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Supreme Court Justice Roach Says He Might Step Aside in Water Case

Posted on: Friday, 9 September 2005, 21:00 CDT

Sep. 9--FRANKFORT -- It's not that he couldn't be impartial, state Supreme Court Justice John Roach said.

It's just that things he said a few years ago, during Lexington's last mayoral race, might make people wonder whether he is being fair.

The Kentucky Supreme Court's newest member said yesterday he is considering stepping aside if the court jumps into the question of whether Lexington may have a referendum on condemning the local water company.

Roach was campaign manager for Scott Crosbie in the 2002 race and spoke against condemnation when he filled in for the candidate.

In a hearing yesterday that he called to talk about potential conflicts, Roach said the issue that might face the court -- the legality and timing of a referendum on condemnation -- was not the same as deciding whether the city should go to court to forcibly acquire Kentucky American Water.

"My question is, does the public see it differently?" he said.

Roach said he spent the Labor Day weekend thinking about possible conflicts, and it was the Crosbie campaign that he thought about the most.

He said he will make a decision about whether to recuse himself by Sept. 15, when the seven justices will start considering whether to take the referendum case from the Kentucky Court of Appeals.

Roach mentioned two other conflicts that he said caused him less concern, both of which were detailed in an article in Tuesday's Herald-Leader:

He is a friend and former partner of Robert Wier, a Lexington attorney representing three people who have joined Kentucky American in trying to block the referendum; and he was an attorney on a case 10 years ago that has been cited as a precedent in the current case.

That court case, Candler vs. Blevins, was Roach's first before the Supreme Court, and he noted that he lost it 7-0. The case dealt with a Lexington group that wanted a referendum to limit the city's occupational tax. Roach argued for the referendum.

The current case springs from a petition drive that gathered more than 23,000 signatures to put the question of restarting condemnation of Kentucky American before voters in November.

Kentucky American sued to stop the vote, saying a referendum is illegal and that no election can be scheduled this year.

Yesterday's 18-minute hearing was called by Roach, who said he wanted to disclose potential conflicts.

"The bottom line is, personally I'm confident I can address this in an impartial manner," he said. "No matter what happens, I want the court's integrity ... not to be questioned."

He also said he was concerned about the perception of "the sheer volume" of the three matters.

If Roach decides to step aside, it would still require four of the remaining six justices to decide whether to take the referendum case from the Kentucky Court of Appeals.

If the remaining six justices took the case and split 3-3, the lower court decision would be upheld.

Fayette Circuit Judge Thomas Clark ruled last month that the referendum is legal, and can be held this Nov. 8.

Kentucky American has appealed that ruling to the Court of Appeals, and asked that court for an injunction to stop the November vote while the underlying legality of the referendum is decided.

It is not clear whether the Court of Appeals would consider an injunction before finding out whether the Supreme Court decides to take the case.

Roach invited attorneys on both sides to file motions with the court if they thought he should step aside.

Bill Garmer, an attorney for Let Us Vote Lexington, said he would have to talk with the group's board before deciding what to do.

Wier said he thought Roach should put more consideration into the potential conflict arising from his role in Candler vs. Blevins, in which the court shot down a referendum seeking to limit Lexington's occupational tax.

Lindsey Ingram Jr., an attorney for Kentucky American, said none of the things Roach mentioned were sufficient for the company to ask him to recuse himself.

But what the public perception might be, he told Roach, "is obviously a question you have to answer yourself."

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Copyright (c) 2005, The Lexington Herald-Leader, Ky.

Distributed by Knight Ridder/Tribune Business News.

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Source: Lexington Herald-Leader (Lexington, Ky.)

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