Fischer v. State Bd. of Elections, No. 92-SC-354-MR

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtSPAIN; LEIBSON, J., dissents by separate opinion in which STEPHENS; LEIBSON; STEPHENS
Citation847 S.W.2d 718
PartiesJoseph M. FISCHER, Appellant, v. STATE BOARD OF ELECTIONS; Bob Babbage, Secretary of State; Leonard L. Kopowski, Judge, Campbell Circuit Court; Campbell County Board of Elections; Jack Snodgrass, Campbell County Clerk, Appellees.
Docket NumberNo. 92-SC-354-MR
Decision Date18 February 1993

Page 718

847 S.W.2d 718
Joseph M. FISCHER, Appellant,
v.
STATE BOARD OF ELECTIONS; Bob Babbage, Secretary of State;
Leonard L. Kopowski, Judge, Campbell Circuit
Court; Campbell County Board of
Elections; Jack Snodgrass,
Campbell County
Clerk, Appellees.
No. 92-SC-354-MR.
Supreme Court of Kentucky.
Feb. 18, 1993.

Joseph M. Fischer, pro se.

Chris Gorman, Atty. Gen., Ross T. Carter, V. Lynne Schroering, Asst. Attys. Gen., Civ. Div., Frankfort, Paul H. Twehues, Jr., Newport, for appellees.

SPAIN, Justice.

Joseph Fischer, pro se, appeals from an order of the Court of Appeals which granted the appellees State Board of Elections and Secretary of State a writ of prohibition. The writ prohibited Judge Kopowski

Page 719

of the Campbell Circuit Court from adjudicating a lawsuit filed by Fischer, and further ordered the trial court to dismiss the case.

On December 30, 1991, Fischer, a resident of Campbell County, filed a pro se declaratory judgment action and motion for injunctive relief in the Campbell Circuit Court. Fischer alleged in his complaint that the 1991 Reapportionment Act, enacted by the 1991 Kentucky General Assembly in its Second Extraordinary Session, violated the legislative district apportionment clause, Section 33 of the Kentucky Constitution. The suit challenges the legislative redistricting of the three most northern counties of Kentucky, to-wit, Campbell, Boone, and Kenton. For his remedy, Fischer sought to enjoin permanently the enforcement of the new apportionment plan, and to either enforce the provisions of the old redistricting statute, or to utilize the alternate plans introduced, but never adopted, in the Session.

Fischer named as defendants, Bob Babbage, Secretary of State, and the State Board of Elections (collectively "state defendants"), in addition to the local defendants, Campbell County Board of Elections and the Campbell County Clerk. Notice of this action was given to the Kentucky Attorney General on January 24, 1992.

The state defendants filed a motion to dismiss on January 22, 1992, on the grounds that they were improperly joined as defendants and that Campbell County was an improper venue for this action. The local defendants moved to dismiss, alleging that they were not the real parties in interest. The trial court initially dismissed the action on February 7, 1992, stating that the applicable venue statute, KRS 452.405(2), requires Fischer to bring his constitutional challenge of the Reapportionment Act in Franklin County.

However, on March 6, 1992, the trial court vacated its previous order dismissing the suit. The trial court found:

Mr. Fischer's argument that the creation of an unconstitutional law is not actionable has merit. It is only when the law creates a harm to an individual plaintiff that a cause of action arises. Harm to a plaintiff's constitutional rights does not occur in Frankfort or where the Governor signs the bill, but the harm occurs in the county where the plaintiff tries to exercise those constitutional rights. The only exception would be specific venue statutes specifically requiring suit in Franklin County, as is presently the case in specific types of actions. Notwithstanding a specific venue statute creating venue in the Franklin Circuit Court, there are potentially 120 proper venues for claims challenging the effect and enforcement of any unconstitutional law.

The trial court further stated that:

Where injury results in one county from acts or omissions occurring in another, it has been held that the cause of action may be considered to have arisen, in part at least, in the county in which the injury or damage actually accrues, so as to permit the maintenance of the action therein.

* * * * * *

... this Court finds that a citizen as Mr. Fischer may seek redress against the effect or enforcement of any unconstitutional enactment of the legislature in any county where the injury to his constitutional right occurs, except where there is a specific venue statute to the contrary directing the litigants to the Franklin Circuit Court.

The trial court also reinstated the state defendants in Fischer's action, although recognizing them as nominal, by reasoning that they do have certain ministerial duties in connection with the electoral process and because the suit would not be directly litigated by them but would be defended by the Kentucky Attorney General.

On March 12, 1992, the trial court ordered the trial to be held on April 1, 1992. The state defendants objected to this early trial date since they had not had an opportunity to conduct discovery, having been previously dismissed from the suit. The state defendants then filed a motion for intermediate relief and a petition for a writ of prohibition with the Court of Appeals.

Page 720

The Court of Appeals granted both requests, holding that Campbell County was not the proper venue for this action and that the state defendants sued were only nominal parties and "are not real parties in interest to the action below since they have no duties other than ministerial to perform with respect to the challenged legislation."

Fischer now appeals as a matter of right from the three-judge panel's decision granting the state defendants' petition for writ of prohibition and directing the trial judge to dismiss the suit. We disagree with the Court of Appeals and reverse.

The common law writ of prohibition is an extraordinary remedy which should be issued only when the trial court is proceeding or about to proceed outside its jurisdiction and there is no adequate remedy by appeal, or when the lower court is about to act incorrectly, although within its jurisdiction. In both cases, there must exist no adequate remedy by appeal or otherwise, and it must be proven that great injustice and irreparable injury would result to the petitioner if the writ is not entered. Shumaker v. Paxton, Ky., 613 S.W.2d 130, 131 (1981).

The parties do not dispute the fact that a circuit court of this Commonwealth has subject-matter jurisdiction to hear constitutional attacks brought by its citizens against statutes enacted by the General Assembly. KY. CONST. section 111; KRS 23A.010(1). Since we can logically infer that the Campbell Circuit Court was not acting erroneously outside its jurisdiction, our focus then must turn to whether the trial court was acting erroneously...

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7 practice notes
  • Hoskins v. Maricle, No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 26, 2004
    ...Ryan, Ky., 5 S.W.3d 113, 115 (1999), Potter v. Eli Lilly & Co., Ky., 926 S.W.2d 449, 452 (1996), Fischer v. State Bd. of Elections, Ky., 847 S.W.2d 718, 720 (1993), Shumaker v. Paxton, Ky., 613 S.W.2d 130, 131 (1981), and Tipton v. Commonwealth, Ky.App., 770 S.W.2d 239, 241 (1989), all of w......
  • Hoskins v. Maricle, No. 2002-SC-0579-MR (KY 12/16/2004), No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • December 16, 2004
    ...Ryan, Ky., 5 S.W.3d 113, 115 (1999), Potter v. Eli Lilly & Co., Ky., 926 S.W.2d 449, 452 (1996), Fischer v. State Bd. of Elections, Ky., 847 S.W.2d 718, 720 (1993), Shumaker v. Paxton, Ky., 613 S.W.2d 130, 131 (1981), and Tipton v. Commonwealth, Ky. App., 770 S.W.2d 239, 241 (1989), all of ......
  • Kentucky Labor Cabinet v. Graham, No. 2000-SC-0283-MR.
    • United States
    • Kentucky Supreme Court
    • April 26, 2001
    ...v. Maricle, Ky., 10 S.W.3d 117, 121 (1999); Commonwealth v. Ryan, 5 S.W.3d 113, 115 (1999); Fischer v. State Bd. of Elections, Ky., 847 S.W.2d 718, 720 (1993); Clark v. Ardery, 310 Ky. 836, 222 S.W.2d 602, 604 (1949); Stafford v. Bailey, 301 Ky. 155, 191 S.W.2d 218, 219 (1945). The requirem......
  • Jensen v. Kentucky State Bd. of Elections, No. 96-SC-000291-TG
    • United States
    • United States State Supreme Court (Kentucky)
    • April 24, 1997
    ...itself in accordance with the 1990 census and Section 33 of the Constitution of Kentucky. See, Fischer v. State Board of Elections, Ky., 847 S.W.2d 718 (1993) (referred to in this litigation as "Fischer I "); Fischer v. State Board of Elections, Ky., 879 S.W.2d 475 (1994) ("Fischer II "); S......
  • Request a trial to view additional results
7 cases
  • Hoskins v. Maricle, No. 2002-SC-0579-MR (KY 12/16/2004), No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • December 16, 2004
    ...Ky., 5 S.W.3d 113, 115 (1999), Potter v. Eli Lilly & Co., Ky., 926 S.W.2d 449, 452 (1996), Fischer v. State Bd. of Elections, Ky., 847 S.W.2d 718, 720 (1993), Shumaker v. Paxton, Ky., 613 S.W.2d 130, 131 (1981), and Tipton v. Commonwealth, Ky. App., 770 S.W.2d 239, 241 (1989), all of wh......
  • Hoskins v. Maricle, No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 26, 2004
    ...Ky., 5 S.W.3d 113, 115 (1999), Potter v. Eli Lilly & Co., Ky., 926 S.W.2d 449, 452 (1996), Fischer v. State Bd. of Elections, Ky., 847 S.W.2d 718, 720 (1993), Shumaker v. Paxton, Ky., 613 S.W.2d 130, 131 (1981), and Tipton v. Commonwealth, Ky.App., 770 S.W.2d 239, 241 (1989), all of whi......
  • Kentucky Labor Cabinet v. Graham, No. 2000-SC-0283-MR.
    • United States
    • Kentucky Supreme Court
    • April 26, 2001
    ...v. Maricle, Ky., 10 S.W.3d 117, 121 (1999); Commonwealth v. Ryan, 5 S.W.3d 113, 115 (1999); Fischer v. State Bd. of Elections, Ky., 847 S.W.2d 718, 720 (1993); Clark v. Ardery, 310 Ky. 836, 222 S.W.2d 602, 604 (1949); Stafford v. Bailey, 301 Ky. 155, 191 S.W.2d 218, 219 (1945). The requirem......
  • Jensen v. Kentucky State Bd. of Elections, No. 96-SC-000291-TG
    • United States
    • United States State Supreme Court (Kentucky)
    • April 24, 1997
    ...itself in accordance with the 1990 census and Section 33 of the Constitution of Kentucky. See, Fischer v. State Board of Elections, Ky., 847 S.W.2d 718 (1993) (referred to in this litigation as "Fischer I "); Fischer v. State Board of Elections, Ky., 879 S.W.2d 475 (1994) ("F......
  • Request a trial to view additional results

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