Opinion
NO. 2016-CA-000167-ME
03-24-2017
JOHN DAVID LEE APPELLANT v. ANGELA JEAN KING APPELLEE
BRIEF FOR APPELLANT: John D. Lee, Pro Se Louisville, Kentucky NO BRIEF FILED FOR APPELLEE.
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE PAULA SHERLOCK, JUDGE
ACTION NO. 15-D-502354-003 OPINION
VACATING AND REMANDING
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BEFORE: CLAYTON, DIXON, AND THOMPSON, JUDGES. CLAYTON, JUDGE: John David Lee appeals, pro se, a domestic violence order entered on January 19, 2016. He claims the trial court judge lacked jurisdiction to enter the order because she had previously recused herself from the case. Lee further claims his due process rights were violated when the trial court denied his motion for a continuance so his attorney could be present at the January 19, 2016 Emergency Protective Order ("EPO") proceeding. Finally, Lee claims the trial court made previous statements in the case that should disqualify her from presiding over any case involving Lee. No responsive brief was filed by Angela King. Having thoroughly reviewed the record and Lee's claims, we vacate the domestic violence order because the trial court judge lacked jurisdiction to rule on the case.
Based on the allegations in the record, Lee and King were in an on-again-and-off-again relationship between 2014 and 2016. During those years, King sought three protective orders against Lee. King first filed a Domestic Violence Petition/Motion ("EPO/DVO Petition") on September 17, 2015, which was denied the same day due to a lack of relationship. On October 1, 2015, King filed a second EPO/DVO Petition, this time asserting that the parties had lived together at some point. An EPO was issued on the same day.
A hearing was then held on October 13, 2015. Lee moved the Hon. Judge Paula Sherlock to recuse from the case. That motion was granted, and the judge entered a docket notation stating she was recusing for three reasons. First, she had prior knowledge of Lee's divorce case. Second, she had "recus[ed] from that case." Third, Lee "is a subject of controversy in his role as a baseball coach in a custody + visitation case between other parties pending in this division." The docket notation directed the court administrator's office to reassign the matter.
Two weeks later, and before the case was reassigned, King moved to dismiss the case against Lee. The parties orally agreed to set aside the October 13, 2015 recusal so Judge Sherlock could hear the case. Judge Sherlock then dismissed the EPO.
King then filed a third EPO/DVO Petition on January 11, 2016. An EPO was issued the same day, and a summons was issued for Lee to attend a hearing. The hearing was held on January 19, 2016. Judge Sherlock presided over the case. Lee appeared without his attorney and requested a continuance so his attorney could be present. That motion was denied. He also moved to prohibit Judge Sherlock from presiding over the case as she had previously recused herself. That motion was denied. Lee ultimately admitted he violated the terms of the EPO, and a DVO was then issued. Lee now appeals. We note that King has not filed a responsive brief in the instant appeal.
Lee first claims the trial court lacked jurisdiction to hear the case as Judge Sherlock had previously recused herself from the case. We agree.
Whether a trial court acts outside its jurisdiction is a question of law we review de novo. Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 442 (Ky. App. 2012) (citing Biggs v. Biggs, 301 S.W.3d 32, 33 (Ky. App. 2009)). Once a trial judge recuses himself or herself from a case, that judge loses jurisdiction over discretionary decisions "forever in the case against appellant." Wade v. Bondurant, 625 S.W.2d 847 (Ky. 1981); Dotson v. Burchett, 301 Ky. 28, 190 S.W.2d 697, 699 (1945).
The disqualified judge's jurisdiction is limited to performing ministerial functions in the case and for providing the appointment of a special judge. Dotson, supra. If a special judge has not yet been appointed, a disqualified judge may "ministerially acknowledge" that the facts that led to the disqualification no longer exist, and thus regain jurisdiction over discretionary issues in the case. Appalachian Reg'l Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 55 (Ky. 2007). Absent these special circumstances, when a disqualified judge performs discretionary acts in a case, those resulting orders are nullified. Id. at 54 (citing Wedding v. Lair, 404 S.W.2d 451, 452-53 (Ky. 1966), and Wade, supra).
A disqualification may also be remitted if the parties and their lawyers agree, outside the presence of the judge, to waive any basis for disqualification other than personal bias or prejudice concerning a party. Rules of the Supreme Court (SCR) 4.300, Canon 3(f). The waiver must be in writing, signed by all parties and their lawyers, and incorporated into the record. Abell v. Oliver, 117 S.W.3d 661, 663 (Ky. App. 2003).
In the instant case, when Judge Sherlock entered the docket notation stating that she was disqualified from participating in the case, she lost jurisdiction to perform discretionary acts. The only way she could have regained jurisdiction is if she had ministerially acknowledged that the facts that led to the disqualification no longer exist, or if the parties and their lawyers signed a valid, written waiver of a disqualification other than personal bias or prejudice concerning a party. Neither circumstance occurred here.
Accordingly, all orders entered by Judge Sherlock after she was disqualified from the case are nullified. As it pertains to the instant case, the DVO entered on January 19, 2016 is vacated, and the case is remanded for further proceedings on the EPO/DVO Petition with the EPO still in effect. For all future proceedings, the case should be reassigned to another judge unless one of the aforementioned exceptions to Judge Sherlock's lack of jurisdiction occurs.
We note again that King has not filed a responsive brief. Though we elect not to impose any sanctions for King's failure to file a brief, Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007) (citing Kentucky Rules of Civil Procedure (CR) 76.12(8)(c)), we are nonetheless limited in our review due to the brevity of information contained in the record and in Lee's brief. We also note it appears the issue of Judge Sherlock's disqualification has been litigated at least twice since the order currently on appeal was entered. Both attempts to disqualify resulted in denials without prejudice, though one of those cases is still pending in the Kentucky Supreme Court. First, the Kentucky Supreme Court entered an order on May 31, 2016, while the instant case was pending in this Court, denying without prejudice Lee's request to disqualify Judge Sherlock pursuant to Kentucky Revised Statute (KRS) 26A.015. That Order specified that Lee could seek appellate review of the final order in the instant case. Second, Lee sought in this Court a Petition for a Writ of Prohibition. It does not appear that that action is yet final, as Lee has appealed to the Kentucky Supreme Court this Court's order denying the petition. See Lee v. Sherlock, 2016-SC-000526. This Court's order (though, again, not yet final) also stated that Lee could pursue his disqualification argument on direct appeal in the instant case. Lee v. Sherlock, 2016-CA-000625-OA.
The EPO in the instant case was signed by the Jefferson County Trial Commissioner C. Duffy on January 11, 2016. There is no allegation that the trial commissioner's action was infirm. As Judge Sherlock's signed DVO was entered January 19, 2016, on remand for further proceedings we return the case to its procedural posture as it existed on January 19, 2016, with the EPO still in effect. Cf. Wright v. Wright, 181 S.W.3d 49 (Ky. App. 2005) (reversing and remanding an entered DVO and a dismissed EPO for further proceedings on both). --------
ALL CONCUR. BRIEF FOR APPELLANT: John D. Lee, Pro Se
Louisville, Kentucky NO BRIEF FILED FOR APPELLEE.