A family court judge in Kentucky is being told he has to decide whether to recuse himself in gay adoption requests on a case-by-case basis.
Family Court Judge W. Mitchell Nance, who serves Barren and Metcalfe counties, had asked the state’s Chief Justice to approve a new local rule that would allow him to review all adoption petitions once they are filed with the circuit court clerk.
Prior to making the request to the Chief Justice, Nance entered an order last month saying he wanted to be advised by lawyers if they were bringing cases involving gay adults to his courtroom.
In the General Order 17-01 filed on April 27, 2017 with the 43rd Judicial Circuit Court, which is the family court serving Barren and Metcalfe counties, Judge Nance said, "It is ordered that any attorney filing in this court an initial pleading or motion in an adoption action involving a homosexual party or parties simultaneously with such filing shall notify the...case manager or any other staff member of this court...so that the undersigned judge can take immediate steps on his own motion...to recuse and disqualify himself from proceedings..."
Then Judge Nance said he would recuse himself from those cases because, as he states in the general order, that his "conscientious objection to the concept of adoption of a child by ...a practicing homosexual may constitute personal bias or prejudice" which requires him ethically to remove himself from the case. Nance states that he believes that "..under no circumstances would the best interests of the child be promoted by the adoption by a practicing homosexual."
Nance acknowledges in his order that "...adoption of a child by a practicing homosexual is not expressly prohibited by law..."
Kentucky Chief Justice John Minton Jr. does not have authority over Judge Nance's General Order 17-01.
However, according to Leigh Anne Hiatt, a spokeswoman for the state courts, Justice Minton notified Judge Nance that his General Order 17-01 was procedurally deficient and the only way to fix it would be to propose a local rule for approval.
Nance proposed that local rule change, "Review of Adoption Petitions," that would make it standard procedure for the judge to be able to review each adoption petition when it's filed.
Justice Minton, however, denied the proposed rule for two reasons. First, that the proposed change had not been submitted to the local bar association or circuit court clerks for consideration. Second, that a judge cannot recuse himself from an entire class of cases, because a recusal has to be based on "...the facts or circumstances of an individual case."
That denial by Justice Minton does not impact Judge Nance's order for his courtroom.
Heather Gatnarek is a legal fellow with the Kentucky ACLU and said Nance still appears to be operating under his own decision to recuse himself.
“The order that Judge Nance entered in April is public record and if it were rescinded or vacated that would also be in the public court record. As far as we know today, it has not been rescinded or vacated.”
Gatnarek said the Nance's action defies the standard procedure for a judge recusing himself from a case.
“Frankly, this is very unusual. Recusal exists for when judges have personal interest or personal bias in a case regarding specific individuals,” said Gatnarek. “What Judge Nance has done here is made public his bias towards an entire class of individuals.”
A spokeswoman for Judge Nance said he’s not commenting on the matter.
The Family Foundation of Kentucky is supporting Judge Nance’s decision to recuse himself from cases where he may have a personal bias.
The Kentucky ACLU and other legal groups have files a complaint with the Kentucky Judicial Conduct Commission requesting that he be removed from the bench because he is failing to perform his judicial duties impartially.
