BUSTER CHANDLER v. KENTUCKY DEPARTMENT OF CORRECTIONS
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RENDERED:
JANUARY 30, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001825-MR
BUSTER CHANDLER
APPELLANT
APPEAL FROM LYON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 01-CI-00093
v.
KENTUCKY DEPARTMENT OF CORRECTIONS
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, SCHRODER AND TAYLOR, JUDGES.
TAYLOR, JUDGE:
Buster Chandler brings this pro se appeal from a
August 12, 2002 order of the Lyon Circuit Court.
We reverse and
remand.
On May 8, 2001, appellant filed a “Complaint for
Violation of The Civil Rights Statute of 42 U.S.C.A. 1983 With
The Request for Declaratory and Injunctive Relief and Jury trial
Demand.”
Therein, appellant specifically alleged that prison
officials improperly denied him access to two magazines- U.S.
Calvary, Inc. and Soldier of Fortune.
On June 12, 2002,
appellant filed a “Motion to Recusal of Bill Cunningham Judge,
Lyon Circuit Court Pursuant to K.R.S 26.A.020 and SCR.4.300.”
Appellant attached thereto an affidavit stating, inter alia,
that Judge Cunningham would not afford him a fair and impartial
hearing because of his “close and personal relationship with the
staff of the Kentucky State Penitentiary”.
He further stated
that Judge Cunningham “has shown bias against blacks” and has
unfairly given harsher sentences to black defendants.
Subsequently, the court, sua sponte, entered an order directing
appellant to show cause why he should not be sanctioned under
Ky. R. Civ. P. (CR) 11 and why his pleadings should not be
stricken under CR 12.06.
On August 12, 2002, the circuit court
entered an order striking appellant’s pleadings and sanctioning
appellant under CR 11 by prohibiting him from filing any actions
in the Lyon Circuit Court for a period of five years.
This
appeal follows.
Appellant essentially argues that the circuit court
committed error by striking his pleadings under CR 12.06 and by
imposing sanctions under CR 11.
We are compelled to agree.
Under Kentucky Revised Statutes 26A.020, a party may
file a motion seeking disqualification of a judge with
supporting affidavit.
Once the motion and affidavit has been
filed, the circuit court must stay the proceedings pending a
-2-
determination of the challenge by the Chief Justice of the
Supreme Court.
(1991).
See Jackson v. Commonwealth, Ky., 806 S.W.2d 643
Although we harbor grave doubt as to the veracity of
the allegations contained in appellant’s affidavit, the circuit
court is, nonetheless, without jurisdiction to proceed in the
action until the Chief Justice renders an opinion upon
disqualification.
See id.
The record is clear that appellant filed the motion
for recusal and accompanying affidavit before the circuit court
entered its order.
As such, we are of the opinion the circuit
court was without jurisdiction to enter the August 12, 2002,
order striking appellant’s pleadings and imposing sanctions.
For the foregoing reasons, the order of the Lyon
Circuit Court is reversed and this cause is remanded for
proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Buster Chandler, Pro Se
Eddyville, Kentucky
John T. Damron
Frankfort, Kentucky
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