COMMONWEALTH OF KENTUCKY v. HONORABLE STEPHEN P. RYAN, JUDGE, JEFFERSON CIRCUIT COURT AND MICHAEL JAMES
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RENDERED: September 13, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-001744-OA
COMMONWEALTH OF KENTUCKY
PETITIONER
ORIGINAL ACTION
REGARDING JEFFERSON CIRCUIT COURT
ACTION NO. 02-CR-001647
v.
HONORABLE STEPHEN P. RYAN, JUDGE
JEFFERSON CIRCUIT COURT
RESPONDENT
AND
MICHAEL JAMES
REAL PARTY IN INTEREST
* * * * * * * *
OPINION AND ORDER
ON PETITION FOR WRIT OF PROHIBITION
BEFORE: BUCKINGHAM, GUIDUGLI, AND KNOPF, JUDGES.
BUCKINGHAM, JUDGE.
In this original action, the Commonwealth
through two assistant commonwealth’s attorneys for the 30th
Judicial Circuit is seeking to prohibit the respondent, Judge
Stephen P. Ryan, from enforcing an order disqualifying Assistant
Commonwealth’s Attorney F. Todd Lewis and the entire Jefferson
County Commonwealth’s
Attorney’s Office from prosecuting Michael
James on Indictment No. 02-CR-001647 charging him with flagrant
nonsupport.
The court has considered written pleadings and has
considered oral presentations of counsel for the petitioner, for
Judge Ryan, and for Michael James as the real party in interest.
The court has also considered memoranda submitted by the
Jefferson County Commonwealth’s Attorney and the Office of the
Attorney General.
For the reasons that follow, the court denies
the relief as to the disqualification of Assistant Commonwealth’s
Attorney Lewis but grants relief as to the disqualification of
the entire Commonwealth’s Attorney’s Office.
Original actions filed in this court pursuant to CR 81
and CR 76.36, seeking relief in the nature of a writ of
prohibition, are extraordinary remedies with very strict
standards.
[1] Writs of prohibition, being
extraordinary remedies, not to be
substituted for appeal, and issued only
in the sound discretion of the court, are
reserved for those situations in which a
lower court is acting either (1) without
or beyond its jurisdiction or (2) within
its jurisdiction, but erroneously. In
the latter category of cases, a
prerequisite to the issuance of the writ
is a showing that there is no adequate
remedy by appeal or otherwise and
irreparable injury or great injustice
will result without its issuance. Bender
v. Eaton, Ky., 343 S.W.2d 799 (1961),
Jones v. Hogg, Ky., 639 S.W.2d 543
(1982), Commonwealth, Revenue Cabinet by
Gillis v. Graham, Ky., 710 S.W.2d 227
(1986).
Corns v. Transportation Cabinet, Ky., 814 S.W.2d 574, 577 (1991).
It is within this context that we review the pleadings and the
arguments in this original action.
At issue here is the respondent judge’s use of KRS
15.733(3) to disqualify an assistant commonwealth’s attorney and
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the entire Commonwealth’s Attorney’s Office from a prosecution.
That statutory section states in its entirety:
(3)
KRS 15.733(3).
Any prosecuting attorney may be
disqualified by the court in which the
proceeding is presently pending, upon a
showing of actual prejudice.
The respondent judge used this statutory
provision to disqualify the assistant commonwealth’s attorney and
the Commonwealth’s Attorney’s Office upon finding that the
assistant commonwealth’s attorney had misled him personally or
through other employees of the Commonwealth’s Attorney’s Office
by improperly seeking an arrest warrant immediately after the
return of the indictment against Michael James.
During the
course of a hearing, and by subsequent written order, Judge Ryan
disqualified Assistant Commonwealth’s Attorney Lewis and the
entire Commonwealth’s Attorney’s staff from the prosecution of
Michael James on this indictment.
On August 27, 2002, this court, through Judge Knopf,
denied the Commonwealth’s motion for emergency relief to suspend
enforcement of the disqualification order.
The Commonwealth’s
motion for intermediate relief is now submitted to this panel.
As a procedural matter, we note that the respondent
judge took this action on his own initiative during the course of
the hearing.
It was only after the judge had announced his
intention to disqualify the prosecutors that counsel for the
defendant made an oral motion for the disqualification.
We
further note that this matter was before the respondent judge
only because he was standing in for another judge in the
supervision of the grand jury.
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We must also note that there is another and senior
indictment against this same defendant being prosecuted in the
Jefferson Circuit Court.
There is no indication that
disqualification of the Commonwealth’s Attorney’s Office or any
of it members has been sought in that indictment.
Both
indictments are currently proceeding in a different division of
the Jefferson Circuit Court.
There is precedent for utilizing an original action to
seek review of a circuit court ruling on disqualification of a
prosecutor.
See Summit v. Mudd, Ky., 679 S.W.2d 225 (1984).
But
in reviewing the action, we must apply the standards for
reviewing a petition for a writ as set out in Corns, supra.
First, we do not believe that Judge Ryan was proceeding
without or beyond his jurisdiction.
The judge was presented with
a properly returned indictment from the Jefferson County Grand
Jury and was compelled to address the issue of whether an arrest
warrant should be issued and, later, whether that arrest warrant
should be quashed.
Also, KRS 15.733(3) gives the trial court the
authority to remove a prosecutor in appropriate circumstances.
In dealing with the question of whether the respondent
judge was acting erroneously within his jurisdiction, we must
separate the issues regarding the individual assistant
commonwealth’s attorney and the Commonwealth’s Attorney’s Office
as a whole.
At the circuit court hearing, Judge Ryan first
disqualified Lewis and then disqualified the entire
Commonwealth’s Attorney’s Office.
The order entered by Judge
Ryan disqualifies the entire office and does not address Lewis
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separately.
We do not believe that this prevents us from
treating the issues separately.
We must approach these issues with an awareness that
KRS 15.733(3) provides that the court may disqualify a prosecutor
only “upon a showing of actual prejudice.”
Actual prejudice must
be shown, and the mere possibility of the appearance of
impropriety is not sufficient.
Summit v. Mudd, supra.
Vindictiveness is not to be presumed.
Clayton v. Commonwealth,
Ky., 786 S.W.2d 866, 869 (1990); Barnett v. Commonwealth, 979
S.W.2d 98, 102 (1998).
In the case of Assistant Commonwealth’s Attorney Lewis,
Judge Ryan perceived that misrepresentations had been made to
induce him to issue an arrest warrant.
Judge Ryan later recalled
the warrant, but only after the defendant had been taken into
custody.
Although Lewis was not present when the trial court
actually issued the warrant, Lewis did acknowledge at the hearing
before Judge Ryan that he had drafted the motion and had signed
it.
It is apparent that but for the perceived
misrepresentations, Judge Ryan would not have issued the arrest
warrant or disqualified the prosecutors.
Regardless of whether we perceive an error in the
removal of the assistant commonwealth’s attorney, we do not find
that Lewis will suffer irreparable injury.
An assistant
commonwealth’s attorney does not have a right to prosecute any
individual case.
There are other cases for Lewis to prosecute
and other assistant commonwealth’s attorneys to prosecute this
particular indictment.
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A different situation is presented as to the entire
Office of the Commonwealth’s Attorney for the 30th Judicial
Circuit.
Careful review of the tape of the hearing before Judge
Ryan and review of the pleadings submitted does not indicate any
fact that justified imputing “actual prejudice” to the
Commonwealth’s Attorney’s Office as a whole.
No reasons are
stated to justify the disqualification of the entire office, and
it was error for the respondent judge to so order.
Moreover, we do find irreparable injury to the Office
of the Commonwealth’s Attorney here.
The Commonwealth’s Attorney
is an elected official charged with various constitutional and
statutory duties, among which is the prosecution of criminal
defendants in circuit court.
KRS 15.725(1).
The Commonwealth’s
Attorney has the right to the exercise of his office.
To strip
the Commonwealth’s Attorney of the right to prosecute an
indictment without an adequate reason and appropriate findings
under the statute constitutes irreparable injury and justifies
the granting of relief through an original action.
Accordingly, the court ORDERS that, to the extent the
petition seeks to prohibit enforcement of the order of
disqualification of Assistant Commonwealth’s Attorney Lewis,
relief is DENIED.
The Court further ORDERS that, to the extent
the petition seeks to prohibit enforcement of the order of
disqualification of the entire Office of the Commonwealth’s
Attorney for the 30th Judicial District, relief is hereby
GRANTED.
The respondent judge is hereby PROHIBITED from
enforcing so much of his order of August 5, 2002, as disqualifies
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the entire Office of the Jefferson County Commonwealth’s Attorney
from the prosecution of Indictment No. 02-CR-001647.
ALL CONCUR.
ENTERED:
September 13, 2002
/s/ David C. Buckingham
JUDGE, COURT OF APPEALS
PETITION FOR THE COMMONWEALTH:
RESPONSE ON BEHALF OF JUDGE
STEPHEN P. RYAN:
F. Todd Lewis
Jeanne Anderson
Assistant Commonwealth’s
Attorneys
Louisville, Kentucky
Judge Stephen P. Ryan, Pro Se
Louisville, Kentucky
ORAL ARGUMENT ON BEHALF OF
JUDGE STEPHEN P. RYAN:
ORAL ARGUMENT FOR THE
COMMONWEALTH:
Henry Triplett
Louisville, Kentucky
Jeanne Anderson
Assistant Commonwealth’s
Attorney
Louisville, Kentucky
RESPONSE AND ORAL ARGUMENT ON
BEHALF OF REAL PARTY IN
INTEREST MICHAEL JAMES:
MEMORANDUM ON BEHALF OF THE
ATTORNEY GENERAL:
Timothy Denison
Louisville, Kentucky
David A. Sexton
Assistant Attorney General
Frankfort, Kentucky
MEMORANDUM ON BEHALF OF THE
COMMONWEALTH’S ATTORNEY FOR
THE 30TH JUDICIAL CIRCUIT:
Jeanne Anderson
Assistant Commonwealth’s
Attorney
Louisville, Kentucky
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