Writ re judicial recusal: APPALACHIAN REGIONAL HEALTHCARE, INC.  V. HON. EDDY (SC 11/21/2007)

DATE RENDERED: 11/21/2007

The Supreme Court of Kentucky reverses the Court of Appeals’ denial of a petition for writ of prohibition in this recusal case.

The underlying case involves medical negligence and fraud. It was eventually assigned to Judge Eddy Coleman of Pike Circuit Court. Judge Coleman set the case for a hearing to be held on December 15, 2006, on a motion to dismiss or change venue. On the day of the hearing two attorneys filed notice of appearance for appellant with a motion to recuse the judge because one of the attorneys was his brother-in-law. Ms. Baker’s attorney received copies of the motions just a few minutes before the hearing. At the hearing, the judge orally granted the recusal motion, noting that he had not yet made any decisions in the case. His recusal decision is reflected by a handwritten order on his docket sheet, which was entered by the circuit cleark on December 21, 2006. On December 19, 2006, Ms. Baker’s attorney filed a motion asking the judge to reconsider his verbal ruling and requesting an opportunity to respond to the recusal motion in writing since he had had little notice of it. On December 22, 2006, Ms. Baker’s attorney also filed a motion to disqualify the judge’s brother-in-law as counsel for Appellant. In an order dated January 5, 2007, Judge Coleman set both motions for a hearing on February 2, 2007. Several days later, Appellant filed the underlying writ petition with the Court of Appeals seeking to bar Judge Coleman from any further participation in the case on the ground that he no longer had any jurisdiction over the matter. The CA denied the motion.

The S.Ct. holds that, in Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004), the court tried to "reset" the law of writs to a more stringent standard applied in older cases from which it had departed in the preceding two decades. This standard requires petitioners to satisfy one of two following tests to determine whether the remedy of a writ is even available: 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) 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. The Court of Appeals relied upon the wrong standard in denying the writ. That standard erroneously presumed that the existence of an adequate remedy by appeal precluded the issuance of a writ; in actuality this is merely a factor for the court to consider in exercising its discretion in "no-jurisdiction" writ cases. The "no remedy through an application to an intermediate court" requirement simply means that a writ petition must be first addressed to the next higher court.

Upon analysis, Judge Coleman was properly disqualified and recused, despite Ms. Baker’s substantive arguments of improper notice and disqualification of the conflicted attorney, and Judge Coleman’s reentry into the case would be proper only upon a showing of affirmative evidence that the conflict no longer exists and that no special judge has been appointed. CA is reversed.

John Hamlet
Sitlinger, McGlincy, Theiler & Karem

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