stating “[w]e recognize that in criminal cases such as this the Commonwealth is represented at the trial level by local prosecuting officials. . . . For that reason, we conclude that the notice requirements of [KRS 418.075] must be met in criminal, as well as civil, actions[]”
How later courts described this case
- stating “[w]e recognize that in criminal cases such as this the Commonwealth is represented at the trial level by local prosecuting officials. . . . For that reason, we conclude that the notice requirements of [KRS 418.075] must be met in criminal, as well as civil, actions[]”
- collecting Kentucky authority supporting rule that “objection to one acting as special judge cannot be made for the time on appeal”
- “Since at least 1860 it has been the rule that objection to one acting as special judge cannot be made for the first time on appeal.”
- notice requirement applies in criminal as well as civil actions
Written by the judges who cited it.
The opinion
SCHRODER, Judge,
concurring in part and dissenting in part.
The facts in this case are relatively simple. A sitting circuit judge recused himself and the chief regional circuit judge appointed a retired judge as a special judge to hear defendant’s case. Section 110(5)(b) of the Kentucky Constitution and KRS 26A.020(1) allows the chief justice to appoint a retired judge as a special judge, but neither the Constitution nor the Supreme Court’s rules, adopted pursuant to section 112(4) of the Kentucky Constitution, allows a regional circuit judge to make such an appointment.
The majority holds that the appointment is voidable only if there was a timely objection, citing Martin v. Stumbo, 282 Ky. 793 , 140 S.W.2d 405 (1940). I believe it was void from the beginning, as the matter is jurisdictional. The circuit court has jurisdiction of the defendant’s case but only a judge, not an interloper, can conduct the trial. See Ketcham v. Manning, 212 Ky. 325 , 279 S.W. 344 (1926); Pinkleton v. Lueke, 265 Ky., 84 , 95 S.W.2d 1103 (1936); Miller v. Anderson, Ky., 519 S.W.2d 826 (1975). Without authority from our constitution, statutes, or rules adopted pursuant thereto, the appointment has no legal basis. Regency Pheasant Run Ltd. v. Karem, Ky., 860 S.W.2d 755 (1993). Good intentions and competence in the person appointed special judge will not substitute for legal authority any more than recognizing a kangaroo court of the “Freeman” who attempts to set up a parallel government by ignoring the constitution and the ballot box. Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679 (1994).
I believe that the Supreme Court should not only set aside Martin v. Stumbo, supra, and the defendant’s alleged conviction, but also expunge it from the court’s record as well. Bowles v. Manning, 196 Ky. 728 , 245 S.W. 506 (1922).