Request By:
Ms. Kathleen Stanton
The Mountain Eagle
P.O. Box 808
Whitesburg, Kentucky 41858
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request the opinion of the Attorney General as to the possible application of the judge's disqualification statute, KRS 26A.015, to the Letcher County Circuit Judge, the Honorable F. Byrd Hogg.
Judge Hogg is an incorporator, director, and stockholder of the Four Stars Coal and Land Company, Inc. Other members include a businessman and two attorneys in Whitesburg. The Articles of Incorporation indicate that the purpose of the Kentucky Corporation is to engage in the transaction of any and all lawful business for which corporations may be incorporated under the Kentucky Business Corporations Act.
You indicate that recently the corporation bought up mineral rights to numerous parcels of land in the county. You assume the corporation will be engaged in the coal business.
You ask whether the disqualification statute would apply to the judge where his business partners are representing clients involving the coal business before his court.
If the civil case would not involve nor affect the judge's company in any material way, we can see no application of KRS 26A.015. We assume a situation in which the judge has no pecuniary (financial) or proprietary interest in the subject matter in controversy or in a party to the proceeding. Further, we assume the judge would have no knowledge of any circumstances in which his impartiality might reasonably be questioned. The mere fact that the judge has experience in operating a coal company would not automatically disqualify him from sitting on a case involving some other coal company. A judge should not be penalized for merely having business experience. Of course the judge would have to disqualify himself in the case if he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings, or has expressed an opinion concerning the merits of the proceeding. KRS 26A.015(2)(a).
Obviously the judge would be disqualified under the statute if the case involved his own corporation. KRS 26A.015(2)(c).
Next, you ask whether the disqualification statute would apply where his business partners are representing clients charged with crime in a criminal case. It is our view that KRS 26A.015 was designed to cover civil litigation. KRS 23.170 requires the circuit judge to take an oath to administer justice without respect to persons and to faithfully and impartially discharge all the duties placed upon him. Implicit in the oath is the idea that if the judge knows of any reason why he cannot administer justice in a particular case, criminal or civil, he should swear himself off the bench. See
Wyatt v. Ropke, Ky., 407 S.W.2d 410 (1966) 411. The general law dealing with a circuit judge swearing himself off the bench is dealt with in KRS 23.230. Under that statute if the court believes he cannot properly preside or if either party files with the clerk of the court his affidavit that the judge will not afford him a fair and impartial trial, the parties by agreement may elect one of the attorneys of the court to preside in a particular case. Where the parties cannot so agree, the Chief Justice of the Supreme Court will designate a regular circuit judge or an attorney having the qualifications of a judge to try the action. See § 136, Kentucky Constitution, as to special judges of circuit court.
Any ethical considerations arising out of such situations would be a matter for the Legal Ethics Committee of the Kentucky State Bar Association. However, advisory opinions on ethical questions can only be petitioned by attorneys and local bar associations. Rule 3.530 of Rules of Appellate Procedure.