Cox v. Braden

• Decision Date: 23 October 2008
• Docket Number: No. 2008-SC-000376-MR.,2008-SC-000376-MR.
• Citation: 266 S.W.3d 792
• Parties: William Clyde COX; and Joyce Cox, Appellants, v. Honorable Paul BRADEN, Circuit Judge; and Freida Joan Loving (Real Party in Interest), Appellees.
• Court: United States State Supreme Court — District of Kentucky

266 S.W.3d 792

William Clyde COX; and Joyce Cox, Appellants, v. Honorable Paul BRADEN, Circuit Judge; and Freida Joan Loving (Real Party in Interest), Appellees.

No. 2008-SC-000376-MR.

Supreme Court of Kentucky.

October 23, 2008.

Larry E. Conley Corbin, KY, Counsel for Appellants.

Paul Braden, Whitley Circuit Court Judge, Corbin, KY, Appellee.

David Ora Smith, Marcia A. Smith, Corbin, KY, Counsel for Appellee, Freida Joan Loving.

Opinion of the Court by Justice NOBLE.

The Appellants appeal from a decision of the Court of Appeals denying a petition for a writ of mandamus directing the trial judge to set aside an order transferring a case between the two divisions of the Whitley Circuit Court and to assign cases in a random manner. Because Appellants have failed to demonstrate entitlement to the extraordinary writ, the Court of Appeals is affirmed.

I. Background

Because this case involves a writ action, the record is all but non-existent, consisting only of the papers filed by the parties and one videotape of a short hearing. The facts described below therefore reflect at best a synthesis of the allegations contained in the briefs and what is apparent from the hearing and the court documents attached to the briefs.

The underlying case was originally filed in 2000 and was tried by Judge Jerry Winchester in Division I of the Whitley Circuit Court. On appeal, the judgment was reversed and remanded to the trial court, and the matter was again presided over by Judge Winchester. In August 2007, Judge Winchester retired from the circuit bench and entered the senior judge program, under which he was assigned back to Division I of the Whitley Circuit Court to hear its cases until selection of his successor in the ensuing election.

In early November 2007, Dan Ballou was elected to serve as circuit judge in Division I. He was sworn in as judge, and was called up for active duty with the military reserve. It is not clear whether he served briefly in his judicial position before being called up for active duty (as claimed by the real party in interest), or whether he immediately went on active duty and therefore never actually assumed his duties (as claimed by Appellants). Thus, depending on whose characterization is correct, Judge Winchester was either reassigned back to Division I as a senior judge after a short period of Judge Ballou's service, or he simply continued uninterrupted his previous senior judge service.

At some point, Judge Ballou requested that all cases involving David O. Smith, counsel for the real party in interest in this case, be transferred to Division II because of a conflict of interest. Apparently, the conflict was born out of a pending matter involving both Judge Ballou and Mr. Smith. Given the paucity of the record, it is not clear when Judge Ballou made his request: it may have occurred either before or after he was called up for active duty in the military.

In an order entered on November 18, the chief judge of the circuit, Paul Braden, granted Judge Ballou's request and ordered all of Mr. Smith's cases to be transferred to the other division of the Whitley Circuit Court (that being Judge Braden's division). The Appellants immediately moved to set aside Judge Braden's order, arguing that the transfer demonstrated favoritism to the other side. On December 10, Judge Braden heard the motion. (The videotape in the record is of this hearing.) At the hearing, the judge indicated that he would recuse himself in order to diffuse any problem from his own potential conflict of interest if the parties felt his impartiality was in question. Appellant's attorney requested recusal, which Judge Braden granted and which left the Chief Regional Circuit Judge responsible for appointing a special judge to hear the case. (Judge Cletus Maricle was subsequently appointed to serve as special judge in the case.)

Rather than proceeding with the case, Appellants filed a petition for a writ of mandamus directing the trial court to set aside the transfer order, to reassign the transferred cases to Division I, and to insure that all cases filed in the 34th Judicial Circuit be assigned on a random basis in accordance with SCR 1.040.¹ The Court of Appeals denied the petition, holding that Appellants had not satisfied the requirements for entitlement to an extraordinary writ. In so holding, the court noted that Appellants had "provided no authority supporting the contention that SCR 1.040(4)(c) required [Judge Braden] to reassign J. Winchester to the case, when it has been shown that he no longer sits as a regular member of the Whitley circuit bench." The court also noted that even if it was persuaded of the merits of Appellants' argument, the requested relief would have been impossible because Judge Braden had disqualified himself from the underlying case.

Having lost before the Court of Appeals, Appellants exercised their matter of right appeal to this Court.

II. Analysis

The writ of mandamus, like the writ of prohibition, is extraordinary in nature. Such a writ bypasses the regular appellate process and requires significant interference with the lower courts' administration of justice. The expedited nature of writ proceedings necessitates an abbreviated record. This magnifies the chance of incorrect rulings that would prematurely and improperly cut off the rights of litigants, if the process were not strictly scrutinized for appropriateness. As such, the specter of injustice always hovers over writ proceedings, which explains why courts of this Commonwealth are—and should be—loath to grant the extraordinary writs unless absolutely necessary. Because they fall outside the regular appellate process, especially when they are used as de facto interlocutory appeals (an increasing, undesired trend), writ petitions also consume valuable judicial resources, slow down the administration of justice (even when correctly entertained), and impose potentially unnecessary costs on litigants. See Bender v. Eaton, 343 S.W.2d 799, 801 (Ky.1961) ("Relief by way of prohibition or mandamus is an extraordinary remedy and we have always been cautious and conservative both in entertaining petitions for and in granting such relief. This careful approach is necessary to prevent short-circuiting normal appeal procedure and to limit so far as possible interference with the proper and efficient operation of our circuit and other courts. If this avenue of relief were open to all who considered themselves aggrieved by an interlocutory court order, we would face an impossible burden of nonappellate matters.").

Thus, to say that writ petitions should be reserved for extraordinary cases and are therefore discouraged is an understatement. See Buckley v. Wilson, 177 S.W.3d 778, 780 (Ky.2005) ("Extraordinary writs are disfavored....").²

To maximize caution and to reduce the resources wasted on writ proceedings, the majority of which are unsuccessful, this Court has articulated a strict standard to determine whether the remedy of a writ is available. The standard delineates two distinct classes of writs, both of which Appellant claims are applicable:

A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).

The first class of writs focuses on the lower court's authority to act in the case, or jurisdiction. Since the jurisdiction of each level of court is clearly established, either by the Constitution, statute, or rule, petitions alleging this ground are resolved by legal interpretation of the provisions granting jurisdiction.

The second class of writs applies where the lower court has jurisdiction but is alleged to be proceeding erroneously. Writs are available in such cases only where there is no remedy by appeal, and great injustice and irreparable injury is sure to result from the lower court proceeding. The test for the second class of writs is directly aimed at reducing the number of writ cases that proceed to the merits of the controversy. As this Court's predecessor noted, "This is a practical and convenient formula for determining, prior to deciding the issue of alleged error, if petitioner may avail himself of this remedy." Bender, 343 S.W.2d at 801; see also Hoskins, 150 S.W.3d at 18 ("In other words, only after determining that the prerequisites exist will the court decide whether an error occurred for which a writ should issue."). In this sense, the test is analogous to the prudential abstention doctrines employed by federal courts, at least in that it is aimed at reducing interference with other courts though the power to so interfere may technically exist. It is not prudent to decide issues on an abbreviated and unsubstantiated record, even though the writ process allows a petition in the door.

This second "class" of writs includes a very limited exception wherein the showing of great and irreparable harm "is not an absolute prerequisite" for the issuance of a writ (though the requirement of a lack of an adequate remedy by appeal remains). Hoskins, 150 S.W.3d at 10. The great and irreparable harm requirement may be put aside in "certain special cases ... [where] a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and correction of the error is necessary and appropriate in the interest of orderly judicial administration. It may be observed that in such a situation the court is recognizing that if it fails to act the administration of justice generally will suffer the great and irreparable injury." Bender, 343 S.W.2d at 801. As ...