From Casetext: Smarter Legal Research

Brown v. Stumbo

Commonwealth of Kentucky Court of Appeals
May 27, 2016
NO. 2014-CA-001572-MR (Ky. Ct. App. May. 27, 2016)

Opinion

NO. 2014-CA-001572-MR

05-27-2016

PERCY D. BROWN APPELLANT v. GREG STUMBO, ROBERT STIVERS, JOHN MINTON and COMMONWEALTH OF KENTUCKY APPELLEE

BRIEF FOR APPELLANT: Percy D. Brown, Pro Se West Liberty, Kentucky BRIEF FOR APPELLEE: GREG STUMBO, IN HIS CAPACITY AS SPEAKER OF THE KENTUCKY HOUSE OF REPRESENTATIVES and ROBERT STIVERS, IN HIS CAPACITY AS PRESIDENT OF THE KENTUCKY SENATE: Morgain M. Sprauge Frankfort, Kentucky JOHN MINTON, IN HIS CAPACITY AS CHIEF JUSTICE OF THE KENTUCKY SUPREME COURT: Jack Conway Attorney General of Kentucky Leilani K. M. Martin Assistant Attorney General Frankfort, Kentucky


NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 14-CI-00963 OPINION
DISMISSING

** ** ** ** **

BEFORE: COMBS, KRAMER AND NICKELL, JUDGES. COMBS, JUDGE: Appellant, Percy D. Brown (Brown), appeals from an Order of the Franklin Circuit Court dismissing his Motion for Declaratory Judgment. For the reasons set forth below, we dismiss the appeal.

Brown's Motion for Declaratory Judgment names Hon. Greg Stumbo, Speaker of the House of Representatives; Hon. Robert Stivers, President of the Senate; Hon. John D. Minton, Chief Justice of the Supreme Court; and Commonwealth of Kentucky as Respondents (Appellees). The certificate of service reflects that on July 29, 2014, Brown mailed his motion to the Clerk, Franklin Circuit Court, and served a copy of it by mail upon Respondents Stumbo, Stivers, and Minton, and upon Hon. Jack Conway, Attorney General. The Motion is stamped by the Franklin Circuit Court as "RECEIVED" on August 14, 2014, and "tendered" is handwritten above the date. Brown also submitted a Motion for Appointment of Counsel; a Motion for Hearing on Declaratory Judgment; a Motion to Proceed in Forma Pauperis; a Form AOC-350 Financial Statement; Affidavit of Indigency; and Request for Counsel and Order, all of which are date-stamped "FILED" on August 14, 2014. The trial court did not rule on those three Motions.

In his Motion for Declaratory Judgment, Brown alleged that:

[R]espondents have violated his due process rights by failing to codify a pre-trial detainee's right to speedy trial; and, that RCr 9.02 fails to establish valid standards for the administration and application of the Speedy Trial provisions of both the United States and Kentucky Constitution thereby being void for vagueness.
(Emphasis original.)

On August 21, 2014, the circuit court, sua sponte, entered an Order dismissing. The Order in its entirety provides as follows:

This matter is before the Court, sua sponte [sic], on the Court's own motion. Having considered the arguments of the parties, reviewed the record and otherwise being sufficiently advised, the Court hereby ORDERS that this case is DISMISSED for failure to state a claim upon which relief can be granted under CR 12.02. The Complaint asserts claims against Greg Stumbo, Robert Stivers and John Minton, in their official capacities as Speaker of the House of Representatives, Senate President, and Chief Justice of the Kentucky Supreme Court. Kentucky case law is well established that elected officials enjoy absolute immunity from suit. See Kraus v. Kentucky State Senate, 872 S.W.2d 433, 440 (Ky. 1993). See also Eastland v. United States' Servicemen's Fund, 421 U.S. 491, 507 (1975). Moreover, the allegations against the three Respondents run afoul of the separation of powers required by Sections 27 and 28 of the Kentucky Constitution. Under the principles adopted in Legislative Research Commission v. Brown, 664 S.W. 2d 907 (Ky. 1984), one branch of government should not attempt to micromanage the operation of the other two coequal branches. As to the claim against Chief Justice Minton, this Court lacks jurisdiction to grant relief as the rulemaking power for the Court of Justice is vested exclusively in the Supreme Court of Kentucky under Section 116 of the Kentucky Constitution.

So ORDERED this the ___ [sic] day of August 2014.

Only Brown's name appears on the distribution list.

On August 27, 2014, Brown filed an Amended Motion for Declaratory Judgment naming the same four Respondents "to include a claim of violation of his right to equal protection under the law." The certificate of service reflects that on August 22, 2014, a copy was served by mail upon Respondents Stumbo, Stivers, Minton, and Jack Conway, Attorney General. The Amended Motion for Declaratory Relief was not addressed by the trial court.

Brown appeals from the August 21, 2014, Order dismissing. On September 19, 2014, Brown filed a Motion for Leave to Proceed in forma pauperis on appeal. By Order entered September 26, 2014, the circuit court granted the motion.

Brown argues that the trial court erred in dismissing, sua sponte, his motion for declaratory judgment and that it erred in dismissing his motion for failure to state a claim. Appellee, Commonwealth of Kentucky, has filed a Brief and contends that the appeal should be dismissed for failing to include the Attorney General at the trial level; alternatively, it contends that the trial court did not err in denying Brown's Motion for Declaratory Judgment.

We note that there is some confusion about the record. It appears that it was transmitted after the filing of the Commonwealth's Brief. As noted above, Brown certified that he served a copy of the Motion for Declaratory Judgment by mail upon the Attorney General. Kentucky Revised Statute[s] (KRS) 418.075(1); Kentucky Rule[s] of Civil Procedure (CR) 24.03. We also note that the Commonwealth has appended Brown's Motion for Preliminary Injunction to its Brief. By notice dated September 11, 2015, the Court of Appeals returned the Motion for Preliminary Injunction to Brown as an unauthorized pleading. --------

Because the August 21, 2014, Order is interlocutory and non-appealable, we are compelled to dismiss this appeal. On its own motion, a court "will raise the issue of want of jurisdiction if the order appealed from lacks finality." Huff v. Wood-Mosaic Corp., 454 S.W.2d 705, 706 (Ky. 1970). CR 54.02(1) provides that:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may grant a final judgment upon one or more but less than all of the claims or parties only upon a
determination that there is no just reason for delay. The judgment shall recite such determination and shall recite that the judgment is final. In the absence of such recital, any order or other form of decision, however designated, which adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is interlocutory and subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

This case involves multiple parties. The August 21, 2014, Order makes no mention whatsoever of the "fourth" Respondent, the Commonwealth of Kentucky. The trial court did not recite that there is "no just reason for delay," and the Order does not contain the required finality language.

For the purpose of making an otherwise interlocutory order final and appealable, the trial court is required to determine 'that there is no just reason for delay,' and the judgment must recite this determination and also recite that the judgment is final CR 54.02(1). The omission of one of these requirements is fatal.
Hale v. Deaton, 528 S.W.2d 719, 722 (Ky. 1975).

Accordingly, this appeal is dismissed.

ALL CONCUR. BRIEF FOR APPELLANT: Percy D. Brown, Pro Se
West Liberty, Kentucky BRIEF FOR APPELLEE: GREG STUMBO, IN HIS
CAPACITY AS SPEAKER OF THE
KENTUCKY HOUSE OF
REPRESENTATIVES and
ROBERT STIVERS, IN HIS
CAPACITY AS PRESIDENT OF
THE KENTUCKY SENATE: Morgain M. Sprauge
Frankfort, Kentucky JOHN MINTON, IN HIS
CAPACITY AS CHIEF JUSTICE OF
THE KENTUCKY SUPREME
COURT: Jack Conway
Attorney General of Kentucky Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky


Summaries of

Brown v. Stumbo

Commonwealth of Kentucky Court of Appeals
May 27, 2016
NO. 2014-CA-001572-MR (Ky. Ct. App. May. 27, 2016)
Case details for

Brown v. Stumbo

Case Details

Full title:PERCY D. BROWN APPELLANT v. GREG STUMBO, ROBERT STIVERS, JOHN MINTON and…

Court:Commonwealth of Kentucky Court of Appeals

Date published: May 27, 2016

Citations

NO. 2014-CA-001572-MR (Ky. Ct. App. May. 27, 2016)