PIKEVILLE, Tenn. — Disciplinary action has been taken against two area judges stemming from complaints filed with the Tennessee Board of Judicial Conduct that contained allegations of an extramarital affair, judge shopping, judicial impropriety and ethical lapses.
The judges named in the two complaints and a letter from the board are Bledsoe County General Sessions Judge Howard Upchurch and 12th Judicial District Circuit Judge J. Curtis Smith, both of whom have held their posts for decades.
The complaint is related to ongoing divorce proceedings between Pikeville husband and wife, Ben and Stacy Farmer, who recently ran against each other for Bledsoe County school board. Ben Farmer won.
The board took disciplinary action against both judges related to the complaints, according to a letter board chair Dee David Gay sent to Ben Farmer on Aug. 13. There was no indication what action was taken or which allegations from the complaints it was based on.
Ben Farmer, who filed the complaints on June 5 and received the response from the board, provided the response letter to the Times Free Press.
State of Tennessee Board of Judicial Conduct letter dated Aug. 13, 2020View
"The allegations in each complaint were carefully reviewed by disciplinary counsel and were submitted to an investigative panel of this board as required by [state law]," Gay states in the letter. "Your complaints brought to our attention a matter that needed to be addressed, and both judges have been disciplined as a result."
The board will take no further action for now and the case has been closed, the letter states.
Ben Farmer provided a statement to the Times Free Press regarding his reasons for filing the complaints.
"I filed the judicial complaints to protect my children and reclaim my family while protecting others from similar and repetitive actions taken by those we trust for public office that abuse the authority given to them," Ben Farmer said.
He declined to comment further.
Judge Smith and Stacy Farmer didn't respond to requests for comments.
Judge Upchurch said that because matters that come before the Board of Judicial Conduct are confidential under state law he could neither confirm nor deny the existence of the complaint but instead described his role in the legal profession in the community.
"I am a part-time judge and a full-time lawyer," Upchurch said in an email to the Times Free Press. "My professional identity is that of a lawyer rather than a judge. One of my highest privileges as an attorney has been to practice before the judges of the 12th Judicial District. We currently have a superb trial level bench and exceptional, dedicated, caring and competent jurists serving the citizens of our district.
"Judge Curtis Smith has dedicated his entire adult life to the application of the rule of law and to the fair and unbiased administration of justice. It will indeed be a loss to our citizens when Judge Smith retires and surrenders his robe to a successor," Upchurch said.
"Being a judge can be as lonely as a pine tree in a parking lot. I think sometimes people forget that and that judges — without a board or committee to turn to — have to make important decisions alone. I respect those who day in and day out accept those responsibilities," Upchurch said.
Trip to Fall Creek Falls
On Aug. 1, 2019, Ben Farmer filed for divorce from his wife, Stacy Farmer, in the 12th Judicial District court system, which includes Bledsoe County, according to the complaints.
"Prior to Aug. 1, 2019, and currently, Mrs. Farmer is in a marital affair with her employer, Judge Howard L. Upchurch," the complaint alleges.
Ben Farmer also alleges in the complaints that Stacy Farmer had divorce papers in her possession last year that showed her legal counsel as Upchurch but those papers appear never to have been filed in court.
"Mr. Farmer and Mrs. Farmer discussed the documents in June/July 2019 and the ongoing affair with her employer," Ben Farmer states in the complaint. "However, the marital affair with Judge Upchurch continued and Mr. Farmer filed for divorce on Aug. 1, 2019."
The next day, Ben Farmer had plans to take the couple's three young children camping at Fall Creek Falls State Park and left for the park "having no knowledge that there was any reason to discontinue or change these plans," the complaint continues.
As Ben Farmer made the 20-minute drive from Pikeville to Fall Creek Falls, he was contacted by Stacy Farmer, who "informed Mr. Farmer that she was going to find a judge and issue a restraining order to stop the trip from happening," the complaint states. "Mr. Farmer advised Mrs. Farmer that he was going to continue as planned until he was advised by his own legal counsel that the trip should be terminated."
According to documents contained in the complaints, the temporary restraining order was being sought because Stacy Farmer was concerned for "my safety and the safety of my children from the inherent hostility."
The complaint against Upchurch alleges he abused his judicial authority and professional care and abused due process for Ben Farmer through "aiding the malicious filing of the Aug. 2, 2019, restraining order against Mr. Farmer in order to remove Mr. Farmer from his home and prevent him from daily interactions with his children."
According to the allegations in the complaint, Upchurch violated seven rules under the Code of Judicial Conduct by allegedly contacting three 12th Judicial District Circuit judges — Smith, Justin C. Angel and Thomas W. Graham — in pursuit of the restraining order against Ben Farmer.
Documents allege Angel and Graham recused themselves from the matter while Smith did not until after issuing the temporary restraining order.
The complaint alleges Upchurch's pursuit of the restraining order on Stacy Farmer's behalf through Smith abused the authority given Upchurch's position as judge and violated judicial rules to avoid impropriety or the appearance of impropriety.
"Judge Upchurch is not the attorney of record for Mrs. Farmer in her divorce proceedings and the method of 'judge shopping' is not permissible," Ben Farmer's complaint states.
The complaint also alleges Upchurch's actions in the divorce proceedings and pursuit of the restraining order violated rules requiring judges to promote confidence in the judicial system and to avoid abuse of the prestige of their office and any attempt to gain an advantage or deferential treatment through that position; violated the impartiality and fairness rule by discussing the divorce case with Stacy Farmer; and violated a judicial canon requiring judges' "personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office," the complaint states.
The complaint against Smith stems from the same actions alleged in the complaint against Upchurch.
The documents allege that Smith abused his authority in accepting inappropriate communications from Upchurch regarding the restraining order; acting on the request from Upchurch, who had represented one of Smith's family members in a recent divorce; holding the restraining order hearing after Angel and Graham recused themselves; knowingly proceeding with the restraining order even though Smith knew the rules were not being followed; violated the right to due process by not allowing Ben Farmer to have a legal representative on the restraining order; and by Smith's remaining linked to the case until he recused himself in September 2019, the complaint states.
The Smith complaint alleges the judge's personal familiarity with the parties involved and his understanding of the rules of conduct should have prompted him to report the inappropriate contact by Upchurch to the Board of Professional Responsibility and recuse himself from issuing a restraining order. Ben Farmer also alleges Smith violated rules by not self-reporting his own actions.
Ben Farmer alleges "Smith participated in coercion in his decision making. Smith caused emotional and irreparable harm to the children and Mr. Farmer through the hostile and dramatic taking of Mr. Farmer's children and home from him with a restraining order and temporary parenting plan that is in place until a court date (not set) in the 14th Judicial District before Judge Craig Johnson," the complaint states, referring to the jurisdiction in which the couple's case now lies unsettled.
The review process
Complaints filed with the Tennessee Board of Judicial Conduct are confidential and privileged during the preliminary investigation stage, according to the board information on how to file a judicial complaint.
Complaints are reviewed by a disciplinary counsel, which then sends them to a three-member investigative panel to determine whether to investigate further. The complaint could be dismissed if there were no grounds shown for judicial misconduct.
If the information indicates misconduct, if true, the disciplinary counsel will conduct a preliminary investigation, which could lead to authorization of a full investigation.
A full investigation requires the judge to respond in writing and once that investigation is complete, the panel may dismiss the case; recommend a disciplinary action, such as a private or public reprimand; a deferred discipline agreement with the judge; refer the case to another agency such as the Tennessee Bureau of Investigation; or file formal, public charges against the judge.
Formal charges could lead to a public trial in front of a five-member hearing panel made up of members of the Board of Judicial Conduct, according to the state board complaint information. The Farmer complaint did not result in such formal charges.
Contact Ben Benton at email@example.com or 423-757-6569. Follow him on Twitter @BenBenton or at www.facebook.com/benbenton1.