JIMMY R. GIBSON, ET AL. V. RANDY THOMPSONAnnotate this Case
RENDERED : MARCH 24, 2011
TO BE PUBLISHED
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JIMMY R. GIBSON,
CARVIN COLLINS, AND
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2010-CA-001836-I
KNOTT CIRCUIT COURT NO . 10-CI-00053
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
DENYING MOTION FOR INTERLOCUTORY RELIEF
Pursuant to CR 65.09, Movants, Jimmy R . Gibson, Carvin Collins, and
Roy Jent, move this Court for interlocutory relief from an order of the Court of
Appeals refusing to invalidate the candidacy of Respondent, Randy Thompson .
Thompson was a Republican candidate for Knott County JudgeExecutive in the May 2010 primary election . He had previously been elected to
that office in the November 2006 general election . However, in 2008 he was
convicted in the United States District Court for the Eastern District of
Kentucky of two counts of conspiracy and vote buying in connection with the
2006 general election . As a result of these convictions, the Movants and
eighteen others filed an action in the Knott Circuit Court challenging
Thompson's qualifications as a candidate for County Judge-Executive . Though
the complaint was filed in February of 2010 and Thompson responded in
March of 2010, no further action was taken in the case prior to the May 2010
primary election . Thompson was unopposed in that primary election and was
duly certified to appear on the regular election ballot.
In September of 2010, Gibson, Collins, and Jent filed a motion in the
same Knott Circuit Court action challenging Thompson's qualifications as a
candidate in the 2010 general election . The basis for this complaint was that
Thompson was not qualified due to his federal convictions . Thompson
responded that the convictions were not "final" for purposes of Kentucky's
election statutes because an appeal of the judgment was pending, as was a
motion for a new trial.
The trial court did not reach these arguments . At a hearing on the
motion, it dismissed the action without prejudice, concluding that the Movants,
all registered Democrats, lacked standing to challenge Thompson's
qualifications in the primary election . The Movants responded that their more
recent motion should be considered to supplement the original petition, or that
they should be granted leave to amend their original petition . The trial court
was unpersuaded .
The Movants then moved the Court of Appeals, pursuant to KRS
118.176(4), to set aside the trial court's order. The Court of Appeals denied the
motion, agreeing with the trial court that the Movants lacked standing to
challenge Thompson's qualifications as a candidate in the primary election . It
also rejected the assertion that the subsequent motion constituted an amended
complaint or otherwise "serve[d] to resurrect their lack of standing" to challenge
Thompson's bona fides. Though affirming the trial court's dismissal on the
standing issue, the Court of Appeals nonetheless went on to consider the
merits of Movants' challenge to Thompson's qualifications . It concluded that
Thompson's convictions could not yet be considered "final" and, therefore,
"cannot form the basis for removing an elected official from office ."
The Court of Appeals also took judicial notice of the fact that the
Movants had filed a separate action in the Knott Circuit Court challenging
Thompson's bona fides to stand for the general election . The trial court abated
that action pending resolution of the present case .
The Movants now move this Court for relief pursuant to CR 65.09 .
Whether to review the Court of Appeals' order is a decision left to this Court's
discretion upon a showing of extraordinary cause. CR 65 .09(l) . The motion
must be denied because the Movants were not entitled to move the Court of
Appeals for relief pursuant to KRS 118 .176.
Subsection (4) of KRS 118 .176 provides :
If the court finds the candidate is not a bona fide
candidate it shall so order, and certify the fact to the
board of elections, and the candidate's name shall be
stricken from the written designation of election
officers filed with the board of elections or the court
may refuse recognition or relief in a mandatory or
injunctive way. The order of the Circuit Court shall be
entered on the order book of the court and shall be
subject to a motion to set aside in the Court of
Appeals. The motion shall be heard by the Court of
Appeals or a judge thereof in the manner provided for
dissolving or granting injunctions, except that the
motion shall be made before the court or judge within
five (5) days after the entry of the order in the Circuit
Court, and may be heard and tried upon the original
papers, and the order of the Court of Appeals or judge
thereof shall be final. (Emphasis added)
Here, the trial court made no finding that Thompson was not a bona fide
candidate . Its order dismissing is based solely on the Movants' lack of
standing. Furthermore, the order dismissing is a final and appealable order.
Because the expedited appeal procedure set forth in KRS 118 .176(4) applies
only to orders disqualifying a candidate, -the Movants were not entitled to move
the Court of Appeals to set aside the order.. For this reason, the Movants'
motion for interlocutory relief pursuant to CR 65 .09 must be denied.
All sitting. All concur.
COUNSEL FOR MOVANTS :
Nicholas C.A. Vaughn
Law Office of Nick Vaughn
236 E. Mt . Vernon St.
P. O . Box 77
Somerset, KY 42502
COUNSEL FOR REPONDENT:
James Lee Deckard
Hurt, Crosbie 8, May, PLLC
The Equus Building
127 West Main St .
Lexington, KY 40507
Terry Dean Jacobs
P. O . Box 991
Hindman, KY 41822