Judge Nance

Mitchell Nance, judge for the 43rd Judicial Circuit's 2nd Division, which is Family Court, was first appointed to the position in 2004 after being elected in 2000 as a district court judge.

FRANKFORT — A Western Kentucky Family Court judge who sought to recuse himself from adoption cases involving same-sex parents because of his religious beliefs has resigned.

W. Mitchell Nance resigned his 43rd Circuit (Barren and Metcalfe counties) Judge position, effective at 11:59 p.m. central time on Dec. 16, in a letter sent Thursday to Kentucky Gov. Matt Bevin.

His resignation follows formal charges against Nance by the Judicial Conduct Commission after Nance attempted to enter a general order last April preemptively recusing himself from adoption cases involving gay parents in which Nance wrote that “under no circumstance” would the adoption of a child by a homosexual parent be in the child’s best interest.

The complaint was filed by the ACLU of Kentucky, Kentucky’s Fairness Campaign and University of Louisville law professor Sam Marcosson.

The commission charged that Nance violated Canons of the Code of Judicial Conduct which require judges to maintain high standards of conduct and uphold the integrity of the judiciary; respect and comply with the law; hear the cases assigned to the judge; be faithful to the law; and prohibiting a judge from manifesting a bias or prejudice.

Nance, 66, wouldn’t say if resigned because he feared suspension or removal by the commission, pointing instead to his answer to the charges which his attorneys filed with the commission.

“I don’t have anything to say any further than what has been said,” Nance told CNHI News.

Those who filed the complaint against Nance applauded his resignation.

“Judge Nance must have seen the writing on the wall," said Chris Hartman, Director of the Fairness Campaign. "He had proven he could not deliver the basic impartiality required by his office when it came to LGBTQ people and their families. His only possible pathway forward was resignation or removal from office. “

“Judges, more than anyone else, have a responsibility to follow the law,” added Marcosson, the UofL law professor. “By making it clear that he could not, or would not do that, Judge Nance demonstrated that he simply had no place on the bench.”

Nance has “no definite plans” for what he’ll do after Dec. 16, but he said he will miss “some aspects of the position.”

“It’s a very demanding job,” Nance said. “I certainly will miss the fellowship of all my co-workers.”

In his Oct. 25 answer to the charges, Nance argues that the action against him is moot as a result of his resignation and waives any formal hearing and asks the commission to dismiss the charges.

His attorneys go on to say that if the commission requires a formal response to the charges that “same-sex adoptions present a unique crisis of conscience for Judge Nance” and violate “his conscientious religious objection to a child’s adoption by a same-sex couple” because of his conviction such adoptions are not in the “best interest of a child.”

They also argue that Nance’s April order preemptively recusing himself from such cases “would have facilitated the impartiality of the judicial system and ensured that all families had a fair opportunity for adoption.”

In April of this year, Nance issued a general order recusing himself from any future adoption cases involving gay parents after ruling in favor of same-sex parents in a Metcalfe Family Court adoption case.

Nance said in his order that he couldn’t “as a matter of conscience find that it’s in a child’s best interest to be adopted by a same-sex (parent).”

But the majority opinion in a 1995 Supreme Court case on a different issue observed that such a general order is in fact a rule which must first be approved by the Kentucky Supreme Court.

That prompted Nance to submit the proposed local rule to Supreme Court Chief Justice John Minton. The proposed rule read: “The Clerk or her deputy shall notify the Case Manager of Family Court concerning the filing of each adoption petition, and the Family Court Judge forthwith shall retrieve from the Clerk each such adoption petition for review.”

But Minton determined the rule didn’t comply with Supreme Court rules and denied its adoption.

Nance has presided over only two adoption cases involving gay prospective parents in his 14 years as Family Court Judge. He served two years as District Judge before becoming a Family Court Judge.

Ronnie Ellis writes for CNHI News Service and is based in Frankfort; follow him on Twitter @cnhifrankfort.

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