NEWS: Supreme Court of Kentucky Receives a “Failing” Grade on the Financial Disclosure Requirements for the Justices

2013.12.07 BlackboardKentucky gets a failing grade on its report card published by the Center for Public Integrity which evaluated the disclosure rules for judges in the highest state courts nationwide in story entitled “Justice Obscured”. This report was addressed locally at WFPL.org and in the Courier Journal, neither of which could be called “hard hitting” stories but simply light-weight digests from the report. The report using a set of reasonably objective criteria found that Kentucky was among the 43 states who received failing marks in the area of financial disclosures at our highest court.  Worse yet, Kentucky was near the bottom on the numerical ratings receiving a score of 15 out of a possible 100 with only Idaho, Montana and Utah receiving lower scores.  The highest score went to the federal judiciary with a score of 84, followed by Califoria with a “77”. For example, the Justices are NOT required to disclose his/her household income; the justice’s investments, gift and reimbursements for the the justice, spouse or dependent children; or liabilities of the justice, spouse or dependent children.  In those areas our Justices received a “zero” out of a possible 80 points!  Not all was dark for the Supremes; they received a 10/10 on accountability for filing and 5/10 for public access to the filing record. Individual financial reports for each of the sitting Kentucky Supreme Court Justices for 2012 are available as follows:

Some extracts from their web page discussing the report (Center for Public Integrity) relative to Kentucky are as follows:

In Kentucky, a state that earned just 15 points, judges are not required to provide the names of companies in which they have a financial interest. They report family stock ownership in companies in broad categories such as “insurance,” “entertainment” and “energy.” * * * “Forty-seven other states have them. What’s wrong with you guys?” asked Les Abramson, a University of Louisville law professor who specializes in judicial ethics. * * * “The appearance of impartiality is as important as the fact of impartiality,” said Abramson, the Louisville law professor, who is married to Kentucky Supreme Court Justice Lisabeth Abramson. “It’s really about how the public perceives the judiciary.”

Here is a summary on Kentucky’s report card at CPI with links to each justice’s financial disclosures:

The Center for Public Integrity evaluated the disclosure rules for judges in the highest state courts nationwide. The level of disclosure in the 50 states and the District of Columbia was poor, with 43 receiving failing grades, making it difficult for the public to identify potential conflicts of interest on the bench. Despite the lack of information in the public records, the Center’s investigation found nearly three dozen conflicts, questionable gifts and entanglements among top judges around the country. Here’s what the Center found in Kentucky:

how it rankstotal score
15/100

Strengths:

There are few strengths to tout about Kentucky’s financial disclosure requirements. However, the state does attach strong enforcement measures to its financial disclosure rules. Supreme Court justices who fail to file or who report fraudulent information risk losing their seat on the bench.

Weaknesses:

Kentucky’s financial disclosure form includes sections in which judges must disclose stocks, real estate and outside employers, but it also tells judges that they are “not required” to provide names of companies in which they have a financial interest. By omitting company names, it is practically impossible to identify possible conflicts of interest. Additionally, Kentucky fails to ask for information about the gifts or reimbursed expenses its judges receive.

Highlights:

Justice Will Scott’s form reveals ownership interests in dozens of tracts of Kentucky real estate, many of which he leases to coal, oil and natural gas companies. Unlike his colleagues, Scott does name the companies to which he leases land. In a phone interview, Scott said he would welcome more robust financial disclosure requirements. He said it would be important to know the names of companies because the disclosures are “a search tool for people coming up on appeal.” As for his own real estate holdings, Scott said he tries to stay aware of his oil and gas leases and to recuse himself in any cases in which companies have paid him royalties.

SCOKY responded to the story through its spokeswoman, Leigh Anne Hiatt:

Regarding the results of the CPI report, Kentucky is one of about 30 states in which the state legislature determines the financial disclosure information required of justices and judges. All Kentucky justices and judges must file annual financial disclosure information with the Kentucky Registry of Election Finance pursuant to Kentucky statute. The financial disclosure form can be found on the website of the Kentucky Registry of Election Finance. The General Assembly would have to authorize changes to these disclosure requirements. In addition, judges adhere to ethical standards as defined in the Kentucky Code of Judicial Conduct, which require judges to recuse themselves from cases in which they have a conflict of interest.

However, the glaring inadequacy of this response is that relying upon the Kentucky legislature as your standard for disclosure is not exactly aiming for the highest rung on the bar, considering it is the home of “Boptrot” and recent suits and allegations pertaining to harassment by some members of the legislature.

Voluntary disclosure by simple agreement of the seven justices would be a simply solution to building trust and confidence in an office of public trust and promoting the transparency of sitting justices.  Kentucky has judicial elections, and these campaigns can often cost more money than the justice (or judges) would make in a year’s salary.  Even with each and every campaign contribution above $100 reported and made a matter of public record, it is still not above public scrutiny and questions.  See, recent blog post. Montana’s Chief Justice Mike McGrath deftly handled the issue by simply responding per the Bozeman (Montana) Daily Chronicle that “Montana Supreme Court justices should not have to publicly disclose their personal financial interests or those of their families because the high court already follows a strict code to avoid potential conflicts, . . .”  [I could not tell if this was a quote of the justice or just a translation, but in any event this is a quote from the Daily Chronicle.

It’s the judge’s responsibility to disqualify himself or herself from presiding over a case in which he or she has a financial stake, McGrath said.If a judge fails to do so, the litigants who bring cases to the state Supreme Court are likely to know if a justice has a conflict, he said. “The parties or the lawyers for the parties or somebody related to the parties is going to be aware of those interests and will file a complaint with the Judicial Standards Commission,” he said. Les Abramson, a professor at the University of Louisville’s Brandeis School of Law, said public disclosures are necessary to determine whether a conflict or even the appearance of a conflict exists, he said. “Sometimes accidents happen and a judge simply may not recognize the circumstances which under the code would suggest serious consideration of disqualification or recusing themselves,” Abramson said. People involved in court cases generally don’t have access to corporate records that show whether a judge or family member has stock holdings in a company, he said. “I just think there is a problem with the chief justice’s reasoning in thinking every litigant would have access to the information he’s talking about,” Abramson said.
I agree with Professor Les Abramson at our own University of Louisville Brandeis School of Law, and would go one step further and remember that United States Supreme Court Justice Louis Brandeis addressed the issue of transparency and disclosure succinctly:
Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.

  • Other People’s Money—and How Bankers Use It (1914)
[N]o law, written or unwritten, can be understood without a full knowledge of the facts out of which it arises, and to which it is to be applied.

  • The Living Law, 10 Illinois Law Review 461, 467 (1915-16).

The general rule of law is, that the noblest of human productions — knowledge, truths ascertained, conceptions, and ideas — become, after voluntary communication to others, free as the air to common use.

Or to extend the following precept found in Paul’s letter to the Corinthians @ 1 Corinthians 6:12-

“All things are lawful for me,” but not all things are helpful. “All things are lawful for me,” but I will not be dominated by anything.

Just because the legislature provides minimal mandatory disclosures and which is thus “lawful”, simple adherence to this minimal standards are not helpful.  Do not be dominated by them; disclose more and let others at least know what transpires behind the bench.

More extensive disclosures can be promoted by the Chief Justice; not just for the justices  but for all judges in elective office.  It’s just that simple.

Please note: I reserve the right to delete comments that are inappropriate, offensive or off-topic.

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