Extrajudicial information disqualifies judge – published family law opinion from Ky Supreme Court

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“Questions Presented: Family Law. Domestic Violence Orders. Extrajudicial Information. Respondent in a domestic violence case was denied a fair hearing when the family court considered extrajudicial information in support of its decision to enter a DVO.”

Aebersold filed for a Domestic Violence Order against Marchese alleging stalking. The parties appeared at the hearing pro se and testified, along with Aebersold’s mother and Marchese’s brother. After the testimony concluded, the trial court Judge asked for Marchese’s social security number and took a recess. Upon returning from the recess, the Judge announced Marchese had an assault and battery record from Virginia Beach. The Judge did not allow Marchese any response or explanation and entered the DVO.

Marchese appealed to the Court of Appeals which “concluded that the trial court’s extrajudicial research concerning Appellant’s criminal record was error, but it nevertheless affirmed the entry of the DVO on the basis of harmless error.” The Kentucky Supreme Court granted discretionary review.

The Supreme Court first conducts a structural error analysis although it was not raised by either Marchese or the Court of Appeals. The Supreme Court reverses the Court of Appeals and vacates the domestic violence order holding that “the trial judge’s undertaking to obtain and use as evidence extrajudicial information relating to a party in the case caused her to be disqualified from proceeding further as the presiding judge in this matter.” Pursuant to KRS .26A.O 15(2) a judge must disqualify himself “(a) Where he has … personal knowledge of disputed evidentiary facts concerning the proceedings … [and] (e) Where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned.” The Judge clearly had extrajudicial knowledge of the case, obtained during the recess, which biased her against Marchese. Structural errors render a hearing or trial “fundamentally unfair” and therefore necessitate automatic reversal so the Supreme Court does not conduct a harmless error analysis.

The Supreme Court goes on to elaborate on the judicial notice argument to provide guidance, although its decision does not rest on this analysis. The Supreme Court concludes that the Court of Appeals used the correct analysis holding that “treating the existence of an out-of-state conviction gleaned from an undisclosed source as a proven fact under the guide of judicial notice ignores the clear language of KRE 201, and is an abuse of discretion.” The Supreme Court also notes that the evidence was hearsay and impermissible under KRE 801 as well and violated Marchese’s due process rights as the Court failed to allow him an opportunity to respond.

Digested by Elizabeth M. Howell

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