May v. Coleman

Decision Date22 May 1997
Docket NumberNo. 96-SC-634-MR,96-SC-634-MR
Citation945 S.W.2d 426
PartiesJames MAY, Appellant, v. Eddy COLEMAN, Judge, Pike Circuit Court, Appellee, and Commonwealth of Kentucky; John Barton; William Happy Coleman; Vernon Coleman; City of Pikeville; David Caudill; Paul Isaacs; William Spicer; and Unknown Defendants, Real Parties in Interest.
CourtUnited States State Supreme Court — District of Kentucky

James May, Burgin, pro se.

Eddy Coleman, Pikeville, pro se.

A.B. Chandler, III, Attorney General, Frankfort, Russell H. Davis, Jr., Baird, Baird, Baird & Jones, Pikeville, John Barton, Paintsville, William Happy Coleman, Washington, DC, for Real Parties in Interest.

COOPER, Justice.

Appellant, an inmate at Northpoint Training Center, has brought a civil action in the Pike Circuit Court against various government officials and entities. He filed a motion requesting the presiding judge, Respondent Eddy Coleman, to appoint another inmate, John E. Reneer, as a "lay assistant" to assist Appellant in the prosecution of that action. When Judge Coleman denied the motion, Appellant petitioned the Court of Appeals for a Writ of Mandamus requiring the judge to appoint Reneer to assist him. The Court of Appeals denied the petition as moot and Appellant filed this appeal as a matter of right. Ky. Const., § 115.

The Court of Appeals deemed this action moot because Judge Coleman has already acted on Appellant's motion by denying it. As a general rule, mandamus will lie to set a court in motion, but it cannot be used to control the result. Courier-Journal v. Peers, Ky., 747 S.W.2d 125, 127 (1988); Hargis v. Swope, 272 Ky. 257, 114 S.W.2d 75 (1938). However, the general rule does not apply in a situation in which litigation is likely to be repeated, Courier-Journal v. Meigs, Ky., 646 S.W.2d 724 (1983), or where the issue is "capable of repetition, yet evading review." West v. Commonwealth, Ky., 887 S.W.2d 338, 343 (1994); Philpot v. Patton, Ky., 837 S.W.2d 491, 493 (1992). The issue raised by Appellant is such that it is not only likely and capable of repetition, but certain to be repeated. In fact, Appellant has attached to his petition a copy of an order signed by another circuit judge granting the same motion which was denied in this case. Also, since the issue is a preliminary one involving a claim akin to right to counsel, it is likely to evade review if not addressed at this stage of the proceedings. Thus, we address the merits of the issue raised in Appellant's motion before the Circuit Court and in his petition for a Writ of Mandamus.

It is now elementary that an indigent criminal defendant is entitled to appointment of counsel in any proceeding in which he could be sentenced to a term of imprisonment. U.S. Const., Amendment 6; Ky. Const., § 11; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). We have extended that right to civil contempt proceedings where imprisonment is a potential punishment. Lewis v. Lewis, Ky., 875 S.W.2d 862 (1993). If a prisoner fails to defend a civil action brought against him, a guardian ad litem must be appointed for him before judgment may be entered. CR 17.04; Davidson v. Boggs, Ky.App., 859 S.W.2d 662 (1993). However, CR 17.04 has no application where, as here, the action is brought by, rather than against, the prisoner. Except in these limited circumstances, there is no constitutional right to counsel in a civil case. Parsley v. Knuckles, Ky., 346 S.W.2d 1 (1961). Thus, Appellant premises his motion and petition on the contractual agreement denominated as a Consent Decree by which the Department of Justice and the Attorney General of this Commonwealth settled a 42 U.S.C. § 1983 action brought in federal court by inmates confined in our state prison system. The Consent Decree is published as an appendix to Kendrick v. Bland, 541 F.Supp. 21 (W.D.Ky.1981). In Section 8 of the Consent Decree, a program is established for the training of "inmate legal aides." Id. at 34-35. That section contains the following statement:

Defendants agree that any prisoner capable of assisting other prisoners in the preparation of legal papers or in the prosecution of a lawsuit may do so without fear of disciplinary action, provided that the particular prisoner has been appointed or is seeking appointment by a court to so assist another prisoner. In the alternative, defendants will not oppose the entry of a Decree by this Court permitting the appointment of any prisoner to assist another prisoner, in the defense or prosecution of legal proceedings upon a showing that such prisoner is capable of rendering such assistance. Defendants further agree that neither inmate legal aides nor appointed inmate legal assistants will be removed from their jobs or receive any other disciplinary action for filing any legal action against defendants, their agents, or their employees.

Id. at 35. Appellant relies on this provision as authority for his proposition that he is entitled to the appointment of an inmate legal aide to assist him in prosecuting the civil action which he filed in the Pike Circuit Court. His reliance is misplaced.

The clear purpose of Section 8 of the Consent Decree is to upgrade the legal services provided to inmates at a minimum cost to the Executive branch of our government. The quoted provision only guarantees that an inmate...

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    ...doctrine for cases that are "capable of repetition, yet evading review," and that are "of public importance"). Kentucky: May v. Coleman, 945 S.W.2d 426, 427 (Ky.1997) ("However, the general rule does not apply in a situation in which litigation is likely to be repeated * * * or where the is......
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    ...is a potential punishment; or (2) in which an indigent inmate fails to defend a civil action brought against him. May v. Coleman, 945 S.W.2d 426, 427 (Ky. 1997) (citing Lewis v. Lewis, 875 S.W.2d 862 (Ky. 1993), and Davidson v. Boggs, 859 S.W.2d 662 (Ky. App. 1993)). This civil case involve......
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