Kennedy v. Staples

• Decision Date: 01 March 2011
• Docket Number: No. 06–10–00119–CV.,06–10–00119–CV.
• Citation: 336 S.W.3d 745
• Parties: Michael KENNEDY, Appellant,v.Janice STAPLES, William House, Mark Calhoon, Pam Fletcher, Bascom Bentley, Deborah Oaks–Evans, Cathy Lusk, and Darcy Starcher, Appellees.
• Court: Texas Court of Appeals

336 S.W.3d 745

Michael KENNEDY, Appellant,

v.Janice STAPLES, William House, Mark Calhoon, Pam Fletcher, Bascom Bentley, Deborah Oaks–Evans, Cathy Lusk, and Darcy Starcher, Appellees.

No. 06–10–00119–CV.

Court of Appeals of Texas, Texarkana.

Submitted: Feb. 11, 2011.Decided: March 1, 2011.

Michael Kennedy, Livingston, pro se.Pam Fletcher, Deborah Oakes Evans, Mark A. Calhoon, William M. House, Janice Staples, Palestine, Gregory W. Abbott, Austin, for appellees.Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

A well known Aesop's fable ¹ tells of a shepherd boy who repeatedly cries “wolf” to amuse himself at the expense of the nearby villagers, who faithfully run to his aid many times and each time find that his alarm is false. In the tale, when the wolf actually does start eating the boy's sheep, the villagers, having grown tired of the boy's game, fail to respond to his one truthful cry.

Michael Kennedy has, for decades, been a prolific ² “writ writer” and a Texas prison inmate.

Kennedy appeals the latest ruling on one of his filings, the dismissal by the District Court of Anderson County of Kennedy's putative civil rights lawsuit complaining of a wide assortment of defendants, including all members of the Texas Court of Criminal Appeals, all four district judges having jurisdiction in Anderson County, a clerk and deputy clerk of a court of appeals, a district clerk, and an attorney.³ This latest effort by Kennedy, to the extent it can be understood, is clearly frivolous, consistent with the ruling of the trial court dismissing it. Kennedy continues to cry “wolf,” yet, he still sets out only frivolous claims. See Tex. Civ. Prac. & Rem.Code Ann. § 14.003 (Vernon 2002) (suit frivolous or malicious and claim's realistic chance of success slight).

Here—without reciting any supporting facts, and in an effort to collaterally attack his latest conviction—in a conclusory, yet imaginative, fashion, Kennedy alleges a vast conspiracy of numerous judges, attorneys, and court personnel.⁴ Among Kennedy's wide-ranging and only sometimes cohesive claims, as best as we can decipher them, are allegations, unsupported with any alleged facts, that the district clerk conspired to injure him by refusing to file an application for writ of habeas corpus and either destroyed or lost documents, that the attorney representing him conspired by denying his right to petition, that the judges all conspired against him because they knew he had committed no crime or offense, that the appellate clerks conspired against him by denying him permission to file a petition for rehearing or his petition for indigent records, that a deputy clerk “intentionally filed false and malice petition with the Texas Court of Criminal Appeals stating that Michael Kennedy filed a(PDR),” that a deputy clerk “used malice facts that William M. House, Jr. is Kennedy Counsel on appeals to deny Kennedy his rights and access to court under deception and trade practice acts and discriminations.” All of these alleged wrongdoings are in connection with a recent conviction and the subsequent appeal. In essence, Kennedy is suing based on an alleged, vast, vague conspiracy against him.⁵ Kennedy's suit is essentially an attempt through a civil lawsuit to collaterally attack his criminal conviction and sentence.

In his prayer, Kennedy asks for injunctive relief (a) to remove or recuse all named judges, (b) to order the clerks to file his application for writ of habeas corpus, and (c) to prohibit the appellate court clerks from stopping Kennedy from filing “writes [sic] or pleadings ... and using [sic] false acts that William M. House is Michael Kennedy counsel.” Notably, Kennedy does get around to asking for damages of $50,000.00, plus punitive damages and costs, from all defendants.⁶

Some issues raised in Kennedy's appellate brief are either unconnected or loosely connected with Kennedy's underlying pleadings. Kennedy argues that the trial court erred by dismissing his petition because all four of the district judges of Anderson County as named in his petition should have recused themselves, as they had been named as defendants in the original complaint. He also puts a measure of blame on the justices of the Twelfth Court of Appeals:

12th court of appeals justices should not have recused themslef [sic] from appeals and when this claims based on trial judges should not have rule or dismiss this suit apply as 12th Court of Appeals justices to recuse themslef [sic] from ruling on complaint or dismissing suit on themslef [sic].

Kennedy contends that, because he named every district judge in Anderson County as a defendant, none of them could rule on his petition. He also contends that the Texas Court of Criminal Appeals, the Twelfth Court of Appeals, the district attorney, attorney William House, Jr., and District Judge Mark Calhoon acted “in racial discrimination” to deny him the right to represent himself by appointing House to “forclose [sic] his innocnce [sic] when no crime committed.”

Kennedy claims that those same courts refused to address his application for habeas corpus or allow his claims to be considered on appeal or to make findings of fact about why he was in prison in a different case. Kennedy contends that the trial court should be required to conduct an evidentiary hearing regarding his allegations that documents were not filed.

Kennedy then raises multiple arguments complaining about the failure to immediately conduct the retrial on sentencing by April 30, 2010, claiming that, because the April 30, 2010, mandate was not obeyed, his rights were denied. He goes on to complain that the clerks at the Twelfth Court of Appeals, that his court-appointed counsel, and that the Texas Court of Criminal Appeals denied his right to file a petition for rehearing or a petition for discretionary review (PDR). Kennedy claims those rights were violated because his PDR was denied.⁷

We affirm the dismissal, because (1) the trial judge, though a named defendant, was not “interested” in Kennedy's action; and (2) Kennedy's action was frivolous.

(1) The Trial Judge, Though a Named Defendant, Was Not “Interested” in Kennedy's Action

This Court has already twice addressed a claim by Kennedy that a trial judge was required to remove herself from a lawsuit Kennedy filed. In our opinion in Kennedy v. Wortham,⁸ 314 S.W.3d 34 (Tex.App.-Texarkana 2010, pet. denied), as well as in the companion memorandum opinion, we concluded, among other things, that—because Kennedy had not sought money damages—the judge that ruled on the cases was not disqualified under the constitutional provision, as he had no direct pecuniary or personal interest in the case.

Here, however, Kennedy's pleading does seek monetary damages from each of the parties, including the trial judge in whose court the pleading was filed. Though Kennedy's claims are facially specious, if, under the controlling caselaw, the trial judge was disqualified and lacked authority to rule on his case, then the dismissal is void, and there is no authority that would allow us to review the case on the merits. We would thus be prohibited from determining the validity of the dismissal.

Disqualification cannot be waived, but can be raised at any time. Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex.1982). As a general rule, a judge who is a party to a suit, even though he or she has not been served with process, may not preside over that case, decide any matters requiring judicial discretion, or approve the minutes of the court. Hawpe v. Smith, 22 Tex. 410 (1858). No judge shall sit in any case wherein he or she may be interested. See Tex. Const. art. V, § 11. Judges shall disqualify themselves in all proceedings in which they have an interest in the subject matter in controversy. See Tex.R. Civ. P. 18b(1)(b). The interest that disqualifies a judge is an interest, however small, which rests on a direct pecuniary or personal interest in the result of the case. Cameron v. Greenhill, 582 S.W.2d 775, 776 (Tex.1979) (per curiam). If a judge is disqualified, the judge is without jurisdiction to hear the case; therefore, any judgment rendered is void and a nullity. Glaser, 632 S.W.2d at 148; Gulf Mar. Warehouse Co. v. Towers, 858 S.W.2d 556, 560 (Tex.App.-Beaumont 1993, writ denied); Lone Star Indus., Inc. v. Ater, 845 S.W.2d 334, 336 (Tex.App.-El Paso 1992, no writ).

The question before this Court is one we have not faced: because Kennedy's petition nominally seeks money damages from the trial judge, does the law necessarily disqualify the trial judge? If so, the law permits Kennedy, and others, to repeatedly and blatantly “shop” for judges and otherwise abuse the legal system, even allowing them to craft a set of circumstances whereby no judge in a county, or ultimately even in the state, could properly hear a case, even a case without any foundation. Our research has found no reported case in this State with this sort of repeated, willful behavior on the part of a civil plaintiff.

Under certain circumstances, a judge may preside over a case despite being named as a defendant. See Cameron, 582 S.W.2d at 776; see also Hidalgo County Water Control & Improvement Dist. No. 1 v. Boysen, 354 S.W.2d 420, 423 (Tex.Civ.App.-San Antonio 1962, writ ref'd). None of these cases, however, involve Kennedy's current tactic, both naming the trial judge as a defendant and seeking money damages against him or her.

The language used by the Texas Supreme Court in Cameron is instructive here. Cameron was an attorney who sued the nine justices of the Supreme Court of Texas, complaining of the court's order setting a special fee assessment against members of the State Bar of Texas. See Cameron, 582 S.W.2d at 776. Upon reaching the Texas Supreme Court, the attorney argued that the justices were disqualified, or should recuse themselves, because they were all named as defendants in the suit. Id. at...