You are on page 1of 18

IN

THE UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF KENTUCKY

Judge OLU A. STEVENS, Plaintiff
700 W. Jefferson Street
Louisville, Kentucky 40202

v.

COMMONWEALTH OF KENTUCY
JUDICIAL CONDUCT COMMISION
P.O. Box 4266
Frankfort, KY 40604

STEPHEN D. WOLNITZEK, in his official capacity
as Chairperson of the Kentucky Judicial
Conduct Commission
502 Greenup Street
Covington, Kentucky 41011

JANET STUMBO, in her official capacity
as a member of the Kentucky Judicial

No.
Conduct Commission
311 N. Arnold Avenue
Suite 502
Prestonsburg, Kentucky 41653

EDDY COLEMAN, in his official capacity
as a member of the Kentucky Judicial
Conduct Commission
89 Division Street
Pikeville, Kentucky 41501

KAREN THOMAS, in her official capacity
as a member of the Kentucky Judicial
Conduct Commission
330 York Street
Newport, Kentucky 41071

DIANE E. LOGSDON, in her official capacity
as a member of the Kentucky Judicial
Conduct Commission
913 N. Dixie Avenue
Elizabethtown, Kentucky 42701

JOYCE KING JENNINGS, in her official capacity

as a member of the Kentucky Judicial


Conduct Commission
1105 Marquis Trace
Louisville, Kentucky 40223

JEFFREY WALSON, in his official capacity
as a member of the Kentucky Judicial
Conduct Commission
17 Cleveland Avenue
Winchester, Kentucky 40391

KENT WESTBERRY, in his official capacity
as a member of the Kentucky Judicial
Conduct Commission
220 W. Main Street
Louisville, Kentucky 40202

DAVID BOWLES, in his official capacity
as a member of the Kentucky Judicial
Conduct Commission
600 W. Jefferson Street
Louisville, Kentucky 40202

JEFF TAYLOR, in his official capacity
as a member of the Kentucky Judicial
Conduct Commission
401 Frederica Street
Suite A-102
Owensboro, Kentucky 42303
Defendants

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
(VIOLATION OF FIRST AMENDMENT RIGHTS)
JURISDICTION AND VENUE

1.

This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331.

2.

The Court has authority to grant declaratory relief pursuant to the

Declaratory Judgment Act, 28 U.S.C. 2201 and 2202.


3.

Venue is proper in this district pursuant to 28 U.S.C. 1391(e).

PARTIES

4.

Plaintiff Olu Stevens is the elected Circuit judge in the 30th Judicial Circuit

(Kentucky), 6th Division. He is a resident of Jefferson County in the Commonwealth


of Kentucky.
5.

Defendants are the Kentucky Judicial Conduct Commission specifically, as

well as Commission members, in their official capacity. The Commission is the only
entity authorized under the Kentucky Constitution to take disciplinary action
against a sitting Kentucky Judge. Defendants are residents of the Commonwealth of
Kentucky for jurisdictional purposes. On March 21, 2016, Plaintiff received notice
that Defendants intend to take action to sanction, suspend or remove Plaintiff from
his position as the elected Circuit Judge for the 30th Judicial District, 6th Division in
violation of his rights under the First Amendment and likely, the Due Process Clause
of the Fourteenth Amendment to the United States Constitution.
FIRST CLAIM OF RELIEF

(VIOLATION OF FIRST AMENDMENT RIGHTS)


6.

That there are a total of 95 General Jurisdiction Circuit judges in the

Commonwealth of Kentucky.
7.

Judge Stevens is one of only three (3%) black General Jurisdiction Circuit

Trial judges in the Commonwealth of Kentucky. At the time of his appointment by


the Governor of Kentucky in July of 2009, there were no black trial judges in
Louisville, Kentucky.
8.

That black people represent approximately 21% of the general population in

Louisville, Kentucky.

9.

That black people represent approximately 55% of the jail population in

Louisville, Kentucky. Black people do not represent the majority of criminal


Defendants in Louisville, Kentucky, but black Defendants do represent a
disproportionately high number of criminal Defendants relative to Louisville,
Kentuckys general population.
10.

That the Commonwealth of Kentucky has a history of racism within its

criminal justice system and jury selection system. That the case of Batson v.

Kentucky originated in Louisville, Kentucky when in keeping with the precedent of


Swain v. Alabama, the Supreme Court of Kentucky ruled that it was permissible to
discriminate against black people in the exercise of peremptory strikes.
11.

That the matter of the treatment of defense motions to dismiss jury panels

for lack of racial diversity remained unaddressed in the Commonwealth until the
recent decision of the Kentucky Court of Appeals in the matter of the
Commonwealth v. Charles Evans.
12.

In December 2016, Plaintiff began to address the actions of the Jefferson

Commonwealths Attorney in pursuing an issue of certification of law. Judge


Stevens commentary was largely intended to be limited to a small group of
individuals. To the extent Judge Stevens comments regarding the Jefferson
Commonwealths Attorneys movement was intended to be private, it is not of public
concern and does not implicate the Kentucky Judicial Canons.
13.

That Judge Stevens commentary about the Jefferson Commonwealth's

Attorney's action was not out of any personal animus, but is was limited to the issue

of the Commonwealth Attorney's motivations and actions in matters of public


concern.
14.

That to the extent such private commentary regarding the Jefferson County

Commonwealths Attorney was shared by others without Judge Stevens consent, it


is not a matter of public concern and does not implicate the Judicial Canons.
That to the extent such private commentary was made public by public filings
authored by the Jefferson County Commonwealths Attorney, it is not a matter of
public concern and does not implicate the Judicial Canons.
15.

That to the extent Judge Stevens commentary regarding the Jefferson County

Commonwealths Attorney was intended to be public, it is protected speech under


the First Amendment to the United States Constitution.
16.

That Judge Stevens public commentary regarding the Jefferson County

Commonwealths Attorney took place after the Jefferson County Commonwealths


Attorney pursued a motion for certification of law in the matter of Commonwealth v.
James Doss, a matter which was presented to a racially diverse jury of eight white
jurors and four black jurors. The diverse jury acquitted Mr. Doss on all charges.
17.

That the case having been tried to a verdict of not guilty on all counts, barred

the Commonwealth from pursuing an appeal of Defendants matter. Any action by


the Supreme Court on the certification of law will have no impact on Doss particular
case. The Defendant is forever not guilty of the offenses for which a racially diverse
jury acquitted him. Judge Stevens will never preside over Doss matter and Doss
matter will never return to Judge Stevens regardless of the ultimate decision of the
Kentucky Supreme Court. Doss particular matter is not a pending matter.

18.

That the Commonwealths Attorneys pursuit of a motion for certification of

law will dramatically, disproportionately (in practice, solely) and disparately impact
black Defendants with cases pending adjudication in the Commonwealth of
Kentucky. In that sense, the matter is inappropriately captioned as the

Commonwealth v. James Doss. The matter is more appropriately captioned the


Commonwealth v. All Black Defendants.
19.

That this disproportionate and disparate impact on black Defendants is an

issue of public concern and Judge Stevens has a constitutionally protected, First
Amendment right to address it. Stevens right cannot be censored or sanctioned in
any way. In fact, Judge Stevens commentary on issues of public concern are
supported and encouraged by the Kentucky Code of Judicial Conduct and its canons.
20.

The purpose of Judge Stevens commentary regarding the Jefferson County

Commonwealths Attorney had nothing to do with any action taken by his assistants
during the course of the Doss matter, or any other matter.
21.

The purpose of Judge Stevens commentary regarding the Jefferson County

Commonwealths Attorney was to address his actions in pursuing a certification of


law after a black defendant was acquitted of all charges against him by a racially
diverse jury.
The particulars of the Doss matter were immaterial to Judge Stevens commentary
regarding the Jefferson Commonwealths Attorneys action in pursuing a
certification of law following an acquittal challenging the racial composition of the
jury and insisting upon a jury panel of forty white jurors and one black juror.

22.

That in Louisville, Kentucky, a city that is composed of 21% black people and

where black people represent 55% of the jail population and a disproportionate
number of criminal Defendants, Judge Stevens commentary related to the
discriminatory intent versus discriminatory impact of the Jefferson County
Commonwealths Attorneys pursuit of an unprecedented appeal.
23.

That it is well documented that all white juries and high-majority white

juries tend to convict black Defendants at higher rates than racially diverse juries.

see, S. Hartsoe, "Study: All-White Jury Pools Convict Black Defendants 16 Percent
More Often Than Whites," Duke Today, April 17, 2012; posted May 7, 2012; "The
Impact of Jury Race in Criminal Trials," senior author Patrick Bayer, Duke
University; David Baldus et al., Racial Discrimination and t he Death Penalty in the
Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from
Philadelphia ,83 CORNELL L. REV. 1638 (1998). In that regard, the Jefferson County
Commonwealths Attorneys motivations for pursuing an appeal challenging the
racial composition of the jurygiven the acquittal of Doss, is readily apparent.
That Judge Stevens commentary regarding the Jefferson County Commonwealths
Attorney addressed the Commonwealths Attorneys pursuit only after a not guilty
finding, to establish new law as it relates to black defendants rights when faced
with all-white juries. In that sense, the Jefferson County Commonwealths
Attorneys motivation was discriminatory in nature and purpose. Judge Stevens
commentary was related to that nature and purpose. The facts of the Doss matter or
the outcome of the Commonwealths certification of law is not material to Plaintiffs
commentary.

24.

The ruling of the Kentucky Supreme Court will not bring any resolution to

Judge Stevens concern-related commentary regarding the Jefferson County


Commonwealths Attorney who has a pre-existing ethical and moral obligation to
seek racially diverse juries that are representative of the community in which we
live. An oath was taken in that regard. The Plaintiff has the same obligation.
25.

Judge Stevens commentary regarding the Jefferson County Commonwealths

Attorney also relates to the Commonwealth Attorneys claim that white people are
being discriminated against in the selection of petit juries in Louisville, Kentucky
because they are not permitted to occupy the seats theyve been historically allowed
to occupy; every seat. The Plaintiff has granted defense motions to disturb the
status quo when the defendant is black.
26.

Judge Stevens commentary regarding the Jefferson County Commonwealths

Attorney related to his challenge following a not guilty verdict. The dismissal of a
racially diverse jury panel in favor of a jury panel in which all but one juror is white
and the single black juror was randomly excluded is an injustice. Stevens
commentary has nothing to do with the merits of any case or its outcome.
27.

That the history of American jurisprudence finds few, if any prosecutors who

have appealed a case claiming entitlement to an all-white jury panel. Judge Stevens
commentary advanced the notion that decisions like the Jefferson Commonwealths
Attorneys decision to pursue a certification of law, following a not guilty finding,
contributes to the disproportionately high incarceration and conviction rates for
black men in the city of Louisville and across this country.

28.

Judge Stevens has a First Amendment right to speak on such matters fraught

with public concern. Candidates for President of the United States have spoken on
the need to address the institutional racism that exists in our criminal justice
system. As a trial judge and veteran of presiding over more than 130 complex civil
and felony criminal jury trials, Judge Stevens is rarely positioned to address these
concerns.
29.

The fact that numerous community organizations have recognized Judge

Stevens and given him awards for his statements on the issue of race and jury
selection is another indication of the high degree of public concern about this issue.
30.

That Judge Stevens ought to be able to publicly express his opinions and

critique of the Jefferson Commonwealths Attorney without being subject to the


imposition of sanctions by the Defendants.
31.

That as a public official, Judge Stevens has a First Amendment right and

obligation to speak to matters of public concern and his views may not be subject to
sanction or result in his dismissal. Pickering v. Board of Education, 391 U.S. 563
(1968).
32.

Judge Stevens commentary regarding the Jefferson County Commonwealths

Attorneys actions in pursuing a certification of law is validated by the involvement


of the national chapters of the National Association for the Advancement of Colored
People (NAACP) and the National Bar Association (NBA). The NBA filed an amicus
brief in opposition to the Commonwealths actions in the matter in question, to
which the NAACP joined. The involvement of the nations leading civil rights
organization and the nations largest black voluntary bar association are proof

positive that the matters on which Judge Stevens commented regarding the
Jefferson County Commonwealths Attorney are indeed issues of public concern.
They are issues of national concern.
33.

That the reasons stated by the NBA and joined by the NAACP for filing the

amicus brief mirror some of Judge Stevens commentary regarding the Jefferson
County Commonwealths Attorney.
34.

That Judge Stevens commentary regarding the Jefferson County

Commonwealths Attorney is not based on the merits of the Doss case or any other
criminal case, but on the Commonwealth Attorneys motivation in pursuing a
certification of law under the circumstances and the implications for black
Defendants and black jurors in the Commonwealth of Kentucky and possibly,
beyond. In that sense and many others, Judge Stevens speech is protected by the
First Amendment to the United States Constitution and may not be the subject of
sanction for violation of the Judicial Canons.
35.

Judge Stevens public commentary was not limited to the Jefferson

Commonwealths Attorney. Judge Stevens also questioned defense lawyers and


others who remained silent while the Jefferson Commonwealths Attorney pursued
a course of action that was racially discriminatory in its intent and impact. These
statements were also directed at the issue of public concern- the racial composition
of our jury panels and our juries and were protected speech under the First
Amendment of the United States Constitution.
36.

Judge Stevens commentary regarding the Jefferson County Commonwealths

Attorneys actions in pursuing an appeal under these circumstances is based on true

10

statements. The truth may not be punished, either criminally or civilly. Garrison v.

Louisiana, 379 U.S. 64 (1964). But even if Judge Stevens opinions were incorrect,
his statements were not made with reckless disregard for their truth or falsity and
thus remain cloaked in the protection of the First Amendment. See, Pickering v.

Board of Education, supra; New York Times v. Sullivan, 376 U. S. 254 (1964) and St.
Amant v. Thompson, 390 U.S. 727 (1968).
37.

Judge Stevens statements during a CLE are consistent with the judicial

canons. The statements were part of a speech regarding current events and legal
developments in the area of jury selection. This is constitutionally protected speech
concerning a topic in an area where Judge Stevens is viewed as a nationally
recognized expert. The Defendants attempt to sanction Plaintiff for his speech
during that CLE are in violation of his first amendment rights and in controversy
with the very Canons that support Judges deemed specially learned in law
contributing to the improvement of the legal system and assisting with the
understanding of the legal system as well.
38.

That it is unlawful to sanction Judge Stevens or threaten him with loss of

employment via removal from office for exercising his constitutional right to speak
out on matters of vital public concern. Pickering v. Board of Education, supra.
40.

That the Defendants pursuit of charges against Judge Stevens and threatened

suspension of Judge Stevens threatens his unencumbered right to free expression,


guaranteed under the First Amendment to the United States Constitution.
41.

That if Judge Stevens is sanctioned for his commentary regarding the

Jefferson County Commonwealths Attorney and the need to address the problems

11

of institutional racism within the Kentucky criminal justice system, the entire
criminal justice system will suffer as other judges will be reluctant to assert their
constitutional right to speak to issues of public concern or improvement of the legal
system as supported by Canon 4 of the Kentucky Code of Judicial Conduct. The right
to disagree with others on issues such as the manner in which we select our juries is
a fundamental right that all American citizens enjoy. A judge does not check his first
amendment rights at the courthouse door, to be reclaimed at the expiration of his
judicial tenure. See, Leonard E. Gross, Judicial speech: Discipline and the First
Amendment, 36 Syracuse L. Re 1181 (1986).
42.

That since Judge Stevens' public commentary, the Kentucky Administrative

Office of the Courts has instituted major changes with respect to the manner in
which it sends out jury summons. These changes affect the process statewide.
Furthermore, on a local level, changes have been instituted to follow-up with
individuals who fail to appear in compliance with juror summonses.
43.

That if Judge Stevens is sanctioned for his commentary regarding the

Jefferson County Commonwealths Attorney, the people of Kentucky will suffer as


the ability and inclination to challenge disparate and discriminatory actions will be
chilled.
44.

The courts operate to serve the people of the Commonwealth. If they are

being operated in a racially discriminatory manner or if the Jefferson County


Commonwealths Attorney is taking action in a racially discriminatory manner,
Judge Stevens has a right to speak against such. Judges are uniquely situated to
observe such issues and have a First Amendment right to address them. Free

12

speech on these topics of vital public importance does not violate the Judicial
Canons, said speech, is supported by the Canons.
45.

That Plaintiff has a substantial chance of success on the merits of his claims

and the Defendants violation of Judge Stevens First Amendment right to free
speech constitutes irreparable harm. Elrod v. Burns, 427 U.S. 347 (1976).
SECOND CLAIM OF RELIEF

(VIOLATION OF FIRST AMENDMENT RIGHTS)


46.

In February 2015, Judge Stevens presided over a sentencing in which he was

asked to consider a victim impact statement. Judge Stevens took exception to


certain portions of the victim impact statement and made public statements
referencing that portion of the statement.
47.

Judge Stevens speech in court is protected by the doctrine of judicial

immunity. Stevens public statements are protected speech under the First
Amendment to the United States Constitution.
48.

Divergence of opinion on speech does not deprive it of its constitutional

protections.
49.

There is no requirement that Judge Stevens remain silent when confronted

with racially divisive and stereotypical language. Instead, the Canons require a
Judge to require attorneys that appear before him to refrain from manifesting by
words or prejudice based upon race. see, Commentary following Canon 3 of the
Kentucky Code of Judicial Conduct

13

50.

Kentucky attorney Ann Oldfather said Judge Stevens offered, "excellent

points about the stealthy nature of racism And how easy it is to pass on our
prejudices when we don't take the time to pull them out and examine them."
51.

Kentucky attorney Aubrey Williams said Judge Stevens is "a breath of fresh

air for the bench, for us as a people, and for the community in general." Mr. Williams
continued, "Racism is a repugnant disease that will not be cured until we have more
people like Olu Stevens."
52.

Kentucky attorney, State representative and chair of the state judiciary

committee Darryl Owens, stated, "I have known [Judge] Olu Stevens for many years
and consider him capable temperate and judicious; steadfast in his commitment to
quality and racial justice as a judge and in every aspect of his life."
53.

Mr. Owens further stated, "In a city that strives to break through stereotypes

that fuel discrimination and intolerance, outspoken advocates for racial equality and
acceptance like Judge Olu Stevens are imperative if we are ever to achieve real
progress."
54.

That the commentary contained in paragraph 50-53 evidence that Judge

Stevens' words touched on an issue of public concern, speech, he had a


constitutionally protected first amendment right to express. Pickering v. Board of

Education, 391 U.S. 563 (1968)


55.

Just as it is ones constitutionally protected first amendment right to express

statements evidencing racial stereotyping and fostering of racial stereotypes, it is


Judge Stevens' constitutionally protected right to denounce the same. The Plaintiff
need not sit by silently in fear of sanctions courtesy of the Defendants.

14

56.

Judge Stevens is qualified to offer opinions on the inclination of a three-year-

old child. Judge Stevens is a father whose children were once three. Judge Stevens
holds a Bachelor of Arts degree in psychology with honors and has extensive
practical litigation experience representing children affected by abuse and neglect
as well as prosecuting cases on their behalf.
57.

Judge Stevens opinions are highly educated, well-founded and experience-

based. The First Amendment protects Judge Stevens opinions.


58.

Judge Stevens' public statements do not implicate the judicial Canons as they

addressed issues of public concern, namely, racially discriminatory language and


racial stereotyping. The United States Supreme Court has recognized the need to
balance the states interest in fulfilling its responsibilities to the public, the extent to
which speech in question involves a matter of concern, and the manner, time, place
and context of the speech. Connick v. Myers, 461 U.S. 138 (1983). See also, In re

Conduct of Schenck, 870 P.2d 185 (Or. 1994) applying the traditional public
employee free speech analysis in a judicial disciplinary proceeding. The role that
elected officials play in our society makes it all the more imperative that they be
allowed freely to express themselves on matters of public importance. quoting En

v. San Francisco County Democratic Cent. Comm., 489 U.S. 214 (1989) and Wood v.
Georgia, 370 U.S. 375 (1962).
59.

Judge Stevens' statements enhance the integrity and the independence of the

judiciary. He took issue with statements that generalized criminal activity and
attributed the same to all black men. Judge Stevens would be without integrity to
condone such language with silence. Moreover, silence on the part of the Plaintiff

15

would amount to knowing approval of invidious discriminationgiving the


appearance of impropriety in violation of Canon 2 and 2A.
60.

Judge Stevens' public statements were an expression that one should not

racially stereotype or generalize. He made no public reference to particular case,


style or number. He made no reference to the Defendants name or the names of any
of the victims or witnesses in the case.
61.

Judge Stevens public statements were made after the case was over and

there was no chance of the case coming back before him on appeal. That case was
not pending.
62.

Generalized fear, based in stereotypes, is the very fear that forms the basis of

a racist ideology and forms the basis of actions that have resulted in the loss of
young black lives all over this country.
63.

That Judge Stevens should not be subject to sanction by the Defendants in

this matter. Its effect is to chill the speech of many others who agree with Judge
Stevens' words and disagree with the use or advancement of racially offensive and
stereotypical language.
64.

No man or woman should be judged on the color of his or her skin. Fear

based on circumstance is understandable. Generalizing fear to an entire race of


people based on the actions of one is wrong. Fostering it by avoiding people of a
certain race is also wrong. Judge Stevens statement(s) expressing the offensiveness
of race-based commentary are protected by the First Amendment and the
Defendants action or intended against him is in violation of Plaintiffs constitutional
rights.

16

65.

The Defendants action and proposed suspension of Judge Stevens for the

content of his constitutionally protected speech flies in the face of the


Commonwealths professed commitment to diversity on the bench. If there is a
commitment to diversity, there must also be a commitment to the diversity of
viewpoint and experience that accompanies it. Disagreement with Judge Stevens'
words is not a basis upon which to sanction and or remove him.
66.

That Plaintiff has a substantial chance of success on the merits of his claims

and the Defendants violation of Judge Stevens First Amendment right to free
speech constitutes irreparable harm. Elrod v. Burns, supra.

WHEREFORE, Plaintiff respectfully prays that this Honorable Court:

1.

Declare the actions or intended actions of the Defendants described in this

Complaint are in violation of the Plaintiffs rights under the First Amendment and
likely Due Process Clause via the Fourteenth Amendment to the United States
Constitution and exceed Defendants authority;
2.

Permanently enjoin the Defendants, their agents, employees and all other

persons in concert or participation with them from imposing sanctions upon


Plaintiff or suspending Plaintiff or removing Plaintiff for his words described herein;
3.

Provide any further relief that the Court deems just and proper under the

circumstances.


17

VERIFICATION

I verify that I have read this Complaint and the contents are true and correct.








________________________________________________






Olu A. Stevens, Plaintiff

COUNTY OF JEFFERSON
)





)SS
COMMONWEALTH OF KENTUCKY )


Subscribed to and sworn to before me by Olu A. Stevens, after first being duly
sworn upon his oath, on this 31st day of March, 2016.


My Commission Expires: April 22, 2017.







________________________________________________






NOTARY PUBLIC, STATE-AT-LARGE







Respectfully Submitted:







By: ___________________________________________








Larry O. Wilder






Counsel for Plaintiff






530 East Court Avenue
Jeffersonville, Indiana 47130
(812) 288-6820

J. Bart McMahon
Co-Counsel for Plaintiff
119 South Seventh Street
Fourth Floor
Louisville, Kentucky 40202
(502) 589-4713

18

You might also like