Office of Bar Counsel v. Kentucky Bar Association Board of Governors

• Court: Kentucky Supreme Court
• Decided: October 18, 2022
• Docket: 2022 SC 0273
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. NOT TO BE PUBLISHED

Supreme Court of Kentucky 2022-SC-0273-OA

OFFICE OF BAR COUNSEL MOVANT

V. IN SUPREME COURT (KBA FILE NOS. 19-DIS-0054 AND 19-DIS-0055)

KENTUCKY BAR ASSOCIATION BOARD OF RESPONDENT GOVERNORS

AND

PERRY THOMAS RYAN AND DAVID MICHAEL WILLIAMS REAL PARTIES IN INTEREST

OPINION AND ORDER

This matter comes to us in the unique posture of the Office of Bar

Counsel petitioning this Court for a writ of mandamus requiring the Kentucky

Bar Association Board of Governors to vacate its Order Remanding to the Trial

Commissioner the disciplinary proceedings against Perry Thomas Ryan and

David Michael Williams for an evidentiary hearing. SCR1 3.370(5)(d). Because

Bar Counsel has failed to demonstrate “great injustice and irreparable harm” or

the lack of an adequate remedy by appeal, we deny its Petition.

1 Kentucky Rules of Supreme Court. I. Facts and Procedural Background.

The disciplinary cases against Ryan and Williams arise from their roles

in prosecuting Garr Keith Hardin and Jeffrey Dewayne Clark, who had been

convicted of the 1992 murder of Rhonda Warford. Their convictions were

affirmed on direct appeal, Hardin v. Commonwealth, 95–SC–000461–MR (Ky.

Aug. 29, 1996); Clark v. Commonwealth, 95–SC–000453–MR (Ky. Oct. 2, 1997)

and upheld in post-conviction proceedings. E.g., Clark v. O’Dea, 257 F.3d 498

(6th Cir. 2001) (federal habeas corpus); Hardin v. Commonwealth, 2001-CA-

1782-MR, 2003 WL 21106138 (Ky. App. May 16, 2003) (RCr 11.42 ineffective

assistance of counsel). In 2013, however, this Court held that Hardin and

Clark were entitled to release of physical evidence for DNA testing. Hardin v.

Commonwealth, 396 S.W.3d 909 (Ky. 2013). Following that testing, the Meade

Circuit Court, in July 2016, granted their motion for a new trial. On the

Commonwealth’s appeal, we upheld the circuit court’s Order. Commonwealth

v. Clark, 528 S.W.3d 342 (Ky. 2017).

Following the circuit court’s order granting a new trial, the

Commonwealth, acting through Ryan and Williams, obtained, in September

2016 and March 2017, additional indictments against Hardin and Clark for

kidnapping and perjury. These additional indictments were based on the

Warford murder and statements to the Kentucky Parole Board. At the time,

Ryan was a Staff Attorney in the Appeals Branch of Office of the Attorney

General and Williams was the Meade Commonwealth’s Attorney.

2 Both Ryan and Williams ceased any role in prosecuting Hardin and Clark

at some point in 2017, and the Office of Attorney General was substituted as

special prosecutor. In January 2018, the circuit court dismissed the additional

indictments due to its finding of vindictive prosecution.

In early 2019, Ryan and Williams had ethical complaints filed against

them based on their actions in procuring the additional indictments, as set

forth in the circuit court’s January 2018 Order dismissing. The Inquiry

Commission ultimately filed four-count charges against both Ryan and

Williams, alleging violations of SCR 3.130 (3.1), (3.4(f)), (3.8(a)) and (8.4(c)).

Following the filing of answers to the charges, the matter was assigned to a

trial commissioner.

One of the issues presented to the Trial Commissioner was the preclusive

effect of the circuit court’s January 2018 Order, and whether Ryan and

Williams were collaterally estopped from contesting the Order or presenting

evidence to rebut findings set forth therein. In December 2020, the Trial

Commissioner ruled that Ryan and Williams were so limited, and that the

January 2018 Order “provides conclusive evidence of the facts[, and] is a final

order.” It ruled Ryan and Williams were precluded from re-litigating those

issues by collateral estoppel. Ryan and Williams filed a motion for

reconsideration which was denied.

The Trial Commissioner conducted a hearing in August 2021 which

excluded Ryan’s and Williams’ proposed witnesses, Judge Bruce T. Butler, who

had issued the January 2018 Order, and Christopher Cohron,

3 Commonwealth’s Attorney for the 8th Judicial Circuit, who was to testify on

the Kentucky grand jury process. The day after the hearing, Ryan and

Williams took testimony by avowal, including that of Judge Butler, outside the

hearing of the Trial Commissioner, and including avowal exhibits.

In October 2021, the Trial Commissioner filed his report finding Ryan

and Williams had violated the rules, as charged. He then entered his Order

and Amended Report in January 2022, recommending a sanction for each

Ryan and Williams of 180 days suspension, to serve 30 days with the balance

probated for two years. Following an appeal to the Board of Governors, the

parties were permitted oral argument.

Following that argument, the Board of Governors entered an Order on

June 6, remanding the matter to the Trial Commissioner. The Board’s Order

recites its unanimous decision, pursuant to SCR 3.370(5)(d), “to remand the

case to the Trial Commissioner for a new evidentiary hearing, having found as

a matter of law that the Trial Commissioner erred in the application of

collateral estoppel in this case.” The Board provided its analysis of the

application of collateral estoppel, and then stated,

The Board acknowledges its ability to reject the Trial Commissioner’s Report and consider this matter de novo pursuant to SCR 3.370(5)(a)(ii). However, the Board finds remanding this action to the Trial Commissioner to consider the excluded evidence to be the better course of action. SCR 3.370(5)(d) provides that “[a]t any time during deliberations the Board . . . may remand the case to the Trial Commissioner . . . for an evidentiary hearing on points specified in the order of remand.” The Respondents introduced various avowal testimony during the hearing before the Trial Commissioner. However, avowal testimony is limiting to the Board. It is used to preserve evidentiary questions on appeal, not to be testimony upon which a decision should be rendered. The 4 Board believes that the Trial Commissioner as the initial finder of fact should fully hear and consider such testimony in entering its report. This will afford each party the right and opportunity to effectively cross examine such witnesses and fully present their case.

Therefore, on remand, the Trial Commissioner is Ordered to conduct a hearing with respect to all four charges filed against the Respondents (violation of SCR 3.130(3.1); SCR 3.130(3.4)(f); SCR 3.130(3.8)(a); and SCR 3:130(8.4)(c)) in light of new evidence to be presented by the parties that was improperly excluded as a result of the Trial Commissioner’s Order of December 17, 2020, which incorrectly found that collateral estoppel was applicable. Said evidence would include, but would not be limited to, the avowal evidence presented by the Respondents on August 6, 2021.

Following the entry of the Board’s Order, Bar Counsel filed its Petition for a

Writ of Mandamus for an Order requiring the Board to vacate its Order of

Remand, and either to make a recommendation or review, pursuant to SCR

3.370(5)(a) or to comply with SCR 3.370(5)(d) by entering an order “for an

evidentiary hearing on points specified in the order of remand.”

II. Standard for Issuance of a Writ of Mandamus or Prohibition.

This case is unusual since typically Bar Counsel represents the Board of

Governors and the Kentucky Bar Association in proceedings before us, whereas

here, Bar Counsel is proceeding against the Board, in its quasi-judicial role in

a bar disciplinary matter. In addition, we typically review writ decisions of the

Court of Appeals, whereas in this case, we are asked to make that

determination as the body to which disciplinary matters are brought as a

matter of right. A further complication is that decisions of trial commissioners

and the Board are merely advisory since this Court has final authority over bar

discipline. Kentucky Const. § 116; see, e.g., Ky. Bar Ass’n, Hines, 399 S.W.3d

5 750, 771 (Ky. 2013) (noting this Court’s close to plenary power over bar

discipline and that the Board’s decision is advisory only).

Ryan and Williams filed a response to Bar Counsel’s petition and

expressed their preference that the Board should have conducted a de novo

review, SCR 3.370(5)(a)(ii), but did not object to the Order of Remand. The

Board filed a Notice waiving any response to Bar Counsel’s petition.

Notwithstanding the foregoing, Bar Counsel has invoked this Court’s

jurisdiction seeking an extraordinary writ. The decision whether to issue such

a writ is a question of judicial discretion. Allstate Prop. & Cas. Ins. Co. v.

Kleinfeld, 568 S.W.3d 327, 331 (Ky. 2019) (quoting Appalachian Racing, LLC v.

Commonwealth, 504 S.W.3d 1, 3 (Ky. 2016)). The issuance “of a writ is an

extraordinary remedy that is disfavored by our jurisprudence. We are,

therefore, ‘cautious and conservative both in entertaining petitions for and in

granting such relief.’” Caldwell v. Chauvin, 464 S.W.3d 139, 144-45 (Ky. 2015)

(citing Ridgeway Nursing & Rehab. Facility, LLC v. Lane, 415 S.W.3d 635, 639

(Ky. 2013); Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961)). Writs “are truly

extraordinary in nature and are reserved exclusively for those situations where

litigants will be subjected to substantial injustice if they are required to

proceed.” Independent Ord. of Foresters v. Chauvin, 175 S.W.3d 610, 615 (Ky.

2005). “The exigency must be extreme, the threatened danger practically

certain, and the consequent irremediable injury equally imminent, before the

writ should be so employed. It must be rare when the occasion can arise.”

6 Kleinfeld, 568 S.W.3d at 331 (quoting Hager v. New South Brewing Co., 28 Ky.

L. Rptr. 895, 90 S.W. 608, 609 (1906)).

As noted in Kleinfeld, writ cases are essentially divided into two classes,

“based on whether the inferior court allegedly is acting: (1) without jurisdiction

(which includes ‘beyond its jurisdiction’); or (2) erroneously within its

jurisdiction.” Id. at 332 (citing Commonwealth v. Peters, 353 S.W.3d 592, 595

(Ky. 2011)). In this matter, the Board clearly has jurisdiction, so Bar Counsel

must be seeking a writ under the second category. Within the second category,

a tribunal acting erroneously within its jurisdiction, the petitioner must

demonstrate two threshold requirements: it has “no adequate remedy by appeal

or otherwise; and [it] will suffer great and irreparable harm.” Peters, 353

S.W.3d at 595 (citing Hoskins v. Maricle, 150 S.W.3d 1, 18 (Ky. 2004)). We

reiterated in Kleinfeld, that “[u]nder the certain-special-cases exception, the

writ can be granted ‘in the absence of a showing of specific great and

irreparable injury . . . provided 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.’”

568 S.W.3d at 332 (quoting Peters, 353 S.W.3d at 595) Bender, 343 S.W.2d at

801). But the certain-special-cases exception still requires a showing of a lack

of an adequate remedy by appeal when the alleged error is that the court is

erroneously acting within its jurisdiction. Independent Ord. of Foresters, 175

S.W.3d at 617 (citing Bender, 343 S.W.2d at 801). “No adequate remedy by

appeal or otherwise means that the injury to be suffered . . . ‘could not

7 therefore be rectified by subsequent proceedings in the case.’” Kleinfeld, 568

S.W.3d at 332-33 (quoting Ridgeway Nursing, 415 S.W.3d at 640).

Carefully considering Bar Counsel’s voluminous pleadings, its argument

essentially comes down to the contention that the Board erred in its Order of

Remand since under the precise terms of SCR 3.370, its options were (a)

accepting the trial commissioner’s report, SCR 3.370(5)(a)(i); (b) conducting a

de novo review, SCR 3.370(5)(a)(ii); or (c) remanding the case to the Trial

Commissioner “for an evidentiary hearing on points specified in the order of

remand.” SCR 3.370(5)(d). Bar Counsel argues that the Board’s Order of

Remand too broadly orders a completely new hearing, which not only violates

SCR 3.370(5)(d) but also SCR 3.400 which limits re-hearings to newly

discovered evidence. Bar Counsel argues that it has no adequate remedy by

appeal or otherwise and that great injustice and irreparable injury will occur

since the Board has ordered an unnecessary hearing, offers no guidance to the

Trial Commissioner as to the purpose or parameters of the hearing as required

by SCR 3.370(5)(d), and such a hearing prolongs these disciplinary

proceedings. We do not read the Board’s Order so broadly and anticipate that

the remand to the Trial Commissioner will be limited to hear live testimony

only from the witnesses who provided the avowal testimony. The fact, however,

that parties are subjected to the time and expense of additional proceedings

does not constitute great injustice and irreparable injury. See Spears v.

Goodwine, 490 S.W.3d 347, 353 (Ky. 2016) (stating that “inconvenience,

expense, annoyance, and other undesirable aspects of litigation are insufficient

8 to constitute irreparable injury. Rather, the injury should be of a ruinous or

grievous nature[]”) (internal quotation marks and citation omitted). In any

event, because this Court has final authority over attorney discipline and

conducts a de novo review any Board errors can be corrected on review to this

Court. Thus, Bar Counsel functionally has an adequate remedy by appeal.

ORDER

Considering the record presented to us, Bar Counsel has failed to

demonstrate lack of an adequate remedy by appeal or otherwise or that it will

suffer great and irreparable harm. The Office of Bar Counsel’s Petition for

Relief under CR 76.36(1) is therefore DENIED.

All sitting. All concur.

ENTERED: October 20, 2022.

______________________________________ CHIEF JUSTICE