Supreme Court Sets Aside ruling of Judicial Conduct Commission (then named Removal and “Retirement Commission.) – Definition of Clearly Erroneous

Hinton v. Judicial Retirement and Removal Com’n, 854 S.W.2d 756 (Ky., 1993)

Lawyer Anderson made a formal complaint before the Judicial Retirement and Removal Commission on April 25, 1991. After a preliminary investigation, the Commission charged Judge Hinton with violating SCR 4.020(1)(b)(i), SCR 4.020(1)(b)(v) and SCR 4.300, Canons 1, 2 A and 3 A(2, 3 & 4) of the Code of Judicial Conduct. After considering the evidence, the Commission dismissed charges relating to alleged violations of Canons 1, 2, 3 A(2) and 3 A(4). The Commission unanimously found that Judge Hinton manifested a predetermination to ignore Anderson’s legal representation of the witnesses and that he summarily jailed Anderson who was only trying to represent his clients and make a record. The Commission concluded that the only violation was the summary jailing of Anderson for contempt and that the judge was required to be patient, dignified and courteous in his treatment of lawyers. The Commission states in its brief that no violation would have been found under the circumstances if it were not for the summary jailing of Anderson.
The standard of review on appeals from the Judicial Retirement and Removal Commission is that the Supreme Court must accept the findings and conclusions of the commission unless they are clearly erroneous; that is to say, unreasonable. Wilson v. Judicial Retirement and Removal Commission, Ky., 673 S.W.2d 426 (1984); SCR 4.290.
The record does not support a finding by the Commission that Judge Hinton acted in an undignified, discourteous or impatient manner toward Anderson in such a degree as to require public censure. The findings and conclusions of the Commission were clearly erroneous.

LEIBSON, Justice, dissenting.
Respectfully, I dissent.

In 1975, the Judicial Retirement and Removal Commission was constitutionally created as part of the new Judicial Article as part of meaningful court reform. Kentucky Constitution Sec. 121. The Commission was empowered to hear complaints against judges, find the facts, and decide appropriate discipline. Its fact-finding and decision-making is final subject to judicial review by the Supreme Court for reversible error using the same standard for review that applies to review of the final decision of a trial court: “on appeal this court must accept the findings and conclusions of the commission unless they are clearly erroneous.” Wilson v. Judicial Retirement & Removal Comm’n, Ky., 673 S.W.2d 426, 427-28 (1984).

While the concept of what is “clearly erroneous” is necessarily incapable of mathematical precision, it is properly articulated in Bertelsman & Philipps, Kentucky Practice, 4th ed., Rule 52.01, p. 231, as follows:
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“[T]he Kentucky test is that a finding is ‘clearly erroneous’ only if there is no substantial evidence in the record to support it, or, the scope of review of the appellate court is the same as if it were reviewing the factual findings of a properly instructed jury.”

In this case the Commission has concluded unanimously that Judge Hinton “violated Canon 3 A(3) of the Code of Judicial Conduct,” which provides in pertinent part:
“A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity….”

There is ample evidence as stated in the “Findings of Fact, Conclusions of Law and Final Order” of the Commission to justify both the Commission’s conclusions and its final order adjudicating “Judge Hinton be PUBLICLY CENSURED.”

This is not a lawyer’s disciplinary proceeding wherein the responsibility for decision-making rests with this Court and the function of the Bar Association is as this Court’s agent to gather evidence and make a recommendation. We have neither the right nor the power to reverse the Commission simply because a majority of this Court does not consider Judge Hinton’s conduct merits public censure. When we do so, we have preempted the Commission’s authority, we have frustrated the intent of the new Judicial Article, and we will undermine public confidence in the judiciary by rendering the Commission a toothless tiger.
The record of what transpired in Judge Hinton’s court is more than ample to support the Commission’s findings and its decision

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