Francis v. Taylor, 11

• Decision Date: 15 January 1980
• Docket Number: No. 11,A,11
• Citation: 593 S.W.2d 514
• Parties: Hon. J. David FRANCIS, Chief Judge, Warren Circuit Court, Divisionppellant, v. Patricia Gaynell TAYLOR, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 514

593 S.W.2d 514

Hon. J. David FRANCIS, Chief Judge, Warren Circuit Court, Division No. 11, Appellant, v. Patricia Gaynell TAYLOR, Appellee.

Supreme Court of Kentucky.

Jan. 15, 1980.

David W. Anderson, John David Cole, Cole, Harned & Broderick, Bowling Green, for appellant.

Mark D. Esterle, Lee Huddleston, Cumberland Trace Legal Services, Bowling Green, for appellee.

STEPHENS, Justice.

This is an appeal by the Honorable J. David Francis, Chief Judge, Warren Circuit Court, from an order of the Court of Appeals, dated October 26, 1979, in which a writ of mandamus was issued directing him as judge to allow the appellee, Patricia Taylor, to proceed with trial in a dissolution-of-marriage action without paying a fee to the warning order attorney.

The critical question we must decide is whether the Kentucky Court of Appeals has jurisdiction to entertain a petition for a writ of mandamus, an original action, in view of the provisions of Kentucky Constitution, Sec. 110(2)(a). ¹

The facts are simple and undisputed: Judge Francis granted Taylor's motion to prosecute a dissolution-of-marriage action in forma pauperis. However, his order provided that until the warning order attorney fee of $40.00 had been paid, the order would be "ineffective and invalid." Following the entry of the order, Taylor filed a petition for a writ of mandamus in the Court of Appeals, pursuant to CR 31 and CR 76.36.

Appellant argues that the granting of a mandamus is a supervisory action and is beyond the jurisdiction of the Court of Appeals. He also challenges the merits on which the writ was granted. ²

The basic jurisdiction of this Court is established by the Kentucky Constitution, Sec. 110(2)(a), as follows:

"The Supreme Court shall have appellate jurisdiction only, except it shall have the power to issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause, or as may be required to exercise control of the Court of Justice."

Section 111(2) sets out the jurisdiction of the Court of Appeals:

"The Court of Appeals shall have appellate jurisdiction only, except that it may be authorized by rules of the Supreme Court to review directly decisions of administrative agencies of the commonwealth, and it may issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause within its appellate jurisdiction. In all other cases, it shall exercise appellate jurisdiction as provided by law."

It is clear that the Kentucky Constitution intends both the Supreme Court and the Court of Appeals to have only appellate jurisdiction. However, certain exceptions to this limitation are provided. In the case of the Supreme Court And the Court of Appeals, two of the exceptions are identical. Each court (in addition to appellate jurisdiction) has the power "to issue all writs necessary in aid of its appellate jurisdiction, . . ." and to issue all writs necessary to aid "the complete determination of any cause . . . ." Ky.Const. Secs. 110(2)(a) and 111(2), Supra. In addition, the Supreme Court has the power to issue all writs "as may be required to exercise control of the Court of Justice." Ky.Const. Sec. 110(2)(a), Supra.

In the simplest of terms, both courts have only appellate jurisdiction, but have the power, through the issuance of writs, to implement that jurisdiction. The Supreme Court, in addition, has the control (or supervision) of the entire Court of Justice.

Appellant argues that the granting of a writ of mandamus is supervisory in nature and thus falls within the aegis of the exclusive authority of the Supreme Court as provided in Sec. 110(2)(a) of the Kentucky Constitution. We do not agree.

Appellant, in support of his position, cites the case of Payne v. Ky. Railroad Commission, Ky., 287 S.W. 560 (1926). In that case, the petitioner sought a mandamus in the Court of Appeals to require the Railroad Commission To act in a rate hearing pending before it. The court declined, holding that the commission was an administrative agency and was not an "inferior jurisdiction" referred to in then section 110 of the Kentucky Constitution. The Payne case makes no distinction between supervisory and revisory actions of the appellate court. In fact, when Payne was decided, All writs supervisory or revisory were issued by the Court of Appeals under the authority of then Section 110. That case is not authority to support the proposition that a writ of mandamus can only be used for supervisory actions.

This court has never directly addressed the jurisdiction question. However, in the case of Martin v. Fuqua, Ky., 539 S.W.2d 314 (1976), a divorce action was filed in the Todd Circuit Court by a wife. The husband, Martin, sought a writ of prohibition in this court against the Todd Circuit Judge, William Fuqua, alleging that the wife did not reside in Todd County as required by KRS 452.470, the venue statute. This court entertained the action, saying: "We assume jurisdiction of the proceeding pursuant to Const., Sec. 110(2)(a) and (b) Only because the Court of Appeals is not yet organized and ready to function." Id.,...