IN RE: COMMONWEALTH OF KENTUCKY (2025)

ORDER DENYING DISQUALIFICATION

Kentucky Revised Statute (KRS) 26A.020 is Kentucky's statutory mechanism for trial judge disqualification. Under this statute, a party who believes a judge will not afford a fair and impartial trial may file an affidavit with the circuit clerk stating the factual basis for that belief. KRS 26A.020(1). The circuit clerk, in turn, certifies the party's affidavit to the Chief Justice for immediate review and a decision regarding whether grounds exist to appoint a different judge for the case. Id.

Following that statutory process, the Montgomery County Circuit Clerk has certified to the Chief Justice an affidavit of the Commonwealth seeking to disqualify the Honorable David A. Barber, Judge for the 21st Judicial Circuit, from presiding in the above-styled cases that are currently pending in Montgomery Circuit Court.

As grounds for disqualification, the Commonwealth asserts that Judge Barber is biased against it. The Commonwealth points to interactions between itself and Judge Barber during hearings in Bath Circuit Court on March 6, 2025, and in Rowan Circuit Court on March 7, 2025, during which Judge Barber expressed his view that the efforts of the 21st Judicial Circuit Commonwealth's Attorney, Ashton McKenzie, to institute forfeiture proceedings against Judge Barber's mother-in-law in a separate criminal action amounted to an attack on Judge Barber's family. This declaration by Judge Barber against Commonwealth's Attorney McKenzie is, at base, an allegation of bias by her against his family and thus himself.

In particular, the Commonwealth states that, while conducting a hearing in Bath Circuit Court case 24-CR-00117, Judge Barber expressed that he felt the need to disclose to the parties an “assault on his family by the Commonwealth's Attorney.” Judge Barber continued with the docket and stated:

[I] have to make a disclosure for both the defendant and the Commonwealth. It's been brought to my attention that the Commonwealth's Attorney has reinstituted or instituted forfeiture proceedings against my mother-in-law and after speaking with the necessary people I did ․ we have concluded that I need to give the Commonwealth and the Defendants the opportunity to ask me to step aside because any action taken affects the Defendant and their part of it. And this direct attack on my family obviously is concerning.1

Later that day, after Commonwealth's Attorney McKenzie arrived in the courtroom, she and Judge Barber engaged in the following conversation:

McKenzie: I've been made aware of what the disclosure was earlier. If the court believes that they are going to be biased against the Commonwealth, we are going to ask you to recuse from hearing these cases ․ if you believe it's a personal attack us doing our job.

Judge Barber: I believe it is an attack on my family.2

McKenzie: OK ․ that would be something you would need to recuse from the Commonwealth as well.

Judge Barber: Earlier in the docket your attorneys said they didn't see a conflict, but I assume that you countermand that ․

McKenzie: Yes, Judge.

Judge Barber: I'll recuse from all criminal cases.

McKenzie: Thank you for your candor.

Judge Barber: I was just made aware of the full extent of it.

McKenzie: Gave you notice on the first lien in 2023.

Judge Barber: Ruby told me.3

However, the Commonwealth states that the following day in Rowan Circuit Court, Judge Barber reversed his position on recusal. When Judge Barber began to call his criminal docket, Commonwealth's Attorney McKenzie expressed to Judge Barber that she had prepared motions seeking Judge Barber's recusal in all criminal cases on the docket based on Judge Barber's statements on March 6. Judge Barber stated the following in response:

I'm glad you brought that up Ms. McKenzie․There is a confusion. The family nor I feel that the Commonwealth has a prejudice against them; it's you personally and․ You are the Commonwealth's Attorney, but I've represented the Commonwealth for almost 30 years․ You don't speak for the whole Commonwealth. You can only—their animosity and—is about your actions personally․ As your assistants stated yesterday—I think they properly responded to the disclosures I felt compelled to make, ethically. And in looking at it and talking with the people that I conferred with, I believe it's inappropriate for me to try to— to dump the entire Division 2 criminal docket onto Division 1. If you don't feel comfortable appearing in front of me, I would understand that because of that, but you have three assistants. You have a full complement now, and I'm going to hold court and deny your motion to recuse in every criminal case. We can do the disclosure in each individual case so that the defendants can make a decision, and you personally can make a decision if you want to participate personally in that case. But we can't stop court procedure because the family's feeling about the motivations, whatever they might be. That's in a different division and is being handled by different lawyers. And as Mr.—as—and I won't single anyone out so you can direct your ire toward them, but these cases have nothing to do with that case.

Later in the conversation, Judge Barber stated the following:

I again clarify the record ma'am. My comments and our feelings aren't directed toward the Commonwealth, they are directed toward you personally․ But you are not the Commonwealth. You are an individual who holds the title of Commonwealth's Attorney. To follow that logic, then the whole criminal system in this circuit would be greatly impaired. I can, and I intend to, hold court, render my decisions just based on the law and the facts, and there is a procedure, if you want me to be recused, you have to follow that, ma'am.4

Shortly thereafter, on March 10, Judge Barber entered an order in various criminal cases before him stating in part that, “My family's belief, shared by me, is that the assault on my mother-in-law and our family is personal to [Commonwealth's Attorney McKenzie].”

The next day, the Commonwealth filed the present affidavit seeking to disqualify Judge Barber under KRS 26A.020 ⁵ in the above-styled cases and in every pending criminal case assigned to Judge Barber in the 21st Judicial Circuit, which consists of Bath, Rowan, Montgomery, and Menifee Counties.⁶ The respective circuit clerks of each county then separately certified the affidavits to the Chief Justice. Judge Barber then filed a response to the affidavits. In his response, he points to what he believes is personal bias that the Commonwealth's Attorney office harbors against him and/or his family and alleges that no forfeiture action similar to that instituted against his mother-in-law has ever been undertaken by the Commonwealth in that circuit. The Commonwealth then filed a supplemental affidavit in support of disqualification.

KRS 26A.020(l) authorizes the Chief Justice, when prompted by an affidavit properly certified by the circuit clerk, to “determine whether to designate a regular or retired justice or judge of the Court of Justice as special judge” in a particular case. KRS 26A.020 is vague regarding the authority given to the Chief Justice when making such a determination, and a paucity of case law exists to guide the Chief Justice's decision. However, KRS 26A.015 offers guidance regarding when disqualification is appropriate. The statute provides, in relevant part, that a judge “shall disqualify himself in any proceeding ․ [w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings, or has expressed an opinion concerning the merits of the proceeding.” KRS 26A.015(2)(a). The statute also requires disqualification where a judge “has knowledge of any other circumstance in which his impartiality might reasonably be questioned.” KRS 26A.015(2)(e). Similarly, the Kentucky Code of Judicial Conduct provides that “[a] judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances․ [t]he judge has a personal bias or prejudice concerning a party or a party's lawyer[.]” Supreme Court Rule (SCR) 4.300, Canon 2, Rule 2.11(A)(1).

On appellate review of a trial court's determination under KRS 26A.015, “consistent with ․ Rule 2.11, a judge's bias or partiality is determined under an objective standard from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.” Phillip v. Rosquist, 628 S.W.3d 41, 54 (Ky. 2021); see also Abbott, Inc. v. Guirguis, 626 S.W.3d 475, 484 (Ky. 2021) (stating that the “objective standard is appropriate for measuring whether a judge's impartiality might reasonably be questioned from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances”). The goal of these recusal provisions is to “avoid even the appearance of partiality so as to promote public confidence in the integrity of the judicial process.” Alred v. Commonwealth, Judicial Conduct Comm'n, 395 S.W.3d 417, 430 (Ky. 2012) (citing Petzold v. Kessler Homes, Inc., 303 S.W.3d 467, 472 (Ky. 2010)). While the Chief Justice's determination under KRS 26A.020 is not a review of a trial court's decision, applying the objective standard to determine whether a judge's impartiality might reasonably be questioned is appropriate.

That said, the relief sought by the Commonwealth in this instance differs from typical disqualification requests under KRS 26A.020. Rather than seeking to disqualify Judge Barber from a single case or set of related cases, the Commonwealth moves on the same grounds to bar Judge Barber from presiding over all pending criminal cases across the entire 21st Judicial Circuit. Although the instant cases are pending in Montgomery Circuit Court, the Commonwealth has filed identical affidavits in every pending criminal case assigned to Judge Barber in the remaining circuit courts in the 21st Judicial Circuit—Menifee, Bath, and Rowan Circuit Courts. While neither Kentucky courts nor the Chief Justice has considered the standard for such a sweeping and extraordinary request under KRS 26A.020, at least one other state court has considered the appropriate standard under its own judicial disqualification statute.

In In re Disqualification of Burge, 28 N.E.3d 48, 50 (Ohio 2014), Chief Justice Maureen O'Connor of the Ohio Supreme Court considered a county prosecutor's request to disqualify a trial judge from presiding over all criminal cases in which the county prosecutor or one of his assistants appeared as counsel of record. Applying Ohio's judicial disqualification statute, Ohio Rev. Code § 2701.03,⁷ and relying on the former Chief Justice's disqualification opinions, Chief Justice O'Connor determined that “the standard for disqualification must be necessarily high where the relief requested involves removal of the judge from his entire criminal docket.” Burge, 28 N.E.3d at 52. As such, Chief Justice O'Connor stated that, for the judge to be removed from all criminal cases involving the prosecutor's office, the prosecutor must demonstrate that the judge “has illustrated bias toward [the prosecutor] that manifests itself in the judge's official duties, thereby materially impacting the fair and impartial administration of justice in [the county].” Id. (Emphasis added).

The Chief Justice of the Ohio Supreme Court had previously applied this standard in In re Disqualification of Olivito, 657 N.E.2d 1361, 1361 (Ohio 1994), in which a prosecutor's request that a judge be disqualified “from presiding in all pending and future cases in which the state or any other party is represented by the prosecuting attorney's office” was denied.⁸ That opinion defined “bias or prejudice” as follows:

The term “bias or prejudice” “implies a hostile feeling or spirit of ill-will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.”

Id. at 1361-62 (quoting State ex rel. Pratt v. Weygandt, 132 N.E. 2d 191, 195 (Ohio 1956)). The Olivito Court went on to say that

[t]he statutory right to seek disqualification of a judge is an extraordinary remedy. In re Disqualification of Hunter (1988), 36 Ohio St.3d 607, 522 N.E.2d 461. Further, a judge is presumed to follow the law in all respects, In re Disqualification of Parks (Aug. 26, 1993), No. 93-AP-060, unreported, and is presumed not to be biased․

The appearance of bias or prejudice must be compelling to overcome these presumptions and, where the relief requested involves not one case but the disqualification of a duly elected judge from all criminal cases, the standard for disqualification is necessarily high.

Olivito, 657 N.E.2d at 1362.

In this case, while neither KRS 26A.020 nor any other source of Kentucky law provides the standard for disqualifying a duly elected trial judge from participating in the criminal dockets for his or her entire judicial circuit, the Chief Justice agrees that the standard for such an extraordinary motion must necessarily be high. As such, the Chief Justice finds it appropriate to apply Chief Justice O'Connor’s standard here. Consequently, for Judge Barber to be disqualified from all criminal cases in the 21st Judicial Circuit, the Commonwealth must demonstrate that Judge Barber has illustrated a bias toward the Commonwealth's Attorney's Office that manifests itself in the judge's official duties, thereby materially impacting the fair and impartial administration of justice across the 21st Judicial Circuit.

The Commonwealth has not met this stringent standard. Judge Barber's assertions that Commonwealth's Attorney McKenzie's efforts to institute asset forfeiture against his mother-in-law in a separate case over which he does not preside amounted to an “assault” or “attack” on his family are distasteful, and it is inappropriate for a member of the judiciary to express those views from the bench. However, those comments, when viewed from the perspective of a reasonable observer, do not alone show bias that would indicate that the fair and impartial administration of justice is being materially impacted in the 21st Judicial Circuit. Moreover, as to the second prong of the test, Judge Barber expressed emphatically in his affidavit that he is able to set aside any personal feelings towards Commonwealth's Attorney McKenzie and consider the issues before him with objectivity and impartiality.

While there is demonstrable animosity between Judge Barber and Commonwealth's Attorney McKenzie, they were both duly elected to serve the citizens of the 21st Circuit and each have taken solemn oaths to faithfully execute their official duties according to law. Barring their removal from office, both must be paid with taxpayer dollars to do the work they have been elected to perform on behalf of the citizens of their counties. They are now each asserting personal bias against each other. Given the gravity of the motion to disqualify a judge from at least half of the duties he has been elected to perform and given that there has been no showing of any bias against a party or party counsel that manifests itself in a way that interferes with the official duties of his judicial office, this broad motion to disqualify must fail at this juncture. Judge Barber has answered the motion with assurance that he will follow the law. The parties in a criminal case are the “Commonwealth” and the Defendant. Commonwealth Attorney McKenzie is not herself a party to these cases but is an attorney representing a party.

Stated plainly, the Chief Justice finds that the Commonwealth has not met the heavy burden necessary to warrant the extraordinary remedy of disqualifying a duly elected judge from presiding over the criminal dockets for an entire judicial circuit. As such, the Commonwealth's request to disqualify Judge Barber from presiding in the above-styled actions is denied.

Accordingly, the Chief Justice orders as follows:

1) The request to disqualify the Honorable David A. Barber, Judge for the 21st Judicial Circuit, Division 2, in the above-styled cases is DENIED without prejudice to any party to seek appellate review after entry of a final judgment; and

2) The Montgomery Circuit Clerk shall place a copy of this order in the record of the above-styled cases and serve copies on all counsel and parties not represented by counsel.

Supreme Court of Kentucky

State Capitol, Room 235

700 Capital Avenue

Frankfort, Kentucky 40601

M. Katherine Bing Clerk

Phone:

502-564-5444

Supreme Court of Kentucky

CLERK'S CERTIFICATION

I, Katie Bing, Clerk of the Supreme Court of Kentucky, hereby certify that the Order Denying Disqualification, attached to this Certification, consisting of 13 pages and entered in reference to the 80 criminal cases identified in the caption of the attached Order, is a full, true, and correct copy of the original Order Denying Disqualification as it appears on file in the Office of the Supreme Court Clerk.

So signed this 30th day of April 2025.

KATIE BING

CLERK, SUPREME COURT OF KENTUCKY

FOOTNOTES

1.   Judge Barber made this statement while on the record in Bath Circuit Court case 24-CR-00027.

2.   Judge Barber does not preside over the case against his family member from which the pending forfeiture case arises.

3.   This exchange occurred on the record in Bath Circuit Court case 24-CR-00086.

4.   Judge Barber made these remarks on the record in Rowan Circuit Court case 23-CR-00160.

5.   It should be noted that this Court has held KRS 26A.020 to be an unconstitutional “encroachment by the legislature on the power of the judiciary to make rules.” But because it is a “ ‘statutorily acceptable’ substitute for current judicially mandated procedure” and “out of deference and respect,” the Court has extended comity to the legislature. Foster v. Overstreet, 905 S.W.2d 504, 506-07 (Ky. 1995).

6.   In its affidavit, the Commonwealth notes that Judge Barber stated that he had discussed the recusal matter with the Chief Justice. In particular, the Commonwealth asserts that Judge Barber stated on the record during a hearing in Rowan Circuit Court case 24-CR-00013 the following: “I have asked the Chief to expedite whatever she gets ․ Hopefully, it will be done.” However, as Judge Barber states in his response, Judge Barber's sole communication to the Chief Justice consists of a single email on March 6, 2025, advising the Chief Justice that the Commonwealth's Attorney in the 21st Judicial Circuit had moved for recusal. Specifically, the email stated the following: “Chief[,] I thought I should make you aware that Ashton McKenzie[,] the new Commonwealth [A]ttorney here in the 21st[,] has requested I recuse in all criminal cases[.]” The Chief Justice did not respond to Judge Barber's email or communicate in any other way with Judge Barber regarding the pending disqualification issue or pleadings.

7.   Although worded differently than KRS 26A.020, Ohio Rev. Code § 2701.03 similarly authorizes the Chief Justice to disqualify a trial judge upon determining that the trial judge cannot be impartial in a particular case. Specifically, Ohio Rev. Code § 2701.03 provides the following in relevant part:If a judge of the court of common pleas allegedly is interested in a proceeding pending before the court, allegedly is related to or has a bias or prejudice for or against a party to a proceeding pending before the court or a party's counsel, or allegedly otherwise is disqualified to preside in a proceeding pending before the court, any party to the proceeding or the party's counsel may file an affidavit of disqualification with the clerk of the supreme court in accordance with division (B) of this section.․If the chief justice of the supreme court, or any justice of the supreme court designated by the chief justice, determines that the interest, bias, prejudice, or disqualification alleged in the affidavit exists, the chief justice or the designated justice shall issue an entry that disqualifies that judge from presiding in the proceeding and either order that the proceeding be assigned to another judge of the court of which the disqualified judge is a member pursuant to the court's random assignment process, to a judge of another court, or to a retired judge.

8.   The prosecutor alleged that Judge Olivito prevented him from obtaining transcripts of court proceedings; that he engaged in “belligerent questioning” of the state's witnesses in criminal trials; that he sentenced defendants to terms the prosecutor believed were lenient or contrary to the evidence; that he made disparaging comments about the prosecutor and “humiliated” him and his assistants in open court; and that he permitted his son and brother to practice before him in violation of Ohio's Code of Judicial Conduct. Id.