Kentucky Judge Reprimanded for Recusing Self From Same-Sex Adoption Cases

Photo Credit: George Hodan

GLASGOW, Ky. — A Kentucky family court judge who submitted his resignation notice in October after being charged with ethics violations over his decision to recuse himself from any same-sex adoption cases has been reprimanded by the state Judicial Conduct Commission.

Judge W. Mitchell Nance was to have officially resigned on Dec. 16, but the Commission scheduled a disciplinary hearing against him on Dec. 15 anyway. According to the Glasgow Daily Times, neither Nance, 66, or his attorney attended the hearing.

One Commission member, Judge David Bowles, voted to remove Nance from office before his resignation officially became effective.

“Since at the time the vote was taken Judge Nance’s resignation was not yet effective, [Bowles] believed that the only appropriate vote was a vote to remove him from office,” the Commission wrote in its reprimand on Tuesday.

However, the Commission moved forward with only issuing a rebuke, writing, “The Kentucky Code of Judicial Conduct requires judges to fairly and impartially decide cases according to the law. Judge Nance’s refusal to hear and decide adoption cases involving homosexuals is violative of said canons.”

As previously reported, Nance, who presided over one same-sex adoption case in the past, outlined in April that as a “a matter of conscience” he believed he needed to recuse himself from any such cases going forward.

He outlined that as a Christian, “under no circumstance” does he believe that a child’s best interests would be served in family without both a mother and a father.

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Nance also asked that attorneys notify him in advance if their case involved such a topic so he could recuse himself.

He told reporters that he has had two same-sex adoption cases come before his court over the past 14 years: For the first, he recused himself, and for the second, he ruled in favor of the parents. After the second situation, he decided to permanently recuse himself from such matters.

43rd Circuit Judge, John Alexander, agreed to hear any such cases instead of Nance.

However, The Fairness Campaign and the ACLU of Kentucky soon filed a complaint against Nance, asserting that his request to be recused violated the Kentucky Code of Judicial Conduct by “eroding public confidence in the judiciary and failing to perform judicial duties impartially and diligently.”

“Judge Nance’s public announcement demonstrates bias and makes clear that he is unable to abide by the Code of Judicial Conduct in any case that may arise where litigants are, or perceived to be, lesbian, gay or bisexual,” the complaint read. “Judge Nance’s refusal to perform his judicial duties in adoption cases featuring lesbian, gay and bisexual litigants is ‘good cause’ for his removal, and no less severe sanction would suffice.”

The Kentucky Judicial Conduct Commission subsequently decided to charge Nance with a number of ethics violations, including “manifesting by words or conduct a bias or prejudice” against homosexuals.

Nance’s attorneys sought to have the charges dismissed after he resigned, also noting that Nance sincerely believed he was doing what was right, as his recusal “would have facilitated the impartiality of the judicial system and ensured that all families had a fair opportunity for adoption.”

They also noted that Nance adheres to a “sincerely held religious belief that the divinely created order of nature is that each human being has a male parent and a female parent.”

However, the Commission decided to move forward anyway and has scheduled a hearing for Dec. 15, the day before Nance’s resignation date. According to the Glasgow Daily Times, Commission Attorney Jeff Mando stated that the fact that Nance was resigning “does not moot the charges against him.”

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