Steven Rush Romines v. Honorable Timothy R Coleman ( 2023 )

RENDERED: APRIL 27, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0424-MR
STEVEN RUSH ROMINES APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2022-CA-0378
EDMONSON CIRCUIT COURT NO. 21-CI-00136
HONORABLE TIMOTHY R. COLEMAN APPELLEE
EDMONSON CIRCUIT COURT
AND
JOHN MATTINGLY REAL PARTY IN INTEREST/
APPELLEE
OPINION OF THE COURT BY JUSTICE THOMPSON
AFFIRMING
Upon denial of his motion to dismiss for improper venue, Steven Romines
and Romines, Weis & Young, P.S.C. (Romines’s law firm) brought an original
action under Kentucky Rules of Civil Procedure (CR) 76.361 in the Court of
Appeals seeking a writ to prohibit the Edmonson Circuit Court, Judge Timothy
R. Coleman presiding, from proceeding with John Mattingly’s defamation suit
against Romines and his law firm. The Court of Appeals denied relief and
1 This Rule was deleted by Order 2022-49, eff. 1-1-23 and replaced by CR 81
titled “Relief heretofore available by common law writs.”
appellants appealed to this Court as a matter of right pursuant to Ky. Const. §
115. Having determined that Romines has an adequate remedy by appeal for
all the errors he claims, and that no great and irreparable injury to the
administration of justice will occur should the underlying matter proceed
before the circuit court, we affirm the Court of Appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
This matter arises from the death of Breonna Taylor in Louisville which
resulted in significant accusations of police misconduct, demands for
accountability and policy changes, protests, property damage, injuries, arrests,
at least one additional death, and considerable criminal and civil litigation.
On March 13, 2020, officers of the Louisville Metro Police Department
executed a search warrant on Taylor’s apartment. Mattingly was one of the
officers executing the warrant. At the time, Kenneth Walker was in the
apartment with Taylor. When officers breached the door of Taylor’s apartment,
Walker discharged a pistol striking Mattingly. Officers then returned fire
striking Walker and fatally injuring Taylor.
Walker was criminally charged with shooting Mattingly, with Romines
serving as his defense counsel. The Jefferson County Commonwealth Attorney
eventually dismissed the charges against Walker.
Romines also represented Walker in two separate civil actions; one in the
Jefferson Circuit Court and the other in federal court. In the state action,
Walker named Mattingly individually as a defendant. Mattingly counterclaimed
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against Walker for the personal injuries he had suffered resulting from being
shot by Walker.
Following the filing of Mattingly’s counterclaim, Romines made a
responsive statement on a news report to WHAS TV, an ABC network affiliate
in Louisville, which was published and then republished online by other outlets
and individuals. Romines stated:
One would think that breaking into the apartment,
executing [Walker’s] girlfriend and framing [Walker] for
a crime in an effort to cover up her murder, would be
enough for them. Yet this baseless attempt to further
victimize and harass [Walker] indicates otherwise.
As a result of this statement, Mattingly filed a complaint in Edmonson
County, where he resided, against both Romines and his law firm (collectively
referred to hereafter as “Romines”) alleging that Romines’s statements
constituted actionable defamation.
Romines publicly responded again and told a news reporter for the
Courier Journal: “As I have said many times, it is a universal truth that liars,
racists, and dirty cops all hate being exposed as liars, racists, and dirty cops.”
Following the publication of that second statement, the circuit court
granted Mattingly leave to amend to include the latest statement as another act
of defamation by Romines.
Romines moved to dismiss the defamation action based on improper
venue and a failure to state a claim upon which relief could be granted.
Following the circuit court’s denial of his motion to dismiss, Romines
filed a petition for a writ of mandamus or prohibition with the Kentucky Court
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of Appeals requesting that it order the circuit court to either dismiss
Mattingly’s “unconstitutional lawsuit” with prejudice or order that Mattingly’s
suit be transferred to Jefferson County. The Court of Appeals denied the
petition for a writ by an order dated September 1, 2022. Romines appealed to
this Court.
Romines argues in support of a writ that Edmonson County is not the
proper venue for Mattingly’s claims, and that his defamation action should
otherwise be barred by: (1) the First Amendment to the United States
Constitution; (2) the judicial statements privilege; and (3) the “libel proof
plaintiff doctrine.”
II. ANALYSIS
In this action, Romines seeks extraordinary relief pursuant to CR 81. By
its nature, extraordinary relief is reserved for circumstances where the right of
appeal from a final judgment will be inadequate, or where a trial court’s action
will damage our judicial processes. Kentucky law in this arena is both well
developed and firmly established. In Bender v. Eaton, 343 S.W.2d 799, 800
(Ky. 1961), the Court analyzed the law relating to extraordinary writs and
counseled caution in entertaining petitions stating:
This careful approach is necessary to prevent short-
circuiting normal appeal procedure and to limit so far
as possible interference with the proper and efficient
operation of our circuit and other courts. If this avenue
of relief were open to all who considered themselves
aggrieved by an interlocutory court order, we would face
an impossible burden of nonappellate matters.
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Furthermore, this Court has held that “the decision whether to grant a
writ of prohibition lies in the sound discretion of the reviewing court.” Edwards
v. Hickman, 237 S.W.3d 183, 189 (Ky. 2007). While deference to such
discretion falls aside when it has been established that the lower court would
be acting outside its jurisdiction (see, e.g., Hoskins v. Maricle, 150 S.W.3d 1, 11
(Ky. 2004), and Chamblee v. Rose, 249 S.W.2d 775, 777 (Ky. 1952)), we have
continually asserted that whether to grant the writ is still discretionary.
A petitioner’s allegations of error alone do not justify extraordinary relief
under CR 81. Under our standards a writ for extraordinary relief may only be
granted upon a showing by the petitioner that: (1) that the lower court is
proceeding or is about to proceed outside its jurisdiction and there is no
remedy through an application to an intermediate court; or (2) 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 injustice and
irreparable injury will result if the petition is not granted. Cline v. Weddle, 250
S.W.3d 330, 334 (Ky. 2008) (quoting from Hoskins v. Maricle, 150 S.W.3d 1, 10
(Ky. 2004)).
In Bender, our predecessor Court analyzed these two distinct classes of
cases in which appellate courts could grant extraordinary relief. The first class,
acting without jurisdiction, is not found in this matter before us. As to the
“second class,” error within its jurisdiction, this Court explained the two-stage
analysis to be performed:
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In the second class of cases relief ordinarily has not
been granted unless the petitioner established, as
conditions precedent, that he (a) had no adequate
remedy by appeal or otherwise, and (b) would suffer
great and irreparable injury (if error has been
committed and relief denied). See Manning v. Baxter,
281 Ky. 659, 136 S.W.2d 1074; Smith v. Shamburger,
314 Ky. 850, 238 S.W.2d 844. This is a practical and
convenient formula for determining, prior to deciding the
issue of alleged error, if petitioner may avail himself of
this remedy. As a general rule, if he has an adequate
remedy by appeal or otherwise, or will not suffer great
and irreparable injury, the petition should be dismissed
forthwith.
Bender, 343 S.W.2d at 801.
After finding that a petitioner has passed test (a), the proper procedural
method is to only then apply test (b) to determine whether or not the petitioner,
even though lacking an alternate adequate remedy, will suffer great and
irreparable injury. This means something of a “ruinous” nature. Osborn v.
Wolfford, 239 Ky. 470, 39 S.W.2d 672, 673 (1931). Ordinarily if this cannot be
shown, the petition will be dismissed.
From the foregoing, it should be clear that showing both lack of an
adequate remedy by appeal and great and irreparable injury amount to a
threshold for one seeking extraordinary relief based on error within the circuit
court’s jurisdiction. Until this threshold is met, questions of circuit court error
do not arise. Bender, 343 S.W.2d at 801. Even then, the reviewing court still
has the discretion to deny the writ, where prudence dictates doing
so. Edwards, 237 S.W.3d at 189.
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Lastly, under the rarest circumstances, this Court has entertained
“certain special cases” where the petitioner has failed to make a specific
showing of a “great and irreparable injury” under test (a). However, such will
only occur when:
[A] substantial miscarriage of justice will result if the
lower court is proceeding erroneously, and correction of
the error is necessary and appropriate in the interest of
orderly judicial administration. It may be observed that
in such a situation the court is recognizing that if it fails
to act the administration of justice generally will suffer
the great and irreparable injury.
Bender, 343 S.W.2d at 801.
A. Venue
We will first address Romines’ argument that Edmonson County is the
wrong venue for Mattingly’s alleged SLAPP2 suit. We start by noting that
circuit courts, as courts of general jurisdiction, have subject matter jurisdiction
over defamation actions of the type here.3 Therefore, since the jurisdiction of
the Edmonson Circuit Court is not at issue, Romines must be able to convince
this Court that he falls within the “second class” of writs and that there exists
2 Romines alleges that Mattingly’s defamation suit is a “Strategic Lawsuit
Against Public Participation” which is a suit aimed at harassing, intimidating or
silencing those who otherwise exercising their rights. In sum, Romines asserts that
Mattingly’s suit is not being prosecuted to vindicate himself, but was filed in order to
silence, threaten, and intimidate Romines. Romines asks us to share these
conclusions from a record that contains no substantive findings of fact or conclusions
of law, but only the parties’ antagonistic accusations.
3 Kentucky Revised Statutes (KRS) 23A.010(1) states: “The Circuit Court is a
court of general jurisdiction; it has original jurisdiction of all justiciable causes not
exclusively vested in some other court.”
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no adequate remedy by appeal and great injustice and irreparable injury will
result if his petition is not granted.
We have generally determined that a person aggrieved by a venue
determination is confined to obtaining review only after a final judgment. Pettit
v. Raikes, 858 S.W.2d 171 (Ky. 1993); see also Martin v. Fuqua, 539 S.W.2d
314 (Ky. 1976). As we have stated, “[w]e consider the remedy by appeal to be
an adequate remedy if any error is committed as to venue.” City of Lexington v.
Cox, 481 S.W.2d 645, 547 (Ky. 1972).
Here, it is undisputed that when Romines made his allegedly defamatory
statements he did so in Jefferson County. However, at those times Mattingly
states he was a resident of Edmonson County. KRS 452.460(1) provides:
Every other action for an injury to the person or
property of the plaintiff, and every action for an injury
to the character of the plaintiff, against a defendant
residing in this state, must be brought in the county in
which the defendant resides, or in which the injury is
done. Provided, that in actions for libel the action shall
be brought in the county in which the plaintiff resides
or in the county in which the newspaper or publication
is printed or published, or in the county in which the
transaction or act or declaration to which the
publication relates is stated, or purported to have been
done or taken place.
The repetitive use of the conjunction “or” in our venue statute should
make it plain that either Jefferson or Edmonson counties would be the proper
venue for this action even if Romines’s statements were considered libelous4
4 While Kentucky commonly uses the umbrella term “defamation” regarding all
claims for injury to one’s reputation, our statutes and caselaw often still distinguish
between slander, an oral or spoken defamation, and libel, is a written defamation.
Toler v. Sud-Chemie, Inc., 458 S.W.3d 276, 282 (Ky. 2014). See also KRS 413.140(1)
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and we cannot therefore, at this juncture and with the record before us,
authoritatively state that the circuit court acted erroneously in refusing to
transfer this matter to Jefferson County.
From all the foregoing authority, we conclude that the venue, if it is an
issue at all, is not ripe for appeal since there has been no final judgment
entered in this case to finally resolve pending issues. We therefore find
Romines cannot show either a lack of an adequate remedy by appeal or a great
and irreparable injury and concur with the Court of Appeals.
B. Claims of Immunity
Romines argues at length that the statements he made are protected by
the First Amendment, that we should extend the judicial statements privilege
to lawyers’ statements made to the media outside the confines of pleadings or
the courtroom, and that we should also adopt the “libel-proof plaintiff doctrine”
and apply the same to Mattingly. Based on these “defenses,” Romines asserts
that this Court should order the circuit court to dismiss Mattingly’s complaint.
What Romines is really attempting is not a writ petition, but an
interlocutory appeal from a denial of a motion to dismiss which would be
appropriate in only the most “rare cases[,]” Baker v. Fields, 543 S.W.3d 575,
577 (Ky. 2018,) where we would consider application of the collateral order
doctrine. In Commonwealth v. Farmer, 423 S.W.3d 690 (Ky. 2014), we
expounded on the parameters of the doctrine and explained that simply being
(“The following actions shall be commenced within one (1) year after the cause of
action accrued: (d) An action for libel or slander”).
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denied a claimed “immunity” was not sufficient. The collateral order doctrine
requires an order that: (1) conclusively decides an important issue separate
from the merits of the case; (2) is effectively unreviewable following final
judgment; and (3) involves a substantial public interest that would be imperiled
absent an immediate appeal. Id. at 696-97. We do not believe that case meets
those stringent criteria.
We agree with the Court of Appeals which stated “the circuit court judge
and a jury are readily equipped to determine [this matter]. On appeal, Romines
would be able to argue those issues of law and how the facts apply to the law.”
Asking this Court to expand the protections provided by privileges far
beyond precedent, or to adopt and implement new immunities—by way of a
writ petition—would fundamentally alter not only how this Court analyzes writs
but would also dangerously transform how this Court entertains matters of
first impression and extensions of our caselaw.
It is difficult to imagine a scenario where it would be appropriate for an
appellate court to determine novel questions of law when there remain
questions of fact with the relevant facts strongly disputed. This is especially
true when the Court is faced with the type of limited record found in a writ
action. As this Court previously stated, writ decisions are inherently difficult in
large part because they “necessitate[ ] an abbreviated record,” which “magnifies
the chance of incorrect rulings that would prematurely and improperly cut off
the rights of litigants.” Cox v. Braden, 266 S.W.3d 792, 795 (Ky. 2008). “As
such, the specter of injustice always hovers over writ proceedings, which
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explains why courts of this Commonwealth are—and should be—loath to grant
the extraordinary writs unless absolutely necessary.” Id.Romines, having both an adequate remedy by appeal and being unable
to convince this Court that he would suffer a “great and irreparable injury” of
the kind necessary to support a writ, we must decline to issue a writ on the
basis of his claimed defenses.
III. CONCLUSION
The adequacy of Romines’s appellate remedies aside, Romines must still
show that our denial of his petition would work a great and irreparable injury
upon him—something he simply cannot do under the circumstances
presented. A great and irreparable injury under our precedent is not merely the
high cost of time and money attendant with litigation but, instead, is
“something of a ruinous nature[,]” Bender, 343 S.W.2d at 801, or even
“incalculable damage to the [petitioner] . . . either to the liberty of his person, or
to his property rights, or other far-reaching and conjectural consequences.”
Powell v. Graham, 185 S.W.3d 624, 629 (Ky. 2006) (quoting Litteral v.
Woods, 223 Ky. 582, 4 S.W.2d 395, 397 (1928)). We are unable to see such
severe injuries here. No doubt, Romines is inconvenienced and annoyed by the
circuit court’s ruling and the necessity of defending his statements to the
media moving forward with this litigation, but neither “inconvenience” nor
“annoyance” constitute great and irreparable harm. Fritsch v. Caudill, 146
S.W.3d 926, 930 (Ky. 2004).
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To rule otherwise would effect just the sort of “short-circuiting [of the]
normal appeal procedure” and “interference with the proper and efficient
operation of our circuit and other courts” which we have consistently warned
against. Bender, 343 S.W.2d at 800.
For these reasons, a writ of prohibition is not available to remedy the
errors alleged by Romines. The order of the Court of Appeals is therefore
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT STEVEN RUSH ROMINES:
R. Kenyon Meyer
Jeremy S. Rogers
Sarah D. Reddick
Dinsmore & Shohl LLP
COUNSEL FOR APPELLEE HONORABLE TIMOTHY R. COLEMAN:
Todd V. McMurtry
Hemmer DeFrank Wessels PLLC
APPELLEE:
Hon. Timothy R. Coleman, Judge
COUNSEL FOR AMICUS, KENTUCKY ASSOCIATION
OF CRIMINAL DEFENSE LAWYERS:
J. David Niehaus
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