Foster v. Overstreet

• Decision Date: 24 August 1995
• Docket Number: No. 93-SC-385-TG,93-SC-385-TG
• Citation: 905 S.W.2d 504
• Parties: Lafonda Fay FOSTER, Petitioner/Appellant, v. Rebecca M. OVERSTREET, Judge, Fayette Circuit Court, Respondent/Appellee, Commonwealth of Kentucky, Real Party in Interest.
• Court: United States State Supreme Court — District of Kentucky

Page 504

905 S.W.2d 504

Lafonda Fay FOSTER, Petitioner/Appellant, v. Rebecca M. OVERSTREET, Judge, Fayette Circuit Court,

Respondent/Appellee,

Commonwealth of Kentucky, Real Party in Interest.

No. 93-SC-385-TG.

Supreme Court of Kentucky.

Aug. 24, 1995.

Russell Baldani, Lexington, Kevin McNally, McNally & Robinson, Frankfort, for petitioner/appellant.

Chris Gorman, Atty. Gen., Frankfort, for respondent/appellee.

Raymond Larson, Fayette Commonwealth's Attorney, Patrick Michael Malone, Assistant Fayette Commonwealth's Attorney, Lexington, for real party in interest.

DENYING PETITION FOR WRIT OF MANDAMUS

STUMBO, Justice.

Petitioner, Lafonda Fay Foster was convicted on five counts of capital murder in March of 1987. Following the recommendation of the jury, the trial court sentenced the Petitioner to death. In December of 1991, this Court reversed the sentencing determination and remanded this case for retrial of the sentencing phase. Foster v. Commonwealth, Ky., 827 S.W.2d 670 (1991).

In December of 1992, the original trial judge recused himself from the case on the grounds that his impartiality might be reasonably questioned since he had previously sentenced the Petitioner to death. The action was then randomly assigned to the Sixth Division, Fayette Circuit Court. The Sixth Division Judge also recused himself. On December 29, 1992, this case was randomly assigned to Judge Overstreet of the Fayette Circuit Court, Third Division. Once again, Petitioner filed a motion to recuse alleging that the Court's impartiality could reasonably be questioned. This motion was overruled by the Circuit Court. Additionally, Petitioner's motion for an evidentiary hearing before a different judge, and Petitioner's request for an automatic change of judge were also overruled. The Petitioner then filed this petition for a writ of mandamus in the Court of Appeals, a request for a transfer of this petition to the Kentucky Supreme Court, and an affidavit pursuant to KRS 26A.020(1).

Petitioner raises three issues before this Court. First, Petitioner asserts that the writ of mandamus is the only appropriate remedy available. This Court has described the requirements which must be met to justify an appellate court in granting a writ of prohibition or mandamus. "It must be shown that the party seeking the writ has no other adequate remedy and that great and irreparable injury will result to the party seeking the writ." Glasson v. Tucker, Ky., 477 S.W.2d 168, 169 (1972). Granting a writ of mandamus is a rare and extraordinary measure with a difficult standard to meet.

In this case, Petitioner has two other possible remedies excluding the writ of mandamus. First, Petitioner has filed a motion before the Chief Justice under KRS 26A.020(1), which provides in relevant part as follows:

If either party files with the circuit clerk his affidavit that the judge will not afford him a fair and impartial trial, or will not impartially decide an application for a change of venue, the circuit clerk shall at once certify the facts to the chief justice who shall immediately review the facts and determine whether to designate a regular or retired justice or judge of the Court of Justice as special judge. Any special judge so selected shall have all the powers and responsibilities of a regular judge of the court.

This statute is an adequate and expedient procedure to review those cases where a judge has declined to disqualify himself or herself. KRS 26A.020(1) serves as a safeguard available to defendants for a determination before trial of the existence of any alleged partiality by the trial court. Second, Petitioner has a constitutional right of appeal from an adverse sentencing decision. If Judge Overstreet is not disqualified and an adverse sentencing decision is rendered as a result, Petitioner may still raise the issue on appeal from the final judgment.

Petitioner argues that a decision by one justice under KRS 26A.020(1) denies her constitutional right of appeal to the entire Supreme Court. In essence, she argues that the Chief Justice's determination precludes or tends to preclude any different result on appeal. The rationale for this argument is that if the Chief Justice renders an adverse pretrial decision regarding recusal, that decision would have a substantial impact on any subsequent appeal. However, we do not agree with the Petitioner's position. The Chief Justice is in no way bound by his initial decision, and a fresh determination based on the record is made on appeal to the entire Supreme Court.

This Court in Wilson v. Commonwealth, Ky., 836 S.W.2d 872 (1992), ruled on a very similar case. In Wilson, the Appellant also made a motion under KRS 26A.020(1), and the motion was denied by the Chief Justice. On appeal, the Court ruled that Wilson's showing of impartiality was still insufficient. However, there is no evidence that the prior denial of recusal by the Chief Justice precluded the Court in considering the issue on appeal. Petitioner over-reads the Wilson case on which she relies. Furthermore, if the Petitioner is still genuinely concerned about the Chief Justice's impartiality, and can present a basis for that concern or any demonstrable substantial impact on a subsequent appeal, a motion for recusal may be filed for the Chief Justice. Therefore, due to the availability of the KRS 26A.020(1) motion to the Chief Justice and Petitioner's constitutional right of appeal, the extraordinary measure of mandamus must be denied.

Petitioner next claims that 26A.020(1) is unconstitutional as a violation of separation of powers. Section 28 of the Kentucky Constitution provides for separation of powers among the three branches of government. It states that no branch of government "shall exercise any power properly belonging to either of the others...." Section 109 provides that judicial power shall vest in the Supreme Court, and Section 116 empowers the Supreme Court to make all rules of practice and procedure.

The Court agrees with the Petitioner that KRS 26A.020(1) represents an encroachment by the legislature on the power of the judiciary to make rules. Therefore, we hold that KRS 26A.020(1) is unconstitutional. However, despite our holding that KRS 26A.020(1) is unconstitutional, this Court extends comity to the legislature and upholds the statute. "Comity is the judicial adoption of a rule unconstitutionally enacted by the legislature not as a matter of obligation but out of deference and respect." O'Bryan v. Hedgespeth, Ky., 892 S.W.2d 571, 577 (1995).

Perhaps the best explanation of the principle of comity is stated by this Court in Ex Parte Auditor of Public Accounts, Ky., 609 S.W.2d 682 (1980):

The correct principle, as we view it, is that the legislative function cannot be so...