Transfer of circuit cases between divisions and use of extraordinary writs: COX V. JUDGE BRADEN (SC 10/23/2008)

DATE RENDERED: 10/23/2008

The Court of Appeals denied a petition for a writ of mandamus directing the trial judge to set aside an order transferring a case between the two divisions of the Whitley Circuit Court and to assign cases in a random manner.  Because Appellants have failed to demonstrate entitlement to the extraordinary writ, the Court of Appeals is affirmed .  Rather than proceeding with the case, Appellants filed a petition for a writ of mandamus directing the trial court to set aside the transfer order, to reassign the transferred cases to Division I, and to insure that all cases filed in the 34th Judicial Circuit be assigned on a random basis in accordance with SCR 1 .040. The Court of Appeals denied the petition, holding that Appellants had not satisfied the requirements for entitlement to an extraordinary writ.

In so holding, the COA noted that Appellants had "provided no authority supporting the contention that SCR 1 .040(4)(c) required [Judge Braden] to reassign J. Winchester to the case, when it has been shown that he no longer sits as a regular member of the Whitley circuit bench ." The court also noted that even if it was persuaded of the merits of Appellants' argument, the requested relief would have been impossible because Judge Braden had disqualified himself from the underlying case.

The SC noted that the specter of injustice always hovers over writ proceedings, which explains why courts of this Commonwealth are–and should be-loath to grant the extraordinary writs unless absolutely necessary. 
To maximize caution and to reduce the resources wasted on writ proceedings, the majority of which are unsuccessful,
the Supreme Court has articulated a strict standard to determine whether the remedy of a writ is available. The standard delineates two distinct classes of writs, both of which Appellant claims are
applicable -  A writ of prohibition may be granted upon a showing that (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 . Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).

A writ is never mandatory, even upon satisfaction of one of the tests laid out in Hoskins.

This Court recognizes that attorneys are charged with representing their clients zealously, but it is also clear that the message in Hoskins about the extraordinary nature of writs is not getting through. So again : Remedy by way of extraordinary writ is disfavored, applications for such relief are discouraged, and the test articulated in Hoskins will be used to effectuate these preferences and to limit such writs to truly extraordinary cases.

The first problem with this claim is that in addition to requiring random assignment of cases and keeping them with the original judge whenever possible, SCR 1 .040 also provides that the "chief judge shall . . . [r]eassign cases from one judge to another as necessary or convenient . . . ." SCR 1 .040(3)(d) .

This is further supported by the General Assembly's grant of power under KRS 26A.040, which reads, "(1) Proceedings in any court having divisions shall be valid when prosecuted in any division thereof. (2) Any judge presiding over a division of a court mentioned in subsection (1) may hear and determine any case or question in any other division ."

Thus the claim herein for extraordinary relief ignores that "[t]he court is an entity, not a person, and when one judge is replaced by another, whether the reason be death, disability, election or otherwise, the new judge is empowered to carry on the business of the court to the same extent as his predecessor, had he remained on the bench ." Herring v. Moore, 561 S .W.2d 95, 98 (Ky. App. 1977).

With both of the regular Whitley Circuit Judges recused, the Chief Regional Judge had discretion to appoint any appropriate judge, but the case nevertheless remained a Whitley Circuit Court case.

Senior Judge Winchester then had no claim to the case, since senior judge assignments are made by the Chief Justice of the Supreme Court pursuant to KRS 21 .580.

Proper procedure was followed in this case, and the Appellants had no entitlement by rule or otherwise to have Judge Winchester reappointed to the case .

The underlying case has now been assigned to a special judge ; there is no reason to think he will not hear the case fairly and in due course .

The decision of the Court of Appeals to deny the petition for a writ of mandamus is affirmed.

Digested by Michael Stevens

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