Father appealed Court of Appeals’ denial of petition for writ of mandamus or prohibition, in which he asked that the judge be required to disqualify himself from case due to his bias against Father and that the Guardian Ad Litem and opposing counsel be disqualified because they engaged in fraud and conspiracy against him.
Father and Mother divorced in 2009. They have 3 minor sons. Judge Stephen George presided over highly contentious divorce proceedings, including a trial on child-related issues and a separate trial on financial issues. At the time Father filed his writ Petition, Mother had full custody of sons with Father having unsupervised parenting time with them on a regular weekly schedule and various holidays. Judge George attributed the contentiousness of the proceedings to Father. Father represented himself through much of the litigation. He filed numerous motions with FC, many of which were deemed to be baseless. Correspondingly, Mother filed motions for CR 11 sanctions against Father, but Judge George was hesitant in doing so because Father was unrepresented. However, on Mother’s Motion, Judge George entered an Order requiring Father to post $7,500 bond prior to any future motions being called. At that time, Father had filed 36 motions, only 5 of which FC found to grounded in law or fact. Father had also commented to FC and others indicating his intent to continue this pattern. In response to the Order requiring a bond, Father filed the writ that is the subject of this appeal, in which he asked CA to order Judge George to disqualify himself due to bias and to disqualify Mother’s counsel and GAL alleging they had engaged in fraud and conspiracy. In his writ petition, Father posited that the $7,500 bond was an example of Judge George’s bias, but also that the bond violated his due process rights and his right of access to the courts. CA construed this as an additional basis for Appellant’s request for extraordinary relief. CA denied the petition, finding that the bias, fraud and conspiracy issues are properly the subject of a direct appeal, and that the $7,500 was reasonably limited in scope so as not to deprive Father of meaningful access to the court.
Extraordinary writs may be granted in two classes of cases: 1. where the lower court is proceeding or about to proceed outside of its jurisdiction and there is no remedy through application to an intermediate court, and 2. where the lower court is acting or about to act erroneously, and there is no adequate remedy by appeal—this class requires a showing that “great injustice and irreparable injury will result if the petition is not granted.” However, there is a “subclass” of special cases where the showing of great injustice and irreparable injury is not required; instead, it must be shown that a “substantial miscarriage of justice” will occur if the lower court proceeds erroneously, and correction of the error is necessary “in the interest of orderly judicial administration,” but no adequate remedy on appeal must still be shown. Nevertheless, even after meeting these tests, the requested relief need not be granted—that is within the sound discretion of the appellate court.
Father claims his writ fell into both classes and the subclass.
First class of writs:
Father claimed that Judge George acted outside of his jurisdiction because he was a “biased individual” and not a truly neutral judge. SC restated this argument as a claim that FC was acting contrary to law and therefore outside its jurisdiction. SC held that “jurisdiction” in this class of writs refers not to legal error, but to subject-matter jurisdiction, which goes to the court’s authority to even hear cases. SC held that FC had jurisdiction to hear divorce cases and to issue orders related thereto.
Second class of writs:
On the bias, conspiracy and fraud issues, Father claimed that he had no adequate remedy on appeal and that he would suffer irreparable injury due to the amount of time it takes for resolution on appeal and the deleterious effect this would have on the relationship with his children, as he believed that his parenting time is too limited. SC noted its previous holdings that the delay and expense of appeals does not constitute irreparable injury or render remedy by appeal inadequate, and that his claimed injuries are not the kind that justify an extraordinary writ.
On the $7,500 bond issue, Father claimed that the bond was unfair and inappropriate, focusing on Judge George’s alleged bias against him. He also made a bare argument that that bond violated his due process rights, right of access to the courts, and Eighth Amendment rights. However, he did not expressly ask for a writ to set aside the bond. CA construed this discussion as a request for relief separate from his request to disqualify Judge George, the GAL, and Mother’s counsel, and CA addressed the issue on the merits. CA found that the bond was reasonably limited in scope. SC refused to address the issue on the merits because Father failed to request the relief in the “Request for Relief” section or any supplemental documents to CA.