Kentucky appeals court says Louisville judge violated code of conduct
A Jefferson District Court judge amended a speeding ticket without telling the prosecutor. The Kentucky Court of Appeals says it was illegal.
Shortly after 4 p.m. on June 3, 2021, Christopher Gage Blackford was gunning his yellow Ford Mustang at 71 miles per hour on rural, winding Blanton Lane in southwest Jefferson County.
That was double the posted limit. A Louisville Metro Police officer stopped the 18-year-old Blackford and cited him for reckless driving and speeding more than 26 miles above the limit, a serious traffic offense that can result in the suspension of a driver’s license.
Before Blackford appeared in court two weeks later, his attorney, Christophe Stewart, worked out a deal with the prosecutor: Blackford would plead guilty to the speeding charge and the reckless driving offense would be dismissed.
But that’s not what happened in the courtroom.
Instead, court records show that Jefferson District Judge Stephanie Pearce Burke reduced the speeding charge to 25 mph over the limit — a seemingly minor tweak but one that would mean Blackford could avoid a hearing before state officials and the possible suspension of his license.
The reckless driving charge was dismissed. Burke imposed a fine and court costs totaling $184 and directed Blackford to attend traffic school before he enlisted in the Navy a few weeks later.
End of story? Not quite.
That’s because when Burke offered the last minute deal, she conferred only with Blackford’s attorney. The prosecutor from the Jefferson County Attorney’s office was not in the courtroom. And that, known in legal circles as ex parte (“for one party”) communications, is illegal, according to a Kentucky Court of Appeals decision issued in August.
The Jefferson County Attorney appealed Burke’s decision to Jefferson Circuit Court, but lost. The county attorney then asked the Court of Appeals to review the case, which resulted in its August decision.
The Court of Appeals ruled that Burke “clearly violated” Kentucky’s Code of Judicial Conduct, and that Stewart, Blackford’s attorney, breached the state’s Rules of Professional Conduct for lawyers, when the two agreed to the plea deal without the prosecutor.
The Court of Appeals decision noted that “this practice, specifically in Judge Burke’s court, has continued” despite a state Supreme Court order in 2015 related to an appeal “that arose from Burke engaging in ex parte proceedings.”
That 2015 ruling by the state Supreme Court, which involved Burke and another judge and the ex parte modification of bond prior to arraignment, also referred to “clandestine communication between some attorneys and some sitting judges in contravention of our rules.” Those rules state that "a judge shall not initiate, permit, or consider ex parte communications with attorneys or with parties."
The Court of Appeals ruling said the facts in Blackford’s case, as well as in three others, “reflect an ex parte culture among some members of the Jefferson District Court and some members of the bar that appears completely inconsistent with the ethical execution of judicial duties.”
Why Burke allowed Blackford to plead guilty to the reduced charge without the prosecutor’s knowledge or consent is unclear. After the judge did not respond to repeated inquiries from the Kentucky Center for Investigative Reporting, an attorney representing her — former Jefferson District Judge David P. Bowles — messaged KyCIR stating that Burke “declines to discuss the matter with you.”
Stewart also declined to discuss Blackford’s case with KyCIR.
Chief Jefferson District Court Judge Jessica Moore did not respond to a half-dozen inquiries from KyCIR seeking to discuss issues raised by the Court of Appeals decision.
Samuel Marcosson, a professor at the University of Louisville’s Brandeis School of Law, said it is “rare for the Court of Appeals to be so blunt and harsh, but it seems the judges wanted to send a strong message in light of what happened here.
“It's very unusual for the court to go so far as to say that, in its view, there were violations of both the lawyer's professional ethical obligations, and that the judge in her actions violated the Code of Judicial Conduct,” Marcosson said. “That's strong medicine, and sends a very powerful message.”
The principle is the point
The judicial system is built on the idea that both sides know what’s happening in a case and get to have a say in it, said David Harris, a professor at the University of Pittsburgh’s law school.
“When only one party is there, the system breaks down because the judge is not taking account of or hearing both sides. That isn’t right and it isn’t what the law requires,” Harris said.
The Court of Appeals noted in its ruling that it lacked enforcement authority over judges or attorneys. But the state Judicial Conduct Commission could initiate a complaint against Burke, and the Kentucky Bar Association could do so against Stewart.
No formal charges have been filed by the commission against Burke, or by the bar association against Stewart, and complaints are confidential during the initial investigative process.
The county attorney’s office also could file complaints against Burke and Stewart. Asked whether it has done so, or intends to, an office spokesperson directed a reporter to a statement from County Attorney Mike O’Connell that said:
“The Court of Appeals’ lengthy recitation of Judge Burke’s illegal and unethical practices speaks to her unbridled judicial hubris. My office will have more to say in the appropriate forum.”
This is not the only time Burke and O’Connell have crossed swords in court proceedings. In another legal tiff last July, Burke disqualified O’Connell and his staff from a case on the grounds that O’Connell knew one of the parties involved. Two months later, that ruling was overturned by a Jefferson Circuit Court judge who found that Burke had “erroneously” removed the county attorney’s office from the case and “with no legal cause to do so."
In a brief filed with the Court of Appeals in the Blackford case last February, the state attorney general and O’Connell’s office said “the unilateral amendment by Judge Burke of the charged speeding offense without the consent of the government was an obvious abuse of judicial authority.
”Once again, the Commonwealth finds itself complaining about ex parte proceedings in the Jefferson District Court. It is nothing short of remarkable that this pernicious practice persists, given the Kentucky Supreme Court's repeated condemnation of the practice,” the brief stated.
“The administration of justice should not be reduced to some sort of ‘gotcha’ game where outcomes can be manipulated by ex parte practices.”
In this case, the relatively minor charge — a traffic ticket — doesn’t diminish the significance of how it was handled, said David Sachar, director of the Center for Judicial Ethics at the National Center for State Courts.
“The principle is, there's one justice system for all of us, And whether it's on a speeding ticket, or it's on a multibillion dollar lawsuit, we all want to know that the public is represented, and that due process is being followed,” Sachar said. “The lesson is the same. The rules matter. The principle is the point.”