Respondents Brief — Beth Lewis Maze, Circuit Judge, Petitioner v. Kentucky Judicial Conduct Commission

No. 19-300

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In The

Supreme Court of the United States

-----------------------------------------------------------------BETH LEWIS MAZE,

Petitioner,

v.

KENTUCKY JUDICIAL CONDUCT COMMISSION,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The Supreme Court Of Kentucky

-----------------------------------------------------------------RESPONSE IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

-----------------------------------------------------------------JEFFREY C. MANDO, ESQ.

ADAMS, STEPNER, WOLTERMANN

& DUSING, PLLC

40 West Pike Street

Covington, KY 41011

859.394.6200

jmando@aswdlaw.com

Counsel of Record for Respondent,

Kentucky Judicial Conduct

Commission

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

COUNTERSTATEMENT OF

QUESTION PRESENTED

The question presented is whether Judge Maze’s

Fifth Amendment rights will be impinged if the Kentucky Judicial Conduct Commission (JCC) conducts a

hearing on disciplinary proceedings against her prior

to the trial on her pending criminal charges.

ii

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTION PRESENTED ............................................................

i

TABLE OF CONTENTS ......................................

ii

TABLE OF AUTHORITIES .................................

iii

COUNTERSTATEMENT OF FACTS ..................

1

PROCEEDINGS BELOW ....................................

4

REASONS FOR DENYING THE PETITION ......

6

I.

II.

III.

THERE IS NO COMPELLING REASON

TO GRANT A WRIT OF CERTIORARI ....

6

THE LONGER THE DISCIPLINARY

PROCEEDINGS

REMAIN

UNRESOLVED, THE BLACKER THE EYE ON

THE ADMINISTRATION OF JUSTICE

IN KENTUCKY .........................................

8

JUDGE MAZE’S RELIANCE ON THE

FIFTH

AMENDMENT

PRIVILEGE

AGAINST SELF-INCRIMINATION RINGS

HOLLOW SINCE SHE HAS MADE VOLUNTARY STATEMENTS ABOUT THE

CONDUCT THAT FORMS THE BASIS OF

HER CRIMINAL CHARGES ...................... 11

CONCLUSION..................................................... 13

iii

TABLE OF AUTHORITIES

Page

CASES

Chaffin v. Stynchcombe, 412 U.S. 17 (1973) .................7

Crampton v. Ohio, 408 U.S. 941 (1972) ........................7

Griffith v. California, 380 U.S. 609 (1965) .................12

Jenkins v. Anderson, 447 U.S. 231 (1980).....................7

McGautha v. California, 402 U.S. 183 (1971) ..............7

McKune v. Lile, 536 U.S. 24 (2002) ...............................7

Nicholson v. Judicial Ret. & Removal Commn.,

562 S.W.2d 306 (Ky. 1978) .........................................8

Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893

(1970) .........................................................................7

CONSTITUTIONAL PROVISIONS

U.S Const. amend. V ................................................. 6, 7

RULES AND REGULATIONS

Ky. S. Ct. R. 4.000 ..........................................................9

1

COUNTERSTATEMENT OF FACTS

Judge Maze is the Chief Circuit Judge for the 21st

Judicial Circuit in Kentucky, comprised of Bath,

Menifee, Montgomery, and Rowan Counties. On September 28, 2017, she received information that her exhusband, Donald “Champ” Maze, had been arrested on

several criminal charges, including possession of a controlled substance. In an effort to aid him after his arrest, Judge Maze made several phone calls to local

elected officials to secure a pretrial officer and district

court judge who would be able to assist her ex-husband

through the criminal process. Over the next few hours,

Judge Maze spoke with Bath County Jailer Earl Willis,

who confirmed the arrest and informed her that Mr.

Maze was in his custody.

Later that evening, Judge Maze received a call

from Jailer Willis and learned that he had taken Mr.

Maze to St. Joseph Hospital for a drug test. However,

Jailer Willis informed her that the hospital refused to

administer the drug test without a court order. According to Judge Maze, she informed Jailer Willis that she

“could not do an order for Mr. Maze.” She “knew it was

a conflict,” but did it anyway. She faxed a signed Order,

handwritten on official form AOC-006-3, to St. Joseph

Hospital directing that “a drug test shall be conducted”

for Mr. Maze. Shortly thereafter, Judge Maze received

a call from Jailer Willis reporting that St. Joseph Hospital would not honor the Order, and that he was taking Mr. Maze to the Clark County Medical Center to

try again for a drug test.

2

After Jailer Willis and Mr. Maze arrived at the

Clark County Medical Center, Judge Maze prepared

and signed a second Order directing that a drug test

be administered. She promptly faxed this second Order, also prepared on official form AOC-006-3, to the

Clark County Medical Center. After the hospital refused to honor this Order, Jailer Willis transported Mr.

Maze to the Clark County Detention Center for booking.

On November 12, 2017, Judge Maze sent a letter,

via her attorney, reporting her actions to the JCC. In

her letter, she conveyed to the JCC that she had written and sent two Orders on behalf of Mr. Maze on the

night of September 18, 2017, and attached copies of

both Orders for the JCC’s review. In response, the Commission began an investigation. Since Judge Maze had

retained counsel, the JCC contacted her attorney and

invited both him and Judge Maze to attend an Informal Conference, which took place on January 26, 2018.

After the Informal Conference, Judge Maze requested

a second opportunity to appear before the JCC. The

JCC denied that request but permitted Judge Maze to

submit a letter for the JCC’s review and consideration.

On February 28, 2018, Judge Maze sent a six-page letter addressing the two September 18, 2017 Orders.

The JCC concluded that the severity of Judge

Maze’s actions and their impact on the impartial administration of justice warranted formal disciplinary

charges. On May 21, 2018, after providing Judge Maze

with a copy of its factual file, the JCC charged her with

two counts of violating the Judicial Code of Conduct.

3

Shortly after the JCC filed the charges, Judge

Maze filed an appeal to the Kentucky Supreme Court

based on grievances she had against the JCC. The Kentucky Supreme Court dismissed that appeal and the

JCC’s proceedings continued.

On August 6, 2018, WLEX 18 News aired a story

focusing on Judge Maze’s actions on the evening of

September 18, 2017. As part of this news story, Judge

Maze discussed her actions and conduct in a lengthy

interview with WLEX reporter Leigh Searcy. WLEX 18

News conducted the interview in Judge Maze’s courtroom and the Bath County Circuit Clerk recorded it,

per Judge Maze’s request. As a result of this interview,

the JCC learned that Judge Maze signed the name of

Mr. Maze’s private counsel and the titles of two Bath

County elected officials to the Order she sent to St. Joseph Hospital without their knowledge or permission.

Because none of the individuals were aware of the Order, and they did not authorize Judge Maze to sign

their name or place their titles on it, the JCC brought

two additional disciplinary charges against Judge

Maze.

The JCC also continued its investigation and

learned of actions Judge Maze took to discover confidential informants potentially linked to her exhusband’s pending criminal drug trafficking charges.

According to various sources, Judge Maze made numerous, improper inquiries into the identities of confidential informants involved in what have collectively

been referred to as the “Syndicate Cases.” Based on the

facts discovered in its investigation, the JCC brought

4

a fifth disciplinary charge against Judge Maze on October 18, 2018.1

Meanwhile, Special Commonwealth Attorney convened a grand jury to consider criminal charges

against Judge Maze. On November 1, 2018, the Bath

County Grand Jury returned an indictment against

Judge Maze for two counts of forgery and one count of

tampering with public records. The criminal case is set

for trial on November 12, 2019.

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PROCEEDINGS BELOW

The JCC’s hearing on the five disciplinary charges

against Judge Maze was originally scheduled to occur

in mid-October 2018, but was rescheduled for December 3, 2018.

On November 14, 2018, two weeks prior to the

hearing, Judge Maze moved the JCC to stay the proceedings pending the resolution of the criminal

charges, claiming it would violate her Fifth Amendment right against self-incrimination if the JCC hearing was held prior to her criminal trial. Judge Maze

also filed two other motions – the first, requesting that

the JCC continue the December 3, 2018 hearing, and

the second, requesting an opportunity to appear

1

Prior to the filing of the fifth disciplinary charge, Judge

Maze agreed to an Order of Temporary Suspension effective 12:01

a.m. on October 2, 2018. She has been on paid leave since that

time.

5

informally before the JCC. On November 19, 2018, the

JCC entered an Order denying all three motions.

On November 26, 2018, Judge Maze filed an Application for Intermediate Relief in Appellate Court pursuant to Kentucky Rule of Civil Procedure 76.33. The

following day, she filed a Notice of Appeal from the

JCC’s November 19, 2018 Order. After receiving the

JCC’s Response to the Motion, the Kentucky Supreme

Court granted Judge Maze’s Application for Intermediate Relief and temporarily stayed the Commission’s

December 3, 2018 hearing pending further review.

On June 13, 2019, the Kentucky Supreme Court

issued an Opinion and Order in which it (a) affirmed

the JCC’s decision denying a stay of the hearing pending resolution of Judge Maze’s criminal charges; (b)

dismissed as moot Judge Maze’s motion to continue the

December 3, 2018 hearing because the Kentucky Supreme Court’s acceptance of Judge Maze’s Application

for Intermediate Relief effectively postponed the December 3, 2018 hearing; and, (c) declined to consider

the propriety of the JCC’s decision denying Judge

Maze an opportunity to appear informally before the

JCC, because “Judge Maze’s challenge to the JCC’s denial of her motion for an informal hearing is an impermissible issue for interlocutory review.”

After the Kentucky Supreme Court’s ruling, the

JCC rescheduled the hearing on the charges against

Judge Maze for September 9, 2019. On August 30,

2019, and acting pursuant to Kentucky Rule of Civil

Procedure 76.34(4)(a), the Kentucky Supreme Court

6

granted a stay of the JCC proceedings for ninety days

for Judge Maze to file a Petition for Writ of Certiorari

and stated that “additional stays should be obtained

from the United States Supreme Court.” The stay expired on September 23, 2019.

------------------------------------------------------------------

REASONS FOR DENYING THE PETITION

I.

THERE IS NO COMPELLING REASON TO

GRANT A WRIT OF CERTIORARI

Judge Maze argues her Petition should be granted

because the Kentucky Supreme Court misapplied a

properly stated rule of law. Hence, this is not a case in

which the decision of the Kentucky Supreme Court

conflicts with a decision of another state court of last

resort or with a decision of a federal court of appeals

on an important federal question. Indeed, Judge Maze

does not even suggest, much less argue, that the Kentucky Supreme Court’s decision conflicts with the decision of any other state court of last resort or with any

federal court of appeals.

Likewise, Judge Maze does not contend that this

is a case in which a state court has decided an important question of federal law that has yet to be addressed by this Court. Instead, Judge Maze complains

that the Kentucky Supreme Court’s decision affords

her the “false choice” to either “(1) waive her Fifth

Amendment right in the civil proceeding to defend herself against the misconduct allegations, which also

would constitute a waiver in the criminal case, or (2)

7

invoke her Fifth Amendment right in the civil case to

protect herself in the criminal matter, but preventing

her from defending against the misconduct allegations.” (Petition, p. 3) But, this Court has already addressed that choice on numerous occasions. This Court

recognizes that one who faces parallel criminal and

civil proceedings may have to make the difficult choice

currently faced by Judge Maze, but this Court further

ruled that such a choice does not run afoul of the Fifth

Amendment. E.g., Williams v. Florida, 399 U.S. 78, 90

S. Ct. 1893 (1970) (“That the defendant faces such a

dilemma demanding a choice between complete silence

and presenting a defense has never been thought an

invasion of the privilege against compelled self-incrimination.”); McGautha v. California, 402 U.S. 183 (1971)

(vacated on other grounds by Crampton v. Ohio, 408

U.S. 941 (1972)) (“It does not violence to the privilege

that a person’s choice to testify in his own behalf may

open the door to otherwise inadmissible evidence

which is damaging to his case. . . . Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the

Constitution does not by that token always forbid requiring him to choose.”); Jenkins v. Anderson, 447 U.S.

231 (1980), quoting Chaffin v. Stynchcombe, 412 U.S.

17 (1973) (“[T]he Constitution does not forbid every

government-imposed choice in the criminal process

that has the effect of discouraging the exercise of

constitutional rights.”); McKune v. Lile, 536 U.S. 24

(2002) (Kennedy, J., dissenting), citing Jenkins, supra

(“It is well-settled that the government need not make

the exercise of the Fifth Amendment privilege cost

8

free.”) The Kentucky Supreme Court’s decision in this

case is perfectly consistent with this Court’s governing

precedents.

The Petition is premised solely on an alleged misapplication of a properly stated rule of law. The Kentucky Supreme Court quoted McGautha, McKune,

Jenkins, and numerous other federal and state authorities in reaching the conclusion that the “choice” faced

by Judge Maze does not violate her Fifth Amendment

right against self-incrimination. Judge Maze does not

take issue with any alleged misstatement of any principle in any of those cases in seeking a writ of certiorari; rather, she takes issue with the Kentucky

Supreme Court’s conclusion. Judge Maze’s chief complaint is: “A stay should have been granted to protect

Petitioner’s constitutional rights.” (Petition, p. 3) Judge

Maze does not take issue with the Kentucky Supreme

Court’s identification of the governing legal precedents

or its citation of the principles from those precedents.

She simply disagrees with the way the Kentucky Supreme Court applied the law. That is not a compelling

reason to grant a writ of certiorari.

II.

THE LONGER THE DISCIPLINARY PROCEEDINGS REMAIN UNRESOLVED, THE

BLACKER THE EYE ON THE ADMINISTRATION OF JUSTICE IN KENTUCKY

Granting Judge Maze’s Petition will only further

delay the adjudication of Judge Maze’s disciplinary

charges. And, the longer the disciplinary charges

9

remain unresolved, the blacker the eye on the administration of justice in Kentucky.

The JCC is the body created by the Kentucky Constitution and responsible for “the discipline, retirement

or removal of . . . judges of the . . . circuit court . . . under section 121 of the Constitution of Kentucky.” Ky.

S. Ct. R. 4.000. “The purpose of Section 121 of our constitution is the regulation of the conduct of those persons charged with the administration of justice.”

Nicholson v. Judicial Ret. & Removal Commn., 562

S.W.2d 306 (Ky. 1978). “The aim of [JCC] proceedings

. . . is to improve the quality of justice administered

within the Commonwealth by examining specific complaints of judicial misconduct, determining their relation to a judge’s fitness for office and correcting any

deficiencies found by taking the least severe action

necessary to remedy the situation.” Id.

Given that purpose, the JCC’s interests in proceeding include: (1) maintaining the integrity of the

state’s judicial system by the faithful discharge of its

constitutional mandate to regulate the conduct of persons responsible for the administration of justice in

Kentucky; and (2) adjudicating all complaints and

charges fairly and expeditiously.

Moreover, the general public, the taxpayers, and

the citizens of Kentucky’s 21st Judicial Circuit in particular, have a compelling interest in seeing the disciplinary action against Judge Maze move forward

promptly. First, the public has a compelling interest in

the fair and impartial administration of justice in

10

Kentucky. The fact that Judge Maze’s charges are still

pending and her hearing before the JCC has been repeatedly delayed lends itself to a perception that

judges are “above the law” and receive special treatment. Second, Judge Maze has been suspended since

October 2, 2018, which has caused a need for the appointment of Special Judges to handle her four-county

docket. Having to rely on Special Judges is a disruption

of routine court business for the citizens of Kentucky’s

21st Judicial Circuit, who deserve stability, expedience

and reliability in conducting court business. Additionally, the general public and the taxpayers have a financial interest in the timely resolution of the JCC

proceedings. Judge Maze has drawn her regular salary

for the duration of her suspension and will continue to

do so until the JCC proceedings are concluded while

the Commonwealth is expending taxpayer funds on

the Special Judges who have been appointed to handle

Judge Maze’s docket. Those expenditures will also continue until the JCC proceedings are concluded. The

general public and the citizens of the 21st Judicial Circuit have a compelling interest in the prompt resolution of the charges against Judge Maze.

11

III. JUDGE MAZE’S RELIANCE ON THE FIFTH

AMENDMENT PRIVILEGE AGAINST SELFINCRIMINATION RINGS HOLLOW SINCE

SHE HAS MADE VOLUNTARY STATEMENTS ABOUT THE CONDUCT THAT

FORMS THE BASIS OF HER CRIMINAL

CHARGES

Judge Maze argues that allowing the JCC’s disciplinary proceedings to go forward will force her “to

choose between testifying in the JCC proceeding and

giving up her Fifth Amendment rights in the prosecution.” (Ky. S. Ct., Case No. 2108-SC-000633, Appellant’s

Brief, p. 14) However, she fails to acknowledge the impact of her public statements and official responses explaining her preparation, signing and sending the

Orders for the benefit of her ex-husband.

Judge Maze voluntarily wrote two letters to the

JCC describing in detail the conduct that forms the basis for both the disciplinary and criminal charges

against her. In addition, in August of 2018, she gave a

lengthy television interview in her courtroom with

WLEX 18 News Reporter Leigh Searcy, during which

the following exchange occurred:

SEARCY: We asked you about this drug test

order on September 18th of last year. You

acknowledged you self-reported that. You said

it was an error in judgment and that it was an

emotional time. We have reached out to Commonwealth Attorney and the Bath County Attorney and each of them told me, on the

12

record, that they were unaware of this. Who

wrote that?

JUDGE MAZE: I did write that. And am I

sorry I wrote it? Sure. That night it was a very

emotional night. My children were upset, I

was upset.

Having made those statements to the JCC and

having spoken publicly about the conduct that forms

the basis for her criminal charges, Judge Maze’s reliance on the Fifth Amendment privilege against selfincrimination in her disciplinary proceedings is “a dog

that won’t hunt.”

Finally, the right against self-incrimination provides two types of protection in criminal proceedings:

(a) a criminal defendant cannot be compelled to testify;

and (b) the factfinder cannot draw adverse inferences

by the defendant’s refusal to testify. Griffith v. California, 380 U.S. 609 (1965). Here, no one is forcing Judge

Maze to testify in either her disciplinary hearing before the JCC or at her criminal trial. If she chooses not

to testify at her disciplinary hearing, the JCC – which

is the factfinder – cannot draw adverse inferences from

that choice. Nor will the court that presides over Judge

Maze’s criminal trial allow Judge Maze’s silence at the

disciplinary hearing to be used against her in the criminal trial. Judge Maze’s Fifth Amendment privilege is

not impaired if the hearing on her disciplinary charges

takes place before the trial on her criminal charges.

------------------------------------------------------------------

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CONCLUSION

For all these reasons, Respondent, the Kentucky

Judicial Conduct Commission, respectfully requests

that the Court deny Judge Maze’s Petition for Writ of

Certiorari.

Respectfully submitted,

JEFFREY C. MANDO, ESQ.

ADAMS, STEPNER, WOLTERMANN

& DUSING, PLLC

40 West Pike Street

Covington, KY 41011

859.394.6200

jmando@aswdlaw.com

Counsel of Record for Respondent,

Kentucky Judicial Conduct Commission