Com. ex rel. Meredith, Att'Y Gen., v. Murphy

• Decision Date: 15 October 1943
• Citation: 295 Ky. 466
• Parties: Commonwealth ex rel. Meredith, Attorney General, v. Murphy.
• Court: Supreme Court of Kentucky

295 Ky. 466

Commonwealth ex rel. Meredith, Attorney General, v.Murphy.

Court of Appeals of Kentucky.

October 15, 1943.

1. Prohibition. — In determining whether Attorney General was entitled to writ prohibiting judge from presiding in case wherein judge was named as codefendant charged with aiding conspiracy to maintain public nuisances, Court of Appeals must presume that Attorney General did not violate his oath of office or falsely swear to the pleadings. KRS 21.050; Constitution, sec. 110.

2. Judges. — A judge may not be disqualified by being a nominal party to a suit.

3. Judges. — The filing of a sham or frivolous pleading in which judge before whom case is to be tried is made a party for sole purpose of disqualifying him should not be countenanced.

4. Pleading. — A pleading is not "sham" or "frivolous" because it would probably be held bad on demurrer, but it is one so palpably false on its face that mere inspection indicates bad faith in pleader.

5. Judges. — An amended petition by Attorney General, as relator of the commonwealth, alleging that judge had aided his codefendants in conspiracy to maintain public nuisances, by leading codefendants to understand that he would afford them protection and by failure to cause grand juries to return indictments was not a

"sham" or "frivolous pleading," as regards judge's qualification to sit in the case.

6. Pleading. — A demurrer to a pleading assumes truth of allegations for purpose of testing it.

7. Judges. — In determining whether Attorney General was entitled to writ prohibiting judge from sitting in case wherein judge was a codefendant charged with aiding conspiracy to maintain public nuisances, to bring court into disrepute, judge's interest need not be such as to attach guilt or liability, since every litigant, including the state, is entitled to impartial judge. KRS 21.050; Constitution, sec. 110.

8. Courts. — The power vested in Court of Appeals to issue writs to control inferior jurisdictions will be exercised when it appears that substantial injustice will eventuate by any proposed action by inferior court and petitioner will have no adequate remedy. KRS 21.050; Constitution, sec. 110.

9. Prohibition. — Writs of prohibition will issue from Court of Appeals to prohibit inferior courts threatening to proceed or proceeding in matter in which they have no jurisdiction, where there is no remedy through an application to an intermediate court, and where, although proceeding within their jurisdiction, they are exercising or about to exercise it erroneously, there is no adequate remedy by appeal or otherwise, and great injustice and irreparable injury would result to applicant. KRS 21.050; Constitution, sec. 110.

10. Prohibition. — Where commonwealth applies for writ to prohibit judge from trying criminal prosecution, Court of Appeals will issue the writ upon sufficient showing. KRS 21.050; Constitution, sec. 110.

11. Prohibition. — The Attorney General was entitled to writ prohibiting circuit judge from presiding in case wherein the judge was a codefendant charged with aiding conspiracy to maintain public nuisances by violating criminal laws, notwithstanding judge's allegation that charge was made for sole purpose of disqualifying him, in view of facts that irreparable injury might result to commonwealth and that remedy by appeal would be inadequate. KRS 21.050, 436.280; Constitution, sec. 110.

In Court of Appeals.

Hubert Meredith, Attorney General for relator.

Barbour & Bassman for respondent.

OPINION BY STANLEY, COMMISSIONER.

Granting writ of prohibition.

This is an original proceeding in this court by the Commonwealth, on relation of the Attorney General, against Honorable Ray L. Murphy, as Judge of the Campbell Circuit Court and individually, to have a writ issued prohibiting him from acting in his official capacity in a case pending in that court.Kentucky Constitution, Section 110;Kentucky Revised Statutes 21.050.

The Attorney General, as relator of the Commonwealth, filed in the Campbell Circuit Court a petition against numerous parties seeking to abate an alleged series of public nuisances, consisting of wide-spread operation of gambling houses, accompanied by violations of other laws.Many county and city officers are defendants therein and charged in substance with conspiring with and aiding and abetting their co-defendants in maintaining the nuisances.The circuit judge of the local district being absent, under authority of Section 273, Civil Code of Practice, Judge C.D. Newell, of the 19th Judicial District, on an ex parte motion issued a restraining order on September 20th temporarily enjoining the defendants and directing the sheriff of Campbell County and other peace officers to forthwith enforce all laws of the Commonwealth, particularly those condemnatory of gaming, and to enter upon the described premises and seize all equipment and contrivances generally used in gaming, especially slot machines, roulette wheels, and other named devices.Judge Newell set the case for a hearing in the Campbell Circuit Court on the morning of September 27th.Section 276, Civil Code of Practice.

On September 24th the plaintiff filed an amended petition making several other individuals and officers partiesdefendant.One of them is Judge Murphy.The amendment adopts the charges contained in the original petition, and, with reference to Judge Murphy, particularly alleges in substance that he had encouraged, aided and abetted his co-defendants in operating the nuisances and in violating the law by repeatedly visiting and patronizing one or more of the places described during his incumbency of office, has had full knowledge of the facts and unlawful conduct stated, and indicated his approval thereof.It is charged that he had led his co-defendants to believe and understand that he was "their friend and would afford them protection" thereby and by his failure to properly charge or cause his grand juries to return indictments for the numerous violations of the law they had committed as described.It is further alleged that his described acts of omission and commission had caused them to feel secure and that they"tend to and do further effectuate the conspiracy of the defendants named in the petition herein."The relief prayed in relation to Judge Murphy is that he be enjoined from doing such things and "from aiding, abetting, assisting or encouraging" the maintenance of the described nuisances.The amended petition, like the original or primary one, was duly verified by Mr. Meredith, the Attorney General.

The next day the Attorney General, as relator of the Commonwealth, filed this proceeding in the Court of Appeals.The petition describes the case pending in the Campbell Circuit Court and the making of Judge Murphy a partydefendant therein.It states the order of Judge Newell setting the case for trial on a motion for a temporary injunction on the morning of the 27th, and that certain officers, in obedience to that order, had seized gambling equipment and paraphernalia of the value of $100,000 or more and stored the same, all at considerable expense to the Commonwealth.Additional allegations are made in the petition filed in this court concerning Judge Murphy's connection with the alleged nuisances.It is further alleged that, notwithstanding these things and the fact that Judge Murphy is a partydefendant in the suit and has a material personal interest in the outcome and every step and motion to be taken therein, he intends and purposes to preside and try the case and had declared that he would do so in order to protect two of his friends and Leo Livingston, the Chief of Police of Newport, one of the defendants.It is charged that unless restrained and prohibited by this courtthe defendant will preside in the case and decide every point adversely to the Commonwealth, which would suffer irreparable injury and damage, and for which it has no adequate remedy at law or in equity.It states that the Commonwealth intends to proceed under the provisions of Chapter 436 of the Kentucky Revised Statutes, particularly Section 436.280, to forfeit the seized property, and charges that unless restrained by this courtthe defendant will release the property and the state's right to use it in evidence and to confiscate it would be lost and defeated.It is further charged that by reason thereof the Commonwealth will sustain additional irreparable injury in its efforts to enforce the laws and suppress the wholesale commission of the nuisances and crimes described.There are other severe allegations in this petition, but these are sufficient for the purpose of deciding the case.

On the ex parte motionwe issued a temporary writ of prohibition restraining the defendant from presiding at the hearing or trial on the morning of the 27th.In due course the plaintiff has filed a motion for the issuance of a permanent writ of prohibition, and the defendant, Judge Murphy, has filed general and special demurrers and an answer.A transcript of the record in the case pending in the circuit court is filed with the answer as an exhibit.Judge Murphy categorically denies each and every allegation and charge respecting his activities and associations with other parties named as defendants in the suit in the circuit court, and also denies that he expressed any opinion or made any declaration in relation to the case and its decision.He denies having any material or personal interest in the result of the case or any wrongful intent or purpose to cause loss or injury to the Commonwealth in the manner alleged.He does not traverse the allegation that he will preside and try the case notwithstanding he has been named a party.He avers that he was named a defendant in the suit for the sole purpose of defaming and disqualifying him from trying it.He alleges that shortly after the filing of the original petition an attorney associated with the Attorney General in its pro...