lMPORTANT NOT|CE
NOT TO BE PUBL|SHED OP|N|ON

TH|S OP|N|ON lS DES|GNATED “NOT TO BE PUBL|SHED.”
PURSUANT TO THE RULES OF ClVlL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(€),
TH|S OP|N|ON lS NOT TO BE PUBL|SHED AND SHALL NOT BE
ClTED OR USED AS BlND|NG PRECEDENT lN ANY OTHER
CASE lN ANY COURT OF TH|S STATE; HOWEVER,
UNPUBL|SHED KENTUCKY APPELLATE DEC|S|ONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE ClTED FOR
CONSIDERAT|ON BY THE COURT lF THERE |S NO PUBL|SHED
OP|N|ON THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OP|N|ONS ClTED FOR CONS|DERAT|ON
BY THE COURT SHALL BE SET OUT AS AN UNPUBL|SHED
DEC|S|ON lN THE F|LED DOCUMENT AND A COPY OF THE
ENT|RE DEC|S|ON SHALL BE TENDERED ALONG WlTH THE
DOCUMENT TO THE COURT AND ALL PART|ES TO THE
ACTION.

RENDERED: MARCH 23, 2017
NOT TO BE PUBLISHED

* Sn]¢reme Court of Bex\§rHN A[:.

2016-SC-000301-RR "j

 

 

 

 

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HON. STEVEN D. COMBS APPELLANT
CIRCUIT COURT JUDGE -
35TH JUDICIAL CIRCUIT
‘ ON APPEAL FROM
V. JUDICIAL CONDUCT COMMISSION
JUDICIAL CONDUCT COMMISSION APPELLEE

MEMORANDUM OPINION OF THE COURT
AFFIRMING

Steven D. Combs, Judge of the Thirty-Fifth Judicial Circuit of
Kentucky, pursuant to Supreme Court Rule (SCR) 4.'290, appeals from an
order of the Judicial Conduct Commission (“Commission”) denying his request
to deem portions of his Kentucky Lawyer Assistance Program (“KYLAP”)
Confldential Recovery Agreement as invalid. After a careful review, We affirm
the order of the Commission.

FACTUAL AND PROCEDURAL BACKGROUND

On April 27, 2015, the Commission charged Judge Combs With ten
counts of violations of the Kentucky Code of Judicial Conduct. Subsequently,
on June 2, 2015, and August 7, 2015, the Commission amended the charges
against Judge Combs by alleging three additional Violations. After the issuance

of the initial charges, Judge Combs was referred to Paul D. Dalton of Lexington

Counseling &, Psychiatry for an assessment In his June 2015, assessment
Dalton concluded that Judge Combs met the criteria for “Alcohol Use Disorder-
Mild.” This diagnosis was based on Judge Combs’s disclosure that he
“regularly drinks 2-3 drinks of vodka, 3-4 nights per week, alone” and that
‘[h]is reason for drinking is to take the stress of the day off, to relax and to cope
with other issues.” Further, Dalton noted that Judge Combs’s “drinking has
led to allegations, misconduct charges, and suspension of his job as a Circuit
Court Judge.” Ultimately Dalton recommended “ongoing assessment and
counseling by either a qualified program or a Master’s level Certified Alcohol
and Drug Counselor in Kentucky.” Additionally, in light of the allegations of
judicial misconduct lodged against Judge Combs, Dalton recommended that he
discontinue drinking immediately.1

On September 21, 2015, the Commission was scheduled to hear the
allegations lodged against Judge Combs. However, prior to the commencement
of that hearing, an agreement to resolve the charges was reached between
Judge Combs (represented by counsel) and counsel for the Commission. As
part of the October 2015, Agreed Order of Suspension (“Agreed Order”), Judge
Combs admitted that he`committed ten violations of the Code of Judicial

Conduct.2 For these violations, Judge Combs was suspended from his duties

 

1 ln response to Dalton’s evaluation, in July 2015, Judge Combs underwent a
24-hour Alcohol Use Evaluation at The Ridge Addiction Recovery Center. Dr. Marc
Whitsett examined Judge Combs and concluded that “[t]here is insufficient objective
evidence to establish an alcohol use disorder based on available records and provided
information.”

2 Specifically, Judge Combs admitted that he engaged in the conduct alleged in
all or portions of counts I, II, III, IV, V, VI, VIII, IX, XI, and XII as enumerated in the

2

as circuit court judge, for a period of one-hundred-eighty days. In addition to
his suspension from office, Judge Combs agreed to the following conditions
regarding KYLAP;

[E]nroll in the Kentucky Lawyers Assistance Program (“KYLAP”) for
evaluation and assessment within 30 days of the date of this order;
follow the instructions and procedures recommended by KYLAP;
and waive the confidentiality of the KYLAP reports only as to the
Commission, so that the Commission can be informed as to any
and all results of such evaluation and assessment and as to his
progress in following any instructions and procedures
recommended for him. Judge Combs’ failure to comply with the
provisions of this paragraph will constitute a breach of this Agreed
Order of Suspension.

Following the entry of the agreed order, KYLAP required Judge Combs to be
assessed by the Clarity Professional Evaluation Center (“Clarity”). As noted in
the report prepared by Clarity’s Director, James S. Walker, Judge Combs
disputed the need for the Clarity evaluation, arguing that it was unwarranted
and that it “represented an undue burden upon him.” Ultimately, Director
Walker determined that there was insufficient evidence to diagnose Judge
Combs with a formal alcohol use disorder. However, Director Walker
recommended that Judge Combs refrain from the use of alcohol altogether for
the following reasons:

The fact that he is taking Crestor, a medication which can cause

serious medical complications in the presence of alcohol use,

should preclude alcohol use on his part. The fact that he has

engaged in some unwise activities in the course of drinking, his

prominent social position, and the concerns raised in his
community also leads us to believe that he would be better served

 

' Notice of Formal Proceedings. For the portions of counts II, III, XI, XIII, which Judge
Combs did not admit to, he agreed that the Commission had a good faith basis and
proof to support the charges. Counts VII and X were dismissed in their entirety.

3

by not consuming alcohol at all. In this regard, we join Dr.

Dalton’s recommendation from last year. We are concerned that

Judge Combs has not followed this recommendation. KYLAP may

wish to consider a period of diagnostic monitoring in this regard.

In February 2016, Yvette Hourigan the Director of KYLAP, sent a letter to
the Commission regarding Judge Combs’s treatment. In the letter, Director
Hourigan advised that “Judge Combs should follow the recommendations of
Dr. Paul Dalton and Clarity Professional Evaluation Center’s integrated team
and remain abstinent from the use of alcohol altogether.” Additionally, due to
concerns that Judge Combs had not followed Dalton’s recommendations,
Director Hourigan recommended that diagnostic monitoring was appropriate,
in the form of random alcohol and drug testing for a period of one year.
Subsequently, Judge Combs objected to alcohol abstinence and monitoring. In
overruling Judge Combs’s objection, the Commission reminded him that the
terms of the Agreed 0rder mandated full compliance with KYLAP instructions
and procedures and that failure to comply would constitute a breach of the
agreement.

On April 29, 2016, Judge Combs signed a Confidential Recovery
Agreement with KYLAP, which mandated that he abstain from alcohol and be
subjected to random drug and alcohol screens to ensure compliance.3

However, on May 24, 2016, Judge Combs filed a motion requesting that the

“provisions of the KYLAP agreement, requiring abstinence, alcohol testing, that

 

3 While Judge Combs signed the KYLAP Confidential Recovery Agreement, he
also wrote that “[t]his Document has been signed only under protest and duress.”

4

Judge Combs report to KYLAP regarding medications prescribed for him and
that he allow KYLAP unfettered access to his medical records be stricken from
the KYLAP Agreement.” On June 1, 2016, the Commission overruled Judge
Combs’s motion. This appeal followed.

M
By Entering into the Agreed Order of Suspension With the Commission
Judge Combs Waived His Right to Challenge His Participation in the
KYLAP Program.

Judge Combs contends that the Commission’s order denying his request
to be relieved of his obligation to follow the requirements of the KYLAP
Confidential Recovery Agreement was erroneous and unreasonable.
Specifically, Judge Combs argues that it would be impossible for the Court to
find that the Commission’s findings and conclusions were reasonable, as the
Commission denied his motion without elaboration as to their reasoning
Additionally, Judge Combs contends that KYLAP substituted its judgment for
that of the medical professionals that evaluated him. Further, Judge Combs
alleges that the Commission failed to identify the relationship between his
unethical conduct and KYLAP's requirements In response, the Commission
argues that these issues were waived by Judge Combs when he entered into
the Agreed Order. We agree with the Commission.

“The common definition of a legal waiver is that it is a voluntary and
intentional surrender or relinquishment of a known right, or an election to
forego an advantage which the party at his option might have demanded or

insisted upon.” Greathouse v. Shreve, 891 S.W.2d 387 (Ky. 1995) (quoting

5

Barker v. Steams Coal & Lumber Co., 163 S.W.2d 466 (Ky. 1942)). While
waiver is similar in nature to estoppel, it differs in that it does not require
proof, “of the other party having been misled.” Id. As such, “[w]aiver is
essentially unilateral, resulting as a legal consequence from some act or
conduct of [the] party against whom it operates, and no act of [the] party in
whose favor it is made is necessary to complete it.” Id. (citing BLACK'S LAW
DIcTIoNARY (6th ed.1990)).

In the case at bar, Judge Combs elected to forgo a hearing concerning his
violations of the Code of Judicial Conduct, and instead entered into an
agreement with the Commission. This agreement, as memorialized in the
Agreed Order, mandated the suspension of Judge Combs from his duties as
circuit court judge, for a period of one-hundred-eighty days. Additionally,
Judge Combs explicitly agreed to enroll in KYLAP for an evaluation and to
abide by KYLAP’s instructions and recommendations These requirements
were material conditions of the Agreed Order and by accepting the agreement
Judge Combs was obligated to abide by its terms. Further, his acceptance of
the terms of the agreement constitutes an explicit waiver which serves to bar
review of the claims he now raises on appeal.

It is clear that Judge Combs considers the requirements imposed by
KYLAP to be inconvenient and a detriment to the enjoyment of his time off the
bench. However, these requirements must be viewed in the context of the
agreement that Judge Combs entered into to resolve his numerous ethical

violations. The Agreed Order’s sanctions suspending Judge Combs from his

6

judicial duties and requiring him to be monitored by KYLAP were not designed
solely to punish or deter Judge Combs from future wrongdoing Rather, Judge
Combs’s actions constituted a breach of faith with the public, necessitating the
Commission’s actions to restore trust in the judiciary. As such, it is
paramount to the administration of justice that Judge Combs comply fully with
his public pledge to take responsibility for his violations of the Code of Judicial
Conduct.

There is nothing unfair about holding Judge Combs to a higher standard
than that expected of an ordinary citizen, as “[a]ll judges are held to a higher
standard by virtue of the Code of Judicial Conduct.” Thomas v. Judicial
Conduct Commission, 77 S.W.3d 578, 580 (Ky. 2002); see also, Cone v. Cone,
68 So. 2d 886, 888 (Fla. 1953) (“From the time he is clothed with judicial
authority he is a marked man. His words and his conduct should inspire
confidence; he might well strive to honor the bench instead of having it honor
him. The judiciary is the capstone of our democracy but it will be so no longer
than its deportment warrants.”). This expectation of exemplary conduct is also
reflected in the Commentary to SCR 4.300, Canon 2, which states in part, “[a]
judge must expect to be the subject of constant public scrutiny. A judge must
therefore accept restrictions on the judge's conduct that might be viewed as
burdensome by the ordinary citizen and should do so freely and Willingly.”

Finally, while Judge Combs has sought the opinions of other substance
abuse professionals their conclusions do not render the KYLAP requirements

unreasonable. The evaluations by Paul Dalton and Clarity both included

7

alcohol abstinence and monitoring The judge's numerous violations of the
Code of Judicial Conduct included behavior apparently affected by his alcohol
use. Thus, even if we looked past Judge Combs’s waiver, we cannot find that
the KYLAP Agreement imposes unreasonable requirements.
CONCLUSION

For reasons explained herein, we conclude that the Commission properly
denied Judge Combs’s request to invalidate portions of the KYLAP
Confidentiality Recovery Agreement.

Minton, C.J.; Cunningham, Hughes, and Venters, JJ., concur. Keller, J.,
concurs in result only. Wright, J., dissents without separate opinion.

VanMeter, J., not sitting.

COUNSEL FOR APPELLANT:

Richard A. Getty
Danielle Brown
The Getty Law Group, PLLC

COUNSEL FOR APPELLEE:

Jeffrey C. Mando
Louis Kelly
Adams, Stepner, Woltermann &, Dusing, PLLC

Jimmy Adell Shaffer
Executive Secretary
Judicial Conduct Commission

