IMPORTANT AMICUS BRIEF REJECTED BY SUPREME COURT — KBA ATTACK ON THE JUDICIAL IMMUNITY DOCTRINE ADVANCES-

 

By LawReader Senior Editor Stan Billingsley                                   August 22, 2011

     Last week the Ky. Supreme Court denied a motion to allow the author of this article to file an Friend of the Court Amicus brief in the disciplinary action against retired Judge Joseph Bamberger.

Even though permission for this Amicus brief  to be filed by retired judge Stan Billingsley, the Supreme Court retains the discretionary right to review the issues raised in the rejected brief.

   The KBA  around 2005 began an investigation of Bamberger for rulings he made as a Judge in the Fen Phen class action case. 

    The purpose of the tendered Amicus brief was to bring to the courts attention important legal issues that affect all members of the judiciary.   The KBA seeks to void the judicial immunity rule, which disallows any civil action against a judge for rulings he made in his official capacity.

   For hundreds of years judges have enjoyed immunity from rulings they made as a judge.  The purpose of this was to allow judges to make rulings without concern that they might be sued by anyone who disagreed with their ruling.  The proper remedy for a bad judicial ruling was an appeal to a higher court.   None of the rulings made by Judge Bamberger were appealed.

As explained in the tendered brief (a copy of which is posted below) the judicial immunity rule applies even if the judge acted with malice.  The doctrine is written broadly and has served a useful purpose in our judicial system. It has been explained in many case law rulings that the Doctrine is not intended to protect an out of control judge, but is justified on the larger purpose of protecting judicial independence.

   In the Bamberger discipline case, the KBA seeks to sanction Judge Bamberger for making bad decisions in relying on the recommendations of national experts in Class Action law.  Only after Bamberger issued his rulings were allegations made public that the original plaintiff’s attorneys may have mishandled some of their client’s funds.  Even that issue is not yet final as the Court of Appeals reversed the Summary Judgment  against William Gallion, Melbourne Mills and Cunningham.   Cunningham and Gallion were convicted at their second criminal trial, but that conviction is currently on appeal to the Sixth Circuit.

   So even though the criminal and civil issues against Gallion, Cunningham (Mills was acquitted) are still pending, the KBA has chosen without a request from the Judicial Conduct Commission to seek permanent disbarment of Judge Bamberger.

   The Billingsley Amicus brief does not attempt to defend the merits of any ruling made by Bamberger per se.   The issue sought to be raised in the Amicus brief is that the KBA has no jurisdiction to review the legal rulings of any judge made in his official capacity due to the Judicial Immunity Doctrine. 

 The Judicial Conduct Commission is subject to a SCR which says that a judge may not be sanctioned for an “erroneous ruling”.  The KBA ignores that rule by attempting to sanction Judge Bamberger.

SCR 4.020 Jurisdiction (of the JCC which says):

“(2) Any erroneous decision made in good faith shall not be subject to the jurisdiction of the Commission.

   The Billingsley Amicus brief argues that as a retired judge he has standing to raise the issue of the Judicial Immunity Doctrine.   If this legal argument made by the KBA is upheld, then any current or retired judge could be subject to hindsight review for any bad decision they may have made.   This ruling would place the KBA on the bench beside every judge, and allow them to sanction the judge for any ruling he/she made with which the KBA disagrees.

We admit that judges sometimes make bad rulings.  I do not exempt myself from that allegation.  However, the remedy for a bad ruling is an appeal.  If this claim by the KBA is allowed to become precedent, then the KBA can reopen any ruling every made by a judge (even retired judges) and they can pass judgment on whether or not the judge made an error.  

The errors for which the KBA seeks to sanction Judge Bamberger include claims that he “was dazzled and influenced” by national experts in class action law in making his rulings.   I confess that I have made rulings during my 27 years as a Trial Commissioner, District Judge and Circuit Judge in which I gave greater weight to recognized experts than to self-serving statements by a party.  I suppose it could be argued that in the future Judges will have to be prophets in order to escape discipline review by the KBA.

The KBA alleged that Bamberger “should have” know facts which were not revealed until years after he signed the questioned orders.  Witnesses, Judges and Trial Commissioners, and even the KBA have written that Gallion and Cunningman lied to or mislead Judge Bamberger about material facts.  One such fact was the claim that Gallion, Cunningham and Mills had contingent fee contracts with their clients and that Bamberger should have known this, even though it was clearly admitted in the criminal  and civil trials, and in the KBA action against Bamberger, that these facts were concealed from Bamberger. 

The key facts that Judge Bamberger was mislead by the plaintiff’s attorneys, and by Stanley Chesley are clearly in the KBA discipline record, yet are ignored by the KBA. 

The bottom line is that the KBA is seeking to sanction a trial judge because he was mislead by the parties on key facts.  If this precedent is upheld by the Supreme Court, then they will be opening a Pandora’s Box which will allow the KBA to inject itself in to every case coming before any judge.  The KBA argues that the Judicial Conduct Commission has no power to limit the involvement of the KBA is reviewing the conduct of judges.  We ask in our tendered (and rejected) brief that if this argument is upheld, then there will be no justification for the continued existence of the Judicial Conduct Commission… (on which I served as an alternate for four years).

The argument by the KBA is that Judge Bamberger “should have known better”.  In other words he was not a prophet and therefore he should lose his law license.

I do not know many facts about the Fen Phen case.   My tendered Amicus brief which was rejected by the Supreme Court was not to seek a vindication for Judge Bamberger, but to uphold the Doctrine of Judicial Immunity.  The Doctrine clearly says even malicious rulings by a judge are protected by the Judicial Immunity Doctrine.   If the Supreme Court sanctions Judge Bamberger for a ruling he made in his jurisdiction, then every sitting and every retired judge will then be subject to KBA hindsight review.

I found it interesting that in the KBA reply to my motion to file an Amicus brief, they argued that I was a friend of Judge Bamberger.   They are correct, and I have admitted and detailed my relationship with Judge Bamberger over the last forty years I have known him.  The KBA by making this argument was suggesting that I should have no standing to file an Amicus brief due to my long friendship with Judge Bamberger.  That is the type of argument which suggests the Bar Counsel had no real legal argument.  The KBA, in their motion to disallow my Amicus brief, chose to go personal against me and tried to distract the audience from the real issues in this case.  They dedicated about six pages of their eight page motion to a personal attack on me.  They attempted to divert the Supreme Court’s attention from the real issue of Judicial Immunity.

      If the Judicial Immunity Doctrine is repealed, then the Supreme Court will have given unlimited license to the KBA to sanction any judicial officer for any ruling with which the KBA disagrees.  The reader should also know that there is no statute of limitations for discipline charges to be filed.  So they will be able to go back and review every single decision every made by any judge. Such a precedent would be the first such ruling in the United States.  All other states uphold the Doctrine of Judicial Immunity.

   Another issue of importance raised in this discipline case, is the practice of the KBA in imposing large costs bills upon defendant attorneys who wish to appeal to the Supreme Court.  In Judge Bamberger’s case, he chose not to file an appeal since the Bar Counsel submitted a cost bill to the Disciplinary Clerk of $18,800.  So if Bamberger filed an appeal to the Supreme Court he first had to deposit $18,000 with the Disciplinary Clerk of the KBA.   SCR 3.370

The KBA  tax on appeals clearly violates Section 115 of the Kentucky Supreme Court which holds that all appeals “shall be inexpensive.”   So the prosecutors of discipline actions are allowed to prevent appeals by imposing large cost bills for which the attorney must post a surety before having the right to appeal.  There is no process allowed in the Supreme Court Rules which grant the defendant attorney  a due process hearing on the amount of costs claimed by the Bar Counsel.

   We anecdotally have heard that in another discipline case the KBA imposed an appeal tax of some $40,000 on an attorney.  No $40,000, deposited with the KBA, or no appeal.

  The final issue that is discussed in the rejected Amicus brief, is the “promptness” rule.  The Supreme Court Rules require that all attorney discipline prosecutions and investigations shall be conducted “promptly”.  In Speedy Trial cases the courts have long held that delays of as little as eleven months are “prejudicial”.  In the Bamberger case, the KBA started their investigation over six years ago.  

The Promptness Rule  —- SCR 3.180 Investigations and trials to be prompt; subpoena power  –

(1) All investigations and the trial of all disciplinary cases shall be begun, prosecuted, and completed as promptly as the ends of justice will permit.”

The Supreme Court in another discipline case recently ruled that three years in an ethics prosecution was” prejudicial” to the attorney. See: Kentucky Bar Association v. Lococo, 199 S.W.3d 182 (Ky., 2006): “…. Here, there was a delay in the prosecution of this case…..This delay from April of 2000 until August of 2003 is a mitigating factor and was prejudicial toward Ms. Lococo.”  (Emphasis added.)

The Bamberger investigation and prosecution started about 2005, some six years ago.  This fact reveals that the “promptness” rule is being ignored by the KBA.

   The final issue is the claim by the KBA that if the defendant attorney does not file a brief, then the KBA does not have to file a brief.   That is correct. 

But the KBA incorrectly interprets SCR  3.370 to say that the Supreme Court has to accept the Findings of the Trial Commissioner and the Board of Governors without review of the facts and legal arguments if the KBA or the defendant attorney do not file an appeal.  We submit that SCR 3.370 grants the Supreme Court the right to unilaterally decide to review any Findings of the Board of Governors or the Trial Commissioner at their discretion.

SCR 3.370 says:    (9) the Supreme Court may, …..notify the Bar Counsel and the Respondent that it will review the decision.

   We have chosen to publish this rejected brief as we believe it presents important issues that could dramatically affect all judges in Kentucky.   We do not question the right or authority of the Supreme Court to deny the filing of our brief. 

If this sanction against Judge Bamberger is upheld, then we suggest that every current and every retired judge should promptly purchase malpractice insurance.  Oh yes, the KBA will be glad to sell you a malpractice insurance policy!

                                                          *******************

The following is a copy of the Amicus brief submitted to the Ky. Supreme Court by the author.  The Supreme Court granted the motion of the KBA Bar Counsel to reject the filing of this brief.

KENTUCKY SUPREME COURT                                                                                                       KBA FILE NO. 13985

KENTUCKY BAR ASSOCIATION                                 COMPLAINANT
 
v.
 JOSEPH BAMBERGER                                                RESPONDENT
 

PETITION AND BRIEF OF  RETIRED JUDGE STAN BILLINGSLEY  
AS AMICUS CURIAE
IN SUPPORT OF RESPONDENT  


MAY IT PLEASE THE COURT:

     Appearing as a Amicus Curiae, Judge Stan Billingsley (Retired) hereby petitions this Honorable Court to permit the filing of the following Amicus Curiae Brief.  

CERTIFICATION

I hereby certify that a true and correct copy of this petition and brief  was properly addressed to the Hon. Linda Gosnell, KBA Chief  Bar Counsel, at 514 W. Main Street, Frankfort KY 40601-1812 and to the Disciplinary Clerk, of the Kentucky Bar Association at  514 W. Main Street Frankfort KY 40601-1812, and the Hon.  Susan D. Phillips Phillips, Parker Orberson, 716 W Main St Ste 300, Louisville, Ky. 40202, Trial Commissioner of the KBA in this action, and the Hon. Jerry J. Cox, Attorney for the Respondent, 115 Richmond St,  PO Box 1350, Mt Vernon, KY 40456-1350,  with proper postage affixed, and mailed by placing same in the U.S. Mail, on July 12, 2011.

Judge Stan Billingsley (Retired)                                                                                                               314 7th. St.                                                                                                                                    Carrollton, Ky. 41008                                                                                                                                    Bar Number-05170                                                                                                                                Phone (502)732-4617    

GROUNDS  JUSTIFYING THE COURT IN ALLOWING THIS AMICUS CURIAE BRIEF TO BE CONSIDERED

 

STANDING OF RETIRED JUDGE

  The author of this tendered amicus curie brief, alleges interest and standing on the basis that if the Judicial Immunity Doctrine is voided, then all rulings of any sitting or retired judges will thereafter be subject to hindsight review by the KBA.  The author is a retired judge. 

  Under the argument advanced in this case by the KBA, it is claimed that the KBA has the jurisdiction to review any ruling of any judge without limitation. 

   If the precedent sought by the KBA is upheld in this case then the jurisdictional authority of the  KBA will be so broadly expanded then the justification for the existence of the Judicial Conduct Commission will be voided.  this case warrants a declaratory ruling by the Ky. Supreme Court regarding the jurisdiction of the JCC versus the KBA.

    Our research has found no precedent of any other state ever granting the right to review the judicial rulings of a judge, made within his jurisdiction, by a State Bar Association.

   The author of this brief has no financial interest in the underlying case, does not represent any party in this case, and has not sought or received approval of either party to this action to tender this brief.  If the KBA and Bar Counsel is upheld, and if they elect to conduct a review of  all rulings made by the author during his 23 years on the bench, then the author will be subject to severe financial implications in defending himself.

AUTHORITY OF THE  KENTUCKY  SUPREME  COURT  TO  GRANT  DISCRETIONARY REVIEW  OF  THIS  CASE  UNDER  SCR 3.370 (9)

The Supreme Court may exercise discretionary authority under SCR 3.370 (9), to consider the issues in this case even if the complainant or respondent fail to file an appeal.

    SCR 3.370 Procedure before the Board and the Court

“(9) The Court may, within ninety (90) days of the filing with the Court of the Trial Commissioner’s report as provided by 3.360(4), or of the Board’s decision, notify Bar Counsel and Respondent that it will review the decision…., the Court shall enter such orders or opinion as it deems appropriate on the entire record.”  (emphasis added by author)

If the Ky. Supreme Court does not agree to review this action as permitted under Section (9), then the findings of the Board of Governors will be automatically adopted by rule SCR 3.370 – (10).  Section (10) which holds that:

” If no notice of review is filed by either one of the parties, or the Court under paragraph nine (9) of this rule, the Court shall enter an order adopting the decision of the Board or the Trial Commissioner, whichever the case may be, relating to all matters.”

   There is an important jurisdictional question raised by the attempt of the KBA to discipline  a judge for acts taken by the judge in his jurisdiction without the referral by the Judicial Conduct Commission. Until now, the Doctrine of Judicial Immunity has protected a judge from claims involving decisions he has made within his jurisdiction.

The Supreme Court’s action in this case will establish an important precedent regarding the jurisdiction of the Judicial Conduct Commission versus the jurisdiction of the KBA.

The Bar Counsel has filed a report with the Disciplinary Clerk requiring the respondent judge to post a surety in the amount of approximately $18,500 in order to have the right to file an appeal. 

This high surety violates Section 115 of the Kentucky Constitution which states that all appeals shall be “inexpensive”. This high surety imposed unilaterally by the Bar Counsel may well prevent the respondent judge from filing an appeal. 

In such a case,  important questions of law affecting the jurisdiction of the Judicial Conduct Commission, and rights of all sitting and all retired judges will be automatically decided in favor of the KBA, and against the interest of the Judicial Conduct Commission, and of the  judiciary, by repealing the Doctrine of Judicial Immunity. 

That makes the tendered Amicus brief highly important to the JCC and the Judiciary.

*****************

AMICUS CURIAE BRIEF BY JUDGE STAN BILLINGSLEY (RETIRED)

 

MAY IT PLEASE THE COURT:

THE  KENTUCKY  SUPREME  COURT  SHOULD  GRANT  DISCRETIONARY REVIEW  OF  THIS  CASE  UNDER  SCR 3.370

There are three reasons why the Supreme Court should exercise discretionary authority granted to the court under SCR 3.370, to consider the issues in this case.

1.  The costs claimed by the Bar Counsel’s office, which must be posted by the respondent are in violation of Section 115 of the Kentucky Constitution.   The actions of the Bar Counsel’s office, in unilaterally setting a high cost bill, denies due process to the respondent.

2.  There is an important jurisdictional question raised by the attempt of the KBA to discipline  a judge for acts taken by the judge in his jurisdiction. This action by the KBA violates the Judicial Immunity Doctrine.  If the Supreme Court does not review this jurisdictional issue, then there will be established a precedent which will void the Doctrine of Judicial Immunity.

3. The Supreme Court’s action in this case will establish an important precedent regarding the jurisdiction of the Judicial Conduct Commission versus the jurisdiction of the KBA.

 KENTUCKY CONSTITUTION SECTION 115 – RIGHT TO INEXPENSIVE APPEAL

   It is possible that neither the respondent judge nor the KBA will file an appeal with the Supreme court in this action.   Even though Section 115 of the Kentucky Constitution states that all appeals shall be “inexpensive”. The SCR rules permit the Bar Counsel to unilaterally determine the costs of the discipline proceeding, and report said costs to the Disciplinary Clerk.

 The respondent in a discipline action must deposit a surety with the Disciplinary Clerk in the amount unilaterally claimed by the Bar Counsel’s office in order to have the right to appeal the findings of the Board of Governors to the Supreme Court.  As the rule is worded if there is no surety posted there is no appeal.

The report of the Bar Counsel’s office regarding costs in this case will require the respondent to post a surety of some $18,500.  This does not appear to be “inexpensive” and operates as an unconstitutional restriction on the right to appeal that is granted by the Kentucky Constitution.

WHEN THE RESPONDENT OR THE KBA FAIL TO FILE AN APPEAL,  THE SUPREME COURT RETAINS THE JURDICTION TO “REVIEW” THE FINDINGS OF THE BOARD OF GOVERNORS.

A review of SCR 3.370 grants the Supreme Court the discretion to review a finding of the Board of Governors even in the absence of an appeal by the respondent or by the KBA.

     ” SCR 3.370 Procedure before the Board and the Court

(9) The Court may, within ninety (90) days of the filing with the Court of the Trial Commissioner’s report as provided by 3.360(4), or of the Board’s decision, notify Bar Counsel and Respondent that it will review the decision. If the Court so acts, Bar Counsel and Respondent may each file briefs within thirty (30) days, with no right to file reply briefs unless by order of the Court, whereupon the case shall stand submitted. Thereafter, the Court shall enter such orders or opinion as it deems appropriate on the entire record.”  (emphasis added by author)

We respectfully submit that an important jurisdictional issue and constitutional question is presented by this case, and that a failure of the Supreme Court to review the findings of the Board of Governors will have the effect of voiding the Judicial Immunity Doctrine, and will destroy the justification for the existence of the Judicial Conduct Commission.

THE JURISDICTIONAL QUESTION

    In the ethics investigation of  retired Judge Joseph Bamberger, the KBA investigation seeks to expand the jurisdiction of the KBA to review and review Judges past decisions for ethics review.

The Trial Commissioner in his Brief to the Board of Governors opined that the KBA had jurisdiction to review a judicial officials acts even without a referral by the JCC.

    Current rules grant jurisdiction to the Judicial Conduct Commission to examine the ethical conduct of judicial officials.  The rules permit the JCC to make referrals to the KBA if the JCC determines that additional review is appropriate by the KBA.

    The end result sought by the KBA is to expand their jurisdiction to review the judicial rulings of a judicial officer, and to inflict sanctions including disbarment if they disagree with the judge’s rulings.

   First we note that this attempted review of Judge Bamberger’s rulings violate SCR 4.029.

See: SCR 4.020 Jurisdiction (of the JCC which says):

“(2) Any erroneous decision made in good faith shall not be subject to the jurisdiction of the Commission.

   We would ask the Court to consider why the Judicial Conduct Commission is denied the right  to review erroneous rulings of a judge, and why the KBA  should be granted such a right? (Such a right is claimed in this action by the KBA.)

   We suggest that this Supreme Court Rule  4.020 is solidly based in the Judicial Immunity Doctrine  explained in Collins v. Brown,  No. 2007-CA-000847-MR (Ky. App. 2/26/2010) (Ky. App., 2010)”.  (This is an unpublished decision but it cites several Kentucky and U.S. Supreme Court decisions which uphold the Doctrine of Judicial Immunity.)

” First, as to the judicial defendants, Judge Wise and former Chief Justice Lambert, the trial court properly found them to have been shielded by absolute judicial immunity. The doctrine of judicial immunity is well-settled under federal and common law and predates the adoption of the current Constitution of Kentucky. See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1977); Vaughn v. Webb, 911 S.W.2d 273 (Ky. App. 1995). So long as the judge has jurisdiction over the subject matter of the cause before him, he is entitled to immunity. Id. There is no question in this case that Judge Wise and former Chief Justice Lambert acted within their jurisdiction at all times pertinent to the matters raised in Wes’s complaint. Thus, they are clearly entitled to immunity from civil complaints stemming from their judicial acts.” (emphasis added by author)

 “The function of absolute immunity in the performance of judicial duties is not to shield members of the judiciary from liability for their own misconduct, but rather “to protect their offices from the deterrent effect of suit(s) alleging improper motives where there has been no more than a mistake or a disagreement on the part of the complaining party with the decision made.” Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001.”

“[i]t has been repeatedly held by this court in a long line of decisions that a judicial officer is not subject to civil suit when in the performance of his judicial duties and within his jurisdiction, although his ruling may be the result of mistake of law, error of judgment, or malice, or be done corruptly.”  Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001.”

   We suggest that a KBA discipline proceeding is a “civil” proceeding.  SCR 3.300 and SCR 3.330 both describe discipline proceedings in terms of a civil action.

“SCR 3.300 Rights of respondent against whom a charge has been files

…”The Respondent shall have all the rights secured to a party by the Rules of Civil Procedure …”

 

“SCR 3.330 Order of proceedings and burden of proof

…. The burden of proof shall rest upon the Association in a disciplinary proceeding, and the facts must be proven by a preponderance of the evidence. ..”

     We respectfully suggest that the discipline process is a civil proceeding and thus falls within the protective walls of the Judicial Immunity Doctrine.

     In  Vaughn v. Webb, 911 S.W.2d 273 (Ky. App., 1995) it was held:  

“The acts of Judge Ray, exercised within his jurisdiction, were judicial acts, not administrative acts and Judge Ray is entitled to the protection of judicial immunity. Under federal law, a judge is immune from personal liability for judicial acts if at the time he acted, regardless of whether he acted in error, maliciously, or in excess of his authority, he had jurisdiction over the subject matter before him. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1977)…”

   In Baker v. (Governor) Fletcher, 204 S.W.3d 589 (Ky., 2006) it was stated:  

“See Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), for the best recitation of the rule granting judicial immunity and the reasons underlying its desirability. For Kentucky cases recognizing judicial immunity in the Commonwealth see Henry v. Wilson, 249 Ky. 589, 61 S.W.2d 305 (1933), and Vaughn v. Webb, 911 S.W.2d 273 (Ky.App.1995) (“a judge is immune from personal liability for judicial acts if at the time he acted, regardless of whether he acted in error,…”

“And such a view is also consistent with the immunity afforded to judges, which immunizes judges from suit for ANY  judicial act, which is defined as any act that is of the nature normally performed by a judge and one in which the parties dealt with the judge in his official capacity.”  (emphasis added by Billingsley)

    The question of judicial immunity was properly raised by Judge Bamberger in his brief to the Board of Governors.

   The Supreme Court will have an opportunity to review the findings of the Trial Commissioner and the Board of Governors against Judge Bamberger. If the court sanctions Judge Bamberger for a ruling he made that was within his jurisdiction, then they will be writing new law which negates the Doctrine of  Judicial Immunity and will dangerously expand the jurisdiction of the KBA.

Such a ruling would destroy the theory behind the existence of the Judicial Conduct Commission. Such a ruling would grant the KBA jurisdiction to file a civil action seeking sanctions of judges who were acting in their judicial function.

ARGUMENT

   Bamberger made rulings which the KBA claims he should have examined more closely.  The Bar Counsel argues that the respondent judge made bad rulings based largely on the reputation of the attorneys and experts who appeared before him.   This argument is nothing less than a head on attack on the Judicial Immunity Doctrine, as it challenges the judges reasoning for making a ruling.  

   Nowhere does the KBA argue that Bamberger did not have the jurisdiction to make every ruling he made.  They argue about his reasoning and his wisdom, but they do not present facts contesting his jurisdiction to rule on the issues before him.

   It is not enough that some decisions turned out bad.  It is not enough that the non-judge lawyers in the KBA believe they would have done things differently had they been the judge. 

   No evidence was presented against Judge Bamberger by the KBA to support the proposition that he acted “with evil or improper intent to aid the plaintiff’s lawyers misconduct”.

   No evidence was presented that Bamberger was even aware of the plaintiff’s lawyers misconduct until after he had retired.  Therefore the KBA has failed to provide a preponderance of evidence to justify their findings against Judge Bamberger.

  Testimony in the two criminal trials against Gallion and Cunningham alleged that Gallion and Cunningham,  lied to Judge Bamberger about material elements as to their actions.  This effort to misinform Judge Bamberger on the law and facts is admitted by the Trial Commissioner in her brief as having occurred in Judge Bamberger’s case.

  The Trial Commissioner admits  in her brief that “there is no doubt that Gallion lied to the respondent (Judge Bamberger), as did Chesley and others.” (See page 9 of KBA brief.)

Judge William Graham acting as Trial Commissioner for the KBA in their ethics case against attorney Stan Chesley, concluded:

“Chesley himself bamboozled Judge Bamberger with his often non-sensical answers to the Judges queries about notice.”

   One must ask; “if Judge Bamberger was in-on-the-deal…why was it necessary for the plaintiff’s lawyers to lie to him about material elements?”

   More importantly, if the KBA can sanction a judicial ruling anytime they disagree with the results, the Doctrine of Judicial Immunity will be thereby voided.   We note that there is no statute of limitations applying to the KBA which will prevent the KBA from reviewing the rulings of any sitting or retired judges over their entire judicial career.

   The KBA bar counsel argues that Bamberger relied on a case citation presented to him by one of the plaintiff’s attorneys that was no longer good law (See KBA brief page 11).   We suggest if that is a basis for ethical sanctions then all judges may at some time in their career be brought up on charges.

   This argument by the KBA Bar Counsel would justify a sanction against any Judge who incorrectly interpreted the law. If such a theory is sustained by the Supreme Court, then any judge who is ever overruled by a higher court on appeal, will be subject to an ethics sanction by the KBA. But it also means that the KBA has assumed the jurisdiction to make their own evaluation of a judge’s rulings on any issue that ever came before the judge.

   Such a conclusion would result in harassment of all judges and could be used to justify absolute control of the Judiciary by the KBA, and would destroy the Doctrine of Judicial Immunity.

DISCUSSION  OF  FACTS  CITED  BY  TRIAL COMMISSIONER  AND  BAR COUNSEL  FOR  THEIR  RECOMMENDED  DISCIPLINE  OF  JUDGE BAMBERGER.

   The KBA argues for punishment of Judge Bamberger because he “had not reviewed any accounting whatsoever and had never even seen the Settlement Agreement.” We suggest that the record clearly shows that Bamberger was correctly advised that the plaintiffs had executed signed settlement agreements by all 440 plaintiffs regarding the initial award and again received 440 signed settlement agreements on the distribution of the second amount of funds awarded to them.   He was never informed that the plaintiff’s lawyer had secured contingent fee contracts with their clients.

If the plaintiff and the defendant in a civil case all agree to a settlement, it is not uncommon for a judge not to conduct an accounting.  Judge Bamberger only awarded attorney fees  after the 440 plaintiff’s expressed their satisfaction with the amount they received. It was not a situation where the attorney fees were awarded and the claimants received what was remaining.

   Will a judge now be required to review all settlements by calling in all plaintiffs and defendants to his court room and conducing a hearing on each settlement with each plaintiff and defendant?   Attorneys representing the plaintiffs appeared before Judge Bamberger.  Is a client not bound by the actions of his own lawyer?

   Does a signed settlement agreement submitted by a plaintiff or defendant have no legal consequences if the party later changes their mind?  Will this now be a new ethical requirement in all civil cases and criminal cases?  If so, we predict there will never be another settlement approved by a trial judge. Why would any judge in the future risk being sanctioned by the KBA by approving a settlement?

   The overriding fact in this case admitted by the KBA, is that the attorneys lied to Judge Bamberger, and he is now to be punished by the KBA for exercising his protected  judicial discretion.

   The original  plaintiff’s surely have some burden to put the court on notice that they are unhappy with a settlement.  They could have done this by not signing the settlement. They had the right to file an appeal of any ruling of Judge Bamberger, but none did so.

We would suggest that as far as the Judge’s duties are concerned, the plaintiffs in this case waived any duty of the judge to personally inquire of each plaintiff of his satisfaction.

The original plaintiff’s should be equitably estopped from claiming a foul when their own signed releases were relied upon by the court. They set on their rights for years and never appealed any decision made by Judge Bamberger.

Only after the original plaintiffs discovered that their own attorneys had not been candid with them, did they turn their attention to Judge Bamberger.  There appeal rights had tolled, and the only way they could proceed and keep their claims alive, was to attack the trial judges’ integrity.

   If the attorneys have improperly obtained the signed settlements, than that is a completely different issue. Attorneys do not enjoy the protection of the Judicial Immunity Doctrine. If the attorneys committed a fraud or committed malpractice, or violated the Code of Professional Conduct, how does that implicate the judge? The best answer to this question given by the KBA is that the judge should have known better. This is clear hindsight review.

   The KBA argues in their brief (Page 13) that “to believe his (Bamberger’s) testimony that he signed whatever orders the attorneys give him because he trusted them and had no knowledge or suspicion of impropriety is to believe he had little cognitive ability” … “he was dazzled by and enamored with a group of powerful men…”

   Is ” lack of cognitive ability” a new standard for ethics sanctions? May not a trial judge weigh the credibility of highly successful lawyers who are nationally recognized for their prior work, when they advise him on issues of law and fact?

   The KBA brief includes many conclusions which merely speculate on what Judge Bamberger was thinking when he signed court orders. Will the Supreme Court tolerate such speculation as to a Judge’s thoughts?  I would submit that the colorful and deprecating language, and unsupported speculation as to another persons’ thoughts, as used by the Bar Counsel in their brief, would be thrown out of almost any real trial court under the Rules of Evidence.

BAMBERGERS’S SERVICE ON THE BOARD OF THE FUND FOR HEALTY LIVING CHARITABLE TRUST

One of the essential elements of this case which was picked up by the media, and which was played to the hilt by the Bar Counsel was that six months after Bamberger retired he accepted a position on the board of the Healthy Living Charitable Trust. The Judicial Conduct Code clearly permits even a sitting judge to sit on the board of a charitable trust.

See Commentary:

“Canon 4- Section …4C(3) permitting service by a judge with organizations devoted to the improvement of the law, the legal system or the administration of justice and with educational, religious, charitable, fraternal or civic organizations not conducted for profit….

 

(3) A judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice or of an educational, religious, charitable, fraternal or civic organization not conducted for profit,…”

 

         The record reveals that Judge Bamberger, before accepting this position obtained ethics opinions from two lawyers which suggested that it was not an ethical violation for Bamberger to serve as a board member. At the time he became a Board member of the trust, he had retired from office and had no judicial control over the operation of the Trust.

   The Bar Counsel has conveniently ignored the fact that the Healthy Living Charitable Trust was a suggestion made by Stanley Chesley after all of Bamberger’s orders concerning attorney fee awards were signed.  The Bar Counsel suggests that a Cy Pres trust is itself evidence of improper conduct.

In fact there is a great deal of precedent in class action cases for such trusts to be set up to dispose of class action funds left over after all plaintiff’s have received their fair share. Further the Bar Counsel demonstrates their mindset against Judge Bamberger by stating in their brief that the Charitable Trust was “secret”. This argument suggests, without any proof, that the trust funds were improperly handled.

   Nationally recognized Class Action expert Stan Chesley and a respected mediator have supported the appropriateness of the cy pres trust option.  Only after Judge Bamberger’s retirement were questions raised which might have supported a different ruling by respondent.

The KBA Bar Counsel brief suggests that Bamberger was “dazzled” by these experts. (What judge wouldn’t be?  Bamberger made his last ruling in this case in January 2004.  His conduct is now measured by events and revelations made years after his rulings were made.

   The charitable trust was approved by the IRS, and was apparently audited by the U.S. Attorney’s office. After the funds were seized by the order of Judge Wehr and Judge Crittenden, there was over a million dollars more in the trust then were initially placed in the trust, even after the payment of the trustees salaries and expenses, and after an award by the trust of over a million dollars to other charitable organizations.

    The Bar Counsel dramatically implies that the board of trustees were highly paid, but their salaries were in line with salaries paid in other charitable trusts. The IRS had no problem with the fees paid to the trustees, but the Bar Counsel does a parody of the actor Claude Rains as Police Captain Louis Renault in the l942 movie Casablanca, who was “shocked…shocked I tell you!” to find that gambling was going on in his jurisdiction.

What research has the KBA done to support the conclusion that the Charitable Trust trustees were overly paid? We find no examples of proper salaries for trustees being introduced by the KBA.

THE LINGERING ISSUE OF AGGREGATE SETTLEMENT VERSUS CLASS ACTION SETTLEMENT

     One of the main arguments made by the Bar Counsel is that the settlement was an “aggregate” settlement as opposed to a “class action settlement”. If the settlement was an aggregate settlement then the 440 Fen Phen plaintiffs in the class action should receive all of the money left over after the payment of attorney fees and court costs.

On the other hand if the settlement was properly classified as a “class action settlement” then each of the 440 plaintiffs where only entitled to a settlement which fairly compensated them for their true loss.  Judge Bamberger ruled that the settlement was a class action settlement, and this resulted in excess funds being left after all the 440 plaintiff’s had been paid according to the facts of their individual claims.

The issue of whether or not the settlement was an “aggregate” settlement or a “class action settlement” is currently on review by the Sixth Circuit and possibly by the Kentucky Supreme Court.   The KBA and the Board of Governors have ignored this continuing but highly important issue.

   Gallion and Cunningham and Chesley all argue that there is a document which is part of the settlement which answers this question. This document is identified as “the settlement letter of  5-1-01″. This document allegedly defines the status of “settling claimants”.

    Judge Bamberger is faulted by the KBA for his judicial interpretation of this issue. The KBA seeks sanctions against the Judge based on their guess on how the Kentucky Supreme Court will rule on this issue in the plaintiff’s civil case now on appeal. 

    The finding of the  Kentucky Court of Appeals held that the type of settlement was a jury question.

2007-CA-001971  – Date: 2/3/2011 ABBOTT V. GALLION, CUNNINGHAM AND MILLS

Quotes from the Ct. of Appeals ruling:

“…it was represented to the Court (i.e. to Judge Bamberger) during the June 27, 2002, hearing regarding that Seven Million Five Hundred Thousand Dollars ($7,500,000.00) that all clients had or would agree to the balance of funds going to charity. It is now clear from the paper discovery produced that same was not true, and none of the clients were advised of the magnitude of the funds being transferred.”

” Judge Bamberger was not made aware of the fee contracts,…” (i.e. the contingent fee contracts originally obtained by CMC.)

” Abbott points out that GMC (Gallion Mills and Cunningham) gave it no notice of the true amount of fees it was taking, or that it had asked Bamberger to approve fees in excess of the contingent fee contracts it had executed.”

” This is an independent action that is not the result of a modification or vacation of Bamberger’s orders in the Guard action.” (i.e. the Court is saying the plaintiff’s represented by Angela Ford did not seek to set aside any orders of Judge Bamberger.)

” In response to Abbott’s motion for partial summary judgment, the seventeen-page affidavit of Hon. Kenneth R. Feinberg, a practicing attorney and an expert in mass tort litigation, was submitted in the Boone County civil case heard by Judge Wehr.

Feinberg’s affidavit concluded the settlement entered in the Guard action was “reasonable” and the “side letter” agreement supported the conclusion that the $200,000,000.00 paid by AHP was not intended to compensate only the 431 plaintiffs, but was also intended “to provide for other payments, including potential claims or (sic) other Phen-Fen (sic) users, subrogation claim holders, and other unforeseen claims.”

 Feinberg went on to state:

“There was nothing out of the ordinary in the Boone Circuit Court approving the use of approximately twenty million dollars from Guard for cy pres purposes or in approving the formation of a charitable foundation, the Kentucky Fund for Healthy Living, Inc. (Kentucky Fund), to administer the cy pres funds. I am aware that certain of the plaintiffs’ attorneys were appointed by the Court to serve as directors of the Kentucky Fund.

In my opinion, there was no conflict of interest or impropriety whatever in those appointments. The plaintiffs’ attorneys were in an excellent position to understand the purposes of the fund and to carry out the intent of the Court that approved the establishment of the charitable foundation.

In my opinion, the case was handled properly and ethically. I have seen nothing that credibly suggests any misconduct by the attorneys or any inappropriate action by the judge who presided over the case. It appears that the instant action against the plaintiffs’ attorneys in Guard (AKA the Fen Phen case) is based on nothing more than misinformation or lack of understanding of the procedures involved in class action or common fund or aggregate mass tort settlement.”

Feinberg’s affidavit was sufficient to create genuine issues of material fact such as:

…whether the entire settlement, minus fees and expenses, was to be split between the 431 settling claimants; whether the settling complainants were fairly and adequately compensated; whether KFHL was funded with money that should have been distributed to the settling claimants or was funded with excess funds for which the plaintiff’s consent to its ultimate use was not required; and, whether GMC and Chesley were obligated to indemnify AHP for additional claimants who might come forward after the settlement had been dispersed. The foregoing questions of fact justified going forward with trial. Steelvest, 807 S.W.2d at 480-82; See also, Chalothorn v. Meade, 15 S.W.3d 391 (Ky. App. 1999).”

   The Court of Appeals ruled, ” We agree that creation of a cy pres trust is a valid option under the appropriate circumstances.”

     According to the Court of Appeals, the Charitable Trust approved by Judge Bamberger was a valid option for him to consider. This ruling of the Court of Appeals was not mentioned in the Bar Counsel’s brief.

The Bar Counsel stated in their brief re: the Charitable Trust:

“He (meaning Bamberger) allowed the attorneys to keep another twenty million dollars of settlement funds …”  (i.e. by setting up the charitable trust.)

This money was not kept by Gallion, Mills or Cunningham.  This argument by the Bar Counsel simply misstates the facts on this issue. This exaggeration is just one of many in the Trial Commissioner’s brief.  The $20,000,000 did not go to GMC, it went to a legally formed charitable trust.  All funds from this trust were recovered.

   The Kentucky Court of Appeals concluded, ” Therefore, reversal is necessary. Because we have determined partial summary judgment was improvidently granted…”.

    Upon trial it is possible that a judgment may be entered declaring the settlement to have been a “class action” settlement and not an “aggregate” settlement, and if that occurs, then every claim brought by the Bar Counsel against Judge Bamberger’s rulings will be cast in quite a different light.

   We submit that the Supreme Court must view Judge Bamberger’s rulings in light of the law, and not just the rhetoric of the Bar Counsel. We have not discovered one instance in the Bar Counsel’s brief which supports their conclusion that Bamberger ever acted outside of his judicial function in making any ruling. Therefore there is a strong argument that Judge Bamberger should be protected by the Doctrine of Judicial Immunity

    This material issue demonstrates that the action by the KBA against Judge Bamberger is based on the Bar Counsel’s interpretation of the meaning of said document as opposed to Judge Bamberger’s interpretation of the meaning of said document.

Ruling on conflicting legal issues is clearly within a judges jurisdiction and is protected by the Doctrine of Judicial Immunity.

    If this position is sustained in favor of the KBA, then any ruling of any judge can be subjected to ethics prosecution if the KBA disagrees with the trial court’s findings. Is the Bar Counsel the proper person to rule on questions such as this before they are decided by the appellate courts?

    The record of the Bamberger proceedings reveal testimony of Kenneth R. Feinberg. Feinberg is a nationally recognized expert on class action settlements and the evaluation of claims in class actions. He is the man that President George W. Bush appointed to oversee the evaluation of compensation for the victims of the Sept. 11 terroristic attack upon the New York World Trade Center. Feinberg also handled the evaluation of the claims of the 440 plaintiffs in the Kentucky Fen Phen case and he states under oath:

“I have read and considered the assertion in the Plaintiff’s memorandum supporting their motion for summary judgment that Exhibit 3 to the settlement agreement is a “smoking gun” that “proves” that all of the $200,000,000 was intended to compensate only 431 claimants, many of whom are involved in the instant litigation against their former attorneys. In my opinion that assertion is simply a naive misunderstanding or misinterpretation of the language in the settlement agreement and the purpose it served in memorializing the settlement.”

(Footnote on Kenneth Feinberg:

Kenneth Feinberg  - Feinberg was appointed Special Master of the U.S. government’s September 11th Victim Compensation Fund and currently serves as the Special Master for TARP Executive Compensation, popularly called the “pay czar.” Additionally, Feinberg currently serves as the government-appointed administrator of the BP Deepwater Horizon Disaster Victim Compensation Fund.

    In the first criminal trial of Gallion, Cunningham and Mills, before Judge Bertlesman, the court ruled the settlement was a “class action settlement”, not an “aggregate” settlement. No weight is given by the KBA to this ruling of a U.S. District Judge.  If a Federal judge found it to be a “class action” type settlement it is reasonable to justify Judge Bamberger’s identical finding on this issue.  The KBA dismisses the very real and legitimate issue regarding what type of settlement was made between the diet drug manufacturer and the plaintiff’s.

In the second criminal trial, Judge Danny Reeves refused to allow testimony on this subject and instructed the jury that it was an “aggregate” settlement. That ruling is on appeal to the Sixth Circuit Court of Appeals.  The KBA argument ignores the possibility that the Sixth Circuit Court of Appeals may find that Judge Bertlesman was correct and that Judge Reeves was wrong on this issue. 

Judge Wehr, the Boone Circuit Court Judge who handled the Angela Ford case against the Plaintiff’s original lawyers, granted a summary judgment apparently finding it was an “aggregate settlement”. That summary judgment was set aside by the Ky. Court of Appeals. The Court of Appeals found that the type of settlement was a jury question and could not be decided by a summary judgment ruling as it was in the purview of the jury to rule on the facts. That very issue is currently on appeal to the Kentucky Supreme Court in the civil suit.

   A denial of judicial immunity to Judge Bamberger will put every judge in Kentucky under the threat of KBA discipline sanctions if they acted on representations made by the attorneys or parties who appeared before them.

If any judge is overruled by a higher court will he now be subject to an ethics prosecution because he ruled incorrectly on the law or made some other kind of mistake?

THE FEE JUDGE BAMBERGER AWARDED TO PLAINTIFF’S ATTORNEYS WAS WITHIN GUIDELINES ESTABLISHED BY THE COURT OF APPEALS

In Shelton v. Simpson, 441 S.W.2d 421 Ct. of Appeals, May 23, 1969, the court upheld a fee of 50% in a Kentucky class action which had 400 plaintiffs. In that decision the Court of Appeals set aside the trial judges fee award of 25%, and restored the 50% fee claimed by the class action attorney.  Bamberger awarded an attorneys fee of 48%. Bamberger’s fee award was clearly made with some precedent.

WHAT JURISDICTION SHOULD THE KBA HAVE OVER JUDGES

   We would suggest that the Judicial Immunity Doctrine can co-exist with the KBA discipline process. In Hardesty the Supreme Court (in dicta) suggested that there were instances where the KBA could proceed without a referral by the JCC. One reasonable interpretation of that dicta is to recognize the right of the KBA to proceed immediately against a Judge who has been convicted of a criminal offense. A criminal offense is not a judicial function and therefore is not protected by the judicial immunity doctrine.

However, the JCC should retain the right in any case against a judge, to make a finding as to whether or not the actions of the defendant judge “was an action within his judicial function” and therefore entitled to the judicial immunity defense.

   If the JCC finds that a judges’ complained of conduct was done within the role of a judge (i.e. signing orders, holding hearings, etc.) he should be entitled to judicial immunity and no discipline action could be taken by the KBA without a finding by the JCC that the judge was acting outside of his official duties. (We again point out that KBA discipline actions are defined as civil actions.)

   On the other hand, if the JCC issues a finding of fact that the complained of actions of the judge were not judicial acts, then the judge should not be protected by judicial immunity.

   The JCC by making a referral to the KBA is essence is saying that the conduct of the judge was not protected by judicial immunity. The JCC is authorized by Supreme Court Rules to refer a judge to the KBA for consideration of sanctions or disbarment. No such referral was made by the JCC in the case involving Judge Bamberger.

    The KBA never explains why the Supreme Court Rule granting jurisdiction to the JCC to make a discipline referral to the KBA should be ignored.

The KBA in essence argues that they do not have any limits on their jurisdiction to consider a discipline action, and therefore they claim that the Supreme Court Rule regarding “referrals” by the JCC is without any meaning.

   The purpose of the JCC is to provide a body with knowledge of judicial functions. The JCC membership includes a Court of Appeals judge, a Circuit Judge and a District Judge, a representative of the Bar Association and two citizen members. They are presumed to have an understanding of the type of special problems and duties of judges.

    If the KBA is allowed carte blanche to determine the proper duties of judges and to rule on whether actions taken by a judge are within his judicial function, then there really will be no reason to continue the existence of the JCC.

JURISDICTION OF THE JCC AND KBA

The question of the jurisdiction of the JCC and KBA was raised by Judge Bamberger in his brief to the Board of Governors. Bamberger asserted that “Section 121 (of the Kentucky Constitution) fixes original jurisdiction for judicial discipline exclusively in the (Judicial Conduct) Commission…”

The JCC did not refer Judge Bamberger to the KBA “for possible suspension or disbarment…”

    We have yet to see any proof that Judge Bamberger by signing certain orders was acting “outside of his judicial function“. This point distinguishes every argument raised by the KBA Bar Counsel in their brief to the Board of Governors and to the Trial Commissioner.

CONCLUSION

   The Bar Counsel has argued that Judge Bamberger was dazzled by the legal arguments of highly respected experts in the class action practices, and therefore he should be sanctioned with permanent disbarment. This sets a dangerous precedent for any judge who has ever made a ruling based on conflicting facts or conflicting legal issues.

   If this novel theory of jurisdiction over judge’s rulings by the Kentucky Bar Association is upheld, then every judge will henceforth be subject to hindsight review by the Bar Counsel.

  We further submit that the practice of the Bar Counsel in being allowed to unilaterally set the appeal surety of a judge or lawyer as a prerequisite for the right to appeal to the Supreme Court is unconstitutional.

   We submit the Supreme Court should clarify the jurisdiction of the JCC and the KBA and uphold the Doctrine of Judicial Immunity.  And further, the Court should amend the SCR’s to permit the filing of  inexpensive appeals.

RESPECTFULLY SUBMITTED:

Judge Stan Billingsley (Retired)                                                                                                               314 7th. St.                                                                                                                                    Carrollton, Ky. 41008                                                                                                                                    Bar Number-05170                                                                                                                                Phone (502)732-4617                                                                                                                                 E-mail: Firstjudge@aol.com

IMPORTANT AMICUS BRIEF  REJECTED BY SUPREME COURT  —  KBA ATTACK ON THE JUDICIAL IMMUNITY  DOCTRINE  ADVANCES-

By LawReader Senior Editor Stan Billingsley                                   August 22, 2011

     Last week the Ky. Supreme Court denied a motion to allow the author of this article to file an Friend of the Court brief in the disciplinary action against retired Judge Joseph Bamberger.

Even though permission for this Amicus brief  to be filed by retired judge Stan Billingsley, the Supreme Court retains the discretionary right to review the issues raised in the rejected brief.

   The KBA  around 2005 began an investigation of Bamberger for rulings he made as a Judge in the Fen Phen class action case. 

    The purpose of the tendered Amicus brief was to bring to the courts attention important legal issues that affect all members of the judiciary.   The KBA seeks to void the judicial immunity rule, which disallows any civil action against a judge for rulings he made in his official capacity.

   For hundreds of years judges have enjoyed immunity from rulings they made as a judge.  The purpose of this was to allow judges to make rulings without concern that they might be sued by anyone who disagreed with their ruling.  The proper remedy for a bad judicial ruling was an appeal to a higher court.   None of the rulings made by Judge Bamberger were appealed.

As explained in the tendered brief (a copy of which is posted below) the judicial immunity rule applies even if the judge acted with malice.  The doctrine is written broadly and has served a useful purpose in our judicial system. It has been explained in many case law rulings that the Doctrine is not intended to protect an out of control judge, but is justified on the larger purpose of protecting judicial independence.

   In the Bamberger discipline case, the KBA seeks to sanction Judge Bamberger for making bad decisions in relying on the recommendations of national experts in Class Action law.  Only after Bamberger issued his rulings were allegations made public that the original plaintiff’s attorneys may have mishandled some of their client’s funds.  Even that issue is not yet final as the Court of Appeals reversed the Summary Judgment  against William Gallion, Melbourne Mills and l Cunningham.   Cunningham and Gallion were convicted at their second criminal trial, but that conviction is currently on appeal to the Sixth Circuit.

   So even though the criminal and civil issues against Gallion, Cunningham (Mills was acquitted) are still pending, the KBA has chosen without a request from the Judicial Conduct Commission to seek permanent disbarment of Judge Bamberger.

   The Billingsley Amicus brief does not attempt to defend the merits of any ruling made by Bamberger per se.   The issue sought to be raised in the Amicus brief is that the KBA has no jurisdiction to review the legal rulings of any judge made in his official capacity due to the Judicial Immunity Doctrine.  The Judicial Conduct Commission is subject to a SCR which says that a judge may not be sanctioned for an “erroneous ruling”.  The KBA ignores that rule by attempting to sanction Judge Bamberger.

SCR 4.020 Jurisdiction (of the JCC which says):

“(2) Any erroneous decision made in good faith shall not be subject to the jurisdiction of the Commission.

   The Billingsley Amicus brief argues that as a retired judge he has standing to raise the issue of the Judicial Immunity Doctrine.   If this legal argument made by the KBA is upheld, then any current or retired judge could be subject to hindsight review for any bad decision they may have made.   This ruling would place the KBA on the bench beside every judge, and allow them to sanction the judge for any ruling he/she made with which the KBA disagrees.

We admit that judges sometimes make bad rulings.  I do not exempt myself from that allegation.  However, the remedy for a bad ruling is an appeal.  If this claim by the KBA is allowed to become precedent, then the KBA can reopen any ruling every made by a judge (even retired judges) and they can pass judgment on whether or not the judge made an error.  

The errors for which the KBA seeks to sanction Judge Bamberger include claims that he “was dazzled and influenced” by national experts in class action law in making his rulings.   I confess that I have made rulings during my 27 years as a Trial Commissioner, District Judge and Circuit Judge in which I gave greater weight to recognized experts than to self-serving statements by a party.  I suppose it could be argued that in the future Judges will have to be prophets in order to escape discipline review by the KBA.

The KBA alleged that Bamberger “should have” know facts which were not revealed until years after he signed the questioned orders.  Witnesses, Judges and Trial Commissioners, and even the KBA have written that Gallion and Cunningman lied to or mislead Judge Bamberger about material facts.  One such fact was the claim that Gallion, Cunningham and Mills had contingent fee contracts with their clients and that Bamberger should have known this, even though it was clearly admitted in the criminal  and civil trials, and in the KBA action against Bamberger, that these facts were concealed from Bamberger. 

The key facts that Judge Bamberger was mislead by the plaintiff’s attorneys, and by Stanley Chesley are clearly in the KBA discipline record, yet are ignored by the KBA. 

The bottom line is that the KBA is seeking to sanction a trial judge because he was mislead by the parties on key facts.  If this precedent is upheld by the Supreme Court, then they will be opening a Pandora’s Box which will allow the KBA to inject itself in to every case coming before any judge.  The KBA argues that the Judicial Conduct Commission has no power to limit the involvement of the KBA is reviewing the conduct of judges.  We ask in our tendered (and rejected) brief that if this argument is upheld, then there will be no justification for the continued existence of the Judicial Conduct Commission… (on which I served as an alternate for four years).

The argument by the KBA is that Judge Bamberger “should have known better”.  In other words he was not a prophet and therefore he should lose his law license.

I do not know many facts about the Fen Phen case.   My tendered Amicus brief which was rejected by the Supreme Court was not to seek a vindication for Judge Bamberger, but to uphold the Doctrine of Judicial Immunity.  The Doctrine clearly says even malicious rulings by a judge are protected by the Judicial Immunity Doctrine.   If the Supreme Court sanctions Judge Bamberger for a ruling he made in his jurisdiction, then every sitting and every retired judge will then be subject to KBA hindsight review.

I found it interesting that in the KBA reply to my motion to file an Amicus brief, they argued that I was a friend of Judge Bamberger.   They are correct, and I have admitted and detailed my relationship with Judge Bamberger over the last forty years I have known him.  The KBA by making this argument was suggesting that I should have no standing to file an Amicus brief due to my long friendship with Judge Bamberger.  That is the type of argument which suggests the Bar Counsel had no real legal argument.  The KBA, in their motion to disallow my Amicus brief, chose to go personal against me and tried to distract the audience from the real issues in this case.  They dedicated about six pages of their eight page motion to a personal attack on me.  They attempted to divert the Supreme Court’s attention from the real issue of Judicial Immunity.

   We have not found any legal grounds to justify the denial of  the filing of an Amicus brief simply because the person submitting the brief happened to know the defendant.

   If the Judicial Immunity Doctrine is repealed, then the Supreme Court will have given unlimited license to the KBA to sanction any judicial officer for any ruling with which the KBA disagrees.  The reader should also know that there is no statute of limitations for discipline charges to be filed.  So they will be able to go back and review every single decision every made by any judge. Such a precedent would be the first such ruling in the United States.  All other states uphold the Doctrine of Judicial Immunity.

   Another issue of importance raised in this discipline case, is the practice of the KBA in imposing large costs bills upon defendant attorneys who wish to appeal to the Supreme Court.  In Judge Bamberger’s case, he chose not to file an appeal since the Bar Counsel submitted a cost bill to the Disciplinary Clerk of $18,800.  So if Bamberger filed an appeal to the Supreme Court he first had to deposit $18,000 with the Disciplinary Clerk of the KBA.   SCR 3.370

The KBA  tax on appeals clearly violates Section 115 of the Kentucky Supreme Court which holds that all appeals “shall be inexpensive.”   So the prosecutors of discipline actions are allowed to prevent appeals by imposing large cost bills for which the attorney must post a surety before having the right to appeal.  There is no process allowed in the Supreme Court Rules which grant the defendant attorney  a due process hearing on the amount of costs claimed by the Bar Counsel.

   We anecdotally have heard that in another discipline case the KBA imposed an appeal tax of some $40,000 on an attorney.  No $40,000, deposited with the KBA, or no appeal.

  The final issue that is discussed in the rejected Amicus brief, is the “promptness” rule.  The Supreme Court Rules require that all attorney discipline prosecutions and investigations shall be conducted “promptly”.  In Speedy Trial cases the courts have long held that delays of as little as eleven months are “prejudicial”.  In the Bamberger case, the KBA started their investigation over six years ago.  

The Promptness Rule  —- SCR 3.180 Investigations and trials to be prompt; subpoena power  –

(1) All investigations and the trial of all disciplinary cases shall be begun, prosecuted, and completed as promptly as the ends of justice will permit.”

The Supreme Court in another discipline case recently ruled that three years in an ethics prosecution was” prejudicial” to the attorney. See: Kentucky Bar Association v. Lococo, 199 S.W.3d 182 (Ky., 2006): “…. Here, there was a delay in the prosecution of this case…..This delay from April of 2000 until August of 2003 is a mitigating factor and was prejudicial toward Ms. Lococo.”  (Emphasis added.)

The Bamberger investigation and prosecution started about 2005, some six years ago.  This fact reveals that the “promptness” rule is being ignored by the KBA.

   The final issue is the claim by the KBA that if the defendant attorney does not file a brief, then the KBA does not have to file a brief.   That is correct.  But the KBA incorrectly interprets SCR  3.370 to say that the Supreme Court has to accept the Findings of the Trial Commissioner and the Board of Governors without review of the facts and legal arguments if the KBA or the defendant attorney do not file an appeal.  We submit that SCR 3.370 grants the Supreme Court the right to unilaterally decide to review any Findings of the Board of Governors or the Trial Commissioner at their discretion.

SCR 3.370 says:    (9) the Supreme Court may, …..notify the Bar Counsel and the Respondent that it will review the decision.

   We have chosen to publish this rejected brief as we believe it presents important issues that could dramatically affect all judges in Kentucky.   We do not question the right or authority of the Supreme Court to deny the filing of our brief.  If this sanction against Judge Bamberger is upheld, then we suggest that every current and every retired judge should promptly purchase malpractice insurance.  Oh yes, the KBA will be glad to sell you a malpractice insurance policy!

                                                          *******************

The following is a copy of the Amicus brief submitted to the Ky. Supreme Court by the author.  The Supreme Court granted the motion of the KBA Bar Counsel to reject the filing of this brief.

KENTUCKY SUPREME COURT                                                                                                       KBA FILE NO. 13985

KENTUCKY BAR ASSOCIATION                                 COMPLAINANT
 
v.
 JOSEPH BAMBERGER                                                RESPONDENT
 

PETITION AND BRIEF OF  RETIRED JUDGE STAN BILLINGSLEY  
AS AMICUS CURIAE
IN SUPPORT OF RESPONDENT  


MAY IT PLEASE THE COURT:

     Appearing as a Amicus Curiae, Judge Stan Billingsley (Retired) hereby petitions this Honorable Court to permit the filing of the following Amicus Curiae Brief.  

CERTIFICATION

I hereby certify that a true and correct copy of this petition and brief  was properly addressed to the Hon. Linda Gosnell, KBA Chief  Bar Counsel, at 514 W. Main Street, Frankfort KY 40601-1812 and to the Disciplinary Clerk, of the Kentucky Bar Association at  514 W. Main Street Frankfort KY 40601-1812, and the Hon.  Susan D. Phillips Phillips, Parker Orberson, 716 W Main St Ste 300, Louisville, Ky. 40202, Trial Commissioner of the KBA in this action, and the Hon. Jerry J. Cox, Attorney for the Respondent, 115 Richmond St,  PO Box 1350, Mt Vernon, KY 40456-1350,  with proper postage affixed, and mailed by placing same in the U.S. Mail, on July 12, 2011.

Judge Stan Billingsley (Retired)                                                                                                               314 7th. St.                                                                                                                                    Carrollton, Ky. 41008                                                                                                                                    Bar Number-05170                                                                                                                                Phone (502)732-4617    

GROUNDS  JUSTIFYING THE COURT IN ALLOWING THIS AMICUS CURIAE BRIEF TO BE CONSIDERED

 

STANDING OF RETIRED JUDGE

  The author of this tendered amicus curie brief, alleges interest and standing on the basis that if the Judicial Immunity Doctrine is voided, then all rulings of any sitting or retired judges will thereafter be subject to hindsight review by the KBA.  The author is a retired judge. 

  Under the argument advanced in this case by the KBA, it is claimed that the KBA has the jurisdiction to review any ruling of any judge without limitation. 

   If the precedent sought by the KBA is upheld in this case then the jurisdictional authority of the  KBA will be so broadly expanded then the justification for the existence of the Judicial Conduct Commission will be voided.  this case warrants a declaratory ruling by the Ky. Supreme Court regarding the jurisdiction of the JCC versus the KBA.

    Our research has found no precedent of any other state ever granting the right to review the judicial rulings of a judge, made within his jurisdiction, by a State Bar Association.

   The author of this brief has no financial interest in the underlying case, does not represent any party in this case, and has not sought or received approval of either party to this action to tender this brief.  If the KBA and Bar Counsel is upheld, and if they elect to conduct a review of  all rulings made by the author during his 23 years on the bench, then the author will be subject to severe financial implications in defending himself.

AUTHORITY OF THE  KENTUCKY  SUPREME  COURT  TO  GRANT  DISCRETIONARY REVIEW  OF  THIS  CASE  UNDER  SCR 3.370 (9)

The Supreme Court may exercise discretionary authority under SCR 3.370 (9), to consider the issues in this case even if the complainant or respondent fail to file an appeal.

    SCR 3.370 Procedure before the Board and the Court

“(9) The Court may, within ninety (90) days of the filing with the Court of the Trial Commissioner’s report as provided by 3.360(4), or of the Board’s decision, notify Bar Counsel and Respondent that it will review the decision…., the Court shall enter such orders or opinion as it deems appropriate on the entire record.”  (emphasis added by author)

If the Ky. Supreme Court does not agree to review this action as permitted under Section (9), then the findings of the Board of Governors will be automatically adopted by rule SCR 3.370 – (10).  Section (10) which holds that:

” If no notice of review is filed by either one of the parties, or the Court under paragraph nine (9) of this rule, the Court shall enter an order adopting the decision of the Board or the Trial Commissioner, whichever the case may be, relating to all matters.”

   There is an important jurisdictional question raised by the attempt of the KBA to discipline  a judge for acts taken by the judge in his jurisdiction without the referral by the Judicial Conduct Commission. Until now, the Doctrine of Judicial Immunity has protected a judge from claims involving decisions he has made within his jurisdiction.

The Supreme Court’s action in this case will establish an important precedent regarding the jurisdiction of the Judicial Conduct Commission versus the jurisdiction of the KBA.

The Bar Counsel has filed a report with the Disciplinary Clerk requiring the respondent judge to post a surety in the amount of approximately $18,500 in order to have the right to file an appeal. 

This high surety violates Section 115 of the Kentucky Constitution which states that all appeals shall be “inexpensive”. This high surety imposed unilaterally by the Bar Counsel may well prevent the respondent judge from filing an appeal. 

In such a case,  important questions of law affecting the jurisdiction of the Judicial Conduct Commission, and rights of all sitting and all retired judges will be automatically decided in favor of the KBA, and against the interest of the Judicial Conduct Commission, and of the  judiciary, by repealing the Doctrine of Judicial Immunity. 

That makes the tendered Amicus brief highly important to the JCC and the Judiciary.

*****************

AMICUS CURIAE BRIEF BY JUDGE STAN BILLINGSLEY (RETIRED)

 

MAY IT PLEASE THE COURT:

THE  KENTUCKY  SUPREME  COURT  SHOULD  GRANT  DISCRETIONARY REVIEW  OF  THIS  CASE  UNDER  SCR 3.370

There are three reasons why the Supreme Court should exercise discretionary authority granted to the court under SCR 3.370, to consider the issues in this case.

1.  The costs claimed by the Bar Counsel’s office, which must be posted by the respondent are in violation of Section 115 of the Kentucky Constitution.   The actions of the Bar Counsel’s office, in unilaterally setting a high cost bill, denies due process to the respondent.

2.  There is an important jurisdictional question raised by the attempt of the KBA to discipline  a judge for acts taken by the judge in his jurisdiction. This action by the KBA violates the Judicial Immunity Doctrine.  If the Supreme Court does not review this jurisdictional issue, then there will be established a precedent which will void the Doctrine of Judicial Immunity.

3. The Supreme Court’s action in this case will establish an important precedent regarding the jurisdiction of the Judicial Conduct Commission versus the jurisdiction of the KBA.

 KENTUCKY CONSTITUTION SECTION 115 – RIGHT TO INEXPENSIVE APPEAL

   It is possible that neither the respondent judge nor the KBA will file an appeal with the Supreme court in this action.   Even though Section 115 of the Kentucky Constitution states that all appeals shall be “inexpensive”. The SCR rules permit the Bar Counsel to unilaterally determine the costs of the discipline proceeding, and report said costs to the Disciplinary Clerk.

 The respondent in a discipline action must deposit a surety with the Disciplinary Clerk in the amount unilaterally claimed by the Bar Counsel’s office in order to have the right to appeal the findings of the Board of Governors to the Supreme Court.  As the rule is worded if there is no surety posted there is no appeal.

The report of the Bar Counsel’s office regarding costs in this case will require the respondent to post a surety of some $18,500.  This does not appear to be “inexpensive” and operates as an unconstitutional restriction on the right to appeal that is granted by the Kentucky Constitution.

WHEN THE RESPONDENT OR THE KBA FAIL TO FILE AN APPEAL,  THE SUPREME COURT RETAINS THE JURDICTION TO “REVIEW” THE FINDINGS OF THE BOARD OF GOVERNORS.

A review of SCR 3.370 grants the Supreme Court the discretion to review a finding of the Board of Governors even in the absence of an appeal by the respondent or by the KBA.

     ” SCR 3.370 Procedure before the Board and the Court

(9) The Court may, within ninety (90) days of the filing with the Court of the Trial Commissioner’s report as provided by 3.360(4), or of the Board’s decision, notify Bar Counsel and Respondent that it will review the decision. If the Court so acts, Bar Counsel and Respondent may each file briefs within thirty (30) days, with no right to file reply briefs unless by order of the Court, whereupon the case shall stand submitted. Thereafter, the Court shall enter such orders or opinion as it deems appropriate on the entire record.”  (emphasis added by author)

We respectfully submit that an important jurisdictional issue and constitutional question is presented by this case, and that a failure of the Supreme Court to review the findings of the Board of Governors will have the effect of voiding the Judicial Immunity Doctrine, and will destroy the justification for the existence of the Judicial Conduct Commission.

THE JURISDICTIONAL QUESTION

    In the ethics investigation of  retired Judge Joseph Bamberger, the KBA investigation seeks to expand the jurisdiction of the KBA to review and review Judges past decisions for ethics review.

The Trial Commissioner in his Brief to the Board of Governors opined that the KBA had jurisdiction to review a judicial officials acts even without a referral by the JCC.

    Current rules grant jurisdiction to the Judicial Conduct Commission to examine the ethical conduct of judicial officials.  The rules permit the JCC to make referrals to the KBA if the JCC determines that additional review is appropriate by the KBA.

    The end result sought by the KBA is to expand their jurisdiction to review the judicial rulings of a judicial officer, and to inflict sanctions including disbarment if they disagree with the judge’s rulings.

   First we note that this attempted review of Judge Bamberger’s rulings violate SCR 4.029.

See: SCR 4.020 Jurisdiction (of the JCC which says):

“(2) Any erroneous decision made in good faith shall not be subject to the jurisdiction of the Commission.

   We would ask the Court to consider why the Judicial Conduct Commission is denied the right  to review erroneous rulings of a judge, and why the KBA  should be granted such a right? (Such a right is claimed in this action by the KBA.)

   We suggest that this Supreme Court Rule  4.020 is solidly based in the Judicial Immunity Doctrine  explained in Collins v. Brown,  No. 2007-CA-000847-MR (Ky. App. 2/26/2010) (Ky. App., 2010)”.  (This is an unpublished decision but it cites several Kentucky and U.S. Supreme Court decisions which uphold the Doctrine of Judicial Immunity.)

” First, as to the judicial defendants, Judge Wise and former Chief Justice Lambert, the trial court properly found them to have been shielded by absolute judicial immunity. The doctrine of judicial immunity is well-settled under federal and common law and predates the adoption of the current Constitution of Kentucky. See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1977); Vaughn v. Webb, 911 S.W.2d 273 (Ky. App. 1995). So long as the judge has jurisdiction over the subject matter of the cause before him, he is entitled to immunity. Id. There is no question in this case that Judge Wise and former Chief Justice Lambert acted within their jurisdiction at all times pertinent to the matters raised in Wes’s complaint. Thus, they are clearly entitled to immunity from civil complaints stemming from their judicial acts.” (emphasis added by author)

 “The function of absolute immunity in the performance of judicial duties is not to shield members of the judiciary from liability for their own misconduct, but rather “to protect their offices from the deterrent effect of suit(s) alleging improper motives where there has been no more than a mistake or a disagreement on the part of the complaining party with the decision made.” Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001.”

“[i]t has been repeatedly held by this court in a long line of decisions that a judicial officer is not subject to civil suit when in the performance of his judicial duties and within his jurisdiction, although his ruling may be the result of mistake of law, error of judgment, or malice, or be done corruptly.”  Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001.”

   We suggest that a KBA discipline proceeding is a “civil” proceeding.  SCR 3.300 and SCR 3.330 both describe discipline proceedings in terms of a civil action.

“SCR 3.300 Rights of respondent against whom a charge has been files

…”The Respondent shall have all the rights secured to a party by the Rules of Civil Procedure …”

 

“SCR 3.330 Order of proceedings and burden of proof

…. The burden of proof shall rest upon the Association in a disciplinary proceeding, and the facts must be proven by a preponderance of the evidence. ..”

     We respectfully suggest that the discipline process is a civil proceeding and thus falls within the protective walls of the Judicial Immunity Doctrine.

     In  Vaughn v. Webb, 911 S.W.2d 273 (Ky. App., 1995) it was held:  

“The acts of Judge Ray, exercised within his jurisdiction, were judicial acts, not administrative acts and Judge Ray is entitled to the protection of judicial immunity. Under federal law, a judge is immune from personal liability for judicial acts if at the time he acted, regardless of whether he acted in error, maliciously, or in excess of his authority, he had jurisdiction over the subject matter before him. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1977)…”

   In Baker v. (Governor) Fletcher, 204 S.W.3d 589 (Ky., 2006) it was stated:  

“See Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), for the best recitation of the rule granting judicial immunity and the reasons underlying its desirability. For Kentucky cases recognizing judicial immunity in the Commonwealth see Henry v. Wilson, 249 Ky. 589, 61 S.W.2d 305 (1933), and Vaughn v. Webb, 911 S.W.2d 273 (Ky.App.1995) (“a judge is immune from personal liability for judicial acts if at the time he acted, regardless of whether he acted in error,…”

“And such a view is also consistent with the immunity afforded to judges, which immunizes judges from suit for ANY  judicial act, which is defined as any act that is of the nature normally performed by a judge and one in which the parties dealt with the judge in his official capacity.”  (emphasis added by Billingsley)

    The question of judicial immunity was properly raised by Judge Bamberger in his brief to the Board of Governors.

   The Supreme Court will have an opportunity to review the findings of the Trial Commissioner and the Board of Governors against Judge Bamberger. If the court sanctions Judge Bamberger for a ruling he made that was within his jurisdiction, then they will be writing new law which negates the Doctrine of  Judicial Immunity and will dangerously expand the jurisdiction of the KBA.

Such a ruling would destroy the theory behind the existence of the Judicial Conduct Commission. Such a ruling would grant the KBA jurisdiction to file a civil action seeking sanctions of judges who were acting in their judicial function.

ARGUMENT

   Bamberger made rulings which the KBA claims he should have examined more closely.  The Bar Counsel argues that the respondent judge made bad rulings based largely on the reputation of the attorneys and experts who appeared before him.   This argument is nothing less than a head on attack on the Judicial Immunity Doctrine, as it challenges the judges reasoning for making a ruling.  

   Nowhere does the KBA argue that Bamberger did not have the jurisdiction to make every ruling he made.  They argue about his reasoning and his wisdom, but they do not present facts contesting his jurisdiction to rule on the issues before him.

   It is not enough that some decisions turned out bad.  It is not enough that the non-judge lawyers in the KBA believe they would have done things differently had they been the judge. 

   No evidence was presented against Judge Bamberger by the KBA to support the proposition that he acted “with evil or improper intent to aid the plaintiff’s lawyers misconduct”.

   No evidence was presented that Bamberger was even aware of the plaintiff’s lawyers misconduct until after he had retired.  Therefore the KBA has failed to provide a preponderance of evidence to justify their findings against Judge Bamberger.

  Testimony in the two criminal trials against Gallion and Cunningham alleged that Gallion and Cunningham,  lied to Judge Bamberger about material elements as to their actions.  This effort to misinform Judge Bamberger on the law and facts is admitted by the Trial Commissioner in her brief as having occurred in Judge Bamberger’s case.

  The Trial Commissioner admits  in her brief that “there is no doubt that Gallion lied to the respondent (Judge Bamberger), as did Chesley and others.” (See page 9 of KBA brief.)

Judge William Graham acting as Trial Commissioner for the KBA in their ethics case against attorney Stan Chesley, concluded:

“Chesley himself bamboozled Judge Bamberger with his often non-sensical answers to the Judges queries about notice.”

   One must ask; “if Judge Bamberger was in-on-the-deal…why was it necessary for the plaintiff’s lawyers to lie to him about material elements?”

   More importantly, if the KBA can sanction a judicial ruling anytime they disagree with the results, the Doctrine of Judicial Immunity will be thereby voided.   We note that there is no statute of limitations applying to the KBA which will prevent the KBA from reviewing the rulings of any sitting or retired judges over their entire judicial career.

   The KBA bar counsel argues that Bamberger relied on a case citation presented to him by one of the plaintiff’s attorneys that was no longer good law (See KBA brief page 11).   We suggest if that is a basis for ethical sanctions then all judges may at some time in their career be brought up on charges.

   This argument by the KBA Bar Counsel would justify a sanction against any Judge who incorrectly interpreted the law. If such a theory is sustained by the Supreme Court, then any judge who is ever overruled by a higher court on appeal, will be subject to an ethics sanction by the KBA. But it also means that the KBA has assumed the jurisdiction to make their own evaluation of a judge’s rulings on any issue that ever came before the judge.

   Such a conclusion would result in harassment of all judges and could be used to justify absolute control of the Judiciary by the KBA, and would destroy the Doctrine of Judicial Immunity.

DISCUSSION  OF  FACTS  CITED  BY  TRIAL COMMISSIONER  AND  BAR COUNSEL  FOR  THEIR  RECOMMENDED  DISCIPLINE  OF  JUDGE BAMBERGER.

   The KBA argues for punishment of Judge Bamberger because he “had not reviewed any accounting whatsoever and had never even seen the Settlement Agreement.” We suggest that the record clearly shows that Bamberger was correctly advised that the plaintiffs had executed signed settlement agreements by all 440 plaintiffs regarding the initial award and again received 440 signed settlement agreements on the distribution of the second amount of funds awarded to them.   He was never informed that the plaintiff’s lawyer had secured contingent fee contracts with their clients.

If the plaintiff and the defendant in a civil case all agree to a settlement, it is not uncommon for a judge not to conduct an accounting.  Judge Bamberger only awarded attorney fees  after the 440 plaintiff’s expressed their satisfaction with the amount they received. It was not a situation where the attorney fees were awarded and the claimants received what was remaining.

   Will a judge now be required to review all settlements by calling in all plaintiffs and defendants to his court room and conducing a hearing on each settlement with each plaintiff and defendant?   Attorneys representing the plaintiffs appeared before Judge Bamberger.  Is a client not bound by the actions of his own lawyer?

   Does a signed settlement agreement submitted by a plaintiff or defendant have no legal consequences if the party later changes their mind?  Will this now be a new ethical requirement in all civil cases and criminal cases?  If so, we predict there will never be another settlement approved by a trial judge. Why would any judge in the future risk being sanctioned by the KBA by approving a settlement?

   The overriding fact in this case admitted by the KBA, is that the attorneys lied to Judge Bamberger, and he is now to be punished by the KBA for exercising his protected  judicial discretion.

   The original  plaintiff’s surely have some burden to put the court on notice that they are unhappy with a settlement.  They could have done this by not signing the settlement. They had the right to file an appeal of any ruling of Judge Bamberger, but none did so.

We would suggest that as far as the Judge’s duties are concerned, the plaintiffs in this case waived any duty of the judge to personally inquire of each plaintiff of his satisfaction.

The original plaintiff’s should be equitably estopped from claiming a foul when their own signed releases were relied upon by the court. They set on their rights for years and never appealed any decision made by Judge Bamberger.

Only after the original plaintiffs discovered that their own attorneys had not been candid with them, did they turn their attention to Judge Bamberger.  There appeal rights had tolled, and the only way they could proceed and keep their claims alive, was to attack the trial judges’ integrity.

   If the attorneys have improperly obtained the signed settlements, than that is a completely different issue. Attorneys do not enjoy the protection of the Judicial Immunity Doctrine. If the attorneys committed a fraud or committed malpractice, or violated the Code of Professional Conduct, how does that implicate the judge? The best answer to this question given by the KBA is that the judge should have known better. This is clear hindsight review.

   The KBA argues in their brief (Page 13) that “to believe his (Bamberger’s) testimony that he signed whatever orders the attorneys give him because he trusted them and had no knowledge or suspicion of impropriety is to believe he had little cognitive ability” … “he was dazzled by and enamored with a group of powerful men…”

   Is ” lack of cognitive ability” a new standard for ethics sanctions? May not a trial judge weigh the credibility of highly successful lawyers who are nationally recognized for their prior work, when they advise him on issues of law and fact?

   The KBA brief includes many conclusions which merely speculate on what Judge Bamberger was thinking when he signed court orders. Will the Supreme Court tolerate such speculation as to a Judge’s thoughts?  I would submit that the colorful and deprecating language, and unsupported speculation as to another persons’ thoughts, as used by the Bar Counsel in their brief, would be thrown out of almost any real trial court under the Rules of Evidence.

BAMBERGERS’S SERVICE ON THE BOARD OF THE FUND FOR HEALTY LIVING CHARITABLE TRUST

One of the essential elements of this case which was picked up by the media, and which was played to the hilt by the Bar Counsel was that six months after Bamberger retired he accepted a position on the board of the Healthy Living Charitable Trust. The Judicial Conduct Code clearly permits even a sitting judge to sit on the board of a charitable trust.

See Commentary:

“Canon 4- Section …4C(3) permitting service by a judge with organizations devoted to the improvement of the law, the legal system or the administration of justice and with educational, religious, charitable, fraternal or civic organizations not conducted for profit….

 

(3) A judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice or of an educational, religious, charitable, fraternal or civic organization not conducted for profit,…”

 

         The record reveals that Judge Bamberger, before accepting this position obtained ethics opinions from two lawyers which suggested that it was not an ethical violation for Bamberger to serve as a board member. At the time he became a Board member of the trust, he had retired from office and had no judicial control over the operation of the Trust.

   The Bar Counsel has conveniently ignored the fact that the Healthy Living Charitable Trust was a suggestion made by Stanley Chesley after all of Bamberger’s orders concerning attorney fee awards were signed.  The Bar Counsel suggests that a Cy Pres trust is itself evidence of improper conduct.

In fact there is a great deal of precedent in class action cases for such trusts to be set up to dispose of class action funds left over after all plaintiff’s have received their fair share. Further the Bar Counsel demonstrates their mindset against Judge Bamberger by stating in their brief that the Charitable Trust was “secret”. This argument suggests, without any proof, that the trust funds were improperly handled.

   Nationally recognized Class Action expert Stan Chesley and a respected mediator have supported the appropriateness of the cy pres trust option.  Only after Judge Bamberger’s retirement were questions raised which might have supported a different ruling by respondent.

The KBA Bar Counsel brief suggests that Bamberger was “dazzled” by these experts. (What judge wouldn’t be?  Bamberger made his last ruling in this case in January 2004.  His conduct is now measured by events and revelations made years after his rulings were made.

   The charitable trust was approved by the IRS, and was apparently audited by the U.S. Attorney’s office. After the funds were seized by the order of Judge Wehr and Judge Crittenden, there was over a million dollars more in the trust then were initially placed in the trust, even after the payment of the trustees salaries and expenses, and after an award by the trust of over a million dollars to other charitable organizations.

    The Bar Counsel dramatically implies that the board of trustees were highly paid, but their salaries were in line with salaries paid in other charitable trusts. The IRS had no problem with the fees paid to the trustees, but the Bar Counsel does a parody of the actor Claude Rains as Police Captain Louis Renault in the l942 movie Casablanca, who was “shocked…shocked I tell you!” to find that gambling was going on in his jurisdiction.

What research has the KBA done to support the conclusion that the Charitable Trust trustees were overly paid? We find no examples of proper salaries for trustees being introduced by the KBA.

THE LINGERING ISSUE OF AGGREGATE SETTLEMENT VERSUS CLASS ACTION SETTLEMENT

     One of the main arguments made by the Bar Counsel is that the settlement was an “aggregate” settlement as opposed to a “class action settlement”. If the settlement was an aggregate settlement then the 440 Fen Phen plaintiffs in the class action should receive all of the money left over after the payment of attorney fees and court costs.

On the other hand if the settlement was properly classified as a “class action settlement” then each of the 440 plaintiffs where only entitled to a settlement which fairly compensated them for their true loss.  Judge Bamberger ruled that the settlement was a class action settlement, and this resulted in excess funds being left after all the 440 plaintiff’s had been paid according to the facts of their individual claims.

The issue of whether or not the settlement was an “aggregate” settlement or a “class action settlement” is currently on review by the Sixth Circuit and possibly by the Kentucky Supreme Court.   The KBA and the Board of Governors have ignored this continuing but highly important issue.

   Gallion and Cunningham and Chesley all argue that there is a document which is part of the settlement which answers this question. This document is identified as “the settlement letter of  5-1-01″. This document allegedly defines the status of “settling claimants”.

    Judge Bamberger is faulted by the KBA for his judicial interpretation of this issue. The KBA seeks sanctions against the Judge based on their guess on how the Kentucky Supreme Court will rule on this issue in the plaintiff’s civil case now on appeal. 

    The finding of the  Kentucky Court of Appeals held that the type of settlement was a jury question.

2007-CA-001971  – Date: 2/3/2011 ABBOTT V. GALLION, CUNNINGHAM AND MILLS

Quotes from the Ct. of Appeals ruling:

“…it was represented to the Court (i.e. to Judge Bamberger) during the June 27, 2002, hearing regarding that Seven Million Five Hundred Thousand Dollars ($7,500,000.00) that all clients had or would agree to the balance of funds going to charity. It is now clear from the paper discovery produced that same was not true, and none of the clients were advised of the magnitude of the funds being transferred.”

” Judge Bamberger was not made aware of the fee contracts,…” (i.e. the contingent fee contracts originally obtained by CMC.)

” Abbott points out that GMC (Gallion Mills and Cunningham) gave it no notice of the true amount of fees it was taking, or that it had asked Bamberger to approve fees in excess of the contingent fee contracts it had executed.”

” This is an independent action that is not the result of a modification or vacation of Bamberger’s orders in the Guard action.” (i.e. the Court is saying the plaintiff’s represented by Angela Ford did not seek to set aside any orders of Judge Bamberger.)

” In response to Abbott’s motion for partial summary judgment, the seventeen-page affidavit of Hon. Kenneth R. Feinberg, a practicing attorney and an expert in mass tort litigation, was submitted in the Boone County civil case heard by Judge Wehr.

Feinberg’s affidavit concluded the settlement entered in the Guard action was “reasonable” and the “side letter” agreement supported the conclusion that the $200,000,000.00 paid by AHP was not intended to compensate only the 431 plaintiffs, but was also intended “to provide for other payments, including potential claims or (sic) other Phen-Fen (sic) users, subrogation claim holders, and other unforeseen claims.”

 Feinberg went on to state:

“There was nothing out of the ordinary in the Boone Circuit Court approving the use of approximately twenty million dollars from Guard for cy pres purposes or in approving the formation of a charitable foundation, the Kentucky Fund for Healthy Living, Inc. (Kentucky Fund), to administer the cy pres funds. I am aware that certain of the plaintiffs’ attorneys were appointed by the Court to serve as directors of the Kentucky Fund.

In my opinion, there was no conflict of interest or impropriety whatever in those appointments. The plaintiffs’ attorneys were in an excellent position to understand the purposes of the fund and to carry out the intent of the Court that approved the establishment of the charitable foundation.

In my opinion, the case was handled properly and ethically. I have seen nothing that credibly suggests any misconduct by the attorneys or any inappropriate action by the judge who presided over the case. It appears that the instant action against the plaintiffs’ attorneys in Guard (AKA the Fen Phen case) is based on nothing more than misinformation or lack of understanding of the procedures involved in class action or common fund or aggregate mass tort settlement.”

Feinberg’s affidavit was sufficient to create genuine issues of material fact such as:

…whether the entire settlement, minus fees and expenses, was to be split between the 431 settling claimants; whether the settling complainants were fairly and adequately compensated; whether KFHL was funded with money that should have been distributed to the settling claimants or was funded with excess funds for which the plaintiff’s consent to its ultimate use was not required; and, whether GMC and Chesley were obligated to indemnify AHP for additional claimants who might come forward after the settlement had been dispersed. The foregoing questions of fact justified going forward with trial. Steelvest, 807 S.W.2d at 480-82; See also, Chalothorn v. Meade, 15 S.W.3d 391 (Ky. App. 1999).”

   The Court of Appeals ruled, ” We agree that creation of a cy pres trust is a valid option under the appropriate circumstances.”

     According to the Court of Appeals, the Charitable Trust approved by Judge Bamberger was a valid option for him to consider. This ruling of the Court of Appeals was not mentioned in the Bar Counsel’s brief.

The Bar Counsel stated in their brief re: the Charitable Trust:

“He (meaning Bamberger) allowed the attorneys to keep another twenty million dollars of settlement funds …”  (i.e. by setting up the charitable trust.)

This money was not kept by Gallion, Mills or Cunningham.  This argument by the Bar Counsel simply misstates the facts on this issue. This exaggeration is just one of many in the Trial Commissioner’s brief.  The $20,000,000 did not go to GMC, it went to a legally formed charitable trust.  All funds from this trust were recovered.

   The Kentucky Court of Appeals concluded, ” Therefore, reversal is necessary. Because we have determined partial summary judgment was improvidently granted…”.

    Upon trial it is possible that a judgment may be entered declaring the settlement to have been a “class action” settlement and not an “aggregate” settlement, and if that occurs, then every claim brought by the Bar Counsel against Judge Bamberger’s rulings will be cast in quite a different light.

   We submit that the Supreme Court must view Judge Bamberger’s rulings in light of the law, and not just the rhetoric of the Bar Counsel. We have not discovered one instance in the Bar Counsel’s brief which supports their conclusion that Bamberger ever acted outside of his judicial function in making any ruling. Therefore there is a strong argument that Judge Bamberger should be protected by the Doctrine of Judicial Immunity

    This material issue demonstrates that the action by the KBA against Judge Bamberger is based on the Bar Counsel’s interpretation of the meaning of said document as opposed to Judge Bamberger’s interpretation of the meaning of said document.

Ruling on conflicting legal issues is clearly within a judges jurisdiction and is protected by the Doctrine of Judicial Immunity.

    If this position is sustained in favor of the KBA, then any ruling of any judge can be subjected to ethics prosecution if the KBA disagrees with the trial court’s findings. Is the Bar Counsel the proper person to rule on questions such as this before they are decided by the appellate courts?

    The record of the Bamberger proceedings reveal testimony of Kenneth R. Feinberg. Feinberg is a nationally recognized expert on class action settlements and the evaluation of claims in class actions. He is the man that President George W. Bush appointed to oversee the evaluation of compensation for the victims of the Sept. 11 terroristic attack upon the New York World Trade Center. Feinberg also handled the evaluation of the claims of the 440 plaintiffs in the Kentucky Fen Phen case and he states under oath:

“I have read and considered the assertion in the Plaintiff’s memorandum supporting their motion for summary judgment that Exhibit 3 to the settlement agreement is a “smoking gun” that “proves” that all of the $200,000,000 was intended to compensate only 431 claimants, many of whom are involved in the instant litigation against their former attorneys. In my opinion that assertion is simply a naive misunderstanding or misinterpretation of the language in the settlement agreement and the purpose it served in memorializing the settlement.”

(Footnote on Kenneth Feinberg:

Kenneth Feinberg  - Feinberg was appointed Special Master of the U.S. government’s September 11th Victim Compensation Fund and currently serves as the Special Master for TARP Executive Compensation, popularly called the “pay czar.” Additionally, Feinberg currently serves as the government-appointed administrator of the BP Deepwater Horizon Disaster Victim Compensation Fund.

    In the first criminal trial of Gallion, Cunningham and Mills, before Judge Bertlesman, the court ruled the settlement was a “class action settlement”, not an “aggregate” settlement. No weight is given by the KBA to this ruling of a U.S. District Judge.  If a Federal judge found it to be a “class action” type settlement it is reasonable to justify Judge Bamberger’s identical finding on this issue.  The KBA dismisses the very real and legitimate issue regarding what type of settlement was made between the diet drug manufacturer and the plaintiff’s.

In the second criminal trial, Judge Danny Reeves refused to allow testimony on this subject and instructed the jury that it was an “aggregate” settlement. That ruling is on appeal to the Sixth Circuit Court of Appeals.  The KBA argument ignores the possibility that the Sixth Circuit Court of Appeals may find that Judge Bertlesman was correct and that Judge Reeves was wrong on this issue. 

Judge Wehr, the Boone Circuit Court Judge who handled the Angela Ford case against the Plaintiff’s original lawyers, granted a summary judgment apparently finding it was an “aggregate settlement”. That summary judgment was set aside by the Ky. Court of Appeals. The Court of Appeals found that the type of settlement was a jury question and could not be decided by a summary judgment ruling as it was in the purview of the jury to rule on the facts. That very issue is currently on appeal to the Kentucky Supreme Court in the civil suit.

   A denial of judicial immunity to Judge Bamberger will put every judge in Kentucky under the threat of KBA discipline sanctions if they acted on representations made by the attorneys or parties who appeared before them.

If any judge is overruled by a higher court will he now be subject to an ethics prosecution because he ruled incorrectly on the law or made some other kind of mistake?

THE FEE JUDGE BAMBERGER AWARDED TO PLAINTIFF’S ATTORNEYS WAS WITHIN GUIDELINES ESTABLISHED BY THE COURT OF APPEALS

In Shelton v. Simpson, 441 S.W.2d 421 Ct. of Appeals, May 23, 1969, the court upheld a fee of 50% in a Kentucky class action which had 400 plaintiffs. In that decision the Court of Appeals set aside the trial judges fee award of 25%, and restored the 50% fee claimed by the class action attorney.  Bamberger awarded an attorneys fee of 48%. Bamberger’s fee award was clearly made with some precedent.

WHAT JURISDICTION SHOULD THE KBA HAVE OVER JUDGES

   We would suggest that the Judicial Immunity Doctrine can co-exist with the KBA discipline process. In Hardesty the Supreme Court (in dicta) suggested that there were instances where the KBA could proceed without a referral by the JCC. One reasonable interpretation of that dicta is to recognize the right of the KBA to proceed immediately against a Judge who has been convicted of a criminal offense. A criminal offense is not a judicial function and therefore is not protected by the judicial immunity doctrine.

However, the JCC should retain the right in any case against a judge, to make a finding as to whether or not the actions of the defendant judge “was an action within his judicial function” and therefore entitled to the judicial immunity defense.

   If the JCC finds that a judges’ complained of conduct was done within the role of a judge (i.e. signing orders, holding hearings, etc.) he should be entitled to judicial immunity and no discipline action could be taken by the KBA without a finding by the JCC that the judge was acting outside of his official duties. (We again point out that KBA discipline actions are defined as civil actions.)

   On the other hand, if the JCC issues a finding of fact that the complained of actions of the judge were not judicial acts, then the judge should not be protected by judicial immunity.

   The JCC by making a referral to the KBA is essence is saying that the conduct of the judge was not protected by judicial immunity. The JCC is authorized by Supreme Court Rules to refer a judge to the KBA for consideration of sanctions or disbarment. No such referral was made by the JCC in the case involving Judge Bamberger.

    The KBA never explains why the Supreme Court Rule granting jurisdiction to the JCC to make a discipline referral to the KBA should be ignored.

The KBA in essence argues that they do not have any limits on their jurisdiction to consider a discipline action, and therefore they claim that the Supreme Court Rule regarding “referrals” by the JCC is without any meaning.

   The purpose of the JCC is to provide a body with knowledge of judicial functions. The JCC membership includes a Court of Appeals judge, a Circuit Judge and a District Judge, a representative of the Bar Association and two citizen members. They are presumed to have an understanding of the type of special problems and duties of judges.

    If the KBA is allowed carte blanche to determine the proper duties of judges and to rule on whether actions taken by a judge are within his judicial function, then there really will be no reason to continue the existence of the JCC.

JURISDICTION OF THE JCC AND KBA

The question of the jurisdiction of the JCC and KBA was raised by Judge Bamberger in his brief to the Board of Governors. Bamberger asserted that “Section 121 (of the Kentucky Constitution) fixes original jurisdiction for judicial discipline exclusively in the (Judicial Conduct) Commission…”

The JCC did not refer Judge Bamberger to the KBA “for possible suspension or disbarment…”

    We have yet to see any proof that Judge Bamberger by signing certain orders was acting “outside of his judicial function“. This point distinguishes every argument raised by the KBA Bar Counsel in their brief to the Board of Governors and to the Trial Commissioner.

CONCLUSION

   The Bar Counsel has argued that Judge Bamberger was dazzled by the legal arguments of highly respected experts in the class action practices, and therefore he should be sanctioned with permanent disbarment. This sets a dangerous precedent for any judge who has ever made a ruling based on conflicting facts or conflicting legal issues.

   If this novel theory of jurisdiction over judge’s rulings by the Kentucky Bar Association is upheld, then every judge will henceforth be subject to hindsight review by the Bar Counsel.

  We further submit that the practice of the Bar Counsel in being allowed to unilaterally set the appeal surety of a judge or lawyer as a prerequisite for the right to appeal to the Supreme Court is unconstitutional.

   We submit the Supreme Court should clarify the jurisdiction of the JCC and the KBA and uphold the Doctrine of Judicial Immunity.  And further, the Court should amend the SCR’s to permit the filing of  inexpensive appeals.

RESPECTFULLY SUBMITTED:

Judge Stan Billingsley (Retired)                                                                                                               

 

 

 

 

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