I am unable to subscribe to the majority opinion because it seems to me to do violence to settled, sound and salutary principles of law and rules of procedure.
The established procedure to protect a litigant against having his cause presided over by a biased judge is for the litigant to file an affidavit stating facts sufficient to disclose such bias and make a motion for the judge to vacate the bench, the facts stated in such an *Page 476 affidavit being considered as true for the purposes of the motion. The majority opinion concedes this, but holds that the amended petition making Judge Murphy a party would be considered as taking the place of such an affidavit. The opinion impliedly holds that if the amended petition were a sham pleading no such consideration would be accorded it, but then attempts to demonstrate that it was not a sham pleading. With this conclusion I am violently at odds. The allegations of the amended petition, the substance of which is stated in the majority opinion, fall so far short of stating a cause of action that it unduly discredits the legal ability of the Attorney General and shrewd counsel associated with him to accuse them of believing that the amended petition even remotely smacked of stating a cause of action against Judge Murphy.
Our circuit judges are entitled to be accorded the respect and deference of having the question of their qualification to preside over the trial of cases raised in an orderly manner, according to established procedure. We should be loath to set the seal of approval upon efforts to disqualify them by the ruse of making them parties to litigation. My aversion to such a practice is so strong that I am unwilling to agree with the position taken in the majority opinion that the amended petition should be treated as an affidavit in support of a motion for Judge Murphy to vacate, even though I am inclined to agree that the allegations, had they been made in the course of recognized procedure, would have been sufficient to disqualify him. And, in this connection, it should be noted that Judge Murphy's response states that he refused to disqualify because of the ruse adopted in making him a party and because he was not given an opportunity to vacate the bench in accordance with recognized procedure.
The statement in the majority opinion that this is "not an ordinary but an extraordinary case and condition" seems to set the precedent that we will have one set of laws for what this court regards as ordinary cases and another set for what we regard as extraordinary cases. The reasoning is specious and the precedent dubious.
I think no consideration should be accorded what I regard as the obviously sham pleading making Judge Murphy a party. *Page 477
But, aside from the reasons enunciated, the decision departs squarely from a salutary and firmly fixed rule in regard to the issuance of writs of prohibition by this court.
I refer to the rule that a writ of prohibition will not issue against a judge acting within his jurisdiction when there is all adequate remedy by appeal. The rule is recognized in the majority opinion, which quotes from Evans v. Humphrey, 281 Ky. 254, 135 S.W.2d 915. A vast number of cases have announced this rule — it has been as unchangeable as the laws of the Medes and Persians in the face of continuing assaults upon it.
After recognizing the rule, the majority opinion refers to cases such as Smith v. Ward, 256 Ky. 13, 75 S.W.2d 538, in which we held that prohibition will issue to prevent a circuit judge, whose bias has been properly disclosed, from presiding over the trial of a criminal case because the Commonwealth has no remedy by appeal, and effort is made to justify the conclusion of the majority by drawing an analogy to those cases when there is no analogy.
To support the supposed analogy the opinion closes with the erroneous statement that while there could be an appeal, on which could be raised the question of Judge Murphy's qualification if he erroneously presided, such an appeal would not afford an adequate remedy and irreparable injury will have resulted from the nuisances being continued unabated and the seized contraband lost, This statement ignores the fact that the Commonwealth could supersede any adverse judgment rendered on final hearing, thereby preventing a restoration of any of the seized contraband. And if Judge Murphy should preside over the hearing of the motion for a temporary injunction and rule adversely to the Commonwealth, Section 296 of the Civil Code of Practice permits the Commonwealth to apply to a judge of this court for an order directing the circuit judge to issue the temporary injunction and further provides that the circuit judge shall provide in any order of dissolution made by him that it shall take effect in a reasonable time thereafter not exceeding 20 days, during which time motion may be made before a judge of this court for the injunction. If Judge Murphy deliberately and wilfully attempted to override the plain mandate of the code by refusing to suspend the operation of any order that might be made by him restoring *Page 478 the seized contraband, then the processes of this court would be open to the Commonwealth to prohibit him, since there would then be no other adequate remedy.
To assume that Judge Murphy would adopt such a course would be to attribute to him not only bias but positive corruption. I know of no instance, and never heard of one, in which a circuit judge adopted such a course. It is unthinkable. I do not believe the majority would let their imaginations be thus unrestrained in conjuring up the absence of an adequate remedy to the Commonwealth. I think they have merely overlooked the plain, adequate and complete remedy available to review any decision Judge Murphy might render.
Certainly, no irreparable injury can result from the alleged nuisances continuing during such time as would be required to secure a ruling from a judge of this court on a motion for a temporary injunction or during such time as would be required to secure a decision on appeal. The statement to this effect in the majority opinion is a novel and unique one — it is what the members of this court familiarly refer to as a "rabbit" and I do not propose to chase the rabbit any further.
It is obvious that the Commonwealth has a plain, adequate and complete remedy to correct any adverse ruling by Judge Murphy if he should erroneously preside in the case after the question of his qualification so to do was properly raised. This being true, I think we should make no exception of this case from our firmly established rule that prohibition will not issue from this court where this is an adequate remedy by appeal or otherwise.
Judge Rees concurs in this dissent.