KENTUCKY UTILITIES COMPANY, Mоvant/Cross-Respondent, v. SOUTH EAST COAL COMPANY, Citizens Fidelity Bank & Trust Company, Kentucky Coal Association, Respondents/Cross-Movants.
Nos. 91-SC-357-DG, 91-SC-609-DG, and 91-SC-610-DG.
Supreme Court of Kentucky.
Aug. 25, 1992.
836 S.W.2d 407
Bert T. Combs, William H. MсCann, John Regan Rhorer, Jr., Penny R. Warren, Wyatt, Tarrant & Combs, Lexington, for South East Coal Co.
Hiram Ely, III, Louisville, James A. Kegley, Lexington, J. Mark Grundy, Greenbaum, Doll & McDonald, Louisville, for Citizens Fidelity Bank & Trust Co.
William K. Caylor, Lexington, for Kentucky Coal Ass‘n.
The motions pending before this Court for review are the motions of respondent/cross-movant, South East Coal Company, for intermediate relief, for recusal of the Justices of the Supreme Court of Kentucky and for disqualification of Special Justice Robert L. Chenoweth.
A brief review of the factual background of this appeal shows that on May 31, 1991, an Order was entered designating Hon. Robert L. Chenoweth to sit as Special Justice in the pending actions. Counsel was served with a copy of said order. On June 28, 1991, this Court granted discretionary review, with Special Justice Chenoweth participating, and sсheduled the oral argument in the case for August 20, 1991. On June 4, 1992, 836 S.W.2d 392, this Court rendered its opinion which reversed the Court of Appeals, with five Justices concurring and two Justices dissenting.
On June 24, 1992, South East Coal Company filed a Petition for Rehearing and, for the first time, mоved this Court to set aside the appointment of Special Justice Chenoweth on the ground that his appointment violated Section 110 of the Kentucky Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. This motion also requested that the opinion rendered June 4, 1992, be set aside for the same reason and that a rehearing be provided before “a properly constituted” Supreme Court of Kentucky. It further moved eaсh member of this Court concurring in the majority opinion to recuse himself if he believed “his impartiality had been impaired” by the role of Special Justice Chenoweth.
On July 2, 1992, South East Coal filed a motion for recusal of the Justices of the Suрreme Court of Kentucky from consideration of its own motion to disqualify Special Justice Chenoweth.
On August 22, 1992, South East Coal Company filed a motion requesting this Court to stay its proceedings pending a decision by United States District Judge Hood on South East Coal Company‘s cross-claim against the Supreme Court of Kentucky in federal court.
As to South East Coal Company‘s motion for recusal, no facts have been disclosed which bring this case within the parameter of SCR 4.300 or
This Court in denying the motion to recuse and in determining that it is properly constituted to review matters herein obviates the need for granting intermediate relief to South East Coal Company, pursuant to CR 76.33. Clearly, South East Coal
As to the motion for recusal of Special Justice Chenoweth, we first observe that South East Coal Company and all parties hereto were notified of the appointment of the Special Justice well in advance of oral argument. There was no objection. South East Coal Comрany appeared, by counsel, at oral argument with Special Justice Chenoweth sitting and still there was no objection. Nearly ten months passed from the date of oral argument until rendition of our opinion and no issue was raised аs to the participation of the Special Justice. Only after South East Coal Company received an unfavorable opinion did it voice any complaint. We need not provide extensive authority for the proposition that a party must timely object or be deemed to have waived any such objection. CR 46. Poorman v. Commonwealth, Ky., 782 S.W.2d 603 (1990). Martin v. Stumbo, 282 Ky. 793, 140 S.W.2d 405 (1940).
Fairness and good faith toward this Court required any issue regarding the appointment of a Special Justice to be raised at the earliest opportunity and certainly before rendition of an opinion by this Court. South East Coal Company‘s voluntary participation, without objection, forecloses it from any retroactive complaint now. The motion is denied.
While the procedural default of South East Coal Company precludes a motion to disqualify Special Justice Chenoweth, this Court will address the constitutionality of the “Procedure For Appointment of A Special Justice of the Suprеme Court of Kentucky” entered of record October 16, 1989, and employed in the May 31, 1991, appointment of Special Justice Robert L. Chenoweth herein. Said procedure, appended hereto, provides for the replacement of a disqualified Justice by the Chief Justice pursuant to
“Any justice or judge of the Court of Justice disqualified under the provisions of this section shall be replaced by the chief justice.”
This statutory mandate to replace “any justice” who is “disqualified,” was enacted in 1976, immediately after the Judicial Amendment to the Kentucky Constitution was adopted. Obviously it was intended to supplement the newly enacted Judicial Article.
In developing a procedure for replacing a justice on this Court who is disqualified, pursuant to
This Court‘s responsibility is to decide all cases presented to it in an orderly and just fashion; a case affirmed by an equally divided court without opinion is not a quality decision by any stretch of the imagina
Honorable Robert L. Chenoweth was appointed to sit as a Spеcial Justice in this matter pursuant to a valid statute and in accordance with the provisions of the Kentucky Constitution. South East Coal Company has no due process right to retroactively challenge his appointment, by such a vаlid procedure, and makes no allegation of a personal, substantial or pecuniary interest in the case on the part of Special Justice Chenoweth to merit his recusal from sitting in this action.
For the foregoing reasоns all recusal motions and the motion for intermediate relief be and are hereby denied.
COMBS, LAMBERT, REYNOLDS, SPAIN and WINTERSHEIMER, JJ., and CHENOWETH, Special Judge, sitting.
All concur, except WINTERSHEIMER, J., who concurs in result by separate opinion but disagrees with the procedure.
STEPHENS, C.J., not sitting.
ENTERED August 25, 1992.
/s/ Charles M. Leibson
Deputy Chief Justice
APPENDIX
PROCEDURE FOR APPOINTMENT OF A SPECIAL JUSTICE OF THE SUPREME COURT OF KENTUCKY
This Court hеreby adopts the following policy to be employed when one member of the Court is disqualified from sitting in a case. SCR 1.020(1),
1. Jurisdiction
Pursuant to
Therefore, if a justice disqualifies himself from participation in the consideration of a case before it is ready for review by the members of the Court, the Chief Justice shall appoint an attorney to serve as a Special Justice of the Kеntucky Supreme Court. A case is “ready for review” within the meaning of this rule ten days before it is scheduled for oral argument.
2. Selection of Special Justice
At the beginning of the annual term of the Supreme Court each justice shall provide the Chief Justice with a list of not less than tеn attorneys from his district who meet the constitutional qualifications for service and have the ability to serve as a special justice.
Once advised of a justice‘s disqualification, the Chief Justice shall appoint a special justice from the list previously submitted to him by the disqualified justice.
3. Notice of Selection
An order appointing a special justice shall be filed with the Clerk of the Supreme Court and entered in the record of the case. Copies of the order of appоintment shall be circulated to the Special Justice, the Justices of the Supreme Court and the parties to the action.
4. Service as Special Justice
The Supreme Court Administrator shall coordinate the service of Special Justices of the Supreme Court. Compensation for each 7.5 hour day of service as a Special Justice is $262.53 per day, plus 20.5 per mile for travel connected with court service.
All sitting.
All concur except WINTERSHEIMER, J., dissents.
ENTERED October 16, 1989.
/s/ Robert F. Stephens
Chief Justice
WINTERSHEIMER, Justice, concurring.
I concur in the result achieved by the majority but wish to state my reasons sеparately. I would deny the motion to disqualify Special Justice Chenoweth because the
In my view the Constitutional system never envisioned the appointment of less than two special justices.