Julia H. Gordon v. Judicial Conduct Commission ( 2022 )

RENDERED: OCTOBER 20, 2022
TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0171-RR
JULIA H. GORDON APPELLANT
V. IN SUPREME COURT
JUDICIAL CONDUCT COMMISSION APPELLEE
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
The Judicial Conduct Commission (Commission) determined that Julia
Hawes Gordon, Family Court Judge for the 6th Judicial Circuit in Daviess
County, Kentucky, committed judicial misconduct as charged in five of the six
counts against her and ordered that she be removed from office. Judge Gordon
appeals from the Commission’s Final Order, raising multiple claims of error.
Finding no error warranting reversal of the Commission’s Final Order, we
affirm.
FACTS AND PROCEDURAL HISTORY
Judge Gordon was elected as a Family Court Judge in 2016 and took her
oath of office on January 3, 2017. During the alleged misconduct, Judge
Gordon served as the only Family Court Judge in Daviess County and her
dockets included Juvenile Dependency, Neglect and Abuse (DNA), Civil
Dissolution, Child Custody and Support, Termination of Parental Rights and
Adoption, and Domestic Violence.1
Prior to her election in 2016, Judge Gordon was an attorney and served
as a Guardian Ad Litem (GAL) in Daviess County. She served as GAL for a
child named Dalton since he was a young child, approximately a decade. After
years of Dalton being moved around the state with no permanent home or
family, Judge Gordon resigned as his GAL and she and her husband Sale
adopted him in 2013, just after he turned eighteen. Dalton suffers from
substance abuse and mental illness issues. He also has criminal history
dating back to 2017.
Throughout 2021 and 2022, the Commission received a series of
complaints alleging Judge Gordon engaged in numerous instances of judicial
misconduct. Between 2017 and 2021, Judge Gordon inappropriately inserted
herself into at least three of her son’s Daviess County criminal cases.2 Judge
Gordon was the complaining witness or victim in each of those cases, placing
her in the difficult position of concurrently being a parent, victim and judge in
the same county in which Dalton’s criminal cases were adjudicated. Given the
nature of the accusations, the Commission authorized a preliminary
1 During the alleged misconduct and throughout all Commission proceedings,
Daviess County had only one family court. Judge Gordon served as the judge for
Family Court, Division 3. On April 8, 2022, a new family court division was created in
Daviess County, Division 4, by the enactment of House Bill 214. Judge Gordon filed
to run in that race and faces two other candidates on the November 2022 ballot for the
Division 4 seat.
2 The Daviess County criminal case numbers are 17-F-00748, 20-M-00492, and
20-F-01038.
2
investigation pursuant to Kentucky Supreme Court Rule (SCR) 4.170(1). The
Commission notified Judge Gordon of the allegations on July 6, 2021, and she
responded with a twenty-seven page sworn statement. Judge Gordon also
participated in an informal conference with the Commission. SCR 4.170(2).
After considering the evidence obtained from the preliminary
investigation and Judge Gordon’s statement, the Commission served Judge
Gordon with Notice of Formal Proceedings on October 21, 2021, outlining six
charges against her alleging violations of the Code of Judicial Conduct. In her
twenty-two page response, containing over one hundred pages of supporting
documentation, Judge Gordon conceded some of the allegations. After the
initiation of formal proceedings, Judge Gordon and the Commission agreed to a
temporary suspension, effective December 3, 2021, pending the outcome of the
formal hearing.
The formal hearing commenced on April 4, 2022, and lasted three days.
The Commission heard testimony from eleven witnesses and reviewed over
forty-five exhibits. Judge Gordon testified at the hearing. After the hearing,
the Commission rendered its Findings of Fact, Conclusions of Law, and Final
Order on April 22, 2022. The Commission found, by clear and convincing
evidence, Judge Gordon guilty of violating the Code of Judicial Conduct and
engaging in misconduct as outlined in Counts I through V. The charges in
Count VI were not established by clear and convincing evidence.
Some of the issues presented to the Commission, but not all, arose
because Judge Gordon’s son, Dalton, faced several criminal matters over the
3
last several years. The Commission concluded that the misconduct alleged
against Judge Gordon involved her repeatedly acting well outside the
constitutional role of judge, creating conflicts and bias by acting as counsel,
advisor, and advocate for her son in his criminal cases, and then lobbying and
pushing both the prosecutor and judge presiding over those cases to take
actions as she directed. As stated in the Final Order, the Commission’s
decision ultimately turned on proof of Judge Gordon’s:
[(1)] extensive and repeated pattern and practice, over her tenure
on the Family Court Bench, of exercising improper influence for
her own benefit and the benefit of her son in his numerous
criminal matters; [(2)] extremely poor judgment and taking
profoundly unwise actions that were also outside the scope and
beyond the boundaries of proper judicial activity; [(3)] tampering
with or destroying actual or potential evidence in criminal matters
involving her son; [(4)] having dozens if not hundreds of recorded
telephone calls with her son while he was in custody in the Daviess
County Jail planning, establishing and confirming much of her
misconduct;[3] [(5)] creating conflicts of interest because of the legal
representation of her son in his criminal matters by an attorney
regularly appearing before her in Family Court matters, which
representation she failed to disclose to participants in court
proceedings before her and for which she failed to recuse, creating
actual bias or at least the perception of bias and the lack of
impartiality; [(6)] sending and receiving hundreds of ex parte
communications via (1) hundreds of text messages with the county
attorney and counsel representing her son, both of whom regularly
appeared before her in other matters, and (2) via text messages,
personal meetings, and/or phone calls with the judges, the
prosecutor and the defense attorney handling her son’s criminal
cases through which she was attempting to represent and advocate
for her son; [(7)] retaliating against the Cabinet for Health and
Family Services (the Cabinet) and its workers who advocated
3 The Commission stated that the recorded jail calls are damning in a variety of
respects for Judge Gordon. The Commission heard only a few of the hundreds of calls
during the hearing but enough were played to prove the allegations. Judge Gordon
testified and argued that she did not think anyone would ever hear or listen to the
calls, implying she otherwise would not have said the things she said if she knew
anyone would hear them.
4
actions contrary to her views in JDNA matters; [(8)] exhibiting a
lack of candor to the Judicial Ethics Committee (JEC) from which
she obtained advisory opinions (based on limited or incorrect facts
she presented) and using those advisory opinions to justify her
actions and in defense of the Charges; and [(9)] exhibiting a lack of
candor to the Commission.
(Internal footnotes omitted.) Ultimately, the Commission found that the claims
against Judge Gordon presented significant concerns and indicated a pattern
of improper conduct and violations of the Code of Judicial Conduct. As a
result of her misconduct, and because of the egregious nature of her abuses of
judicial power and flagrant violation of the public trust, the Commission
removed Judge Gordon from office. Judge Gordon filed a motion to reconsider,
requesting that the Commission make new findings which “take into
consideration Marsy’s Law and Judge Gordon’s rights thereunder.”4 The
Commission denied Judge Gordon’s motion.
In its Final Order, the Commission detailed each of the six charges.
COUNT I
On March 5, 2020, Judge Gordon spoke to Dalton while he was
incarcerated at the Daviess County Detention Center and told him she worked
out a plan for his pending criminal case, 20-M-00492. She told Dalton if he
did not leave it up to her, “They will come up with it on their own.” Judge
Gordon also told Dalton if he did not leave it up to her, there would be no
contact with the victim (Judge Gordon) and he would not be allowed to go to
4 Kentucky constitutional amendment § 26A, also known as Marsy’s Law, gives
victims of crime procedural protections throughout the criminal justice process.
5
the home of the victim (Judge Gordon’s home). According to the presiding
judge, Judge Burlew, and as reflected in his comments on the record, Judge
Gordon spoke with him for forty-five minutes about her recommendations for
Dalton’s release on bond. She told Dalton she sent a text message to the
presiding judge about his docket time and her hope to work out a time to pick
Dalton up from the Detention Center.5 Judge Gordon also told Dalton she had
talked to Daviess County Attorney Claud Porter about getting Dalton into a
treatment program.
Judge Gordon contacted the county attorney to influence his position on
Dalton’s bond status and the resolution of Dalton’s criminal charges. Through
these communications, Judge Gordon influenced various bond motions and ex
parte orders in Dalton’s cases. After Dalton was arrested and charged in 20-F-
01038, she told Dalton that the county attorney was trying to take the case out
of her hands. On October 1, 2020, Judge Gordon told Dalton that she did not
think Dalton’s charges in 20-F-01038 met the necessary requirements for a
felony, even though she was the complaining witness in the incident. Judge
Gordon also told Dalton she would schedule an in-person meeting with his
5 In Judge Gordon’s sworn response letter, she initially denied having “ex parte
communications with Judge Burlew to affect the outcome of [her] son’s cases.” She
later gave some substantiation to this charge in her Response to Notice of Formal
Proceedings and Charges on November 22, 2021 (admitting she texted with Judge
Burlew “regarding scheduling”). The record at the hearing established that Judge
Gordon had much more than ex parte contact with Judge Burlew, and the video of the
hearing and Judge Burlew’s statements on the record during Dalton’s case make
painfully clear that Judge Gordon was not candid and truthful with the Commission.
Judge Gordon, at a minimum, lacked candor in her communication with the
Commission.
6
attorney, Clay Wilkey. During a phone call on November 8, 2020, Judge
Gordon told Dalton she sent the county attorney and Wilkey a proposal for the
resolution of Dalton’s criminal charges but found out that the county attorney
had already sent Wilkey a plea offer. On the same phone call, Judge Gordon
stated she told the county attorney she wanted to make the decisions for her
family and her house. These actions were not limited to Dalton’s incarceration
in 2020.
Additionally, on more than one occasion Judge Gordon took actions to
destroy evidence and obstruct justice. She attempted to alter, conceal, or
tamper with Dalton’s social media accounts and cellphone content to protect
him from criminal liability. After Dalton was arrested on felony charges in
2017, Judge Gordon told him she cleaned up content on his phone, and she
had to “severely edit” the pictures on his Instagram account. She told Dalton
that he was not successful in deleting everything from his Facebook page
before law enforcement obtained his phone. Judge Gordon asked Dalton for
his password and assured him she would delete certain content.
Judge Gordon took numerous actions to exert her influence as Family
Court Judge to obstruct justice and affect the outcome of her son’s criminal
proceedings. Based upon the totality of evidence presented at the Hearing, and
following significant deliberation by the Commission, by a vote of 6-0, the
Commission found that Judge Gordon’s actions violated SCR 4.020(1)(b)(i) and
7
constituted misconduct in office.6 Furthermore, Judge Gordon’s actions
violated SCR 4.300 and the relevant portions of the following Canons of the
Code of Judicial Conduct:
Canon 1, Rule 1.1 which requires a judge to comply with the law,
including the Code of Judicial Conduct.
Canon 1, Rule 1.2 which requires a judge to act at all times in a
manner that promotes public confidence in the independence,
integrity, and impartiality of the judiciary, and shall avoid
impropriety and the appearance of impropriety.
Canon 1, Rule 1.3 which requires a judge shall not abuse the
prestige of judicial office to advance the personal or economic
interests of the judge or others, or allow others to do so.
Canon 2, Rule 2.1 which requires that the duties of judicial office
shall take precedence over all of a judge’s personal and
extrajudicial activities.
Canon 2, Rule 2.2 which requires that a judge shall uphold and
apply the law, and shall perform all duties of judicial office fairly
and impartially.
Canon 2, Rule 2.4(B) which requires that a judge shall not permit
family, social, political, financial, or other interests or relationships
to influence the judge’s judicial conduct or judgment.
Canon 3, Rule 3.1(C) which provides that when engaging in
extrajudicial activities, a judge shall not participate in activities
that would appear to a reasonable person to undermine the judge’s
independence, integrity, or impartiality.
Canon 3, Rule 3.1(D) which provides that when engaging in
extrajudicial activities, a judge shall not engage in conduct that
would appear to a reasonable person to be coercive.
6 SCR 4.020(1)(b)(i) states that the Commission shall have authority “[t]o impose
the sanctions, separately or collectively of (1) admonition, private reprimand or public
reprimand; (2) suspension without pay, or removal or retirement from judicial office,
upon any judge of the Court of Justice or lawyer while a candidate for judicial office,
who after notice and hearing the Commission finds guilty of any one or more of the
following: (i) Misconduct in office.”
8
COUNT II
Judge Gordon threatened to impose monetary fines upon Cabinet
supervisors and case workers for late reports and other course of employment
events. On August 1, 2017, she entered an order fining Cabinet workers fifteen
dollars for failure to file reports and stated those funds would be paid as a
credit for mouth swab drug tests from Necco, a foster child placement agency.
She then attempted to enforce those fines on multiple Cabinet supervisors. On
December 16, 2019, she sent an email to Cabinet employees threatening fines
if they missed court report deadlines. She used her position of power and
ordered juvenile placements inconsistent with Cabinet recommendations. Only
after the Cabinet appealed some of these orders, did she set them aside, thus
avoiding reversal.7
When Judge Gordon took the bench as Family Court Judge on January
3, 2017, GAL representation was assigned by Daviess County court clerks, who
kept a rotating list of eligible attorneys. She subsequently took control of GAL
assignments for her JDNA docket, including the appointments of attorney
Wilkey, who represented her son in criminal matters, and Andrew Johnson,
who worked at her husband’s law firm, thereby creating a conflict and the
perception of favoritism.8
7 Judge Gordon admitted some of her actions relative to this charge. She stated
she used an incorrect contempt process on Cabinet employees when she became a
judge.
8 Judge Gordon notes that a recent amendment to the Kentucky Family Court
Rule of Procedure and Practice (FCRPP) 36 makes it clear that judges, or their
designated clerk, shall appoint GALs. That amendment was effective February 1,
9
Judge Gordon removed or threatened to remove attorneys from her GAL
list for arbitrary reasons. This included removal of an attorney because she
was not “supportive of addicts” and/or acted as an obstructionist by failing to
waive Judge Gordon’s conflicts.
Judge Gordon used her influence as Family Court Judge to obtain
favorable treatment from Daviess County Jailer Art Maglinger. While Judge
Gordon served as Family Court Judge and Dalton was incarcerated, she
approached Maglinger and used her position of influence to arrange semi-
private meetings in the jailer’s office with Dalton while he was incarcerated
during non-visiting hours at the detention center. The detention center
explicitly prohibits bringing in food and drinks on visits with inmates, yet
Judge Gordon frequently brought Dalton meals, drinks, magazines, and books
on her accommodated visits. She routinely used her position to allow Dalton to
enjoy privileges that other inmates were not permitted to receive.9
Count II alleged that Judge Gordon abused her power and overstepped
the authority of her position and engaged in acts which brought her
impartiality into question. By a vote of 6-0, the Commission found that Judge
Gordon’s actions violated SCR 4.020(1)(b)(i) and constituted misconduct in
office. Furthermore, her actions violated SCR 4.300 and the relevant portions
of the following Canons of the Code of Judicial Conduct:
2020. It is unclear when exactly Judge Gordon began personally handling the GAL
appointments.
9 Judge Gordon stated that Dalton has been incarcerated several times since
these semi-private visits and she no longer visits him through Maglinger.
10
Canon 1, Rule 1.1, supra.
Canon 1, Rule 1.2, supra.
Canon 2, Rule 2.1, supra.
Canon 2, Rule 2.2, supra.
Canon 2, Rule 2.3(A), which requires that a judge perform the
duties of judicial office, including administrative duties, without
bias or prejudice.
Canon 2, Rule 2.3(B), which requires that a judge shall not, in the
performance of judicial duties, by words or conduct, manifest bias
or prejudice, or engage in harassment and shall not permit court
staff, court officials, or others subject to the judge’s discretion or
control.
Canon 2, Rule 2.4(B), supra.
COUNT III
Judge Gordon took it upon herself to administer drug tests using her
secretary, her case manager, and others to conduct such testing, creating
conflict and calling her impartiality into question. The validity of the drug
testing was questionable as urine tests were stored in chambers in a
refrigerator Judge Gordon purchased and on occasion the samples left the
courthouse with Judge Gordon’s staff overnight, compromising the chain of
custody.10
10 Judge Gordon stated that she asked for the administration of drug tests
because she thought it was in the best interests of the children and families and that
her intent was to improve the administration of justice. She explained that if the
Cabinet required a parent or family member to take a drug test before they were
permitted to care for a child, and accepted drug testing facilities were closed, she
would decide for her staff to administer the test. She stated that she no longer
engages in this practice.
11
Count III alleged that Judge Gordon mismanaged her courtroom and
deviated from acceptable standards of judicial conduct. By a vote of 6-0, the
Commission found that Judge Gordon’s actions violated SCR 4.020(1)(b)(i) and
constituted misconduct in office. Furthermore, her actions violated SCR 4.300
and the relevant portions of the following Canons of the Code of Judicial
Conduct:
Canon 1, Rule 1.1, supra.
Canon 1, Rule 1.2, supra.
Canon 2, Rule 2.2, supra.
Canon 2, Rule 2.3(A), supra.
Canon 2, Rule 2.3(B), supra.
Canon 2, Rule 2.4(B), supra.
Canon 2, Rule 2.8(B), which requires that a judge shall be patient,
dignified, and courteous to litigants, jurors, witnesses, lawyers,
court staff, court officials, and others with whom the judge deals in
an official capacity, and shall require similar conduct of lawyers,
court staff, court officials, and others subject to the judge’s
discretion and control.
Canon 2, Rule 2.12(A), which provides that a judge shall require
court staff, court officials, and others subject to the judge’s
discretion and control to act in a manner consistent with the
judge’s obligations under the Code of Judicial Conduct.
COUNT IV
Count IV pertains to Judge Gordon’s lack of candor toward the
Commission. In her July 21, 2021 response to the Commission, Judge Gordon
stated, “I have NO authority to hire or fire attorneys for my adult son. My son
did hire Clay Wilkey to represent him.” However, on March 9, 2018, she told
12
Dalton she paid thousands of dollars for him to have the best attorney
represent him in order to minimize the damage and buy him “another shot.”
Then on March 11, 2018, Dalton expressed to Judge Gordon his dissatisfaction
that Judge Gordon was terminating Wilkey’s representation. Judge Gordon
responded she was not terminating his services, just that she was not paying
him. She later told Dalton she could not stop paying Wilkey with a felony
hanging over Dalton’s head.
Judge Gordon also told the Commission that she did not get involved
with Dalton’s criminal cases, but she engaged in repeated acts to influence and
resolve them, including meeting with the presiding judge on March 6, 2020, to
discuss Dalton’s bond conditions. In her July 21, 2021 response to the
Commission, she stated she never requested that charges be dropped against
Dalton and she could not recall a single time she had ever requested Dalton
not go to jail.
Count IV alleged that during the Commission’s investigation into her
practices as Family Court Judge, Judge Gordon demonstrated a lack of candor
and misrepresented material facts to the Commission and the Judicial Ethics
Committee. By a vote of 6-0, the Commission found that Judge Gordon’s
actions violated SCR 4.020(1)(b)(i) and constituted misconduct in office.
Furthermore, her actions violated SCR 4.300 and the relevant portions of the
following Canons of the Code of Judicial Conduct:
Canon 1, Rule 1.1, supra.
Canon 1, Rule 1.2, supra.
13
Canon 2, Rule 2.16(A), which requires that a judge shall cooperate
and be candid and honest with judicial and lawyer disciplinary
agencies.
COUNT V
Count V pertains to various conflicts of interest. Judge Gordon failed to
avoid a conflict of interest in her role as Family Court Judge in regard to
Dalton’s criminal cases by retaining, paying, and directing the actions of
Dalton’s attorney, Wilkey, who actively practices law in her courtroom and
regularly receives GAL appointments.11 On March 9, 2018, Judge Gordon told
Dalton that she paid thousands of dollars for Dalton to have the best attorney
represent him in order to minimize the damage and buy Dalton “another shot.”
Two days later, Dalton expressed to Judge Gordon his dissatisfaction that
Judge Gordon was terminating Wilkey’s representation.12 On March 6, 2021, a
11 Judge Gordon sought guidance from the Judicial Ethics Committee regarding
Wilkey appearing in her court. That opinion, dated July 18, 2018, stated that if Judge
Gordon believed she could be impartial and fair, she could continue to sit on Wilkey’s
cases provided a five-step process was satisfied:
1. You must first decide that you can be fair and impartial.
2. You must hold a hearing and hear the arguments of the
attorneys.
3. You must enter a finding on the record regarding your
decision. The authority for your decision is the case of Stopher
v. Commonwealth, 57 S.W.3d 787 (Ky. 2001).
4. If you believe you can be fair and impartial, the attorneys may
either accept your decision or attempt to swear you off the
bench with an appeal to the Chief Justice.
5. Your decision to go ahead and sit will then be subject to
further appeal down the line.
Prior to that opinion, Wilkey obtained an opinion from the Kentucky Bar
Association’s Ethics “Hotline” Committee that stated he could represent Dalton and
still appear in Judge Gordon’s court.
12 Dalton stated he had to tell Wilkey that Judge Gordon was terminating his
services. Judge Gordon replied, “I’m not terminating his services, I’m just not paying
14
court-appointed Daviess County Public Defender was replaced by Wilkey as
counsel for Dalton after the public defender expressed to the presiding judge
the notion that a special prosecutor and a special judge would be appropriate
in Dalton’s case, 20-M-00492. On July 22, 2021, Dalton told Judge Gordon
that Wilkey was not his lawyer, because Judge Gordon was the one who hired
him. Judge Gordon misrepresented to the Judicial Ethics Committee (JEC)
that she had not retained Wilkey as Dalton’s attorney and was not paying
Wilkey’s legal fees.13
Judge Gordon had a conflict of interest when she presided over cases in
which attorney Pat Flaherty represented a party after she hired Pat’s brother,
Brian Flaherty, as a staff attorney. She later recused herself from presiding
over all of Pat Flaherty’s cases, but fearing that individuals were forum
shopping and avoiding her courtroom by seeking the representation of Pat
Flaherty, she issued a General Order on August 28, 2019, stating she could
preside over cases in which Pat Flaherty represented a party, and that the
party represented by counsel opposing Flaherty could request a transfer due to
the conflict on a case-by-case basis. Despite the General Order, Judge Gordon
failed to disclose this conflict on the record and failed to recuse or seek waivers
of the conflict.
for them anymore.” She explained, “I’m just making it clear you were his client all
along. We are just paying the bills.”
13 Judge Gordon stated she exaggerated to Dalton about the legal fees in the
heat of the moment. Her husband paid the fees, but, as a practical matter, that
meant the entire family suffered that expenditure. Her statement to the Commission
that she did not pay was true, and her statement to Dalton was less precise.
15
Judge Gordon was not candid with the JEC in seeking opinions
regarding possible conflicts. In addition, Judge Gordon failed to avoid conflicts
of interest in her assignment of GALs. She misrepresented to the JEC that
Daviess County bench clerks were randomly assigning GALs to cases. She
took control of GAL assignments for her JDNA docket, showing favoritism to
attorneys Wilkey and Andrew Johnson, who works at her husband’s law firm.
Awarding GAL assignments to Wilkey and Johnson constitutes a conflict of
interest.14
Count V alleged that Judge Gordon failed to recognize and avoid conflicts
of interest which brought her impartiality into question. By a vote of 6-0, the
Commission found that Judge Gordon’s actions violated SCR 4.020(1)(b)(i) and
constituted misconduct in office. Furthermore, her actions violated SCR 4.300
and the relevant portions of the following Canons of the Code of Judicial
Conduct:
Canon 1, Rule 1.1, supra.
Canon 1, Rule 1.2, supra.
Canon 2 Rule 2.1, supra.
14 Wilkey told the Commission that he never felt as if he got preferential
treatment from Judge Gordon in court. Judge Gordon argues there are no glaring
disparities that demonstrate that she showed favoritism in her appointments. Thomas
Vallandingham, a local attorney that appeared before Judge Gordon, told investigator
Weaver there are other reasons to explain disparities in GAL appointments, such as
GALs having varying availability, or the desire to appoint the same GAL in related
cases, i.e., in cases involving more than one child from the same family. Additionally,
Judge Gordon notes that Wilkey and Johnson were longtime practitioners on the GAL
docket from before Judge Gordon took the bench; they were assigned many “trailer
cases” in which a litigant has appeared in a related case that spins off another
proceeding.
16
Canon 2, Rule 2.2, supra.
Canon 2, Rule 2.3(A), supra.
Canon 2, Rule 2.4(B), supra.
Canon 2, Rule 2.11(A), which provides a judge must disqualify
herself in any proceeding in which her impartiality might
reasonably be questioned.
COUNT VI
Count VI alleged that Judge Gordon discussed the details of confidential
cases with Dalton and ignored Dalton’s bond conditions, allowing him to
remain at Judge Gordon’s residence despite explicit knowledge that he was
violating bond conditions. The Commission determined, by a vote of 6-0, that
this Charge was not established by clear and convincing evidence.
ANALYSIS
In her appeal, Judge Gordon raises several arguments regarding the
applicability of Marsy’s Law, admissibility and sufficiency of the evidence, and
whether removal was warranted. In proceedings before the Commission,
charges must be proven by clear and convincing evidence. SCR 4.160. On
appeal, we “must accept the findings and conclusions of the [C]ommission
unless they are clearly erroneous; that is to say, unreasonable.” Wilson v.
Judicial Ret. & Removal Comm’n, 673 S.W.2d 426, 427-28 (Ky. 1984) (citing
Long v. Judicial Ret. & Removal Comm’n, 610 S.W.2d 614 (Ky. 1980)). SCR
4.290(5) states that this Court “shall have power to affirm, modify or set aside
in whole or in part the order of the Commission, or to remand the action to the
17
Commission for further proceedings.” We address each of Judge Gordon’s
arguments in turn.
I. Marsy’s Law Does Not Create a Different Standard of Conduct for
a Sitting Judge.
In reaching its decision to remove Judge Gordon, the Commission relied
on Judge Gordon’s involvement in Dalton’s criminal proceedings and stated
that she used her influence, contacts and position of authority to direct and
impact the outcome of his criminal proceedings. Judge Gordon argues that
she was not using her influence to control the outcome but was instead
exercising her lawful rights as a victim under Kentucky constitutional
amendment § 26A, also known as Marsy’s Law, to consult with the Daviess
County Attorney about the status of Dalton’s criminal cases. Section 26A gives
victims of crime procedural protections throughout the criminal justice
process. Among other things, the law gives crime victims the right to be
notified of court proceedings, the right to speak at proceedings where a plea or
sentencing may occur, and the right to have their safety considered when
rulings are made. Id.
At the time Judge Gordon exercised influence and involvement in her
son’s criminal proceedings, Marsy’s Law was not yet in effect. Kentuckians did
not vote to ratify the Marsy’s Law amendment until November 3, 2020. Judge
Gordon’s overt and inappropriate involvement in her son’s criminal cases
occurred at various times between October 2017 and November 2020—before
the amendment took effect. The General Assembly did not indicate any intent
that the Marsy’s Law amendment apply retroactively, nor could it, given the
18
impossibility of a law’s ability to provide procedural protections for victims in
criminal proceedings which have already concluded.
Nevertheless, Judge Gordon’s actions were still impermissible under the
law. One of the most egregious violations occurred when she privately spoke
with Judge Burlew, the presiding judge in one of her son’s criminal matters,
and additionally she did so without the knowledge of either the prosecutor or
her son’s defense attorney. In Judge Gordon’s response to the Commission’s
charges, she admitted that she texted Judge Burlew regarding scheduling and
“[w]ith regard to her input on bond restrictions.” Judge Burlew informed
Dalton, in open court on March 6, 2020, that he “was with [Judge Gordon] for
at least 45 minutes this morning” to get a “heads up” on Dalton, his history,
and struggles prior to his appearance in court.
Judge Gordon cites Kentucky Revised Statute (KRS) 421.500(6), the
statutory enactment prior to the constitutional amendment in § 26A, which
states that “[t]he victim shall be consulted by the attorney for the
Commonwealth on the disposition of the case, including dismissal, release of
the defendant pending judicial proceedings, any conditions of release, a
negotiated plea, and entry into a pretrial diversion program.” Judge Gordon
notes that a prior version of the crime victims’ statute, enacted in 2013,
included a broader definition of victim. That statute gave victims the right to
notice of judicial proceedings relating to their case, the victims a right to make
an impact statement during sentencing, and ensured victims knew how to
register to be notified when a person is released from prison if the case involves
19
a violent crime. Clearly Marsy’s Law and its statutory predecessor, KRS
421.500, significantly expanded the rights of victims in criminal proceedings
against their accused by adding the right to be treated with fairness and due
consideration in court proceedings and the right to reasonable protection from
the accused. Ky. Const. § 26A. It allows victims to consult with the attorney
for the Commonwealth or designees, receive notification in advance of any
pardon or commutation of a sentence, and the right to be present and heard
throughout the proceedings. Id.
Although Judge Gordon argues that she was permitted to participate in
the proceedings, she completely overlooks the fact that her ex parte
communications were wholly inappropriate and, as a member of the judiciary,
she should have known they were inappropriate. SCR 4.020, Canon 2, Rule
2.9(A). While Marsy’s Law gives victims the ability to speak at pleas and
sentencing, it certainly does not give victims a direct line for ex parte
communications with the presiding judge.
Marsy’s Law aims to give victims a “meaningful role throughout the
criminal and juvenile justice systems,” Ky. Const. § 26A, but it does not allow
the victim to control the proceedings or arrange plans for a resolution. Over
the course of four years, Judge Gordon exchanged hundreds of text messages
with Claud Porter, the Daviess County Attorney. She circumvented the county
attorney and her son’s own counsel by submitting her own plea proposal to
20
counsel.15 She also questioned whether the county attorney was trying to “take
the case out of [her] hands” in a September 9, 2020 jail phone call with Dalton.
On one occasion, she told Dalton’s defense counsel that she planned to cancel
court to personally drive her son’s bond order to Larue County to obtain the
signature of the special judge assigned to her son’s case. She behaved
brazenly and this behavior was undoubtedly intertwined with her authority and
influence as a judge.
Even if Judge Gordon only intended to participate as a victim, her failure
to appreciate the power of her position and the public perception of her actions
was reckless. In taking on the burden and privilege of judicial office, members
of the judiciary must at all times be sensitive to the impact of their actions.
While members of the judiciary are not required to forego all rights and
opportunities, “it is understood that one must accept some burdens in order to
enjoy the other benefits of being a judge.” In re Maze, 85 S.W.3d 599, 602 (Ky.
2002).
We note that, even assuming Judge Gordon was entitled to the privileges
and protections of Marsy’s Law throughout her son’s prosecutions, those
privileges and protections do not trump her duties and responsibilities as a
judge. As explained in a judicial misconduct case in 2002, “It should be
recognized that there is no unfairness in holding Judge Thomas to a higher
standard than an ordinary citizen. All judges are held to a higher standard by
15 This plan was referenced in Judge Gordon’s March 5, 2020 jail telephone call
with Dalton.
21
virtue of the Code of Judicial Conduct.” Thomas v. Judicial Conduct Comm’n,
77 S.W.3d 578, 580 (Ky. 2002). Likewise, it is fair to hold Judge Gordon to a
higher standard. She was still required to act in a manner consistent with the
Code of Judicial Conduct, which she failed to do.
II. The Commission’s Findings for Each Charge Were Supported by
Clear and Convincing Evidence.
Judge Gordon makes several arguments pertaining to the adequacy of
the evidence supporting the Commission’s findings. In Commonwealth, Cabinet
for Health & Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010), we
stated that “[c]lear and convincing proof does not necessarily mean
uncontradicted proof. It is sufficient if there is proof of a probative and
substantial nature carrying the weight of evidence sufficient to convince
ordinarily prudent-minded people.” (Internal quotations and citations omitted.)
In a previous judicial misconduct case, we explained that:
Even under this heightened burden of proof, we still adhere to a
clearly erroneous standard of review. [Kentucky Rule of Civil
Procedure] CR 52.01. As a result, we as an appellate court are
obligated to give a great deal of deference to the Commission’s
findings and should not interfere with those findings unless the
record is devoid of substantial evidence to support them.
Gentry v. Judicial Conduct Comm’n, 612 S.W.3d 832, 846 (Ky. 2020) (citing
T.N.H., 302 S.W.3d at 663). Judge Gordon argues that the specific findings
with regards to Counts I-V were not supported by clear and convincing
evidence. We address the evidence supporting each charge in turn.
22
A. Count I – Judge Gordon Exerted Influence in Dalton’s Cases and
Deleted Evidence from His Phone and Social Media Accounts.
Judge Gordon argues that the Commission failed to demonstrate that
she destroyed evidence by deleting items from her son’s phone and social
media accounts. At the hearing, counsel for the Commission introduced Judge
Gordon’s written response to the charges wherein she admits that she “deleted
embarrassing and inappropriate material from Dalton’s social media accounts,
primarily so his younger siblings would not see it, as he had used his siblings’
phones.” Counsel for the Commission also introduced a recorded phone call
between Judge Gordon and her son on January 21, 2018, where she informed
him that she cleaned up the content on his phone and had to “severely edit”
the pictures on his Instagram account. She told Dalton:
I went in to clean up—like, I wanted to clean up one thing, like
your photos or something, and I noticed a screenshot on Instagram
or somewhere. So then I—I was like, this isn’t good. They’re going
to—all that Instagram, and had to do some severe editing of all
things on Instagram.
Regardless of her rationale for doing so, Judge Gordon deleted material from
her son’s social media accounts after he had been arrested and taken into
custody. In a prior jail call between Judge Gordon and Dalton on October 26,
2017, Dalton stated he tried to “delete everything” before the police got his
phone. Judge Gordon told him he was unsuccessful, and Dalton told her to
delete his Facebook account and gave her his password to allow her to do so.
These recorded and written statements admitting to destruction of
evidence satisfied the clear and convincing evidence standard before the
Commission. Gentry, 612 S.W.3d at 846.
23
B. Count II – Judge Gordon Mismanaged GAL Appointments and
Solicited Special Treatment from the Local Jailer.
Judge Gordon argues that none of the findings in Count II were
supported by clear and convincing evidence. Count II alleged that Judge
Gordon (1) displayed favoritism in the appointment of GALs; (2) threatened
removal of attorneys from her GAL list for arbitrary reasons; (3) used her
influence as a Family Court Judge to obtain favorable treatment from Daviess
County Jailer Art Maglinger; and (4) threatened to impose monetary fines upon
Cabinet supervisors and case workers for late reports and other events in the
course of employment.
Prior to 2017, Daviess County GAL representation was assigned by
Daviess County court clerks, who maintained a rotating list of eligible
attorneys. Once Judge Gordon took the bench, she took control of GAL
assignments for her JDNA docket. To substantiate the allegations of favoritism
stemming from Judge Gordon’s mismanagement of the GAL panel, counsel for
the Commission introduced a spreadsheet maintained by the Administrative
Office of the Courts (AOC) which indicated that certain attorneys were
appointed more frequently than others. Among the attorneys with the highest
number of assignments were Clay Wilkey, Dalton’s defense attorney, and
Andrew Johnson, who worked at Judge Gordon’s husband’s law firm.
Judge Gordon recognized that a potential conflict could arise from both
Wilkey’s representation of her son and Johnson’s practice with her husband
and admitted that she likely should have done more to ensure such potential
conflicts were avoided. Canon 1, Rule 1.2 requires a judge to “act at all times
24
in a manner that promotes public confidence in the independence, integrity,
and impartiality of the judiciary” and to “avoid impropriety and the appearance
of impropriety.” Based on the AOC report, it appears Judge Gordon failed to
appreciate and avoid the overt perception of favoritism.16
Count II also states that Judge Gordon removed or threatened to remove
attorneys from her GAL list for arbitrary reasons. Attorney Janelle Farley
testified before the Commission that for months in late 2017 and early 2018,
she noticed a decrease in her GAL appointments in Judge Gordon’s court.
When Farley met with Judge Gordon to inquire about this issue, Judge Gordon
told her she removed her from the GAL list because Farley was not “forgiving
enough” of addicts. Farley noted that, as of the date of the hearing, she had
worked as a GAL in numerous other courts and counties since 2008 and was
never made aware of any issues with her representation. She felt that Judge
Gordon removed her from her GAL list because of her personal views.
On cross-examination, Judge Gordon’s counsel referenced an exhibit showing
the number of GAL appointments by attorney from 2017 through 2021 and
Farley received more appointments than any other attorney. However, Judge
Gordon’s counsel was unsure whether the data represented only Daviess
County appointments or all counties.
16 Judge Gordon notes that the AOC report was deficient because it did not
account for parent or warning order appointments and that several attorneys listed
were never GALs in Judge Gordon’s court and therefore should not have been included
in the report. These alleged deficiencies were described by Judge Gordon during the
hearing and the Commission had the opportunity to consider her arguments in
reaching its decision regarding Count II.
25
Judge Gordon also argues that the evidence pertaining to the remaining
allegations in Count II was insufficient. The Commission alleged that Judge
Gordon abused her position as judge to gain special access to her son while he
was incarcerated at the Daviess County Jail. Daviess County Jailer Maglinger
testified at the hearing that Judge Gordon contacted him and requested special
visitation privileges with Dalton. Maglinger allowed Judge Gordon to meet with
Dalton “just a handful of times” in his office while Maglinger remained present.
On occasion Judge Gordon would bring Dalton food and drinks and these visits
occurred outside normal visiting hours. According to Maglinger, this visitation
privilege was not afforded to other inmates or their visitors. The Commission
also introduced jail telephone recordings of conversations between Judge
Gordon and Dalton during which they discussed the items she would try to
bring into the jail for him.
When questioned by Judge Gordon’s counsel, Maglinger thought it was
best for Judge Gordon to meet with Dalton in a closed setting because of her
position as a judge. Judge Gordon explained in her hearing testimony that she
and Maglinger agreed upon the semi-private visits because of safety concerns
associated with Dalton’s incarceration with people whose cases had been
handled by his mother, a judge.
Finally, Count II states that Judge Gordon acted abusively toward court
officials from the Cabinet by threatening to impose fines upon case workers
failing to timely file reports. Judge Gordon argues that this charge was not
proven by clear and convincing evidence, but also states that she “has since
26
admitted that [imposition of fines] was a mistake made early on in her career.”
Judge Gordon admitted to this conduct, making this argument moot.
It appears that the parties did not fully understand, or could not
completely explain, the makeup of the data representing the GAL appointments
from 2017 through 2021. As such, and based on the counter-arguments
Judge Gordon makes, we do not find that the Commission proved, by clear and
convincing evidence, that Judge Gordon displayed favoritism in assigning
GALs. However, all other evidence pertaining to Count II constitutes clear and
convincing evidence. This evidence supports the Commission’s findings that
Judge Gordon violated the Code of Judicial Conduct. CR 52.01 states that
“due regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.” Here, the Commission was best suited to examine
the evidence and assess credibility of the witnesses in reaching its conclusions.
C. Count III – Judge Gordon Improperly Directed Her Staff to
Administer Drug Tests.
In Count III, the Commission alleged that Judge Gordon frequently
mismanaged her courtroom and deviated from acceptable standards of judicial
conduct. According to the Commission, Judge Gordon inappropriately and
arbitrarily administered drug tests in the courthouse by requiring her
secretary, case managers, and others to conduct the testing and store the
samples in a refrigerator in her chambers. Judge Gordon argues that the
findings in Count III are not supported by clear and convincing evidence.
At the hearing, counsel for the Commission introduced an email from the
regional director of the Cabinet’s Department of Community Based Services
27
that detailed a temporary removal hearing before Judge Gordon. The Cabinet
stated that Dr. Nadar completed a drug screen on a client that was negative.
During a three-way call with Judge Gordon, the Cabinet worker, and her case
manager, Judge Gordon explained that she would never accept a drug screen
from Dr. Nadar, as that is what he is paid to do. The regional director stated in
the email that she assumed Judge Gordon meant Dr. Nadar would alter
results. When asked where to send the client, Judge Gordon replied that the
client could come to court or gave a few alternative options. The client agreed
to go to court and was tested twice. Both times the results were inconclusive,
so Judge Gordon instructed her case manager to take the drug test home and
“watch it.” The results came back negative. Judge Gordon directed that her
staff should take home the collected samples overnight.
Not only was this testing procedure improper, but it also directly
compromised the chain of custody. At the hearing, Judge Gordon admitted
that she had her court staff administer drug tests.17 She argues that no
evidence was presented of a single drug testing order that was imposed
arbitrarily, baselessly, or improperly. The vast majority of the drug testing
orders were requested by the Cabinet, and none were challenged by appeals or
17 Judge Gordon provided an example of when she might have had her staff
administer drug tests. She described a situation in which a child is being removed
from her mother’s care and could be placed with her grandmother. However, the
mother accused the grandmother of using drugs, so the Cabinet would not allow the
grandmother to care for the child until the grandmother was drug tested. Judge
Gordon said if it was after a certain time and the facilities offering drug tests were
closed, she had her staff administer a drug test to prevent the child from being
uprooted and placed temporarily with strangers.
28
motions to alter, amend or vacate. Judge Gordon admits that the procedural
errors she made during her first few months on the bench were immediately
remedied once such errors were brought to her attention.
The Commission’s evidence, combined with Judge Gordon’s testimony
regarding these instances, constitutes clear and convincing evidence to support
the Commission’s findings regarding Count III.
D. Counts IV and V – Judge Gordon Lacked Candor with the
Commission and Failed to Avoid Conflicts of Interest.
In Count IV, the Commission alleged that Judge Gordon lacked candor
with the Commission throughout its investigation and misrepresented material
facts. Specifically, in her July 21, 2021 response to the Commission, Judge
Gordon states she had no authority to hire or fire attorneys for Dalton and
added that Dalton hired Wilkey to represent him. In seeking a JEC opinion
regarding whether Wilkey could continue practicing before her in 2018, Judge
Gordon informed the JEC that Dalton retained Wilkey and only her husband
paid the legal fees. However, a mere three months before receiving the JEC
opinion, Judge Gordon told Dalton that she paid thousands of dollars for him
to have the best attorney represent him and minimize the damage. On March
11, 2018, Dalton expressed to Judge Gordon his dissatisfaction that Judge
Gordon was terminating Wilkey’s representation. Judge Gordon responded
that she was not terminating his services, just that she was not paying him.
Additionally, she told the Commission she did not get involved in Dalton’s
criminal cases, but she engaged in repeated acts to influence and resolve those
cases, including meeting with Judge Burlew about Dalton’s bond conditions.
29
The Commission introduced numerous exhibits demonstrating these
discrepancies and Judge Gordon’s lack of candor. The Commission introduced
Judge Gordon’s July 21 response and twelve recorded jail telephone calls
between Judge Gordon and her son, during which she directly contradicted her
representations to the Commission.
Count V also involves Wilkey’s participation as Dalton’s attorney. Count
V alleged that Judge Gordon frequently failed to recognize and avoid conflicts of
interest which brought her impartiality into question. The Commission alleged
that Judge Gordon repeatedly failed to avoid conflicts of interest with respect to
Wilkey. At the hearing, counsel for the Commission introduced significant
evidence to demonstrate Judge Gordon’s relationship with Wilkey, including
hundreds of text messages they exchanged. In October 2020, Judge Gordon
sought Wilkey’s advice as to whether Kentucky State Police could access
evidence from her son’s cell phone or drop her son’s pending criminal charges.
After the conversation, Wilkey requested that Judge Gordon “please delete
these messages.” Wilkey regularly practiced in front of Judge Gordon and they
had a level of familiarity that clearly presented a conflict in her position as a
judge.
Additionally, when Judge Gordon presided over cases in which Wilkey
was involved she did not always disclose to opposing counsel the conflict of
interest presented by Wilkey’s representation of her son. During the hearing
the Commission’s counsel asked Judge Gordon about Wilkey’s GAL cases in
her court and whether she disclosed that Wilkey represented her son in
30
criminal proceedings, or asked parties if they believed recusal was necessary.
Judge Gordon stated she did not, because she did not believe she needed to
disclose that information based on an Order entered by Chief Justice Minton
regarding her recusal in one specific case in which Wilkey represented a party
in her court. When questioned by counsel, she admitted that the Order was
case-specific, not general, and could not say whether it accounted for Wilkey’s
continuing representation of Dalton in the future. In her brief, Judge Gordon
admitted that she recognized a potential conflict of interest could arise from her
relationships with various other attorneys, including Johnson, a partner at her
husband’s law firm, or Pat Flaherty, the brother of her staff attorney.
The Commission’s evidence regarding Judge Gordon’s lack of candor,
and Judge Gordon’s own recognition of the potential conflict and further
admission that “she likely should have done more to ensure such potential
conflicts were avoided,” are sufficient to satisfy the clear and convincing
evidence standard for Counts IV and V.
III. The Introduction of the Video Recording of Dalton’s Hearing
before Judge Burlew Did Not Constitute Palpable Error.
Judge Gordon argues that the Commission’s ultimate decision to remove
her from office turns on the out-of-court statements made by an unavailable
witness, Judge Burlew. The statements at issue were recorded in the court
record during a hearing in Dalton’s criminal case on March 6, 2020. The
Commission noted that “the severity of the penalty imposed is driven
significantly by [Judge Gordon’s] violations of the Canons in Count I, and it
alone justifies removal from office, even without the significant other
31
misconduct found through Counts II-V.” Count I was based, in part, on a
claim that Judge Gordon engaged in ex parte communications with presiding
Judge Burlew to affect the outcome of Dalton’s criminal case. In the video
exhibit, Judge Burlew tells Dalton during a hearing that he spoke with Judge
Gordon for at least forty-five minutes and got a “heads up” about Dalton, his
history and struggles. Judge Gordon argues that this video was hearsay and
should not have been admitted for the Commission’s consideration.18
The video was included in the Commission’s exhibit list and Judge
Gordon did not object to the admission of the video during the hearing. At a
bench conference in which the Commission sought to admit its exhibits, the
Chair of the Commission asked Judge Gordon’s counsel if he had any issues
with the exhibits. He stated he did not anticipate having any objections. After
counsel for the Commission finished reading its list of exhibits, the Chair of the
Commission again asked Judge Gordon’s counsel if there were any issues to
which Judge Gordon’s counsel responded, “No comment, no objection.” Since
this issue is not preserved, it is subject to palpable error review.
A palpable error which affects the substantial rights of a party may
be considered by the court on motion for a new trial or by an
appellate court on appeal, even though insufficiently raised or
preserved for review, and appropriate relief may be granted upon a
determination that manifest injustice has resulted from the error.
18 “At a hearing before the Commission only evidence admissible under the
Kentucky Rules of Evidence (KRE) shall be received. The Chairperson shall rule on all
evidentiary matters.” SCR 4.240.
32
CR 61.02. A palpable error “must be easily perceptible, plain, obvious and
readily noticeable.” Nami Res. Co. v. Asher Land and Mineral, 554 S.W.3d 323,
338 (Ky. 2018) (quoting Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.
2006)). “Implicit in the concept of palpable error correction is that the error is
so obvious that the trial court was remiss in failing to act upon it sua sponte.”
Id. (quoting Lamb v. Commonwealth, 510 S.W.3d 316, 325 (Ky. 2017)).19
In hearings before the Commission, the Kentucky Rules of Evidence
apply. SCR 4.240. KRE 804 provides exceptions to the hearsay rule when a
declarant is unavailable as a witness. However, there is no indication that
Judge Burlew was unavailable, and it is unclear why the Commission did not
call him as a witness to testify regarding the conversation he had with Judge
Gordon.
In any event, the admission of the video did not rise to the level of
palpable error. Pursuant to the Code of Judicial Conduct, Judge Burlew is
tasked with preserving the principles of justice and the rule of law. SCR 4.300,
Preamble. “[J]udges, individually and collectively, must respect and honor the
judicial office as a public trust and strive to maintain and enhance confidence
in the legal system.” Id. Judges shall not permit or consider ex parte
19 We note that Judge Gordon did not address the preservation issue and did
not request palpable error review of this issue. In the criminal context, this Court has
denied palpable error review unless specifically requested and briefed by the appellant.
“Absent extreme circumstances amounting to a substantial miscarriage of justice, an
appellate court will not engage in palpable error review pursuant to RCr 10.26 unless
such a request is made and briefed by the appellant.” Shepherd v. Commonwealth,
251 S.W.3d 309, 316 (Ky. 2008), as modified on denial of reh’g (May 22, 2008). A
general request for review of all errors is insufficient. Id.33
communications made to the judge outside the presence of the parties or their
lawyers concerning a pending matter. SCR 4.300, Rule 2.9(A).20 Judge
Burlew’s statement clearly went against his interest, as judges are generally
not permitted to engage in ex parte communications. Judge Burlew made the
statement about his forty-five-minute conversation with Judge Gordon in open
court and on the record. The truth in his assertion can be gleaned from the
circumstances under which the statement was made.
Even if the video was improperly admitted, there are other allegations in
Count I besides the alleged ex parte communication with Judge Burlew. Judge
Gordon communicated with the Daviess County Attorney about the outcome of
Dalton’s cases and those text communications were admitted as evidence.
Judge Gordon asked the county attorney to “please please please get things
worked out today for Dalton to serve some time as a consequence.” She also
told the county attorney that “[w]e have to get this done quickly. . . . He’s going
to blow it and risk losing his ability to go back to FOS if we don’t get something
done.” FOS stands for Friends of Sinners and is a residential substance abuse
program in Daviess County. In a span of twelve hours on December 18, 2017,
Judge Gordon and the county attorney exchanged eighty text messages about
Dalton’s case. Most of these messages involved Judge Gordon pushing for
information and requesting certain outcomes. Ultimately, Judge Gordon
20 Further, “[a] judge shall not convey or permit others to convey the impression
that any person or organization is in a position to influence the judge.” SCR 4.300,
Rule 2.4.
34
concluded that she planned to drive to Larue County at 6:00 a.m. the next
morning to ensure the special judge signed a detention order.21
Previously, in July 2017, Judge Gordon messaged the county attorney
requesting that Dalton receive deferred prosecution and enter an agreement to
get treatment, to which the county attorney responded, “Yes I think I can make
that happen.” The influence Judge Gordon exerted in her son’s case is
undeniable.22 Additionally, Count I includes the claim that Judge Gordon
removed evidence from Dalton’s phone, as discussed in Part II above. Because
the other allegations of misconduct in Count I were supported by clear and
convincing evidence, manifest injustice did not result from admission of the
hearing video containing Judge Burlew’s statement into evidence. CR 61.02.
IV. The Commission’s Statements Regarding Judge Gordon’s
Imprecision or Lack of Candor Are Not Improper.
Next Judge Gordon argues that the Commission wrongly attributes her
imprecision in her initial response to a lack of candor. She highlights the
Commission’s findings in Count V: “Judge Gordon misrepresented to the
Judicial Ethics Committee (JEC) that she had not retained Mr. Wilkey as
Dalton’s attorney and was not paying Mr. Wilkey’s legal fees.” She claims that
the Commission never introduced evidence to contradict her testimony, or the
The outcome or actions Judge Gordon requested are immaterial. We deem it
21
of no consequence that she was requesting Dalton be detained in some way, required
to attend treatment, etc., as opposed to requesting that he receive preferential
treatment or be pardoned for his actions. The operative facts are that she directly
inserted herself into Dalton’s cases and attempted to influence the outcome.
22 There are numerous other instances of Judge Gordon’s inappropriate contact
with the Daviess County Attorney, as discussed throughout this Opinion.
35
billing documentation provided by Wilkey, demonstrating that Judge Gordon’s
husband (Dalton’s father) paid for Dalton’s legal fees. However, the payment
aspect is merely one part of the Commission’s multi-part basis for determining
that Judge Gordon violated the Code of Judicial Conduct in Count V. The
Commission also pointed to Judge Gordon’s acts in directing and influencing
Wilkey’s actions and presiding over Pat Flaherty’s cases.23 Taken as a whole,
any purported misrepresentation to the JEC regarding who paid for Wilkey’s
legal services is miniscule.
Judge Gordon also takes issue with what she considers to be the
Commission’s attempt to skew Wilkey’s testimony to “fit its narrative.” She
argues that the Commission inaccurately claims that Wilkey admitted under
oath that he lied to the investigator for the Commission, Gene Weaver, at Judge
Gordon’s request. Wilkey testified that he heard about the Commission’s
allegations against Judge Gordon from another attorney who also told him that
his name was mentioned in relation to the allegations. Wilkey asked to meet
with Judge Gordon and he asked her to show him the charges she received
from the Commission.24 According to his testimony, Judge Gordon asked him
23 Based on an October 2017 JEC opinion, Judge Gordon recused herself from
all of Pat Flaherty’s cases. She soon feared that parties were forum shopping by hiring
Pat Flaherty to avoid her courtroom, so she issued a General Order on August 28,
2019, stating she could preside over cases in which Pat Flaherty represented a party
but noted that the opposing party could request a transfer due to the conflict on a
case-by-case basis. The Commission alleged that, despite implementing this General
Order, Judge Gordon failed to disclose this conflict on the record and failed to recuse
or seek waivers of the conflict.
24 Wilkey could not recall whether the document he requested to see was the
notice of allegations against Judge Gordon or the formal charges.
36
“not to tell anyone she had them.” When investigator Weaver asked Wilkey if
he had seen the allegations against Judge Gordon, Wilkey told him no. Wilkey
later wrote a letter to the Commission’s counsel on December 20, 2021, and
disclosed his lack of candor.
We find nothing inaccurate about the Commission’s statement. Wilkey
stated that Judge Gordon asked him not to tell anyone “that she had them.”
That can only mean not to tell anyone she had charges against her. It was
Wilkey’s decision to lie to investigator Weaver and, although he later admitted
his deception, it was not improper for the Commission to include these events
and information, which appeared in a footnote, in its findings.
V. Judge Gordon’s Arguments Regarding the Commission’s Alleged
Inflammatory Comments Are Not Persuasive.
Judge Gordon argues that throughout its Findings, the Commission
makes highly irrelevant and inflammatory comments. Judge Gordon takes
issue with the following comment: “It is also disturbing that Mr. Wilkey
advised Judge Gordon to delete her texts about their conversations of a
Kentucky State Police investigation involving Dalton’s phone and issues of sex
trafficking and child abuse.” This statement appeared in a footnote in the
Commission’s Final Order. Judge Gordon argues that, aside from being
inappropriate and unnecessary, this statement completely distorts the true
context of the text message thread.
37
The following text message exchange occurred between Judge Gordon
and Wilkey on October 5, 2020, and was introduced by the Commission during
the hearing:
WILKEY: So Daltons date on 10/9 has been moved
to 10/23. Not sure how or why. Cannot
get thru to clerks office.
Was able to touch base w Det Ammon this
morning. They haven’t made much
progress on their investigation. He is
waiting for Ecrimes to execute the warrant
on the phone and the cloud server. He is
working w Henderson county prosecutors
and said its perhaps the most troubling
investigation he’s ever had based on
journals
JUDGE GORDON: There’s something shady going on I’m
afraid. I think they’re trying to hold him
until they hear back from KSP.
He does write awful things. I don’t know
what he wrote, but I’ve seen things in the
past. But he’s like those people obsessed
with serial killer documentaries. It’s not
like those people are or want to be serial
killers because they want to know
everything about them (I guess.)
All I know is that he isn’t part of any
human trafficking, and he hasn’t abused
any children. Not that I would trust him
alone with my younger kids anymore, but
I used to, and he never gave any
indication he would ever hurt them.
Can I drop the felony theft charges? Is
that something I can ask?
So they are doing all of this based on crap
he wrote while he was high on meth??
Maybe ask Claud about the date change.
Someone had to have moved it. And can
you meet with Dalton and explain all of
this to him and have him back off on
calling me. He calls me twice a day, and
when I don’t answer he calls and calls and
calls and calls.
38
WILKEY: I think it’s all based on the journals from
what I can gather. I am not sure how the
date could be changed without him
continuing to waive the days for his
hearing. I’ll try to get in touch w Claud
and will try to get out there this week.
The issue with visiting him as [sic] that I
don’t have anything new to report and I
cannot imagine he does either. I think
you can ask to drop the charges but I’d
hold off for now
JUDGE GORDON: If he faces charges on this new stuff from
KSP, I need to put as much distance there
as possible. To the extent of discussing
finding a way to dissolve the adoption or
having him change his name back[. . . .]
I don’t know what charges he would be
facing, but is there any way to keep it from
being front page news?
WILKEY: I don’t have answers to these questions
but I think if he is charged it’ll be news
worthy regardless of the relationship.
Let’s not put the cart before the horse tho.
I’m not sure how likely it is they access
the phone. And please delete these
messages
JUDGE GORDON: Done. And as a reminder, “his” phone is
actually MY phone, on MY phone account.
WILKEY: You may want to speak with an attorney about
what you can and cannot do in regards to that
phone
Wilkey testified at the hearing and gave little explanation regarding his October
5, 2020 conversation with Judge Gordon, informing the Commission that it
had access to the conversation in its entirety. He stated that he asked Judge
Gordon to delete their conversation out of an abundance of caution, which she
did, but he did not delete the conversation from his phone.
39
In this instance Judge Gordon does not raise an easily identified
appealable issue but rather generally attacks the Commission’s statements as
inflammatory and irrelevant. We disagree. These text messages clearly
indicate that the Kentucky State Police were either in possession, or seeking
possession, of a phone owned by Judge Gordon and used by Dalton. Judge
Gordon was concerned about the contents of the phone and sought advice on
the situation from Wilkey. Judge Gordon made the statements about Dalton
not being involved in sex trafficking or child abuse. Any reference to this
conversation was valid and relevant, and occurred as a consequence of the
comments Judge Gordon herself made. Finally, Judge Gordon notes that the
Commission seemingly questioned her status as a victim of Dalton’s crimes.
Judge Gordon’s status as a victim and the applicability of Marsy’s Law are
addressed in Part I of this Opinion.
VI. Judge Gordon’s Misconduct Warranted Removal.
Judge Gordon argues that the Commission’s decision to remove her from
office is both disproportionate and inconsistent with its prior decisions, citing
four previous Commission cases for purposes of comparison.
Section 121 of the Kentucky Constitution gives the Commission the
authority to take action in instances of judicial misconduct or unfitness for
office. The Commission can impose the following sanctions: (1) admonition,
private reprimand or public reprimand; (2) suspension without pay, or removal
or retirement from judicial office. SCR 4.020(1)(b). “[W]hether sanctions are
appropriate, and the degree of any sanctions to be imposed, should be
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determined ‘on such factors as the seriousness of the transgression, whether
there is a pattern of improper activity and the effect of the improper activity on
others or on the judicial system.’” Gormley v. Judicial Conduct Comm’n, 332
S.W.3d 717, 727 n.24 (Ky. 2010) (internal quotation omitted).
Judge Gordon cites a case in which Judge Sam Potter, Jr. was
suspended for thirty days for consuming alcohol to a degree that affected the
performance of his judicial duties, making inappropriate statements to parties
and attorneys in open court, failing to provide basic due process rights to
criminal defendants, and engaging in ex parte communications with parties
and attorneys who appeared before him. In re: the Matter of Sam Potter, Jr.,
Dist. Ct. Judge, Amended Agreed Order of Suspension, Dec. 7, 2015, pp. 1-2.
Judge Gordon also references Judge Timothy Langford who received a sixty-day
suspension for requesting the use of public equipment and local inmates to
perform reconstruction work on the church he attended and awarding
community service hours to those that performed the work. In re the Matter of
Timothy A. Langford, Circuit Court Judge, Agreed Order of Suspension, Apr. 2,
2018, pp. 3-4. In a 2015 matter, Circuit Judge Steven D. Combs was
suspended for 180 days for failing to recuse himself from a case in which he
had a business relationship with a defendant, engaging in inappropriate
interactions with elected officials and local media outlets, making inappropriate
phone calls to the local police department and an attorney, and engaging in
inappropriate political activity. In re: the Matter of Steven D. Combs, Agreed
Order of Suspension, Oct. 1, 2015, pp. 3-5.
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We are familiar with these instances of misconduct and none of them rise
to the level of Judge Gordon’s misconduct. Judge Gordon committed
numerous acts over an extended period, exercising her influence as a Family
Court Judge to obstruct justice and affect the outcome of her son’s criminal
cases. While the referenced cases also include multiple instances of
misconduct, none of the misconduct rises to the level of the persistent
misconduct present here.
Importantly, Judge Gordon was previously warned about her actions
related to Dalton’s cases. In 2018, the Commission privately admonished
Judge Gordon for her inappropriate involvement in Dalton’s criminal cases.25
She also testified at the hearing that she was previously called in by Chief
Judge Wethington who informed her that he had received complaints about her
actions in her son’s cases. Nonetheless, she continued to engage in this
behavior for the next three years, forcing the Commission to intervene again in
2021. Judge Gordon’s misconduct exceeds the misconduct committed in
Potter, Langford and Combs, especially in light of the Commission’s prior
warning.
25 The private admonition was issued in relation to Judge Gordon’s interactions
with Judge Lisa Jones, a Daviess County District Court Judge. While the Commission
letter to Judge Gordon agreeing to a private admonition contains no details about the
Commission’s complaint or informal conference, the CourtNet history introduced by
the Commission as an exhibit includes one of Dalton’s prior criminal cases from 2017
that was initially before Judge Jones, until a special judge was appointed. During the
hearing, counsel for the Commission questioned Judge Gordon about whether she had
been told to stay out of Dalton’s cases. She said “yes,” but proceeded to provide
ambivalent information, stating that she spoke with a judge about concerns regarding
recusal, and that the conversation was not necessarily about Dalton’s cases, but it
was about Dalton.
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Judge Gordon also distinguishes her misconduct from the Commission’s
case involving Circuit Judge Beth Maze. Maze v. Judicial Conduct Comm’n, 612
S.W.3d 793 (Ky. 2020). In 2017, Judge Maze learned her ex-husband was
arrested on several criminal charges, including possession of a controlled
substance. Id. at 796. Judge Maze intervened by attempting to order drug
tests at hospitals in two nearby counties and self-reported her misconduct to
the Commission. Id. at 797. She wrote “Commonwealth Att. & Bath Co.
Attorney” on the signature line, and she did not submit either order to the
circuit clerk for entry in the record. Id. at 797-98. Her disqualification was
mandatory, and there was no necessity established for her intervention in her
ex-husband’s cases. Id. Judge Maze also engaged in ex parte communications
with a Commission member. Id. at 799. This Court agreed with the
Commission’s imposition of a public reprimand because Judge Maze retired
from office before the Commission’s hearing, making suspension impractical.
Id. at 811.
Judge Gordon distinguishes her misconduct from Judge Maze’s
misconduct because she did not issue any orders in her son’s cases, and only
contacted a local jailer to safely visit her son. Additionally, she was not
criminally indicted for any of her actions. She also reiterates her justification
for asserting influence in her son’s cases by relying on Marsy’s Law.
Judge Gordon’s case shares similarities with Judge Maze’s case because
of the familial aspect. Judge Maze was confronted with what she believed to be
a spur of the moment crisis and a situation that impacted not only her ex-
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husband, but her family and herself. Likewise, Judge Gordon has often been
confronted with difficult situations that directly impact not only her son but
her and her family. These situations are often unplanned and unfold in
unpredictable ways. Nevertheless, judges are responsible for exercising sound
judgment even when confronted with difficult issues, especially issues that
involve loved ones. “Our duty is to assure the people of Kentucky that judges
will ‘conduct themselves as judges.’” Alred v. Judicial Conduct Comm’n, 395
S.W.3d 417, 447 (Ky. 2012) (Venters, J., concurring). Ultimately, Judge
Gordon made many decisions over a span of several years, some precipitous
and some seemingly more carefully considered, that resulted in numerous and
separate violations of the Code of Judicial Conduct.
“Typically, removal stems from a deliberate course of action or numerous
examples of separate violations of the Code of Judicial Conduct.” Gentry, 612
S.W.3d at 847. We find Judge Gordon’s conduct to be more akin to those
cases in which judges were disciplined for more deliberate and repeated
violations, as summarized in Maze:
See, e.g., Alred, 395 S.W.3d at 446 (upholding judge’s removal from
office following findings of official misconduct on eight charges
(representing separate events)); Starnes v. Judicial Ret. & Removal
Comm’n, 680 S.W.2d 922, 923 (Ky. 1984) (upholding judge’s
removal from office for chronic and pervasive absence from court
and inattention to business of office, and for refusal to disqualify
over cases involving close personal friends); Wilson v. Jud. Ret. &
Removal Comm’n, 673 S.W.2d 426, 428 (Ky. 1984) (upholding
judge’s removal from office for course of conduct, intentionally and
wrongfully misusing judicial power, to assist close friend, and
separate count of dismissing case following ex parte meeting with
defendant); see also Kentucky Jud. Conduct Comm’n v. Woods, 25
S.W.3d 470, 471 (Ky. 2000) (noting multiple instances of judicial
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abuse which justified district judge's removal from office (although
judge in question had not appealed the Commission’s order
removing him from office)).
612 S.W.3d at 810-11.
In 2020, this Court upheld the removal of Judge Gentry in another case
involving numerous violations of the Code of Judicial Conduct. Gentry, 612
S.W.3d at 849. The Commission charged Gentry with twelve counts of
misconduct, which included misconduct related to campaign activity,
retaliation against staff, mismanagement of staff and office environment,
making inappropriate sexual advances toward an attorney, and failing to be
candid and honest with the Commission. Id. at 836-40. Upon review of the
record and counsel’s arguments, the Court determined that the Commission’s
findings were supported by clear and convincing evidence and rejected Gentry’s
procedural and constitutional arguments, including her argument that the
penalty of removal was unreasonable and disproportionate to the Commission’s
findings. Id. at 846.
As recognized in Gentry, comparing the misconduct of different judges is
inherently difficult. Id. at 848. But the severity of removal is warranted based
on the pattern and extent of misconduct present in this case. Quoting from the
Commission’s final order, we note the multiple bases for its decision in this
case:
[Judge Gordon’s] conduct has violated numerous Rules of the
Judicial Canons, including the following:
• Failing to comply with the law (Canon 1, Rule 1.1).
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• Failing to act at all times in a manner that promotes public
confidence in the independence, integrity, and impartiality of
the judiciary, and avoiding impropriety and the appearance
of impropriety (Canon 1, Rule 1.2), and not abuse the
prestige of judicial office to advance the personal interests of
the judge or others (Canon 1, Rule 1.3).
• Failing to give precedence of the judicial office over all of a
judge’s personal and extrajudicial activities (Canon 2, Rule
2.1).
• Failing to perform the duties of her judicial office fairly and
impartially (Canon 2, Rule 2.2) and without bias or prejudice
(Canon 2, Rule 2.3(A) and (B)).
• Allowing her social, political, financial or other interests or
relationships to influence her judicial conduct or judgment
(Canon 2, Rule 2.4(B)). Failing to be patient, dignified, and
courteous to those with whom the judge deals in an official
capacity, and permitting similar conduct of others subject to
her direction and control (Canon 2, Rule 2.8(B)).
• Failing to disqualify herself in any proceeding where her
impartiality might reasonably be questioned (Canon 2, Rule
2.11(A)).
• Failing to require her staff to act in a manner consistent with
the judge’s obligations under the Code of Judicial Conduct
(Canon 2, Rule 2.12(A)).
• Failing to cooperate and be candid and honest with judicial
disciplinary agencies (Canon 2, Rule 2.16(A)).
• Retaliating against a person known or suspected to have
assisted or cooperated with an investigation of a judge
(Canon 2, Rule 2.16(B)).
• Participat[ing] in activities that would appear to a reasonable
person to undermine the judge’s independence, integrity, or
impartiality (Canon 3, Rule 3.1(C)).
• Engaging in conduct that would appear to a reasonable
person to be coercive (Canon 3, Rule 3.1(D)).
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Judge Gordon’s conduct violating the Canons was not isolated
but was a pattern of repeated conduct over an extended period of
time and over her entire tenure as a judge and in a variety of ways.
Her conduct violating the Canons was extensive and frequent and
provided personal benefits to her and her adult son. The conduct
occurred inside and outside the courtroom, and in her official
capacity. . . . Based on the totality of the evidence presented,
including acts admitted by Judge Gordon and conduct she cannot
deny she engaged in, and based upon a reasonable and reasoned
application of the Rules, it is clear that Judge Gordon lacks fitness
to continue on the Bench.
Based on Judge Gordon’s numerous violations of the Code of Judicial Conduct,
we hold that the sanction of removal was appropriate.
CONCLUSION
Based on the foregoing, the Judicial Conduct Commission’s Final Order
is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
R. Kent Westberry
Bridget M. Bush
Hunter E. Rommelman
Landrum & Shouse LLP
COUNSEL FOR APPELLEE:
Jeffrey C. Mando
Olivia F. Amlung
Joseph K. Hill
Adams Law, PLLC
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