Matthew Glowicki

Louisville Courier Journal

Jefferson Circuit Judge Olu Stevens has filed a federal suit alleging the state’s Judicial Conduct Commission, which is considering possible disciplinary action against the judge, has violated his First Amendment rights.

Stevens writes in the suit Friday in U.S. District Court in Louisville that he was told March 21 the commission intended to sanction, suspend or remove him from his position.

The disciplinary body's action “flies in the face of the Commonwealth’s professed commitment to diversity on the bench,” the suit reads.

The commission is weighing possible sanctions against the sitting judge over comments he made last year about Jefferson Commonwealth’s Attorney Tom Wine.

In those comments, Stevens criticized Wine for asking the state Supreme Court to clarify if a judge has the legal authority to dismiss jury panels that lack racial diversity, something Stevens has done multiple times. That case is pending before the court.

Stephen Wolnitzek, chair of the Judicial Conduct Commission, said Friday afternoon that Stevens was only notified that the commission is moving forward with the case, not imposing definitive punishment.

"The commission has determined that there should be a hearing to determine whether or not a violation has occurred," Wolnitzek said. "There's no foregone conclusion as to what will happen at that hearing."

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Stevens has asked the federal court to find that the commission violated his rights and prevent the body from sanctioning him for his speech.

“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,” according to the suit. “This right cannot be censored or sanctioned in any way.”

A sanction could have a chilling effect, the suit argued, silencing judges who might otherwise speak out about institutional racism and other public concerns.

“A judge does not check his First Amendment rights at the courthouse door, …” reads the suit.

In the suit, Stevens said he has not only the right, but the duty to speak out on topics of vital public concern.

The suit claims the Supreme Court case is more appropriately titled “Commonwealth v. All Black Defendants,” as Wine’s pursuit of the clarification will have implications for black defendants and jurors across Kentucky.

As he has in the past, Stevens questioned Wine’s motives for going to the state Supreme Court, saying that Wine’s action was racially discriminatory and decisions like it contribute to disproportionately higher incarceration and conviction rates for black men.

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The judge called attention to the local and national support he’s received since the conflict spilled into public discussion, including briefs of support filed in the state Supreme Court case by the NAACP and the National Bar Association. He also quoted local attorneys who commended Stevens for speaking out against racism in the justice system.

The suit notes some of Stevens' past comments were “private commentary” that was made public by Wine and do not violate judicial canons.

The judge’s words – many of which appeared on social media – that are now part of the conduct commission's inquiry were spoken “not out of any personal animus” but only of concern about Wine’s actions, according to the suit.

Stevens stated in the filing that Kentucky has a history of racism in its jury selection and criminal justice systems. Only three of 95 circuit judges in the state are black, the suit details, and while the African-American population in Louisville is about 21 percent, about 55 percent of local jail inmates are black.

Attorneys Larry Wilder and J. Bart McMahon are representing Stevens. The Kentucky Judicial Conduct Commission and 10 of its members – Wolnitzek, David P. Bowles, Eddy Coleman, Joyce King Jennings, Diane E. Logsdon, Janet L. Stumbo, Jeff S. Taylor, Karen A. Thomas, Jeffrey M. Walson and Kent Westberry – are named as defendants.

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The disciplinary matter before Judicial Conduct Commission was initiated in December 2015 by Kentucky Chief Justice John D. Minton Jr., who in referring the case wrote that Stevens "appears to flout the directives of the Code of Judicial Conduct, creating a social-media firestorm calculated to aggrandize himself by exploiting the deep-seated and widespread distrust of the criminal-justice system by minority communities."

The Kentucky Court of Appeals issued an opinion in March ordering Stevens to stop dismissing jury panels he believes aren’t reflective of the community, unless the state Supreme Court says otherwise.

Reporter Matthew Glowicki can be reached at 502-582-4989 or mglowicki@courier-journal.com.