A Salt Lake television news reporter says the Judicial Conduct Commission is trying to force her to complain against an unnamed 3rd District Court judge.
Kerry Birmingham, a reporter for KUTV, made the allegation Thursday in a lawsuit that seeks to quash a subpoena commanding her to provide testimony regarding a telephone conversation she had with the judge, whom sources have identified as Leslie A. Lewis.According to Birmingham's lawsuit, the commission has no authority to investigate a judge in the absence of a complaint. Also, the reporter is asserting a First Amendment protection of news sources.
While covering a court case involving a two-time convicted sex offender on July 14, Birmingham sought a transcript of the sentencing hearing from Lewis' clerk. The defendant, Steven Flandro, faced a sentence of up to 15 years in prison, but Lewis had given him only one year plus probation.
A few minutes after her conversation with the clerk, Birmingham received a call from the judge. Although the lawsuit doesn't identify the judge or relate what was said, earlier news accounts indicate Lewis threatened Birmingham with arrest.
Later that day, Birmingham mentioned the conversation to Jan Thompson, the media relations director for the Administrative Office of the Courts. Thompson suggested that Birmingham report the judge's conduct to the Judicial Conduct Commission, the suit said.
Birmingham replied she was not interested in pursuing the matter, the suit said. About a half hour later, she received a call from Kay Carleson, an investigator/
administrative assistant for the commission, who said she had heard of the "incident" involving the judge. Steven H. Stewart, the commission's executive director, joined in on the conversation.
"After persistent questioning by Carleson and Stewart, and in reliance on Carleson's representations that the inquiry was informal and confidential, Birmingham related portions of her discussion with the judge," the suit said.
At their request, Birmingham agreed to ask KUTV management whether it had any interest in filing a complaint. The answer was no.
On Aug. 14, Birmingham received a subpoena that ordered her to appear at the commission office and testify about her conversation with Lewis.
"Frankly, she (Birmingham) was stunned to receive this subpoena," said her attorney, Jeffrey J. Hunt. "Reporters ought not be dragged into the midst of stories they cover."
A nine-year veteran of the news business, Birmingham contended in the lawsuit that her effectiveness as a news reporter depends in large part on her ability to secure the trust of news sources. She said that trust would be impaired if she were compelled to testify regarding her conversations with sources.
Besides the First Amendment privilege, Birmingham is also arguing that the commission doesn't have the authority to issue a subpoena. Hunt explained that a recent Utah Supreme Court ruling declared the commission an unconstitutional body because four of its 11 members are legislators in violation of the separation of powers clause.
Moreover, the commission can't investigate a judge without a formal complaint, and Birmingham isn't complaining, Hunt said.
In 1996, another news reporter, Mike Carter of the Associated Press, did file a formal complaint against Lewis, alleging she threatened to hold him in contempt for questioning one of her rulings. Although the commission dismissed that complaint, the investigation led to an admonishment of the judge for an inappropriate contact with a defense attorney during a murder trial.
Meanwhile, several sources said last month that some Utah legislators were considering impeachment proceedings against Lewis for a pattern of threatening and abusive behavior.