A Legal Fight Is Pending Between the Ky. Bar Association and Attorney Eric Deters Over An Attorneys Right to Seek Recusal of A Bar Association Trial Commissioner – Federal Judge Danny Reeves Threatens Rule 11 Sanction for Attorney Seeking Injunctive Relief

    On Monday Jan. 10th. Deters filed a pleading in Federal Court seeking injunctive relief due to the refusal of the Supreme Court Clerk to deliver Deters recusal motion to the Chief Justice for his consideration.

   Deters cites as grounds for his recusal motion, the allegation that the Trial Commissioner who was assigned to rule on six ethics complaints pending against him, should have disqualified himself.  Deters alleges in his Federal pleading, that Frank Doheny an attorney in Dinsmore and Shohl refused to remove himself from ruling on the complaints against Deters. 

   One of the complaints listed in the Deters pleading, charges that the client who complained about an excessive fee being charged by Deters ($1500) is now represented in the same case by a law partner of Trial Commissioner Doheny.  The law partner of Doheny at Dinsmore and Shohl is alleged to have charged $25,000 to complete the civil defense of a foreclosure motion in which Deters had been hired to defend.  (Deters filed a defensive pleading for the client, and says the client never returned Deters calls.

Deters says he offered to enter into a fee arbitration and offered to return the entire fee, but the Bar refused his offers.

   Deters alleges that the Trial Commissioner as a law partner of the attorney for the client who filed the complaint, will benefit from a censure of Deters.

   U.S. District Judge Danny Reeves is said in an article published today in the Kentucky Enquirer, to have verbally attacked Deters for filing the injunction motion, and he ordered Deters to show cause why he shouldn’t be sanctioned with a Rule 11 sanction.

   Deters in his complaint says that the Clerk of the Supreme Court refused to deliver his recusal petition to the Chief Justice.  Deters then sent another copy of the Recusal motion directly to the Chief Justice, but it was returned with a note that it was an “unauthorized pleading”.

   LawReader has reviewed the applicable law, and concludes that the KBA Trial Commissioner is defined as a Judicial Officer.  There is some lack of clarity about whether or not the Rules of Civil Procedure apply to discipline hearings of the Bar Association.  The Rules mention application of the Civil Rules but only in limited areas.  There is no specific procedure in the Supreme Court Rules governing the conduct of discipline hearings regarding a recusal process.  While it is a logical assumption that the Civil Rules and statutes on recusal procedures apply, one must wonder from the Supreme Court Clerk’s refusal to deliver the pleading to the Chief Justice if the Supreme Court is taking the position that there is no recusal procedure applying to KBA Trial Commissioners.

    If the Civil Rules apply, and if prior court rulings (cited below) apply, then the KBA Trial Commissioner would appear to be automatically barred from issuing a ruling in Deter’s case, until the Chief Justice has granted or denied the Recusal Motion.

   Under the Rules of Civil Procedure, when a recusal motion is filed, the Circuit Court is automatically deprived of the right to act until the Chief Justice rules on the recusal motion.

The following cited cases hold that the trial judge is immediately required to hold his ruling in abeyance until the Chief Justice acts on the recusal petition.

The statute says that the Circuit Clerk is required to deliver the petition to the Chief Justice. The statute cited below on recusal procedure, does not mention the Clerk of the Supreme Court. The statute requires the Chief Justice to “immediately review the facts”.

If the Circuit Clerk fails to deliver the recusal petition to the Chief Justice then the proper relief would in normal civil actions be injunctive relief. That is the action taken by Deters.

The statute discussing recusal motions does not provide the Chief Justice the right to refuse to hear the motion.  He can of course grant or deny the motion, but he has no leeway in the statute to refuse to consider the petition for recusal of the trial judge.

The other five pending charges against Deters involve free speech issues regarding statements he has alleged to have made against a sitting judge.

Diaz v. Barker, 254 S.W.3d 835 (Ky. App., 2008)

   We agree with Diaz that under the recusal remedy set out in KRS 26A.020(1), the trial judge is not to make the recusal determination and the case is to be held in abeyance pending the Chief Justice’s determination. Jackson, 806 S.W.2d at 645.

 

Jackson v. Com., 806 S.W.2d 643 (Ky., 1991)

   We agree with the Court of Appeals that Judge Jackson may not enforce his judgment of January 11. But we also agree with Judge Jackson that after the filing of an affidavit to disqualify, the trial judge is without further jurisdiction to proceed in the matter until the Chief Justice acts or until a special judge is designated.

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STEPHENS, C.J., and LAMBERT, LEIBSON, REYNOLDS and SPAIN, JJ., concur.

        WINTERSHEIMER, J., concurs in result only.

THE RECUSAL STATUTES:

KRS  26A.015 Disqualification of justice or judge of the Court of Justice, or master commissioner.

 (2) Any justice or judge of the Court of Justice or master commissioner shall disqualify himself in any proceeding:

 c) Where he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a pecuniary or proprietary interest in the subject matter in controversy or in a party to the proceeding;

(d) Where he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

1. Is a party to the proceeding, or an officer, director, or trustee of a party;

2. Is acting as a lawyer in the proceeding and the disqualification is not waived by stipulation of counsel in the proceeding filed therein;

3. Is known by the judge or master commissioner to have an interest that could be substantially affected by the outcome of the proceeding;

4. Is to the knowledge of the judge or master commissioner likely to be a material witness in the proceeding.

(e) Where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned.

KRS  26A.020 Designation of retired justice or judge as special judge.

(1) When, from any cause, a judge of any Circuit or District Court fails to attend, or being in attendance cannot properly preside in an action pending in the court, or if a vacancy occurs or exists in the office of circuit or district judge, the circuit clerk shall at once certify the facts to the Chief Justice who shall immediately designate a regular or retired justice or judge of the Court of Justice as special judge. If either party files with the circuit clerk his affidavit that the judge will not afford him a fair and impartial trial, or will not impartially decide an application for a change of venue, the circuit clerk shall at once certify the facts to the Chief Justice who shall immediately review the facts and determine whether to designate a regular or retired justice or judge of the Court of Justice as special judge. Any special judge so selected shall have all the powers and responsibilities of a regular judge of the court.

(2) A retired justice or judge serving as a special judge shall be compensated as provided by KRS 21A.110.

History: Created 1976 (1st Extra. Sess.) Ky. Acts ch. 22, sec. 5.

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