Norfleet’s cases suspended pending court ruling

By HEATHER PYLES, CJ Staff Writer
Commonwealth Journal

October 13, 2008 06:28 am

— A local defense attorney’s cases have been temporarily suspended while the Kentucky Supreme Court decides whether to order the local judiciary to recuse themselves from his cases.
The abeyance order, signed by Pulaski Circuit Court Judge Jeffrey T. Burdette, was filed on Sept. 25 and it calls to suspend all matters before the circuit and district courts in the county in which defense attorney Robert F. Norfleet is a representative.
The order comes while Kentucky Supreme Court Chief Justice John D. Minton is taking under advisement several requests for recusal filed by Norfleet, which were entered after members of the local judiciary – Circuit Court judges Jeffrey T. Burdette and David A. Tapp and District Court judges Jeffrey Scott Lawless and Katie Wood – filed a bar complaint against Norfleet in response to a critical editorial letter by Norfleet that ran in the Commonwealth Journal at the end of August.
The editorial piece, titled “Reasonable bonds for all — not just the good ole boys,” criticized local judges on how they set bonds in Pulaski County courtrooms.
The abeyance order claims that the act of filing a bar complaint against a member of the court is not reason enough to require a recusal.
“The judiciary has a duty to act in regard to any bar member’s misconduct, and such exercise of that responsibility does not, and should not, be grounds for recusal,” the order states. “It simply is not a situation that demonstrates a disqualifying basis.”
The bar complaint alleged that Norfleet made false statements in the opinion piece, which violated a professional conduct rule, and the judges claimed in the complaint that Norfleet’s op-ed piece was “dishonest, fraudulent and designed to deceive the public by misrepresenting the character and competence of the local judiciary.”
In response, Norfleet had stated that the piece was thoroughly researched and that the complaint was an attempt by the local judiciary to “chill dissent, chill advocacy and chill the right of advocates to simply disagree on occasion with the action of the judges.”
Norfleet filed five separate recusal requests in circuit court last month on behalf of his and Mark Stanziano’s clients, claiming that circuit judges Tapp and Burdette cannot rule on their cases fairly based on allegations the judges made in the bar complaint.
In response to the recusal requests, the abeyance order stated that assuming a judge cannot rule fairly is not reason enough to require a recusal, and it also stated that the local court system would be tied up for a substantial amount of time while independent judges are brought in.
“To recuse, even during the pendency of confidential matters pending in another forum that has been disclosed publicly by (Norfleet), would require the appointment of Special Judges for months, and perhaps years, to handle motions, bonds, arraignments, trials and the like,” the order said.
The order continues to note that the recusal request should be studied to determine whether it is being used as a trial tactic by a “disingenuous attorney.”
“Allegations that a judge has personal bias against a party’s attorney must be carefully scrutinized so that the independence of the state’s judiciary is not impaired,” the order states. “Attorneys could cause to be filed, or file themselves, similar actions to create and engineer recusal of a sitting judge.”
Norfleet filed a response to the abeyance order on Sept. 30 which states that “recusal is mandatory when a judge’s partiality may reasonably be questioned.” Norfleet continued in his response by saying that the allegations made by the judges in their bar complaint was an attack on his character.
“Had the judiciary not assaulted (Norfleet’s) character, there would not be any recusal issue,” the response states.
Norfleet later states in his response that a judge who feels an attorney has acted out of line cannot be expected to perform his duties fairly, and vice versa.
“When a judge feels that counsel is dishonest and the like, the judge is not going to believe anything the attorney represents to him or her,” the document says. “Likewise, every adverse ruling from the judge is going to cause (Norfleet’s) clients to be concerned that any particular ruling – or every ruling, for that matter – is grounded not in the law, but in the judge’s bias and dislike of (Norfleet).”
Norfleet also states in his response that the abeyance order is unconstitutional.
“As a matter of law, all of (Norfleet’s) cases cannot be held in abeyance because not all of (Norfleet’s) clients have sought recusal,” the response states.
“The general order should be inapplicable to any of (Norfleet’s) cases where recusal has not been sought,” the response continues.
Norfleet is asking that the abeyance order be either amended to comply with the law or dismissed.

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