John David Lee v. Hon Paula F. Sherlock Judge, Jefferson Family Court ( 2017 )

llleoRTANT NOTlcE
NoT To BE PuBLlsHED 0PlNloN
THls 0PlNloN ls DEslGNATED "NoT To BE PuBLlsHED."
PuRsuANT To JHE RuLEs oF clvlL PRocEDu`RE
PRoMuLGATED BY THE suPRElle couRT, cR 76.28(4)(€),
THls 0PlNloN ls NoT To BE PuBLlsHED AND sHALL NoT BE
clTED on usED As BlNDlNG PREcEDENT lN ANv oTHER
cAsE lN ANv~couRT oF THls sTATE; HoWEvER,
uNPuBLlsHED I736 S.W.2d 325, 326 (Ky. 1987).
In this writ petition, Lee'requests that the DVO be set aside, and that
Judge Sherlock be barred from presiding over any future cases involving him.
In order for an extraordinary writ to be granted, the petitioner must
demonstrate that the lower court is proceeding outside its jurisdiction, which,
in the case of writ proceedings, refers to subject matter jurisdiction, or that the
court is proceeding within its jurisdiction but erroneously. Goldstein v. Feelay,
299 S.W.3d 549, 553 (Ky. 2009).
Once a judge is properly disqualiiied and
recused, reentry into the case would be proper only
upon a showing of affirmative evidence that the
conflict no longerl exists . . . and that no special judge
has been appointed On motion of the parties, the
judge could ministerially acknowledge those facts and
only then resume jurisdiction
_ Appalachian Reg'l Healthcare, Ir_Lc. v. Coleman, 239 S.W.3d 49, 55 (Ky. 2007).
Lee is incorrect that the trial court did not have jurisdiction; rather, if any
issue of jurisdiction exists, it would apply solely to Judge Sherlock.
However, as discussed by the Court of `Appeals, we need`riot examine the
merits of this jurisdictional argument since the trial court is not proceeding or
about to proceed outside of its jurisdiction; it has already acted to enter a final
and appealable DVO that Lee may directly appeal. In fact, Lee has filed a direct
appeal from the January 19, 2016, DVO, which is currently pending before the
4
Court of Appeals,4 thus demonstrating not only‘does an adequate remedy
through an intermediate court exist, but that Lee already exercised that
remedy. As this Court has stated, “[i]t is beyond dispute that mandamus may
not be used as a substitute for appeal.” Nat’l Gypstim Co., 736 S.W.Zd at 326.
Since Lee has recourse for direct appeal,`we agree with the Court of Appeals '
that Lee has failed to demonstrate grounds for the issuance of a writ.
Next, Lee argues that Judge Sherlock should be required to recuse
herself from presiding over any future proceedings in which he is involved. As
discussed by the Court of Appeals, should Lee find himself before Judge
Sherlock again, the remedies provided by the disqualification statutes, KRS5-
26A.015 and 26A.020, remain available to him as does future direct appeal
III. CONCLUSION.
lFor the foregoing reasons, we affirm the order of the Court of Appeals. In
summary, we do .not believe the Court of Appeals erred in deciding that Lee
failed to show` sufficient grounds for a writ of mandamus
All sitting. All concur.
4 We take note of the Court of Appeals’ decision vacating the DVO and
remanding, Lee U. King, NO. 2016-CA-000167-ME, 2017 WL 1102981 (Ky. App. Ma_r.
24, 2017) (unpublished).
5 Kentucky Rev_ised Statutes.
COUNSEL FOR APPELLANT:
John David Lee, pro se
coUNsEL FoR APPELLEE:
Hon. Paula Sherlock
COUNSEL FOR REAL PARTY IN INTEREST:
Andy Beshear
Attorney General of Kentucky
Steven Romines
Romines, Weis, & Young