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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 Deskins or Hatfield because they are not judicial officers, that Judge Thompson had properly

Page 501

recused, and that the orders issued by Judge Paxton were valid.

For the reasons explained below we affirm the Court of Appeals.

II. APPELLANT IS NOT ENTITLED TO A WRIT OF MANDAMUS TO COMPEL THE CIRCUIT CLERK TO REMOVE AN ORDER FROM THE COURT RECORD

As we interpret her petitions, Appellant sought a writ to compel the Pike Circuit Clerk, David Deskins, to remove the orders issued by Judge Paxton in September of 2002. Deskins argues that the writ-issuing authority of the Court of Appeals extends only to writs against judicial officers, and that as the circuit court clerk of Pike County, he is not a judicial officer. In support of his argument, he cites Sandusky v. Alsmiller, 291 Ky. 666, 165 S.W.2d 342 (Ky. 1942), holding that Section 110 of the Kentucky Constitution does not permit an appellate court to issue a writ of mandamus against a circuit clerk.[2]

It may appear at first glance that Sandusky and similar cases would be dispositive of the issue. The issue, however, is not that simple because Sandusky and the other cases relied upon by Deskins were all decided under Section 110 of the Kentucky Constitution as it existed before the reformation of Kentucky's judicial system by the adoption of the Judicial Article, § § 109-124, that became effective in 1976.

Section 110 of the 1891 Kentucky Constitution, which was in effect until 1976, provided as follows: " The Court of Appeals shall have appellate jurisdiction only[.]... Said court shall have power to issue such writs as may be necessary to give it a general control of inferior courts." In numerous cases prior to 1976, our predecessor court consistently held that " [w]rits of prohibition issue from this court pursuant to the power granted by section 110 of the State Constitution to control the action of inferior courts but will not issue except against an inferior court." Commonwealth ex rel. Breckinridge v. Wise, 351 S.W.2d 491, 492 (Ky. 1961) (" Writs of prohibition issue from this court pursuant to the power granted by section 110 of the State Constitution to control the action of inferior courts but will not issue except against an inferior court." (quoting Brents v. Burnett, 295 Ky. 337, 174 S.W.2d 521, 522 (1943)).

The analogous provisions of our post-1976 Constitution, § § 110(2)(a)[3] and 111(2),[4] provide different articulations of our appellate courts' power to entertain original actions for writs of mandamus or prohibition. It is not immediately obvious to us that the limitation provided by the Constitution prior to 1976 is the same limitation imposed, post-1976, in Section 111(2).

Page 502

Arguably, what a Court must do in " aid of its appellate jurisdiction" or " the complete determination of any cause within its appellate jurisdiction" is somewhat broader than what is necessary to " give it a general control of inferior courts." In any event, the constitutional provision forming the foundation for the traditional rule relied upon by Deskins and the Court of Appeals to exempt the circuit clerk from the Court of Appeals' writ power is gone. We have not explicitly re-evaluated the traditional rule expressed in Sandusky, Breckinridge and similar cases in light of the revision of the constitutional language underlying the rule.[5]

In Francis v. Taylor, 593 S.W.2d 514 (Ky. 1980), this Court addressed the question of whether, in the aftermath of the 1976 amendments, the Court of Appeals had any authority at all to entertain a petition for an original action for the issuance of a writ of mandamus. We concluded that the Court of Appeals had that authority, but we did not address the question of whether, like the pre-1976 version of Section 110, the writ-issuing authority granted to the Court of Appeals in Section 111(2) applies only to the control of judicial tribunals and does not extend to non-judicial officers. As explained below, we decline to address that matter now.[6]

Prudence teaches that " constitutional adjudication should be avoided unless strictly necessary for a decision in the case." Spees v. Kentucky Legal Aid, 274 S.W.3d 447, 449 (Ky. 2009). Therefore, while we decline to affirm the rationale cited by the Court of Appeals for denying the Appellant's petition for a writ against Deskins, we nevertheless affirm the Court of Appeals on other grounds.

Mandamus is an extraordinaiy remedy which compels the performance of a ministerial act or mandatory duty where there is a clear legal right or no adequate remedy at law. County of Harlan v. Appalachian Regí Healthcare, Inc., 85 S.W.3d 607, 613 (Ky. 2002). It should be cautiously employed. It is not a common

Page 503

means of redress and is certainly not a substitute for appeal. Aside from the question of whether the Court of Appeals has the authority to issue a writ of mandamus against Deskins, the circumstances present here do not warrant the imposition of that extraordinary remedy.

Appellant is unable to satisfy the requirements for obtaining a writ against Circuit Clerk Deskins. First, it is not the duty of the circuit clerk to determine what orders to enter or not to enter in the court record. CR 58(1) requires that after an order is signed by the judge " [t]he clerk, forthwith upon receipt of the signed judgment or order, shall note it in the civil docket as provided by CR 79.01. The notation shall constitute the entry of the judgment or order, which shall become effective at the time of such notation." Deskins' filing of the order was not a violation of his duty. Moreover, Appellant's remedy for negating the entry of an invalid order signed, ostensibly by the judge, is to appeal. Appellant had the remedy of appeal, and she declined to do so. She is not, therefore, entitled to a writ of mandamus to compel the remedy she could have received on appeal. The denial of the writ against Deskins was not error.

III. THE PETITION FOR WRIT OF MANDAMUS AGAINST JUDGE THOMPSON AND COMMISSIONER HATFIELD WAS PROPERLY DENIED

Appellant also sought mandamus relief against Judge Thompson upon the basis that his recusal in her EPO case was not valid, and against Trial Commissioner Hatfield because, according to Appellant, he was not authorized to issue EPO orders. We are unable to identify any relief available to Appellant by means of the writ of mandamus process in connection with these two domestic violence proceedings.[7]

A writ may be issued if:

(1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise, and great injustice and irreparable injury will result if the petition is not granted.

Mahoney v. McDonald-Burkman, 320 S.W.3d 75, 77 (Ky. 2010) (citation omitted).

Thus, fundamental to obtaining writ relief is that the lower court " is proceeding or is about to proceed outside of its jurisdiction... or (2) that the lower court is acting or is about to act erroneously[.]" Id. (emphasis added). The events surrounding the domestic violence proceedings occurred over a decade ago, and have no relevance to the present time insofar as we are able to determine. Neither Judge Thompson, nor any other lower court, " is" or " is about to" do anything in relation to these antiquated domestic violence filings. As such, this fundamental prerequisite for writ relief is not present in this case. Hamblen ex rel. Byars v. Kentucky Cabinet for Health and Family Services, 322 S.W.3d 511, 518 (Ky. App. 2010) (citing 52 Am.Jur.2d Mandamus § 451 (2000))

Page 504

(" The writ of mandamus is quintessentially injunctive in nature and only operates prospectively." ).[8] Further, to the extent that Trial Commissioner Hatfield could be construed as having acted in a judicial capacity in issuing the EPOs in this case, he too, is not proceeding or about to proceed in any manner with regard to Appellant.

In summary, we are unable to identify any viable mandamus claim against Judge Thompson or Trial Commissioner Hatfield -- they are not about to act or proceed in relation to the 2002 domestic violence filings -- and thus affirm the Court of Appeals' denial of Appellant's request for mandamus relief against them.

IV. ALLEGATION CONCERNING THE COURT OF APPEALS

In her brief Appellant alleges various instances of procedural misconduct by the Court of Appeals in processing her original action under CR 81, including the method by which the cases were assigned out to a Court of Appeals motion panel, its consideration of both of her writ petitions together by the same motion panel, and staff's participation in the process. Because of our disposition of the case, however, we need not address these claims upon the merits.

V. CONCLUSION

For the foregoing reasons, the decision of the Court of Appeals is affirmed.

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.

CONCUR

HARNED, S.J., CONCURRING OPINION:

I concur with the result reached by the majority, however, I believe this case can be decided on narrower ground.

The source of the Petitions for Writ of Mandamus filed by Appellant in Pike Circuit Court, Court of Appeals and now this Court arise from the divorce of Appellant and Real Party In Interest Jonah Lee Stevens. The proceedings in 2001 and 2002 were described by Appellant as acrimonious. Appellant has not directed us to any evidence to support her Petitions other than events which allegedly occurred in the divorce proceedings. Those proceedings apparently ended by an Order of the Pike Circuit Court entered on September 23, 2002 dismissing Cross-Petitions by Appellant and Jonah Stevens and approving an existing custody and visitation arrangement.

If the actions of the Pike County Officials were as egregious as alleged by Appellant, she could have filed a Motion for Writ during the pendency of the divorce proceedings. She did not. If Appellant felt aggrieved by the Final Decree of Divorce entered in October 2001 and from

Page 505

the Order dismissing the Cross-Petitions for domestic violence orders and affirming a custody and visitation arrangement, she could have appealed. Appellant did not avail herself of the opportunity to seek redress of perceived grievances. Finality of judgments is an important part of our jurisprudence. If Appellant's grievances with Pike County Officials were not sufficient to pursue with the remedies available to her at the time of her divorce proceedings, certainly they are not sufficient to address at this late moment. Her claims are time barred. I agree with Footnote 7 of the Majority Opinion and would decide this case on that basis.

I would affirm the decision of the Court of Appeals for the foregoing reasons.


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