Gabbard v. Rose

• Decision Date: 20 April 1966
• Docket Number: No. 16368.,16368.
• Citation: 359 F.2d 182
• Parties: Julian R. GABBARD, Plaintiff-Appellant, v. Edgar ROSE, Individually and as County Judge, Clark County, Kentucky, Rodney Thompson, Individually and as County Attorney, Clark County, Kentucky, Gene Morgan, Individually and as a Kentucky State Police Officer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

359 F.2d 182 (1966)

Julian R. GABBARD, Plaintiff-Appellant, v. Edgar ROSE, Individually and as County Judge, Clark County, Kentucky, Rodney Thompson, Individually and as County Attorney, Clark County, Kentucky, Gene Morgan, Individually and as a Kentucky State Police Officer, Defendants-Appellees.

No. 16368.

United States Court of Appeals Sixth Circuit.

April 20, 1966.

James L. Cobb, Jr., Covington, Ky., for appellant.

James M. Graves, Louisville, Ky., L. T. Grant, Lexington, Ky., William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, Ky., J. Smith Hays, Jr., William Hays, Winchester, Ky., on brief, for appellees.

Before PHILLIPS and CELEBREZZE, Circuit Judges, and McALLISTER, Senior Circuit Judge.

PER CURIAM.

Julian R. Gabbard, Plaintiff-Appellant, instituted this action in the United States District Court for the Eastern Division of Kentucky, alleging that he had been deprived of his constitutional rights secured by the Fourteenth Amendment to the United States Constitution, and sought relief under the Civil Rights Act of 1871, 42 U.S.C., Section 1983. Section 1983 provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit and equity, or other proper proceeding for redress."

The Defendants-Appellees are Edgar Rose, the County Judge of Clark County, Kentucky, Rodney Thompson, County Attorney, Clark County, Kentucky, and Gene Morgan, Kentucky State Police Officer.

The District Court granted summary judgment to Defendants-Appellees Rose and Thompson on the principle of judicial immunity¹ and directed a verdict in favor of Defendant-Appellee Morgan at the conclusion of Plaintiff's evidence. The matter is before this Court on appeal.

The essential facts are: Plaintiff-Appellant, Julian R. Gabbard, an attorney-at-law, practicing in the State of Kentucky, on the 9th day of January, 1963, was arrested by Defendant-Appellee, Gene Morgan, a Kentucky State Policeman, on a charge of speeding on an interstate highway in Clark County, Kentucky. Plaintiff-Appellant was ordered by Appellee Morgan to follow him to Winchester, Clark County, Kentucky, for the purpose of posting bond.

Appellee, Edgar Rose, is the County Judge who had jurisdiction of speeding offenses. Appellee Rose had issued instructions that all out of county speed violators would be required to post a cash bond of $27.50. When Appellant Gabbard was taken to the jail he telephoned Appellee, Rodney Thompson, the County Attorney, a law school classmate of the Appellant, and Appellee Thompson instructed the officer to release the Appellant without bond. Whereupon, Appellee Morgan issued a citation charging Appellant with violation of Kentucky Revised Statute, Section 189.390.

On January 15, 1963, the Appellant instituted suit in the Carter Circuit Court and the Circuit Court Judge issued a temporary writ of prohibition, prohibiting the Appellee, Judge Edgar Rose, from trying the Appellant on the charge growing out of the citation issued by Appellee Morgan. Thereafter, the Circuit Court Judge who had issued the writ of prohibition advised the parties involved by letter that he was dissolving it, but no order to that effect had been entered at the time of the trial of this cause.

On February 15, 1963, the Appellant was tried in the courtroom of Appellee Rose, by a jury duly impaneled, and the jury found Appellant not guilty. On May 23, 1963, Appellant filed his complaint in the United States District Court, Eastern District of Kentucky, at Lexington, Kentucky, seeking relief under the Civil Rights Act of 1871 (17 Stat. 13, 42 U.S.C., Section 1983).

Appellant contends that the County Judge, Appellee Rose, had no jurisdiction to try him, and therefore the rule of judicial immunity is not applicable. Appellant maintains that Kentucky Revised Statute, Section 189.390 did not apply to limited access highways. Kentucky Revised Statute, Section 189.395, which applied to limited access highways, did not provide for a penalty. Appellant argues that since he did not violate Section 189.390, and since Section 189.395 did not provide a penalty, he did not commit a crime. Appellant further maintains that the Judge was without jurisdiction to try him because the writ of prohibition in the State Circuit Court remained technically in effect at the time of the trial. We cannot agree with Appellant that the rule of judicial immunity is not applicable.

Appellant was charged with violating Kentucky Revised Statute, Section 189.390 which sets the speed limit as sixty miles per hour during daylight hours. The penalty for violation of Section 189.390 is prescribed in Kentucky Revised Statute, Section 189.990 as a fine of not less than $10.00 or more than $100.00. Kentucky Revised...