2d at 579-81 (emphasis added).

Simply put, I have yet to find a case that required recusal merely based on

a campaign contribution within the state's campaign donation limits. To the

contrary, the cases that require recusal all involve the existence of a substantial

donation coupled with other activities that reasonably raise questions of

impartiality. See Pierce v. Pierce, 39 P.3d 791, 798 (Okla. 2001)(requiring

recusal when "(1) a lawyer makes a campaign contribution to that judge in the

maximum amount allowed by statute [$5,000.00], and (2) a member of that

lawyer's immediate family makes a comparable maximum contribution, and (3)

that lawyer further assists the judge's campaign by soliciting funds on behalf of

the judge, and the contributions and solicitations occur during a pending case in

which the lawyer is appearing before that judge"); Caleffe v. Vitale, 488 So.2d

627, 629 (FIa .App . 4 Dist. 1986)(holding that disqualification was required where

the party's "attorney is actually running the judge's ongoing reelection

campaign").

Aside from the existence of campaign contributions from Respondents

and their counsel, Movants have not asserted any additional facts which would

raise an appearance of impartiality. Since lawyers and parties who have cases

before the courts of this Commonwealth will certainly continue to contribute to

judicial campaigns, I believe that the frequent disclosure of campaign

contributions is the best course to be followed by a judicial candidate in

combating any perception of improper influence. The Florida Supreme Court

agrees, stating:

-10-
The United States Supreme Court recognized that disclosure

requirements deter actual corruption and avoid the appearance of

corruption by exposing large contributions and expenditures to the

light of publicity. This exposure may discourage those who would

use money for improper purposes either before or after the election.

A public armed with information about a candidate's most generous

supporters is better able to detect any post-election special favors

that may be given in return. Buckle 424 U .S. at 67, 96 S .Ct. at

657 .

MacKenzie, 565 So.2d at 1337.

I would be remiss if I failed to note the dangerous logic underlying

Movants' motion . Were this Court to conclude that the mere existence of

campaign contributions mandated a judge's recusal in all cases, it is difficult to

predict where this line of reasoning might end.

[W]e cannot operate a judicial system, or indeed a society, on the

basis of the factually unsubstantiated perceptions of the cynical and

distrustful . There are countless factors which may cause some

members of the community to think that a judge would be biased in

favor of a litigant or counsel for a litigant, e.g., friendship, member

of the same church or religious congregation, neighbors, former

classmates or fraternity brothers . However, such allegations have

been found legally insufficient when asserted in a motion for

disqualification . The same is true of the ground for disqualification

asserted at bar. Contributions such as the one at issue are normal

incidents in a campaign for public office . As long as it appears that

a contribution was a normal incident in such a campaign, it does

not tend to indicate any closer relation between the contributor and

the recipient than would ordinarily exist between members of the

same local bar.

Id . at 1335 (citations, internal quotation marks and brackets omitted).

Nevertheless, in this particular situation there is more than the mere

existence of campaign contributions. Therefore . I will grant the Motion. In

reaching this decision, I have relied primarily on two factors : (i) that I have

received numerous campaign contributions from many of FBT's attorneys ; and,
perhaps most importantly, (ii) that the party requesting my recusai is the party

that is actually harmed by my decision to step aside. As to the first factor, FBT is

not a law firm representing clients in this matter, but is a party and, when

considered cumulatively, the donations to my campaign that can be associated

with the firm are not minimal. Whether or not the first factor is completely

dispositive, however, my decision is further confirmed given the Movants'

position in this case. As I have noted above, the parties seeking discretionary

review herein are the same parties who insist that I recuse. As one commentator

has observed, recusai ensures that "the right of the petitioner to apparent

impartiality may be secured, but only at the cost of actual disadvantage when it

comes to obtaining Supreme Court review." Lubet, supra, at 658.

Finally, I must note that I take great umbrage with Movants' choice of

words in their recusai motion. Officers of the court should refrain from using

words such as "misconduct" when describing the activities of an opposing party if

there is no basis for leveling such a charge . No such basis exists.

Entered: June 6, 2006.

OHN C. ROACH

ASSOCIATE JUSTICE
COUNSEL FOR MOVANTS:

Sandra L. Bennett

101 North Seventh Street

Louisville, Kentucky 40202

Peter F. Ervin

1000 Cherokee Road, Suite 06

Louisville, Kentucky 40204

COUNSEL FOR RESPONDENTS :

James E . Milliman

Middleton & Reutlinger

401 South Fourth Avenue

2500 Brown & Williamson Tower

Louisville, Kentucky 40202-3410

Rebecca Grady Jennings

Middleton & Reutlinger

401 South Fourth Avenue

2500 Brown & Williamson Tower

Louisville, Kentucky 40202-3410