Lee v. George, Ky S. Ct., Denial of a Writ of Prohibition; Bonds

Lee v. George

2011-SC-000265-MR

Published:   Affirming  

County:  Jefferson

Father appealed Court of Appeals’
denial of petition for writ of mandamus or prohibition, in which he asked that
the judge be required to disqualify himself from case due to his bias against
Father and that the Guardian Ad Litem and opposing counsel be disqualified
because they engaged in fraud and conspiracy against him.

FACTS:

Father and Mother divorced in
2009.  They have 3 minor sons.  Judge Stephen George presided over highly
contentious divorce proceedings, including a trial on child-related issues and
a separate trial on financial issues.  At
the time Father filed his writ Petition, Mother had full custody of sons with
Father having unsupervised parenting time with them on a regular weekly
schedule and various holidays.  Judge
George attributed the contentiousness of the proceedings to Father.  Father represented himself through much of
the litigation.  He filed numerous
motions with FC, many of which were deemed to be baseless.  Correspondingly, Mother filed motions for CR
11 sanctions against Father, but Judge George was hesitant in doing so because
Father was unrepresented.  However, on
Mother’s Motion, Judge George entered an Order requiring Father to post $7,500
bond prior to any future motions being called. 
At that time, Father had filed 36 motions, only 5 of which FC found to
grounded in law or fact.  Father had also
commented to FC and others indicating his intent to continue this pattern.   In response to the Order requiring a bond,
Father filed the writ that is the subject of this appeal, in which he asked CA
to order Judge George to disqualify himself due to bias and to disqualify
Mother’s counsel and GAL alleging they had engaged in fraud and
conspiracy.  In his writ petition, Father
posited that the $7,500 bond was an example of Judge George’s bias, but also
that the bond violated his due process rights and his right of access to the
courts.  CA construed this as an
additional basis for Appellant’s request for extraordinary relief.  CA denied the petition, finding that the
bias, fraud and conspiracy issues are properly the subject of a direct appeal,
and that the $7,500 was reasonably limited in scope so as not to deprive Father
of meaningful access to the court. 

ANALYSIS:

Extraordinary writs may be granted in
two classes of cases:  1. where the lower
court is proceeding or about to proceed outside of its jurisdiction and there
is no remedy through application to an intermediate court, and 2. where the
lower court is acting or about to act erroneously, and there is no adequate
remedy by appeal—this class requires a showing that “great injustice and
irreparable injury will result if the petition is not granted.”  However, there is a “subclass” of special
cases where the showing of great injustice and irreparable injury is not
required; instead, it must be shown that a “substantial miscarriage of justice”
will occur if the lower court proceeds erroneously, and correction of the error
is necessary “in the interest of orderly judicial administration,” but no
adequate remedy on appeal must still be shown. 
Nevertheless, even after meeting these tests, the requested relief need
not be granted—that is within the sound discretion of the appellate court.

Father claims his writ fell into both
classes and the subclass.   

First class of writs:

Father claimed that Judge George acted
outside of his jurisdiction because he was a “biased individual” and not a
truly neutral judge.  SC restated this
argument as a claim that FC was acting contrary to law and therefore outside
its jurisdiction.  SC held that
“jurisdiction” in this class of writs refers not to legal error, but to subject-matter
jurisdiction, which goes to the court’s authority to even hear cases.  SC held that FC had jurisdiction to hear
divorce cases and to issue orders related thereto.

Second class of writs:

On the bias, conspiracy and fraud
issues, Father claimed that he had no adequate remedy on appeal and that he
would suffer irreparable injury due to the amount of time it takes for
resolution on appeal and the deleterious effect this would have on the
relationship with his children, as he believed that his parenting time is too
limited.  SC noted its previous holdings
that the delay and expense of appeals does not constitute irreparable injury or
render remedy by appeal inadequate, and that his claimed injuries are not the
kind that justify an extraordinary writ.

On the $7,500 bond issue, Father
claimed that the bond was unfair and inappropriate, focusing on Judge George’s
alleged bias against him.  He also made a
bare argument that that bond violated his due process rights, right of access
to the courts, and Eighth Amendment rights. 
However, he did not expressly ask for a writ to set aside the bond.  CA construed this discussion as a request for
relief separate from his request to disqualify Judge George, the GAL, and
Mother’s counsel, and CA addressed the issue on the merits.  CA found that the bond was reasonably limited
in scope.  SC refused to address the
issue on the merits because Father failed to request the relief in the “Request
for Relief” section or any supplemental documents to CA. 

Affirmed.

Digested by Michelle Eisenmenger
Mapes
, Diana L. Skaggs + Associates