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Mischler v. Thompson

Supreme Court of Kentucky

February 20, 2014

AMY JERRINE MISCHLER, APPELLANT
v.
HON. LARRY THOMPSON, PIKE COUNTY FAMILY COURT JUDGE; DAVID DESKINS, PIKE COUNTY CIRCUIT COURT CLERK; AND FRED HATFIELD, PIKE COUNTY TRIAL COMMISSIONER, APPELLEES AND JONAH LEE STEVENS, REAL PARTY IN INTEREST

ON APPEAL FROM COURT OF APPEALS. NO. 2011-CA-001586-OA. PIKE CIRCUIT COURT NOS. 02-D-00202 AND 02-D-00202-002.

COUNSEL FOR APPELLANT: Amy Jerrine Mischler, Pro se.

COUNSEL FOR HON. LARRY THOMPSON, PIKE COUNTY FAMILY COURT JUDGE AND DAVID DESKINS, PIKE COUNTY CIRCUIT COURT CLERK: Nicole Hou Wen Pang.

COUNSEL FOR FRED HATFIELD, PIKE COUNTY TRIAL COMMISSIONER: Fred Hatfield, Pro se.

COUNSEL FOR JONAH LEE STEVENS, REAL PARTY IN INTEREST: Niles Brian Cumbo.

Abramson, Cunningham, Noble, Keller, and Venters, JJ. and Paul W. Blair, S.J., concur. Norman E. Harned, S.J., concurs by separate opinion. Minton, C.J. and Scott, J., not sitting.

OPINION

Page 499

Appellant, Amy Mischler, appeals from an order of the Court of Appeals denying her motions for writs of mandamus by which she sought to challenge actions in the Pike Circuit Court relating to the filing and dismissal of two domestic violence petitions. Appellees, Pike Circuit Judge

Page 500

Larry Thompson; former Pike Circuit Court Clerk David Deskins; former Pike County Trial Commissioner Fred Hatfield; and Real Party in Interest Jonah Lee Stevens contend that under the circumstances and procedural posture of this case, the Court of Appeals correctly concluded that a writ of mandamus is not a viable remedy under which Appellant may obtain relief. We agree, and therefore affirm the decision of the Court of Appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant is the former wife of Real Party in Interest Jonah Lee Stevens. The final decree ending their marriage was entered in October 2001. Nearly twelve years ago, in July 2002, Appellant and Stevens filed competing domestic violence petitions in Pike County. As a result, emergency protective orders (EPOs) were entered against each. Because the two cases were so closely related, they were consolidated for procedural convenience and judicial economy.

Shortly after the entiy of the orders, Judge Thompson recused from both cases and Judge Julie Paxton from Floyd County was appointed as Special Judge to preside over the cases. It appears that neither Stevens nor Appellant contemporaneously objected to either Judge Thompson's recusal or to Judge Paxton's appointment as Special Judge. In September 2002, Judge Paxton entered orders dismissing both of the domestic violence orders. No appeals were taken from the dismissal orders, and so after thirty days they became final. See CR 73.02(1)(a) (" The notice of appeal shall be filed within 30 days after the date of notation of service of the judgment or order under Rule 77.04." ).

On August 5, 2011, Appellant petitioned the Court of Appeals for a writ of mandamus against Deskins in which she claimed that he should not have entered the EPO dismissal orders into the record because, in her view, they were void ab initio. As relief Appellant presumably sought to have Deskins remove those orders from the record, though she does not explicitly state this. A few weeks later, she filed another petition for a writ of mandamus against Deskins, Hatfield, and Judge Thompson likewise seeking, apparently, to challenge the 2002 EPO proceedings.[1]

As presented in her petitions, Appellant's primary claim was that Judge Thompson's recusal from the EPO cases was not done properly and, therefore, he was never removed from the case. Consequently, Appellant claims that Judge Paxton's appointment to the case as Special Judge was invalid and so Judge Paxton lacked the authority to preside over the matter and the orders she entered were void ab initio. Appellant's primary complaint against Deskins was that he entered Judge Paxton's improper dismissal orders into the record. Her primary complaint against Trial Commissioner Hatfield was that he was not properly qualified and had impermissibly issued the initial EPOs.

The Court of Appeals dismissed the petition for a writ of mandamus against Deskins on the basis that a mandamus action may not be brought against a circuit court clerk because he is a non-judicial officer. The Court of Appeals denied Appellant's other petition for a writ of mandamus on the grounds that it had no authority to issue a writ of mandamus against ...


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