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Judge's race in KY brings up question: Can husband and wife be judge and top prosecutor in same circuit?

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Posted at 6:56 PM, Aug 29, 2022
and last updated 2022-09-01 10:57:47-04

A judge’s race in central Kentucky has brought up a unique question – can a husband and wife be judge and head prosecutor in the same circuit?

Candidate Rob Johnson is running to serve as circuit court judge in the 14th Judicial Circuit, which serves Scott, Woodford and Bourbon counties. It’s the same circuit where his wife, Sharon Muse-Johnson, serves as Commonwealth’s Attorney. Muse-Johnson’s office oversees all felony criminal cases in the circuit.

General circuit court judges usually preside over both criminal and civil cases. But if elected, Johnson would have a conflict of interest in any criminal case handled by his wife’s office, legal experts told LEX 18.

Both Muse-Johnson and Johnson have previously said that Johnson could still serve as judge, only presiding over civil cases.

On Monday, a lawsuit was filed in Scott County seeking to remove Johnson from the ballot, arguing that Johnson would be unable to fulfill his constitutional duties if elected because of the conflict of interest. In the complaint, filed by two residents of the circuit, it states that Johnson would have to recuse himself from all criminal cases in the circuit if elected.

In a statement responding to the lawsuit, Johnson said the following:
           

“This is the latest attempt to direct voter attention away from the most critical issue in this election – which candidate has the necessary trial experience. This position is for a trial judge. I’ve had over 100 trials; my opponent has never had a trial, not as an attorney or a judge. The Kentucky Judicial Ethics Commission has already concluded I can be the Circuit Judge while my wife is the Commonwealth Attorney. We would never appear in the same courtroom.  The will of the voters and their decision should determine the outcome of this election, not frivolous lawsuits meant to confuse the public.  Voters can see through this kind of dirty politics. It’s beneath the office of Circuit Judge and the conduct of public servants.”

LEX 18 Investigates has been looking into the questions surrounding Johnson’s candidacy for weeks. When asked about how things would work if he was elected, Johnson said in a statement earlier this month that he would be able to “fully discharge the duties of his office.”

In a previous interview with LEX 18, Muse-Johnson argued in favor of her husband’s ability to preside only over civil cases saying that there are significantly more civil case filings than criminal cases.

Workload trends collected by the Administrative Office of the Courts did show that more civil cases are filed in the circuit than criminal cases. But the study also showed that significantly more of a judge’s work hours were spent on criminal cases in the circuit between 2017 and 2019.

The circuit court clerk in Bourbon County said that, on an average day, the civil docket runs between 30 minutes and an hour and the criminal docket can last well over three hours.

“I shudder to think the mess that will be created if that conflict comes to fruition,” said Rob Sanders, the Commonwealth’s Attorney for Kenton County.

Sanders is one of several legal professionals who told LEX 18 that it would be complicated, and potentially expensive, if an elected judge had to opt out of an entire category of cases. In situations where a special judge had to be appointed to cover a case, the cost could be up to $400 a day.

“The citizens of the 14 circuit are entitled to two fully functional circuit court divisions and that's what they should get,” Sanders said.

The Kentucky Code of Judicial Conduct states that a judge should uphold and promote impartiality, and also states that a judge should not participate in activities that will lead to frequent disqualification of the judge.

“Whether it's a son, daughter, whoever it is, and that person holds a position of power as a D.A., the judge can't preside over those cases that's clear ethics,” said Bennett Gershman.

Gershman is a law professor at Pace University in New York who lectures on judicial and prosecutorial ethics. LEX 18 reached out to him to get an outside perspective.

“It seems to me the voters should at least know that this judge is gonna be, let's just say, handicapped because of his inability to preside over criminal cases,” Gershman said.

A recent change in the circuit’s local rules put into writing the longstanding practice that each general judge in the circuit shall handle both civil and criminal cases. The new rule was requested by Judge Jeremy Mattox. He’s the only other judge in the circuit outside of family court, and he’d be the one who would potentially handle all the criminal cases should Johnson be elected.

LEX 18 asked Johnson how he could work under the rule if elected, and while he declined an on-camera interview he did give a statement that said in part that he would “preside over the cases then apply the appropriate rules of judicial ethics to evaluate how each case should be handled.”

The Administrative Office of the Courts said that there are currently no judges on the bench who are conflicted out of an entire category of cases on a continual basis.

Former Supreme Court Justice Daniel Venters said that if Johnson wins, it’ll be up to the court to make it work despite the complexities.

“Once the voters choose who the judge will be then the court system is obligated to accommodate that choice,” Venters said. “I have full confidence that if that becomes necessary, that will be done.”

Johnson does have an opponent in the judge’s race.

Katie Gabhart is currently serving in the judge’s seat in question after being appointed to finish the term of a judge who resigned. This is her first time serving as a judge and she’s said she’s running to “ensure ethics, impartiality and fairness.”

Gabhart comes from the Executive Branch Ethics Commission in state government.

Johnson is running on his experience in the court system. He’s a familiar face in the 14th Circuit – he previously served as a judge there for 12 years. He then served two years on the state’s court of appeals before returning to the circuit to work as an assistant commonwealth’s attorney in his wife’s office.