Ky. S. Ct Published Opinion - writ of prohibition denied to prevent enforcement of order unsealing divorce records

DANIEL E. BAILEY, JR. (M.D.) V. HON. ALLAN RAY BERTRAM, JUDGE, MARION CIRCUIT COURT, DIVISION II, ET AL.

Parties filing a medical negligence claim against a physician moved to intervene in the doctor’s divorce case solely to unseal portions of the sealed divorce records. The intervening parties claimed the divorce may have impacted the doctor’s treatment of the patients in the malpractice action. The Trial Court granted the motion to intervene and ordered the divorce records to be unsealed. The doctor filed a writ of prohibition against the enforcement of the Trial Court’s Order. The Court of Appeals concluded the writ of prohibition was appropriate in that there was no adequate remedy by appeal, but denied the writ because the trial court did not act erroneously by unsealing the divorce records, as judicial records are presumptively available to the public.

The Supreme Court first addresses the permissive intervention of the doctor’s patients holding they had no right to intervene in the doctor’s divorce action. The intervening parties had no interest, claim, or defense in common with the divorce action. They were simply attempting to intervene to obtain discovery to benefit their malpractice case. While the press may have a right to intervene in a sealed civil case under the First Amendment, the media has special standing because of freedom of the press. In this case, the intervening parties have the right to engage in discovery under the Civil Rules, but no right to intervene in an unrelated case as a method of discovery.

The Supreme Court turns to address whether the writ of prohibition was an appropriate remedy to provide the doctor relief from the Trial Court’s order. The Supreme Court holds there is an adequate remedy by appeal, so a writ of prohibition is not available as a remedy. The Trial Court order was a final and appeal order not to take effect for 21 days after its entry. Further, the order provided it would be stayed if appealed and CR 76.33 allows a party to request a stay of a Trial Court order.

Thus, the Supreme Court affirms the Appellate Court’s denial of the writ of prohibition, but because there was an adequate remedy available by appeal.

Digested by Elizabeth M. Howell