Hon George W. Davis III v. Hon Thomas D. Wingate Judge, Franklin Circuit Court Div. II ( 2014 )

RENDERED: AUGUST 14, 2014
TO BE PUBLISHED
ujarrntr Court of
2014-SC-000323-MR
DATE "3 -946- ) 4 EN 4.c-05v
s
HONORABLE GEORGE W. DAVIS, III APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2014-CA-000678-OA
FRANKLIN CIRCUIT COURT CASE NO. 14-CI-00114
HONORABLE THOMAS D. WINGATE
JUDGE, FRANKLIN CIRCUIT COURT, DIVISION II APPELLEE
AND
MARC I. ROSEN AND
COMMONWEALTH OF KENTUCKY REAL PARTIES IN INTEREST
OPINION AND ORDER
George W. Davis, III, appeals from the order of the Court of Appeals that
denied his petition for a writ commanding the Judge of the Franklin Circuit
Court to dismiss the underlying case for want of jurisdiction. The underlying
case in Franklin Circuit Court is a declaratory judgment action filed by Marc I.
Rosen in which he contests the constitutionality of House Bill (HB) 427 (2013
1
Regular Session), a statute that prohibits judges who have chosen to retire as a
Senior Status Special Judge from becoming a candidate for an elected office for
five years after retirement.
Davis argues Franklin Circuit Court lacks jurisdiction to decide Rosen's
constitutional challenge because the General Assembly, through Kentucky
Revised Statutes (KRS) 118.176, has created a statutory mechanism to
determine the bona fides of a candidate and that statute vests exclusive
jurisdiction in the candidate's county of residence. Rosen, a former Senior
Status Judge and a resident of Boyd County, Kentucky, seeks to become a
candidate for circuit judge in the 2014 election.
We affirm the order of the Court of Appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Effective June 25, 2013, HB 427 amended various statutes governing
elections.' It sought to prohibit "a judge acting as a Senior Status Special
Judge" from "becom[ing] a candidate for any elected office during the five (5)
year term prescribed in KRS 21.580[1" 2 To this end, the following language—or
a slight variation thereof3—was inserted to amend the associated statutes:
1According to the Legislative Research Commission's (LRC) information on
HB 427, the following statutes were amended: KRS 118.105, 118.115, 118.125,
118.305, 118.315, 118.325, 118.375, 118A.100, and 118A.080. However, we are
unable to find any indication KRS 118.125 was amended by HB 427.
2 Available at: http:/ /www.lrc.lcy.gov/ record/ 13RS/hb427.htm.
3 Different in text, yet identical in purpose, the following language was inserted
into KRS 118.105(7): "However, regardless of the number of days served by a judge
acting as a Senior Status Special Judge, a judge who elected to retire as a Senior
Status Special Judge in accordance with KRS 21.580 shall not become a candidate for
any elected office during the five (5) year term prescribed in KRS 21.580(1)(a)1."
2
A judge who elected to retire as a Senior Status Special Judge in
accordance with KRS 21.580 shall not become a candidate or a
nominee for any elected office during the five (5) year term
prescribed in KRS 21.580 (1)(a)1., regardless of the number of days
served by the judge acting as a Senior Status Special Judge. 4
Before the filing deadline in late January of this year, Rosen submitted
nominating papers with the Kentucky Secretary of State to become a candidate
for the 32nd Judicial Circuit of Kentucky, First Division, in the 2014 election
cycle. Rosen held the same Boyd Circuit judgeship for which he now seeks to
become a candidate until January 31, 2009, when he elected to retire as a
Senior Status Special Judge.
After submitting his nominating papers, Rosen filed the underlying
declaratory judgment action in Franklin Circuit Court, seeking a determination
of the constitutionality of HB 427. 5 As the incumbent seeking re-election,
Davis sought and was granted leave to intervene in Rosen's suit. Immediately,
Davis moved to dismiss for want of jurisdiction, raising essentially the same
question he now presents in this appeal. The Franklin Circuit Court denied
Davis's motion to dismiss.
A week after Rosen filed the underlying declaratory action in Franklin
Circuit Court, a concerned voter in Boyd County filed an action challenging the
bona fides of Rosen's candidacy under KRS 118.176(2). It is unnecessary for
the resolution of this appeal to go into much detail discussing the proceedings
in Boyd Circuit. In short, the Boyd Circuit found Rosen was disqualified from
4 E.g., KRS 118.115(2).
5 As an aside, Steve D. Hurt v. State Board of Elections, et al., Case No. 14-CI-
00152, a case mirroring the facts and proceedings of the instant case, is now final. In
that case, Franklin Circuit Judge Philip Shepherd found HB 427 unconstitutional.
3
being a candidate because he had been a Senior Status Special Judge and the
five-year term in KRS 21.580(1)(a)1 had not passed. The Boyd Circuit made no
explicit determination concerning the constitutionality of HB 427 but perhaps
implicitly upheld its constitutionality because it applied the terms of HB 427 to
disqualify Rosen.
Under Kentucky Rules of Civil Procedure (CR) 65.07, Rosen petitioned
the Court of Appeals to set aside the Boyd Circuit order. The Court of Appeals
granted Rosen's motion, specifically finding "it was incumbent upon [Boyd
Circuit] to either address the constitutional question underpinning the
controversy or to defer any ruling until the Franklin Circuit Court had resolved
the constitutional question." 6
Meanwhile, in Franklin Circuit, Davis renewed his motion to dismiss
following Boyd Circuit's judgment. Again, the Franklin Circuit denied Davis's
motion, noting that despite Rosen asserting the constitutionality of HB 427 as
a defense in Boyd Circuit, the merits of the issue had not been previously
litigated; and, accordingly, the Franklin Circuit found the constitutional
question properly before it, irrespective of the bona fides challenge in Boyd
Circuit. Davis promptly initiated the writ action in the Court of Appeals and
moved the Franklin Circuit to stay the proceedings there in the interim.
Franklin Circuit declined to grant Davis's motion for a stay but elected to
postpone reviewing arguments or ruling on the issue until the conclusion of
6 Rosen v. Hall, 2014-CA-000448-EL, p. 7-8 (Ky.App. June 4, 2014). This
action is now pending before this Court on a CR 65.09 motion to vacate. Hall v.
Rosen, 2014-SC-000312-MR.
4
Davis's writ action in the Court of Appeals. As it currently stands, Rosen's
initial declaratory action is fully briefed to the Franklin Circuit Court and
awaits final decision.
The Court of Appeals denied Davis's writ petition, clearly expressing that
"[t]he declaratory judgment action filed by [] Rosen in Franklin Circuit Court
was not a challenge to his bona fides; to the contrary, the Franklin Circuit
Court action is a challenge to the statute that prevents him from being a
bona fide candidate." 7
The only issue before us in this appeal is whether the Franklin Circuit
has jurisdiction to decide the constitutionality of .HB 427 as raised in Rosen's
declaratory judgment action. It is important to emphasize that the merits of
the argument surrounding the constitutionality of HB 427 are not before us in
the present appeal. Neither is the question of whether Rosen possesses the
bona fides to be a candidate for the 32nd Judicial Circuit of Kentucky, First
Division.
II. ANALYSIS.
Because a writ is truly an extraordinary remedy, we allow writs to issue
only in remarkable situations:
A writ of prohibition may be granted upon a' showing that (1) the
lower court is proceeding or is about to proceed outside of its
jurisdiction and there is no remedy through an application to an
intermediate court; or (2) that the lower court is acting or is about
to act erroneously, although within its jurisdiction, and there
exists no adequate remedy by appeal or otherwise and great
7 Davis v. Rosen, No. 2014 CA 000678 OA, p. 6 7 (Ky.App. June 10, 2014).
- - - -
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injustice and irreparable injury will result if the petition is not
granted. 8
This case presents a writ of the first class because Davis argues the Franklin
Circuit is proceeding outside of its jurisdiction by entertaining Rosen's
declaratory action.
Identifying the class of writ presented is the starting point to establish
the standard for our review. As we have previously noted, "the proper standard
[of review] actually depends on the class, or category, of writ case." 9 Rosen
argues we should employ a bifurcated standard: clear error for the irreparable
injury aspect and de novo for the jurisdiction question. 10 We disagree.
Contrary to Rosen's assertion, this class of writ action—the trial court acting
allegedly outside its jurisdiction—does not require a showing of irreparable
injury or the absence of an adequate remedy by appeal. Those prerequisites
apply only in the second class of writ actions—actions in which the trial court
is allegedly erroneous but within its jurisdiction. 11 As we noted in Hoskins v.
8 Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).
9 Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004).
10 In arguing for this standard, Rosen highlights a single sentence in the
opinion of the Court of Appeals. The penultimate sentence in the opinion reads, "nor
is there a showing that the Franklin Circuit Court is acting erroneously within its
jurisdiction to petitioner's irreparable detriment as required by the seminal case of
Hoskins v. Maricle[.]" Davis, No. 2014-CA-000678-OA at p. 8. Rather than resting any
portion of its reasoning or holding on Franklin Circuit acting erroneously within its
jurisdiction, the Court of Appeals appears simply to be reciting the accepted writ
classes and eliminating all possibilities.
11 The Court made this clear in Hoskins: "But if the petition alleged only that
the trial court was acting erroneously within its jurisdiction, a writ would issue only
if it was shown that there was no adequate remedy by appeal and great injustice and
irreparable harm would otherwise occur." Hoskins, 150 S.W.3d at 9. This, of course,
is not a novel position. At least as early as 1905, Kentucky law explicitly noted a lack
of appellate remedy was not required when the trial court was allegedly acting without
6
Maricle, our decision in Shumaker v. Paxton 12 apparently engendered this
confusion. 13 In so noting, the Hoskins Court rejected Shumaker's thin
reasoning and "depart[ed] from those cases holding that the existence of an
adequate remedy by appeal precludes the issuance of a writ to prohibit a trial
court from acting outside its jurisdiction?" Rosen's bifurcated approach is not
appropriate.
Instead, "[d]e novo review will occur most often under the first class of
writ cases, i.e., where the lower court is alleged to be acting outside its
jurisdiction, because jurisdiction is generally only a question of law.” 15 The
error alleged by Davis does not involve the review of any findings of fact;
accordingly, clear error is incorrect, and de novo is the appropriate standard.
We feel it prudent to begin our review with a proper understanding of
jurisdiction and what it means for a court to act outside its jurisdiction.
Unfortunately, the term jurisdiction is often "more easily used than
jurisdiction. See Hargis v. Parker, 85 S.W. 704, 706 (Ky. 1905) (fmding availability of
appellate remedy not dispositive when lower court acting without jurisdiction);
Chamblee v. Rose, 249 S.W.2d 775, 776-77 (Ky. 1952) (compiling historic cases and
emphasizing "[o]ur opinions have consistently distinguished between those cases:
(1) where the inferior court lacks jurisdiction; and (2) where the court, having
jurisdiction, is proceeding erroneously. It is in the latter class of cases that we have
emphasized the need for a showing of great injustice and irreparable injury for which
there is no adequate remedy by appeal or otherwise.").
12 613 S.W.2d 130 (Ky. 1981).
13 See Hoskins, 150 S.W.3d at 9-10 (noting the Court in Shumaker "held for the
first time since 1915 that a writ could not be issued to prohibit a lower court from
Proceeding outside its jurisdiction absent a showing that there was no adequate
remedy by appeal.").
14 Id. at 10.
15 Trude, 151 S.W.3d at 810.
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understood." 16 In Kentucky, circuit courts are courts of "general
jurisdiction," 7 which means that circuit courts "shall have original jurisdiction
of all justiciable causes not vested in some other court." 18 Jurisdiction, when
used here, refers to subject-matter jurisdiction: the authority not simply to
hear "this case[,] but this kind of case." 19 Narrowing these broad concepts,
"constitutional provisions and statutes [may] assign[] to the courts specific
types of claims and causes of action[.]" 2° A court acts outside its jurisdiction,
accordingly, only "where [it] has not been*given, by constitutional provision or
statute, the power to do anything at all." 21 In essence, this is Davis's
argument: the General Assembly, through KRS 118.176, has vested specific
courts with specific types of claims and, here, that specific court is Boyd
CirCuit.
We do not dispute the General Assembly's ability to designate specific
claims appropriate for specific courts. For example, a number of statutes
assign claims exclusively to Franklin Circuit; and we acknowledged as much in
16 Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky. 1970) (quoting Commonwealth,
Dept. of Highways v. Berryman, 363 S.W.2d 525, 526 (Ky. 1963)).
17 KRS 23A.010(1).
18 Ky. Const. § 112(5) (emphasis added).
19 Daugherty v. Telek, 366 S.W.3d 463, 466 (Ky. 2012) (internal quotation
marks omitted); Lee v. George, 369 S.W.3d 29, 33 (Ky. 2012) ("In the context of
extraordinary writs, jurisdiction refers not to mere legal errors but to subject-matter
jurisdiction, which goes to the court's core authority to even hear cases.") (internal
citations and quotation marks omitted).
20 Daugherty, 366 S.W.3d at 466.
21 Id. at 467.
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Commonwealth ex rel Conway v. Thompson. 22 Typically, this designation is one
of venue rather than jurisdiction; and jurisdiction should not be confused with
venue. Of course, "the required observance of proper venue is deeply imbedded
in Kentucky law[]"; 23 but jurisdiction "relat[es] to the power of courts to
adjudicate" while venue "relat[es] to the proper place for the claim to be
heard[.]" 24
KRS 418.040 allows a claim for a declaration of rights to be brought in
any court of record in the Commonwealth. As previously mentioned, circuit
courts are such courts of record. 25 So, beyond cavil, the Franklin Circuit had
jurisdiction over Rosen's declaratory action. Again, subject-matter jurisdiction
relates to a court's ability to hear a particular kind of case, not this particular
case. Theoretically, by statutory and constitutional design, Rosen was
permitted to file his declaratory action in any circuit court in the
Commonwealth. The remaining question is whether KRS 118.176 strips the
Franklin Circuit of jurisdiction because, as Davis argues, Rosen's declaratory
action is in actuality a challenge to a candidate's bona fides as described under
KRS 118.176.
22 300 S.W.3d 152, 163 n.27 (Ky. 2009); see, e.g., KRS 45A.245(1) ("Any such
action shall be brought in the Franklin Circuit Court and shall be tried by the court
sitting without a jury.").
23 Fritsch v. Caudill, 146 S.W.3d 926, 927 (Ky. 2004).
24 Dollar Gen. Stores, Ltd. v. Smith, 237 S.W.3d 162, 166 (Ky. 2007).
25 KRS 23A.010(3) ("The Circuit Court is a court of record and of continuous
session.").
9
With its limiting language, KRS 118.176, on the other hand, is not nearly
as broad as KRS 418.040. The relevant portion of KRS 118.176 reads:
The bona fides of any candidate seeking nomination or election in
a primary or in a special or regular election may be questioned by
any qualified voter entitled to vote for the candidate or by an
opposing candidate by summary proceedings consisting of a
motion before the Circuit Court of the judicial circuit in which the
candidate whose bona fides is questioned resides.
In Noble v. Meagher, we held KRS 118.176 provided the "only proper procedure
for challenging the qualifications of a [] candidate before the election[.]" 26 And
that holding remains true today: KRS 118.176 is the only statutory method to
challenge a candidate's bona fides in court before election. Unquestionably, an
action challenging Rosen's bona fides under KRS 118.176 would not have been
proper in Franklin Circuit. These facts, however, are not dispositive of the
instant case because Rosen simply did not bring an action, in form or
substance, challenging the bona fides of a candidate. Davis's reliance on Noble
is misguided.
The distinction here is admittedly fine; but it is an important distinction,
nonetheless. Rosen is challenging the constitutionality of a statute delineating
the requisite bona fides. But he is not challenging whether he possesses those
bona fides. That determination currently pends in its rightful place, the Boyd
Circuit.
Davis's assertion that this places form over substance is specious. The
mere fact that if the statute is found unconstitutional, the obstacles to Rosen's
26 686 S.W.2d 458, 460 (Ky. 1985).
10
candidacy will be eliminated does not convert Rosen's declaratory action to a
bona fides challenge under KRS 118.176. The constitutionality of HB 427 is
not solely dispositive of Rosen's candidacy. It must still be shown that he
complies with all requirements listed in Section 122 of the Kentucky
Constitution.
Similarly misguided is Davis's argument that a ruling by the Franklin
Circuit on the constitutionality of HB 427 would not be binding on the Boyd
Circuit. 27 Frankly speaking, so long as the applicable law is followed, a
litigant's choice to pursue a potentially hollow victory is not for us to consider
here. We are not responsible for trying the case for the parties or ensuring the
best litigation strategy. Instead, we are simply responsible for enforcing the
law. The soundness of Rosen's decision to go to Franklin Circuit and get a
declaratory judgment, perhaps risking disagreement or refusal to enforce by
Boyd Circuit, is inconsequential to this writ appeal. 28 Equally puzzling is
Davis's decision not to seek a transfer on improper venue or forum non
conveniens grounds. 29
27 We take no position on this point because it is not properly before this Court.
28 As an aside, Rosen's assertion that if we were to adopt Davis's reading of
KRS 118.176, it would be absurd for him to be forced to sue himself to challenge his
bona fides is inaccurate. KRS 118.176 explicitly permits Rosen to file an action
challenging his own bona fides. As a candidate seeking nomination to the ballot, we
assume Rosen is a qualified voter. By its own terms, KRS 118.176 permits "any
qualified voter entitled to vote for the candidate" to submit a motion challenging a
candidate's bona fides. If Rosen was truly concerned about violating election law, as
he argues to this Court, perhaps challenging his own bona fides was a proper course
. of action. Regardless, Rosen was not required to wait for a voter, other than himself,
to file a claim challenging his bona fides at the eleventh hour.
29 Davis's argument that our result today makes an absurdity of KRS 118.176
by allowing proceedings in two circuit courts is unavailing. Primarily, this argument
11
The important point is that Rosen's declaratory action was a permitted
action. The Franklin Circuit has jurisdiction to hear Rosen's declaratory action
regarding the constitutionality of HB 427. As we have stated before, the
remedy for the unfortunate possibility of inconsistent results between judicial
circuits lies with the General Assembly. 30
III. CONCLUSION.
In sum, Rosen's declaratory action is an appropriate action under both
KRS 418.040 and KRS 118.176. Accordingly, the Court ORDERS:
1) The decision of the Court of Appeals to deny Davis's writ petition is
AFFIRMED; and
2) This matter is REMANDED to the Franklin Circuit Court for
further proceedings consistent with this opinion.
All sitting. Minton, C.J.; Abramson, Keller, Noble, and Venters, JJ.,
concur. Scott, J., dissents by separate opinion in which Cunningham, J.,
joins.
SCOTT, J., DISSENTING: I must respectfully dissent from the majority's
opinion because, by allowing Petitioner Rosen's action for declaratory judgment
to proceed in Franklin Circuit Court, the majority contravenes the legislative
intent behind KRS 118.176, which requires that a candidate's qualifications for
office must exclusively be determined by the court of the county in which the
lacks merit because Davis, himself, could have prevented this so-called absurdity by
simply petitioning the court for a transfer of venue. The record, however, indicates no
such argument to the Franklin Circuit. It is difficult to uphold an argument calling a
statute an absurdity when the ability to avoid said absurdity lies with the parties.
30 Thompson, 300 S.W.3d at 163 n.30.
12
candidate resides. Moreover, the majority bases its decision on a questionable
distinction between "constitutional" and bona fides claims, and it overlooks
precedent from this Court holding that declaratory relief is unavailable when
an exclusive statutory remedy has been established by the General Assembly.
The practical effect of the majority's disregard of the exclusive statutory remedy
established in KRS 118.176 will be to permit multiple lawsuits across
jurisdictions, which will create conflicting court orders and lead to confusion in
the lower courts—one judge against another on the same case with separate
tracks of appeal! This is a bad way to run a railroad, much less a court
system.
As a starting point for my dissent, I note that the majority acknowledges
that the legislature intended for a candidate's qualifications for office to be
exclusively determined by the courts of the county in which the candidate
resides. KRS 118.176. As applied here, KRS 118.176 should ensure that
Petitioner Rosen's qualifications as a candidate for election in Boyd County
would be exclusively determined by the Boyd Circuit Court, yet the majority
reaches the conclusion that Rosen can bring a separate action seeking a
Ideclaratory judgment in favor of the legitimacy of his Boyd-County candidacy
in Franklin Circuit Court. The majority bases this conclusion on the
"admittedly fine" distinction that Rosen's declaratory Petition is not challenging
his bona fides, but rather the constitutionality of the statute delineating his
bona fides.
13
My first concern with the distinction made by the majority is that I do
not share the majority's confidence that the declaratory judgment action in
Franklin Circuit Court presents a purely constitutional question completely
severed from all questions of Rosen's bona fides. Rosen's Petition argues that
an issue exists as to "whether the Senior Status commitment is for five (5)
years or six hundred (600) days." Rosen also asserts that he has completed six
hundred days of service. It is well-settled that our courts should "refrain from
reaching constitutional issues when other, non-constitutional grounds can be
relied upon." Baker v. Fletcher, 204 S.W.3d 589, 597-98 (Ky. 2006). Our
doctrine of constitutional avoidance applies to declaratory judgments. See id.
Thus, Rosen has invited the Franklin Circuit Court to address his bona fides
pertaining to his days (or years) of service before it proceeds to his
constitutional question. These are exactly the type of bona fides
determinations the legislature intended for the courts of the potential
candidate's county of residence to address pursuant to KRS 118.176.
My second objection to the majority's opinion, and its distinction between
constitutional and bona fides challenges, is that it disregards longstanding
Kentucky precedent holding that declaratory relief is unavailable "where a
special statute is clearly intended to provide an exclusive remedy." Iroquois
Post No. 229 v. City of Louisville, 279 S.W.2d 13, 14 (Ky. 1955); see also
Sullenger v. Sullenger's Adm'x, 152 S.W.2d 571, 574 (Ky. 1941) (explaining that
a declaratory action is not a substitute for actions intended to be brought in a
particular manner). Unlike the majority, I do not believe that Rosen should be
14
allowed to escape the exclusive statutory remedy of KRS 118.176 by asserting a
constitutional claim when the apparent purpose of his petition is to seek
election in Boyd County.
Our predecessor Court's opinion in Cox v. Howard suggests that we
should look beyond the form of the claim asserted in a declaratory action to
ascertain whether the underlying purpose of a petition falls within an area
covered by an exclusive statutory remedy. 261 S.W.2d 673 (Ky. 1953). In
Howard, the Court dismissed a party's petition for a declaration, which sought
a recount of primary election ballots. Id. The Court noted that the procedures
to be followed in an action for recount were statutorily prescribed in
KRS 122.020 and KRS 122.060. Moreover, the Court stated, "[s]uch procedure
cannot be changed or obviated by incorporating grounds for a recount .. .
proceeding in a declaratory action." Id. The Howard Court dismissed the
proceeding, noting that the purpose of the petition was to obtain a recount in a
declaratory action, thus defeating the procedure prescribed by statute. Id.
Similarly, the purpose of Rosen's petition is to obtain a ruling that he
may seek election under the law—that he is a bona fide candidate.
KRS 118.176(1). Indeed, Rosen's own petition admits that he seeks to have
KRS 118.176 declared unconstitutional for the explicit purpose of allowing him
to seek election to the office of circuit judge in Boyd County. Therefore,
applying our precedent from Howard, I would find that the Franklin Circuit
Court's jurisdiction to hear Rosen's Petition for declaratory relief was
superseded by KRS 118.176's directive that challenges to a candidate's bona
15
fides must be heard in the candidate's county of residence - the Boyd Circuit
Court in this instance. Accordingly, I would reverse the Court of Appeals and
grant a writ of prohibition to enjoin the Franklin Circuit Court from considering
Rosen's petition for declaratory judgment.
In so doing, I would avoid the needless inefficiencies, complexities, and
conflicts that the majority's opinion is bound to produce. Under the dueling-
jurisdictions approach advocated by the majority, it is not unlikely that the
Franklin and Boyd circuit courts might issue competing injunctions. If the
Franklin Circuit were to rule that KRS 118.176 is unconstitutional, it could
issue an injunction ordering Rosen to be included - on the election ballot.
Suppose, too, that the Boyd Circuit ruled that Rosen could not be on the ballot
because he lacked bona fides under KRS 118.176. The Boyd Circuit might
then issue an injunction preventing Rosen from being placed on the election
ballot. The Franklin Circuit's holding would not bind the Boyd Circuit Court.
Thus, there appears to be no utility in the piecemeal approach to the case the
majority's opinion countenances.
In fact, the majority acknowledges that its holding creates the potential
for competing, contradictory decisions by the circuit courts. Nonetheless, the
majority opinion concludes by asserting that the "remedy for the unfortunate
possibility of inconsistent results between judicial circuits lies with the General
Assembly." But, I am left to ask, is that not what the General Assembly tried to
accomplish by enacting KRS 118.176? It seems to me that the majority creates
the problem it complains of by holding that the jurisdiction created by the
16
legislature's exclusive remedy provision in KRS 118.176 is coextensive with the
jurisdiction created by the declaratory judgment act.
The majority's solution appears all the more unsatisfactory when
compared to KRS 118.176's provisions aimed at ensuring that candidate
eligibility challenges are quickly and efficiently adjudicated so as to provide
minimal interference with the election process. To that end, KRS 118.176
establishes a process whereby "[t]he bona fides of any candidate seeking
nomination or election in a primary or in a special or regular election may be
questioned . . . by summary proceedings." KRS 118.176(2) (emphasis added).
The statute also provides for an expedited appeal process, requiring that a
motion to set aside the Circuit Court's order be filed within five days.'
KRS 118.176(4). KRS 418.040, the declaratory judgment statute, by contrast,
contains no such allowance for summary proceedings or expedited appeals.
Therefore, practically speaking, any appeal arising from the Franklin Circuit's
decision is unlikely to conclude before the November 2014 election.
In sum, it is apparent to me that KRS 118.176 provides for an expedited
process that is more adequate for resolving questions of Rosen's bona fides,
including the defense that the statute preventing his candidacy is
constitutional, than the declaratory judgment process. However, the majority's
opinion, by allowing Rosen's declaratory judgment action to proceed, sets a
precedent whereby a potential candidate can bypass the procedures set forth in
KRS 118.176 by alleging a constitutional claim. Because the end result of this
17
decision will be unnecessary and complicated litigation, I must respectfully
dissent.
Cunningham, J., joins.
ENTERED this 14th day of August, 2014.
STICE JOHN D. MINTO ► , J
18