JUDGE MARTIN F. MCDONALD REPRIMANDED, BUT HIS PUBLIC COMMENTS TO THE REPRIMAND COULD SUBJECT HIM TO SANCTIONS BY THE KY. BAR ASSOCIATION.

By Stan Billingsley, Senior Editor LawReader (The author notes that he served previously on the Judicial Conduct Commission.)

The following article details the actions of the Kentucky Judicial Conduct Commission against Judge Martin F. McDonald. Judge McDonald did not take well to the Commission’s decision and responded in a newspaper interview:
In a interview with the Courier- Journal he described the six members of the Judicial Conduct Commission as “clowns who can’t figure out they don’t have any authority over me. I’m retired, I’m done”. Responding to his public reprimand, he said, “So what? Big deal.”

His public statements about the Commission members are in such bad taste that they give credence to the findings of the Judicial Conduct Commission. Not only were the comments in bad taste, they incorrectly stated the law with regard to the Commission’s jurisdiction.

Judge McDonald just doesn’t get it. As a judge he is not a Dictator. He is a representative of the Commonwealth, and he had a duty to treat all who come before him with courtesy.

He obviously has never read SCR 3.130 (8.2) in which the KBA tried to sanction former Ky. State Senator John M. Berry Jr. for a very mild observation about the proceedings held by the Legislative Ethics Commission by allowing then Senate President David Williams to be in the hearing but excluding the public.

That prosecution of Senator Berry was overruled by the 6th. Circuit Court of Appeals and ended up costing the KBA close to $400,000 in legal fees and costs. But the point is that this rule still stands. There is no suggestion of political influence in this case as there was in the Berry case.

The rule allows sanction of any attorney (and this includes Judge McDonald who is still a member of the KBA) who makes a false or true but reckless” statement about a judicial officer or a public legal officer, questioning the qualifications or integrity of a Judicial or legal official. The intent of this Rule was to forbid and sanction “false” statements about judicial officers. But the Supreme Court adopted the ABA version of the rule which included the ability of the Bar Association to sanction an attorney for “true” statements, if the KBA determined that the true statement was “reckless”. (And the KBA gets to say what is reckless as no definition is given in the Supreme Court Rules. I guess the definition of “reckless” is criticizing anyone in power.)

Judge McDonald should remember that the trial judge in the Fen Phen case was sanctioned by the Conduct Commission and then disbarred by the KBA, and that judge was supposedly protected by the doctrine of Judicial Immunity….but McDonald’s statements are not protected by judicial immunity since he had resigned from the judiciary. The Conduct Commission does not have to file a complaint with the KBA…in the Fen Phen case the KBA instituted their own investigation without a reference from the Conduct Commission.

See: SCR 3.130(8.2) Judicial and legal officials
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

A similar rule has been repealed in Ohio and Arkansas, but our calls on the Kentucky Supreme Court to rewrite this rule have so far been ignored. Unfortunately Judge McDonald has single handedly made an argument in behalf of the retention of this anti-free speech rule.

McDonald may lend support to those in the Bar Association who want to have the power to limit the free speech of attorneys. Nevertheless the rule is so egregious that we respectfully suggest that Judge McDonald’s intemperate criticism of the Conduct Commission be ignored. He is an ill man, and the members of the Conduct Commission are so respected that his comments are not likely to have hurt them, and by the very fact he made such statements only proves the correctness of the Commission’s ruling.
We hope that Judge McDonald is not given more publicity by further action by the KBA to punish him for his free speech. That rule is a bad rule and should be repealed.

The Judicial Conduct Commission Issues Public Reprimand to Judge Martin F. McDonald.

The six members of the Judicial Conduct Commission (Hon. Stephen Wolnitzek, Judge Janet Stumbo, Judge Eddy Coleman, Judge Susan Johnson, Diane E. Logsdon and Joyce King Jennngs, issued findings against Judge Martin F. Mcdonald on August 12, 2013 finding him guilty of two counts of violation of the Judicial Conduct Code.

In count one the Judge refused to allow a pro se (non- attorney) to “present an any argument (in his defense) because he was not a lawyer.”

In count two involving a death penalty case, Judge McDonald was found guilty of threatening to “strangle” the attorney for the defendant if he ever called the judge again on his cell phone. And that Judge McDonald would try to get the attorney’s law license “yanked” if he did it again.

When the attorney tried to explain that opposing counsel had authorized his call to the judge, the judge stated “negative”, “be quiet”. In other statements the judge publically criticized the defendant’s counsel. He once ordered the bailiff to bring the defendant in a murder case, to the courtroom by saying “Bring his carcass out here.”
The Commission noting McDonald’s retirement, stated:
“A public reprimand is the most severe sanction available. Were Judge McDonald still a member of the Ky. Judiciary, a much more severe sanction, perhaps including removal from the Bench, would have been warranted, and would have been ordered.”

Judicial Conduct Commission
Findings of Fact, Conclusions of Law and Final Order
In re the matter of: Martin F. McDonald, Former Senior Status Special Judge

These findings and condlusions may be accessed by placing the following link in your browser:

http://courts.ky.gov/commissionscommittees/JCC/Documents/Public_Information/FindingsFactsMcDonald.pdf

Judicial Conduct Commission

The mission of the Kentucky Judicial Conduct Commission is to protect the public, to encourage judges, commissioners and candidates for judicial office to maintain high standards of conduct, and to promote public confidence in the integrity, independence, competence, and impartiality of the judiciary.

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