Opposition Brief — Bethlehem Minerals Co. v. Church & Mullins Corp.
Supreme Court brief1995
Ask Donna
What actually matters in this document.
Text
» Court, US.
FILED
APR 20 1995
St Lt eat |
No. 94-1561 3 OFFICE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1994
BETHLEHEM MINERALS COMPANY,
ETHLEHEM MINES CORPORATION,
ETH-ELKHORN CORPORATION AND
BETHENERGY MINES, INC.,
B
B
Petitioners,
CHURCH AND MULLINS CORPORATION,
CLAUDE JOHNSON, CHARLIE JOHNSON, JACK
JOHNSON, MARTHA KENDRICK, PRISCILLA
STILTNER, BEN JOHNSON, MOLLY THORNBERRY
AND BETTY JANE JOHNSON STEWART,
Respondents.
On Petition for a Writ of Certiorari
to the Supreme Court of Kentucky
BRIEF IN OPPOSITION TO PETITION
FOR A WRIT OF CERTIORARI
HERMAN W. LESTER GARY C. JOHNSON
Counsel of Record P.O. Box 231
207 Caroline Ave. Pikeville, KY 41502
P.O. Drawer 551 (606) 437-4002
Pikeville, KY 41502
(606) 437-6218 S. STROTHER SMITH III
903 E. Main Street
GILBERT K DAVIS Abingdon, VA 24210
9516-C Lee Hwy. (703) 628-3422
Fairfax V 22031
703) 352-3850 Attorneys for
Respondents
QUESTIONS PRESENTED
1. Whether Petitioners’ claim that
due process requires vacatur of the Ken-
tucky Supreme Court's June 4, 1992 Opin-
ion was pressed or passed on below.
2. Whether certiorari is precluded
by the existence of an independent and
adequate state law ground for decision,
where Petitioners obtained the relief
they requested, since Special Justice
Hays recused himself from further parti-
cipation in the proceedings below and
since the Kentucky Supreme Court recon-
sidered the merits of the willful tres-
pass issue.
3. Whether certiorari must be de-
nied because the controversy is moot,
Since the Kentucky Supreme Court reheard
the willful trespass issue and decided
the issue against Petitioners by a 6 to l
vote.
———————————————————
4. Whether the Kentucky Supreme
Court's Order Denying Petitioners’ Peti-
tion for Rehearing conflicts with Aetna
Life Insurance Co. v. Lavoie, 475 U.S.
813 (1986), or otherwise raises any im-
portant issue of federal law, when there
is no record evidence that any Kentucky
Supreme Court Justice or Special Justice
who participated in the consideration of
this case had any direct, personal, sub-
stantial, and pecuniary interest in the
outcome of this case.
oid o
TABLE OF CONTENTS
Page
QUESTIONS emmOuNTHD - - + + ** * ° i
TABLE OF erppaspmeiTigg . - + *** °° Vv
STATEMENT OF | Sa 1
SUMMARY OF THE ARGUMENT - +--+: °* ° 16
REASONS FOR DENYING THE WRIT
Zz. CERTIORARI MUST BE DENIED ON
THE GROUND THAT PETITIONERS '
CLAIM THAT DUE PROCESS RE-
QUIRES VACATUR OF THE KEN-
TUCKY SUPREME COURT'S JUNE
4, 1992 OPINION WAS NOT
PRESSED OR PASSED ON BELOW. .- 18
II. CERTIORARI SHOULD BE DENIED
BECAUSE THERE IS AN INDE-
PENDENT AND ADEQUATE STATE
LAW GROUND FOR DECISION,
SINCE PETITIONERS OBTAINED
THE RELIEF THEY REQUESTED,
WHEN SPECIAL JUSTICE HAYS
RECUSED HIMSELF FROM FUR-
THER PARTICIPATION IN THE
PROCEEDINGS BELOW AND WHEN
THE KENTUCKY SUPREME COURT
RECONSIDERED THE MERITS OF
THE WILLFUL TRESPASS ISSUE .- - 21
-iii-
Le ew
L¥.
TABLE OF CONTENTS (CONT'D)
CERTIORARI MUST BE DENIED
BECAUSE THE CONTROVERSY IS
MOOT, SINCE THE KENTUCKY
SUPREME COURT REHEARD THE
WILLFUL TRESPASS ISSUE AND
DECIDED THE ISSUE AGAINST
PETITIONERS BY A 6 TO 1
VOTE —%
THE KENTUCKY SUPREME
COURT'S ORDER DENYING PETI-
TIONERS' PETITION FOR RE-
HEARING DOES NOT CONFLICT
WITH AETNA LIFE INSURANCE
CO. v. LAVOIE, 475 U.S. 813
(1986), OR OTHERWISE RAISE
ANY IMPORTANT ISSUE OF FED-
ERAL LAW ae oe
CONCLUSION
APPENDIX
-iv-
26
OF A ITIE
Cases
Aetna Life Insurance Co. v.
Lavoie, 475 U.S. 813
ci eres FE
Bankers Life & Casualty Co.
v. Crenshaw, 486 U.S.
71 (1988)
Bray v. Alexander Clinic, 113 S.
Ct. 753 (1993) coe ee eee
Clark v. Jeter, 486 U.S. 456
(1988) erga
Coleman v. Thompson, 111 S. Ct.
2546 (1991)
Fox Corp. v. Muller, 296 U.S.
207 (1935) ;
In re Murchison, 349 U.S. 133
(1955) > [a
Kentucky Utilities v. South
East Coal Co., 836 S.W.2d
407 (Ky. 1992), cert.
dismissed under Rule 46,
113 S. Ct. 1147 (1993)
Lewis v. Continental Bank
Corp., 494 U.S. 472
(1990) oo
Michigan v. Long, 463 U.S. 1032
(1983) a vaio, Setar ae Piende
Murdock v. Memphis, 87 U.S. (20
Wall.) 590 (1875) art de
LZ,
28
passim
10,
20
a3
19
21
21
29
43
26
23
21
TABLE OF AUTHORITIES (CONT'D)
Cases Page
offutt v. United States, 348 U.S.
11 (1954) a ig ae gh Se 31
Tumey v. Ohio, 273 U.S. 510
(1927) Pee See Sie tae a aa ee 29
Withrow v. Larkin, 421 U.S. 35
(1975) Ae ear IY ee ee 32
yYlst v. Nunnemaker, 111 S. Ct.
ee fen 4 6 lk ee ee a) 24
Younger v. Harris, 401 U.S. 37
(1971) el Ae ere ae Ga a a ae 12
Statutes
a eee. § £a0 «se eee 8 eS 6
Me Comer §€§ 423 «2s 2+ © © we eo 8 6, 14
a -. Cie D. TEi8e « + 6 + & BO i3, 22
Ky. Rev. Stat. Ann. § 26A.015
(Michie 1992) ... + ++ + «+ > 2
7 2 Gee. oft, fhe + 2 * 8 WH 48 26
-vi-
(ht ae i Mas ta Di an SO De
STATEMENT OF T CASE
This case involves two judgments of
the Pike County Circuit Court. The first
judgment, entered September 16, 1986,
determined title to the mineral estate in
a 375-acre tract on Three Mile Creek in
Pike County, Kentucky, that is commonly
known as "Tract 42" (Sept. 16, 1986 Opin-
ion, Findings of Fact and Conclusions of
Law). The Pike County Circuit Court
found that Petitioners held title to 164
acres of Tract 42, and that Respondents
held title to the remaining 211 acres
(Id.). The second judgment, entered Feb-
ruary 25, 1987, awarded Respondents dam-
ages in the principal sum of $16,947,778,
plus prejudgment interest, for willful
trespass (Feb. 25, 1987 Opinion, Findings
of Fact and Conclusions of Law).
Petitioners appealed to the Kentucky
Court of Appeals, which, on January 12,
1990, affirmed the trial court's decision
-l1-
on title, but which reversed the finding
of willful trespass and prejudgment in-
terest and remanded for a recalculation
of damages. On September 19, 1990, the
Kentucky Supreme Court granted discre-
tionary review.
Supreme Court Justice Dan Jack
Combs, sua sponte, recused himself. By
Order dated September 17, 1991, the
Honorable Robert F. Stephens, the Chief
Justice of the Kentucky Supreme Court,
appointed John Doug Hays as a Special
Justice to replace Justice Combs (Appel-
lants’ and Cross-Appellees' Response to
Motion to Recuse Special Justice John
Doug Hays, Exh. A; App., infra, la-2a).
Special Justice Hays's appointment
was made pursuant to Ky. Rev. Stat. Ann.
§ 26A.015(3) (Michie 1992), which au-
thorizes the Chief Justice to appoint a
Special Justice when any justice is dis-
qualified. To implement the statute, the
a
Oi
Kentucky Supreme Court adopted a proce-
dure for appointment of a Special Justice
(Response to Motion to Recuse, Exh. B;
App. 3a-5a). At the beginning of each
annual term, each justice is required to
provide the Chief Justice with a list of
not less than ten attorneys from his ju-
dicial district who meet the constitzu-
tional requirements for service and who
have the ability to serve as a Special
Justice (App. 4a). Once advised of a
justice's disqualification, the Chief
Justice appoints a Special Justice from
the list previously submitted to him by
the disqualified justice (Id.). John
Doug Hays was included on the standing
list of qualified attorneys from Justice
Combs's judicial district.
Contrary to Petitioners’ allegation
) in its Petition for Certiorari (Petition
for Writ of Certiorari at 4, 6), Justice
Combs did not "personally select” or
EU CHE kd POY Rhee cn
aSe<
2
:
"personally designate” John Doug Hays to
serve as Special Justice. The Kentucky
Supreme Court's September 17, 1991 Order,
entered by the Deputy Chief Justice
Charles Leibson, states:
Honorable John D. Hays, a
member of the Kentucky Bar with
offices in Pikeville, Kentucky,
who was appointed by Chief Jus-
tice Robert F. Stephens to sit
as special justice of the Su-
preme Court in the determina-
tion of this cause by reason of
the disqualification of Justice
Dan Jack Combs, was on Septem-
ber 17, 1991, prior to any con-
sideration of this cause, ad-
ministered the Constitutional
Oath by the undersigned.
(App. la-2a.) Petitioners’ allegation
that Justice Combs designated Special
Justice Hays is based solely on a news-
paper article in the Lexington Herald-
Leader, dated June 25, 1992. The arti-
cle quotes Justice Combs as stating: "I
just suggested to the Chief Justice that
he (Hays) would be a fine special judge.
There was no special reason” (Bethlehem
Memorandum in Support of Supplemental
a
Soar Soke (Sec SA UN BES SE DORR SACn. Sal Oa eRe SRE eae omar ae
ES ON? BLE Gen ee
Motion to Recuse Special Justice John
Doug Hays, Exh. A at Bl).
On June 4, 1992, the Kentucky Su-
preme Court rendered its decision, which
reversed in part the court of appeals and
reinstated in all respects the judgment
of the Pike County Circuit Court (Peti-
tion for Writ of Certiorari at App. la).
The majority opinion was written by Spe-
cial Justice Hays with the concurrence of
three justices; three justices dissented.
On June 24, 1992, Petitioners filed
a Petition for Rehearing and a Motion to
Recuse Special Justice Hays. The Peti-
tion for Rehearing sought reconsideration
of the Supreme Court's decision on will-
ful trespass, damages, and prejudgment
interest, and incorporated by reference
the arguments in the Motion to Recuse
(Bethlehem Petition for Rehearing at 2).
In seeking recusal, Petitioners wrote
that they did not "call into question the
in
integrity of any member of the Court or
Special Justice who sat in this case”
(Bethlehem Memorandum in Support of Mo-
tion to Recuse Special Justice John Doug
Hays at 2). The Petitioners alleged in-
stead that the court’s procedure for ap-
pointing a Special Justice violated §§
110(3) and 123 of the Kentucky Constitu-
tion (Id. at 6-11). The Petitioners fur-
ther alleged that Special Justice Hays's
impartiality might reasonably be ques-
tioned because of his former professional
association with the trial judge after
the trial judge had left the bench, and
because of Hays’s withdrawal from repre-
sentation of third parties involved in
unrelated litigation brought against Pet-
itioner BethEnergy Mines, Inc. (Id. at
11-15) .’
In the Motion to Recuse, Petition-
ers complained of Special Justice Hays's
previous participation in another tres-
pass action brought against Petitioner
BethEnergy Mines, Inc., Osborne v. Beth-
ei-
ES ROR cee
| Although the Petitioners were aware
| from the very instant of Special Justice
Hays's appointment of all of the predi-
cate facts upon which they based their
Motion to Recuse, the Petitioners con-
cededly waited over nine months to file
the Motion, until after the Kentucky Su-
Energy Mines, Inc., Civil Action No. 88-
100 (Pike Cir. Ct.), an unrelated case
involving different creditors and dif-
ferent transactions (Bethlehem Memorandum
in Support of Motion to Recuse Special
Justice John Doug Hays at 3-4, Exh. B).
On June 3, 1988, Special Justice Hays
withdrew from representation of the
plaintiffs in the Osborne case. Hays’'s
withdrawal was based on the fact that his
firm, Stratton, May & Hays, P.S.C., had
represented Petitioners in another case
(Appellants’ Response to Motion to Re-
cuse, Exh. 6). Moreover, Petitioners
) complained that the trial judge in this
! case, William T. Scott, had been a part-
ner of Stratton, May & Hays for approx-
imately two years after Judge Scott had
left the bench (Bethlehem Memorandum in
Support of Motion to Recuse Special Jus-
tice John Doug Hays at 13-15). Judge
Scott had left the firm long before Spe-
cial Justice Hays had been appointed in
this case.
x
preme Court had rendered its June 4, 1992
Opinion against Petitioners (Id. at 17) .’
Petitioners’ Motion to Recuse and
Petition for Rehearing sought prospec-
tive relief. Petitioners prayed that
"Special Justice Hays .. . be recused
from any further proceedings in this ap-
peal and the Opinion of the Court of Ap-
peals affirmed or, alternatively, this
case must be reconsidered in its entirety
by a constitutionally constituted court"
In their Motion to Recuse, Peti-
tioners stated that they delayed filing
the Motion in order to avoid antagoniz-
ing the court before the court issued its
opinion (Bethlehem Memorandum in Support
of Motion to Recuse Special Justice John
Doug Hays at 17).
Petitioner BethEnergy Mine, Inc.'s
counsel of record in the Kentucky Supreme
Court, John M. Stephens and Lively M.
Wilson, also represented Petitioner Beth-
Energy in the Osborne case (Appellants’
Response to Motion to Recuse, Exh. C).
Petitioners’ counsel could not have
avoided being aware, because of their
frequent dealings with the firm of Strat-
ton, May & Hays, of Judge Scott's pre-
vious association with this prominent
Kentucky firm.
aQ~
Ae Lane
(Bethlehem Memorandum in Support of Mo-
tion to Recuse Special Justice John Doug
Hays at 1-2 (emphasis added)). Similar-
ly, the Petition for Rehearing prayed
that the court of appeals’ decision be
"affirmed or, alternatively, this case
reconsidered in its entirety” (Bethlehem
Petition for Rehearing at 10).
On July 6, 1992, Petitioners filed a
Motion for Leave to File a Supplemental
Motion te Recuse Special Justice Hays and
a Supplemental Petition for Rehearing.
In this Motion, for the first time, Peti-
tioners alleged that they were denied due
process because the Chief Justice had
selected Special Justice Hays at Justice
Combs's suggestion (Bethlehem Memorandum
in Support of Supplemental Motion to Re-
cuse Special Justice John Doug Hays at
2). In their Supplemental Petition and
Motion, Petitioners again demanded that
"Special Justice Hays .. . be recused
«9-
from further participation in this ap-
peal,” and the appeal "reconsidered in
its entirety by a constitutionally con-
stituted court” (Id. at 5; Bethlehem Pro-
posed Supplemental Petition for Rehearing
at 1).
On August 25, 1992, the Kentucky
Supreme Court decided Kentucky Utilities
vy. South East Coal Co., 836 S.W.2d 407
(Ky. 1992), cert. dismissed under Rule
46, 113 S. Ct. 1147 (1993). In that de-
cision, the court upheld its procedure
for appointment of a Special Justice,
rejecting arguments based on the Kentucky
Constitution.
On August 28, 1992, two Orders were
entered by the Supreme Court of Kentucky
in the instant litigation. In the first
Order, Special Justice Hays recused him-
self sua sponte from further participa-
tion (Special Justice John Doug Hays’s
Order of Aug. 28, 1992 at App. 6a-7a),
420-
thereby providing Petitioners with the
precise relief requested. Although find-
ing that Petitioners’ Motion to Recuse
An ad eR E Tei,
stated no grounds for disqualification,
Special Justice Hays stated that he acted
in order to avoid any further allegation
of impropriety (Id. at App. 7a).
In the second Order, the Kentucky
Supreme Court denied Petitioners’ Motion
to Recuse and Motion to File a Supplemen-
tal Petition for Rehearing as moot, based
upon Justice Hays's sua sponte recusal
from further participation (Chief Justice
Stephens’s Order of Aug. 28, 1992 at App.
8a-8b). The supreme court further
granted Petitioners’ oral argument in
support of their Petition for Rehearing
(Id.).
On August 25, 1992, Petitioners
filed a civil rights action in the United
States District Court for the Eastern
District of Kentucky against the individ-
«2% ~
ual justices of the Kentucky Supreme
Court, Bethlehem Minerals Co. v. John
Doug Hays et al., No. 92-86 (E.D. Ky.,
filed Aug. 25, 1992). The complaint
sought injunctive relief to vacate the
Kentucky Supreme Court's June 4, 1992
Opinion, on the same substantive grounds
Petitioners had asserted in their pending
petition for rehearing in state court.
On January 20, 1993, the federal district
court dismissed the complaint in the ex-
ercise of its discretion to abstain under
the Younger v. Harris, 401 U.S. 37
(1971), doctrine (Jan. 20, 1993 Order).
After the federal district court
dismissal, Petitioners filed a Motion for
Leave to File a Second Supplemental Peti-
tion for Rehearing. Although ostensibly
for the purpose of presenting supplemen-
tal authority related to the original
petition for rehearing, Petitioners’ Mo-
tion also included a proposed amendment
$2
Oe ee ee eine Sone re tnt, See eran tT Cone Ee aris asta
ee acne
to their prayer for relief. The amend-
ment omitted Petitioners’ demand for re-
consideration and sought in lieu thereof
that Special Justice Hays'’s vote be ex-
cluded from the supreme court's tally anda
that the decision of the court of appeals
be affirmed by a 3 to 3 vote (Bethlehem
Proposed Supplemental Petition for Re-
hearing at 4). Respondents opposed this
Motion, arguing that Petitioners had
failed to file their Supplemental Peti-
tion within the 20-day period allowed by
Ky. R. Civ. P. 76.32(2) and that the Spe-
cial Justice issue should not be resur-
rected (Response and Objection to Motion
for Leave to File Second Supplemental
Petition for Rehearing at 2). On Decem-
ber 14, 1993, the Kentucky Supreme Court
denied Petitioners’ Motion without com-
at3-
ment (Dec. 14, 1993 Order at App. lla-
12a) .’
After Justice Combs retired from the
bench, a special election to select his
replacement to serve out his term was
held. On August 27, 1993, the Kentucky
Supreme Court entered an Order assigning
the Petition for Rehearing for oral argu-
ment on December 15, 1993 before the full
court (Chief Justice Stephens's Aug. 28,
1993 Order).* At oral argument, Chief
*In response to the dismissal of
their federal action, Petitioners also
filed a Motion to Enter Judgment and to
Withdraw Petition for Rehearing if Motion
Granted. This Motion, however, did not
raise any federal question. The Motion
alleged that the Kentucky Supreme Court's
June 4, 1992 Opinion was void because it
was rendered in violation of § 123 of the
Kentucky Constitution (Bethlehem Motion
to Enter Judgment and to Withdrawal Peti-
tion for Rehearing If Motion Granted at
2).
‘Oral argument on Petitioners’ Peti-
tion for Rehearing was consolidated with
oral argument in a related case, Bethle-
hem Minera — -
Corp., No. 93-SC-587-TG (Pike Cir. Ct.),
which was an appeal by Petitioners from
the Pike County Circuit Court’s denial of
st@-
j
ela RRA ah dtd oo 0% + ody
ee RON: a ohh ete
Justice Stephens advised Petitioners’
counsel that the court had upheld the
constitutionality of its procedure for
appointment of a Special Justice in the
Kentucky Utilities case (Dec. 15, 1993
Tape of Oral Argument, 12:06:50 to
12:09<39) .
On November 23, 1994, the Kentucky
Supreme Court denied Petitioners’ Peti-
tion for Rehearing by a 6 to 1 vote (Or-
der Denying Petition for Rehearing, Peti-
tion for Writ of Certiorari at App. 16a)
The court rejected all of Petitioners’
state law arguments (Id. at App. 17a-
18a). In response to Petitioners’ due
process theory, the court stated:
{I]t is noteworthy that in this
case petitioners were granted
the relief they requested;
after motion by petitioners,
Petitioners’ Motion to Vacate the Pike
County Circuit Court judgments. On No-
vember 23, 1994, the Kentucky Supreme
Court unanimously affirmed the trial
court's denial of Petitioners’ Motion to
Vacate the judgments.
-15-
Special Justice Jchn Doug Hays,
sua_ sponte, recused himself
from further participation in
the above-styled action to
avoid any appearance of impro-
priety and this Court granted a
second oral argument in this
Matter. The Court granted Pe-
titioners the relief requested
and there is nothing in the
opinicn of this Court to sup-
port the bald assertion by the
petitioners that they were de-
nied due process of law in this
matter.
(I at App. 17a (emphasis added) .)
SUMMARY OF THE ARGUMENT
Certiorari should be denied because
Petitioners’ claim that vacatur is the
only available remedy to cure the alleged
due process violation was not pressed or
passed upon below. Moreover, certiorari
should be denied because there is an in-
dependent and adequate state law ground
for decision, which is that Petitioners
obtained below the relief they had re-
quested. Furthermore, certiorari should
be denied because the Kentucky Supreme
a. oe
a Palla aainea
ee ee ere
0 DP Aah A as int a ae eet ats bias Aas!
Court's rehearing on the merits makes
this controversy moot.
Even assuming arquendo that there is
no procedural bar to review in this
Court, certiorari should be denied be-
cause the Kentucky Supreme Court’s Order
Denying Petitioners’ Petition for Rehear-
ing does not conflict with Aetna Life
Insurance Co. v. Lavoie, 475 U.S. 813
(1986), or otherwise raise any important
issue of federal law. Petitioners do not
allege that any justice or Special Jus-
tice who participated in the June 4, 1992
decision had any direct, personal, sub-
stantial, and pecuniary interest in the
outcome. There is no record evidence to
support Petitioners’ allegation that Jus-
tice Combs had any such interest in the
decision, but, in any event, he recused
himself from consideration on the merits.
Petitioners’ allegation that Justice
Combs personally selected Special Justice
mh
Hays is not supported by the record and
does not provide a basis for any substan-
tial federal due process claim.
REASONS FOR DENYING THE WRIT
CERTIORARI MUST BE DENIED ON
THE GROUND THAT PETITIONERS '
CLAIM THAT DUE PROCESS REQUIRES
VACATUR OF THE KENTUCKY SUPREME
COURT'S JUNE 4, 1992 OPINION
WAS NOT PRESSED OR PASSED ON
BELOW.
Petitioners assert that prospective
recusal of Special Justice Hays did not
cure the denial of due process and that
vacatur is the only acceptable remedy
(Petition for Writ of Certiorari at 12).
However, this claim was not pressed by
Petitioners or passed on by the Kentucky
Supreme Court, and therefore the claim
has been procedurally defaulted. In re-
viewing the decisions of state courts,
this Court will not decide federal claims
that were not pressed or passed on below.
2a-
Mirena 6
Clark v. Jeter, 486 U.S. 456, 459-60
(1988).
Petitioners sought prospective re-
cusal and reconsideration in their plead-
ings below as the remedy for the alleged
due process violation (Bethlehem Motion
to Recuse at 1-2; Bethlehem Petition for
Rehearing at 10; Bethlehem Memorandum in
Support of Supplemental Motion to Recuse
Special Justice John Doug Hays at 5;
Bethlehem Proposed Supplemental Petition
for Rehearing at 1). In Petitioners’
proposed Second Supplemental Petition for
Rehearing, Petitioners, for the first
time, demanded that Special Justice
Hays's vote be excluded and the court of
appeals’ decision be affirmed on a 3 to 3
vote (Bethlehem Proposed Supplemental
Petition for Rehearing at 4). However,
the proposed Supplemental Petition, which
the Kentucky Supreme Court refused to
hear because of Petitioners’ procedural
~49-
ne OEE OCR eee: TT ee OE eT en
Ee eA SE LIAS Et Sea a
default, requested this remedy only for
alleged violations of the Kentucky Con-
stitution (Id. at 1-3). Petitioners did
not mention the federal due process
clause, let alone request vacatur for
denial of due process (Id.). Petition-
ers' failure to allege that due process
required affirmance of the court of ap-
peals' decision or vacatur of the Ken-
tucky Supreme Court's June 4, 1992 Opin-
ion bars them from making this claim on
appeal. See Bankers Life & Casualty Co.
v. Crenshaw, 486 U.S. 71, 77-78 (1988)
(challenge to punitive damages award
barred where appellant failed to refer to
federal excessive fines clause as basis
for its claim that damages awarded were
excessive).
~20-
ELLOS LOTTIE Se ee ST
II. CERTIORARI SHOULD BE DENIED BE-
CAUSE THERE IS AN INDEPENDENT
AND ADEQUATE STATE LAW GROUND
FOR DECISION, SINCE PETITIONERS
OBTAINED THE RELIEF THEY RE-
QUESTED, WHEN SPECIAL JUSTICE
HAYS RECUSED HIMSELF FROM FUR-
THER PARTICIPATION IN THE PRO-
CEEDINGS BELOW AND WHEN THE
KENTUCKY SUPREME COURT RECON-
SIDERED THE MERITS OF THE WILL-
FUL TRESPASS ISSUE.
This Court will not consider an is-
sue of federal law on direct review from
the judgment of a state court if that
judgment rests on a state law ground that
is independent of the merits of the fed-
eral claim and is an adequate basis for
the court’s decision. Fox Corp. v. Mul-
ler, 296 U.S. 207, 210 (1935); Murdock v.
Memphis, 87 U.S. (20 Wall.) 590, 635-36
(1875). This rule applies regardless of
whether the state law ground is substan-
tive or procedural. C man _v. Thompson,
111 S. Ct. 2546, 2554 (1991).
An independent and adequate state
law ground for the decision here is that
Petitioners obtained the relief they had
a23«
requested below. Petitioners sought only
prospective recusal of Special Justice
Hays and reconsideration on the merits in
their Supplemental Motion to Recuse and
in their Supplemental Petition for Re-
hearing, where Petitioners raised for the
first time a claim that they were denied
due process because Justice Combs al-
legedly had suggested Special Justice
Hays's appointment (Bethlehem Memorandum
in Support of Supplemental Motion to Re-
cuse Special Justice John Doug Hays at 5;
Bethlehem Proposed Supplemental Petition
for Rehearing at 1). Petitioners ob-
tained the precise relief requested:
Special Justice Hays recused himself from
further participation in this case, and
the Kentucky Supreme Court granted Peti-
tioners a rehearing on the merits.
Although the Order Denying Petition-
ers' Petition for Rehearing also states
that there was no due process violation,
=393-
the plain statement rule of Michigan v.
Long, 463 U.S. 1032 (1983), and its prog-
eny has no application here. Under Long,
if "it fairly appears that the state
court rested its decision primarily on
federal law, or to be interwoven with
federal law," this Court may reach the
federal question unless the state court's
opinion contains a "'plain statement’
that [its] decision rests upon adequate
and independent state grounds.” Id. at
1042.
Viewed in its full context, the Ken-
tucky Supreme Court’s decision rested
primarily on the basis that Petitioners
had obtained the relief requested, i.e.,
prospective recusal of Special Justice
Hays and a rehearing on the merits. The
August 28, 1992 Order denied Petitioners’
Motion to Recuse and Motion for Leave to
File a Supplemental Petition for Rehear-
ing, expressly on this basis. Since this
~33-
Order clearly was based on state law,
this Court must presume that the subse-
quent denial of Petitioners’ Petition for
Rehearing did not silently disregard the
State law ground as an adequate and inde-
pendent ground for decision. See Ylst v.
Nunnemaker, 111 S. Ct. 2590, 2594, 2596
(1991). In denying the Petition for Re-
hearing, the Kentucky Supreme Court did
not ignore the procedural bar; it ex-
pressly held that Petitioners had ob-
tained the relief requested.
Moreover, although Petitioners com-
plain now that the Kentucky Supreme Court
did not apply a de novo standard of re-
view in rehearing this case, Petitioners
did not request de novo review in their
Petition for Rehearing. Petitioners pre-
sented no new arguments on the merits in
their Petition for Rehearing, and the
justices were singularly unimpressed with
Petitioners’ Petition.
-24-
ar PO EN
Seven months after the court had
entered its August 28, 1992 Order, the
court denied as untimely Petitioners’ Mo-
tion for Leave to File a Second Supple-
mental Petition for Rehearing. If
granted, this Motion would have withdrawn
Petitioners’ demand for reconsideration
in lieu of a demand that Special Justice
Hays's vote be treated as void and that
the court of appeals’ decision be af-
firmed by a 3 to 3 vote. Since this Mo-
tion was denied as a result of Petition-
ers' procedural default,°* there is an
independent and adequate ground for the
"Although the Order denying Peti-
tioners’' leave to file their proposed
second Supplemental Petition gave no
rationale, it is clear that the Order was
based on Petitioners’ procedural default.
Respondents opposed the Motion solely on
the state law ground that it was untimely
and that the Special Justice issue should
not be resurrected. Ky. R. Civ. P.
76.32(2) requires that a Petition for
Rehearing be filed within 20 days of the
court’s decision, and the time limitation
may not be waived. The court accordingly
did not reach the merits of the second
Supplemental Petition.
26.
Kentucky Supreme Court's denial of leave
to supplement Petitioners’ Petition for
Rehearing.
Under all of these circumstances,
certiorari must be denied, since there is
an independent and adequate state law
ground for the decision. Petitioners
obtained below the relief they requested,
and Petitioners' Motion for Leave to File
a Second Supplemental Petition for Re-
hearing was denied based on Petitioners’
procedural default.
III. CERTIORARI MUST BE DENIED BE-
CAUSE THE CONTROVERSY IS MOOT,
SINCE THE KENTUCKY SUPREME
COURT REHEARD THE WILLFUL TRES-
PASS ISSUE AND DECIDED THE IS-
SUE AGAINST PETITIONERS BY A 6
TO 1 VOTE.
Under Article III of the Constitu-
tion, federal courts may adjudicate only
actual ongoing cases or controversies.
Lewis v. Continental Bank Corp., 494 U.S.
472, 477 (1990). Article III denies to
=26-
SR Ee Re RS a Ne ee ee eT a aT ere nT i ane ae ee nee
EL EE LT EN TAT
federal courts the power to decide ques-
tions that cannot affect the rights of
litigants. Id. at 477. Moreover, the
case-or-controversy requirement exists
through all stages of trial and appellate
proceedings. Id.
Petitioners allege that due process
requires vacatur of the Kentucky Supreme
Court's June 4, 1992 Opinion and recon-
Sideration of the decision on its merits
by a properly constituted court. How-
ever, Petitioners already have obtained a
rehearing by a regularly constituted pan-
el of justices on the merits of their
willful trespass issue, which is the only
substantive issue preserved by Petition-
ers in their Petitioner for Rehearing.
The Kentucky Supreme Court's November 23,
1994 Order Denying Petition for Rehearing
Clearly reached and decided adversely to
Petitioners the merits of the case, by a
6 to 1 vote. Because Petitioners already
o3F
have obtained all the relief to which
they are entitled, the case is moot.
IV. THE KENTUCKY SUPREME COURT'S
ORDER DENYING PETITIONERS' PE-
TITION FOR REHEARING DOES NOT
CONFLICT WITH AETNA LIFE IN-
SURANCE CO. v. LAVOIE, 475 U.S.
813 (1986), OR OTHERWISE RAISE
ANY IMPORTANT ISSUE OF FEDERAL
LAW.
Petiticners’' argument that Special
Justice Hays is clothed with the same
cloak of disqualification worn by Jus-
tice Combs because Justice Hays was se-
lected from Justice Combs's standing list
of qualified attorneys is nothing less
than a direct challenge to Kentucky's
judicial selection system. Petitioners
have no support for their theory that due
process requires federal supervision of
Kentucky's judicial selection process.
Petitioners correctly recognize that
Aetna Life Insurance Co. v. Lavoie, su-
pra, 475 U.S. at 828, defines the cir-
cumstances where due process requires
-28-
judicial disqualification of a particular
justice for reasons peculiar to that
case. In Aetna Life, the Court observed
that not "[a]1ll questions of judicial
qualification . . . involve constitution-
al validity. Thus matters of kinship,
personal bias, state policy, remoteness
of interest, would generally seem to be
matters merely of legislative discre-
tion.” Id. at 820 (quoting Tumey v.
Ohio, 273 U.S. 510, 523 (1927)). Due
process, however, requires that no judge
“be a judge in his own case [or be] per-
mitted to try cases where he has an in-
terest in the outcome.” Aetna Life In-
Surance Co. v. Lavoie, supra, 475 U.S. at
822 (quoting In re Murchison, 349 U.S.
133, 136 (1955)). The Court concluded
that due process is violated where a
judge has a "direct, personal, substan-
tial, pecuniary interest in reaching a
conclusion.” Aetna Life Insurance Co. v.
~29-
Lavoie, supra, 475 U.S. at 820. In
Aetna, due process was violated by the
participation of an Alabama Supreme Court
justice in a decision addressing un-
settled issues affecting the recovery of
punitive damages for bad-faith refusal to
pay an insurance claim where identical
legal issues were present in two pending
state court actions filed by the justice
against insurance companies. Id. at 823-
24.
The present case does not bear even
the remotest resemblance to the situation
in Aetna Life. Unlike Aetna Life, Peti-
tioners do not contend in their Petition
for a Writ of Certiorari that any Supreme
Court justice or Special Justice who par-
ticipated in the decision in this case
had any direct, personal, substantial,
and pecuniary interest in the outcome.
Petitioners instead allege that Justice
Combs had a direct, personal, substan-
~<30-
tial, and pecuniary interest in the out-
come of this case when the Kentucky Su-
preme Court granted discretionary review.
The record contains no evidence to sup-
port such an allegation, but even assum-
ing arguendo that the allegation were
true, there would be no denial of due
process.
The due process clause protects
against situations where there is a high
probability of actual bias on the part of
the decisionmaker. See Withrow v. Lark-
in, 421 U.S. 35, 47 (1975); Offutt v.
United States, 348 U.S. 11, 17-18 (1954).
Justice Combs recused himself and did not
vote or otherwise participate in the pan-
el that decided this case. There is no
evidence that any decisionmaker below
violated the Aetna Life constitutional
barrier by "act[ing] as a judge in his
own case." Aetna Life Insurance Co. v.
Lavoie, supra, 475 U.S. at 824.
S23
Petitioners’ allegation that their
due process rights were violated by Jus-
tice Combs's direction or selection of
his replacement raises no substantial
federal question. In the first instance,
the Kentucky Supreme Court's records,
through which the court speaks, establish
that Chief Justice Stephens, not Justice
Combs, selected Special Justice Hays.
Moreover, Petitioners’ suggestion
that the unconstitutional risk of bias is
created when a recused justice suggests
his replacement is meritless. There is a
"presumption of honesty and integrity in
those serving as adjudicators." Withrow
v. Larkin, supra, 421 U.S. at 47. Peti-
tioners have not set forth any legal or
factual basis for their allegation that
the Kentucky Supreme Court's procedure
for appointment of a Special Justice re-
sults in biased decisionmaking or other-
wise warrants the extraordinary action ©!
<239<
RASS ON Re aarti
ad SATAN Tt BND Rl AE ts ins epi
federal interference with Kentucky's ju-
dicial selection process.
Petitioners do not allege in their
Petition for a Writ of Certiorari that
Justice Combs's replacement, Special Jus-
tice Hays, or any other justice who sat
in decision of this case, had any direct,
personal, substantial, and pecuniary in-
terest in the outcome. They have waived
any right to make such a claim here. See
Bray v. Alexander Clinic, 113 S. Ct. 753,
vivanaittihas
765 (1993).
fe
CONCLUSION
The Petition for a Writ of Certio-
rari must be denied.
Respectfully submitted,
HERMAN W. LESTER
Counsel of Record
207 Caroline Avenue
P.O. Drawer 551
Pikeville, KY 41502
(606) 437-6218
GILBERT K. DAVIS
9516-C Lee Highway
Fairfax, VA 22031
(703) 352-3850
GARY C. JOHNSON
P.O. Box 231
Pikeville, KY 41502
(606) 437-4002
S. STROTHER SMITH III
903 E. Main Street
Abingdon, VA 24210
(703) 628-3422
Attorneys for Respondents
-34-
APPENDIX
SUPREME COURT OF KENTUCKY
90-SC-081-DG
CHURCH AND MULLINS APPELLANTS
CORPORATION, ET AL.
ON REVIEW FROM COURT OF APPEALS
NO. 87-CA-001052
(Pike Circuit Court No. 00-72-88-43D)
Vv.
BETHLEHAM MINERALS APPELLEES
COMPANY, ET AL.
to be heard with:
90-SC-000784-DG
BETHLEHAM MINERALS APPELLANTS
COMPANY, ET AL.
ON REVIEW FROM COURT OF APPEALS
NO. 87-CA-001052
(Pike Circuit Court No. 00-07-28843D)
V.
CHURCH AND MULLINS APPELLEES
CORPORATION, ET AL.
ORDER
Honorable John D. Hays, a member of
the Kentucky Bar with offices in Pike-
ville, Kentucky, who was appointed by
Chief Justice Robert F. Stephens to sit
as special justice of the Supreme Court
la
in the determination of this cause by
reason of the disqualification of Justice
Dan Jack Combs, was on September 17,
1991, prior to any consideration of this
cause, administered the Constitutional
Oath by the undersigned.
ENTERED September 17, 1991.
Charles M. Leibson
Deputy Chief Justice
2a
PROCEDURE FOR APPOINTMENT OF A SPECIAL
JUSTICE OF THE SUPREME COURT OF KENTUCKY
This Court hereby adopts the follow-
ing policy to be employed when one member
het ata
of the Court is disqualified from sitting
in a case. SCR 1.020(1), Ky. Const.
§116.
: Jurisdiction
Pursuant to KRS 26A.015(3) (a), any
! Justice disqualified under the provisions
: of that section shall be replaced by the
Chief Justice.
Therefore, if a justice disqualifies
himself from participation in the consid-
eration 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 Ken-
tucky Supreme Court. A case is "ready
for review" within the meaning of this
; rule ten days before it is scheduled for
oral argument.
; Selection S J
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 ten attorneys from his dis-
trict who meet the constitutional quali-
fications for service and have the abil-
ity to serve as a special justice.
Once advised of a justice's disqual-
ification, the Chief Justice shall ap-
point a special justice from the list
previously submitted to him by the dis-
qualified justice.
tf Notice of Selection
An order appointing a special jus-
tice shall be filed with the Clerk of the
Supreme Court and entered in the record
of the case. Copies of the order of ap-
pointment shall be circulated to the Spe-
Cial Justice, the Justices of the Supreme
Court and the parties to the action.
4. Service as Special Justice
4a
1 pap Spare rte a i are
The Supreme Court Administrator
shall coordinate the service of Special
Justices of the Supreme Court. Compensa-
tion 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 Win-
tersheimer, J., dissents.
ENTERED October — . 2509,
Robert F. Stephens
Chief Justice
5a
SUPREME COURT OF KENTUCKY
90-SC-000081-DG
90-SC-000784-DG
CHURCH AND MULLINS CORPORATION;
CLAUDE JOHNSON, Individually, etc.;
CHARLIE JOHNSON; JACK JOHNSON;
MARTHA KENDRICK; PRISCILLA STILTNER;
HAZEL JOHNSON; BEN JOHNSON; MOLLY
THORNBERRY; BETTY JANE JOHNSON
STEWARD
MOVANTS /CROSS-RESPONDENTS
ON REVIZW FROM COURT OF APPEALS
NOS. 87-CA-000988 and 87-CA-001052
(Pike Circuit Court No. 00-72-88-43D)
V.
BETHLEHEM MINERALS COMPANY ;
BETHLEHEM MINES CORPORATION;
BETH-ELKHORN CORPORATION ;
BETH ENERGY MINES, INC.
RESPONDENTS /CROSS-MOVANTS
RDER
Comes John Doug Hays, duly appointed
Special Justice of the Supreme Court of
Kentucky, being advised of the motion of
respondents/cross-movants for his recusal
by the Supreme Court of Kentucky, and
hereby sua sponte recuses himself from
further deliberation and participation in
6a
the proceedings in the above styled ac-
tions. No grounds have been stated by
the respondents/cross-movants which would
justify the disqualification of this Spe-
cial Justice, pursuant to KRS 26A.015(3)
(a). However, in order to avoid any fur-
ther allegation or appearance of impro-
priety, said Special Justice hereby re-
cuses himself from further participation
in the above-styled action.
John Doug Hays
John Doug Hays
ENTERED: August 28, 1992.
7a
a a
SUPREME COURT OF KENTUCKY
90-SC-000081-DG
90-SC-000784-DG
CHURCH AND MULLINS CORPORATION;
CLAUDE JOHNSON, Individually, etc.;
CHARLIE JOHNSON; JACK JOHNSON ;
MARTHA KENDRICK; PRISCILLA STILTNER;
HAZEL JOHNSON; BEN JOHNSON; MOLLY
THORNBERRY; BETTY JANE JOHNSON
STEWART
MOVANTS/CROSS -RESPONDENTS
ON REVIEW FROM COURT OF APPEALS
NOS. 87-CA-000988 and 87-CA-001052
(Pike Circuit Court No. 00-72-88-43D)
vi
BETHLEHEM MINERALS COMPANY ;
BETHLEHEM MINES CORPORATION;
BETH-ELKHORN CORPORATION;
BETH ENERGY MINES, INC.
RESPONDENTS /CROSS-MOVANTS
ORDER
This Court being advised that in the
interest of avoiding any appearance of
impropriety on his part or the part of
this Court, Special Justice John Doug
Hays has sua sponte recused himself from
further participation herein, the motion
of respondents/cross-movants to recuse
8a
a
Special Justice John Doug Hays from fur-
ther deliberations and participation in
the above-styled actions is denied as be-
ing moot.
The motion of respondents/cross-
| movants for oral argument in support of
| their petition for rehearing is granted.
Such oral argument will be scheduled by
further order of this Court.
The motion of respondents/cross-
movants for oral argument in support of
their motion to recuse Special Justice
Hays is denied as being moot.
The motion of respondents/cross-
movants for leave to file a supplemental
petition for rehearing is denied because
the additional evidence contained therein
pertains to the participation of Special
Justice John Doug Hays whose recusal ren-
ders said issue moot.
Stephens, C.J. and Lambert, Leibson,
Reynolds, Spain and Wintersheimer, JJ.,
9a
sitting. Combs, J., not sitting. All
concur.
ENTERED August _28 _, 1992.
Robert F. Stephens
Chief Justice
10a
SUPREME COURT OF KENTUCKY
90-SC-000081-DG
90-SC-000784-DG
93-SC-000587-TG
BETHLEHEM MINERALS COMPANY,
BETHLEHEM MINES CORPORATION,
BETH-ELKHORN CORPORATION, AND
BETHENERGY MINES, INC.
APPELLANTS, APPELLEES
AND CROSS APPELLANTS
APPEAL FROM COURT OF APPEALS
NO. 87-CA-G00988, NO. 87-CA-0001052
AND NO. 93-CA-1299
(Pike Circuit Court No. 00-07-28843D)
V.
CHURCH AND MULLINS CORPORATION,
CLAUDE JOHNSON, Administrator of
the Estate of John Johnson and
Individually, CHARLIE JOHNSON,
JACK JOHNSON, MARTHA KENDRICK,
PRISCILLA STILTNER, HAZEL JOHNSON,
BEN JOHNSON AND MOLLY THORNBERRY,
AND BETTY JANE JOHNSON STEWART
APPELLEES, APPELLANTS
AND CROSS-APPELLEES
ORDER
Appellees' motion for leave to file
a second supplemental petition for re-
hearing is denied.
Lambert, Leibson, Reynolds and
Spain, JJ., sitting. All concur.
lla
ENTERED December 14, 1993.
Robert F. Stephens
Chief Justice
12a
i
eG nt Te
SG at a
meee y é
$i RAST sof
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.