IMPORTANT NOTICE
. NOT TO BE PUBLISHED OPINION
· THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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. RENDERED AFTER JANUARY 1, 2003, MAY BE CITED ~OR
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RENDERED: NOVEMBER 2, 2017
NOT TO BE PUBLISHED
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2017-SC-000080-MR
WILLIS WILSON APPELLANT
ON APPEAL FROM COURT OF APPEALS
v. 2016-CA-001754-QA
FAYETTE CIRCUIT COURT NO. 10-CI-00313
HONORABLE JAMES D. ISHMAEL APPELLEE
JUDGE, FAYETTE CIRCUIT COURT
AND
.LOGAN ASKEW, LESLYE BOWMAN, REAL PARTIES IN INTEREST
LISA SMITH, GLEN MILLS, ESTEVA /
CAISE-DRAGGS, FJMNCES.SHORT,
LEXINGTO!'if-FAYETTE URBAN COUNTY
GOVERNMENT, LEXINGT~N-FAYETTE
URBAN COUNTY CIVIL SERVICE
COMMISSION
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This matter is before the Court on appeal from the Court of Appeals'
denial of a writ of mandamus that would have compelled the Fayette Circuit
Court to vacate an order denying Willis L. Wilson's request .to depose David
'
Enlow, counsel for the Lexington-Fayette Urban County Civil Service
Commission (CSC). Finding no basis for the·issuance of a writ, we affirm.
RELEVANT FACTS
The current writ action has its genesis in an employment dispute dating
back to 2009. Lexington-Fayette Urban County Government (LFUCG)
employed Willis L. Wilson as an Attorney Senior. In July 2009 the LFUCG
Department of Law brought charges before the CSC against Wilson for
inefficiency and insubordination in violation of the Uniform Discipline Code
within the scope of Kentucky Revised Statute (KRS) 67A.280 and Section 2 i-44
of the Lexington-Fayette County Code of Ordinances. LFUCG sought Wilson's
dismissal. After hearing from four witnesses, including Wilson, the CSC issued
a one-paragraph opinion whieh stated merely that, having heard the testimony ·
and considered exhibits, it found "in favor of [LFUCG] and unanimously
sustains the termination of W.L. Wilson."
Wilson brought suit in circuit court ch~lenging his dismissal on the
ground that it was arbitrary. The circuit court found Wilson was entitled to a
\
quasi-trial de nova and after conducting one concluded the CSC had not acted
arbitrarily and thus su.stained Wilson's dismissal. On appeal the Court of ·
Appeals, in a 2-1 decision, reversed and remanded because the CSC had not
made the necessary findings of fact. The remand was specifically so that the
CSC "may make appropriate factuaI findings to support its decisio~ based
upon the evidence it had ·before it when it rendered its decision." The
dissenting judge found substantial evidence of record supporting the CSC 's
decision to sustain Wilson's termination and would have affirmed.
2
At the time the case made its way back to the CSC, only two of the
original commissioners who had heard the proof in 2009 were still serving. The
CSC retained an attorney, David Enlow, to review the transcript of the origiilal
proceeding and submit proposed findings of fact and conclusibns of law. In
March 2015, the CSC ultimately adopted those proposed findings and
conclusions as its own and reiterated its prior ruling sustaining Wilson's
tenninatfon 1 . Wilson again appealed to circuit court. At this point, Enlow was
also serving as CSC's counsel in the matter and the circuit court denied
Wilson's request to disqualify Enlow as counsel as well as a later request to.
add him as a party to the appeal. Eventually, in a terse five-line order, the
circuit court denied Wilson's motion to take Enlow's deposition.2
Insisting that Enlow might have pertinent information and that the
denial of his deposition could not be remedied on appeal and would cause
immediate and irreparable injury, Wilson sought both intermediate relief and a
writ of mandamus in the Court of Appeals. Both were denied. The. Court of
. Appeals emphasized that the order denying Enlow's deposition was an
interlocutory order and that an eventual appeal from the final circuit court
1 LFUCG represents that Wilson deposed the four members of the CSC who
voted on his case, inquiring about the retention of Enlow, his preparation of proposed
:findings of fact and conclusions of law and the CSC's adoption of those :findings and
conclusions.
2 The court's brief order refers to grounds "stated by the Court .at Motion Hour
on September 30, 2016." Because the record before us does not contain videotape or
a trariscript of that proceeding- it is unclear exactly why the court denied Wilson leave ·
to depose Enlow, although all parties to this matter reference the attorney.:client
privilege.
3
order was an adequate remedy. Additionally, the Court concluded the.re was
no evidence of great and irreparable injury flowing from the order denying
discovery.
On appeal to this Court, Wilson maintains that he will be irreparably
harrried by operation of Kentucky Rule of Evidence (KRE) 103 because the
circuit court's order deprives him of the ability to make an offer of proof. He
further insists that Enlow's testimony could reasonably be expect~d to
establish that.the findings· of fact and conclusions of law entered by the CSC
were in fact Enlow's rather than the CSC's.
ANALYSIS
A writ is an extraordinary remedy and consequently this Court has
always been cautious in granting such relief. Bender v. Eaton, 343 S. W .2d
?99, 800 (Ky. 1961). As often explained, when a circuit court has jurisdiction
but is alleged to be proceeding erroneously, mandamus is generally not
available unless the petitioner has no adequate remedy by appeal or otherwise
and the petitioner will suffer great and irreparable injury if relief is denied. Id.
at 801. In Bender, the Court noted that this "practical and_ convenient
formula" can be applied even before the reviewing court decides whether the
lower court has acted erroneously. Id. As for trial court rulings regarding
discovery, in Inverultra, S.A. v. Wilson, 449 S.W.3d 339, 345 (Ky. 2014), this
Court observed that such rulings are generally not subject to mandamus
review, although we have departed from that general rule where an order
4
granting or compelling discovery would invade a privilege or important privacy
interest.
This case clearly falls .squarely within the· general rule that a lower
court's discovery rulings will not be disturbed by the issuance of a writ. Wilson
maintains that because he has been denied leave to depose Attorney Enlow he
cannot comply with KR~ 103. That rule entitled "Rulings on Evidence"
provides in pertinent part:
(a) Effect of erroneous ruling.. Error may not be predicated
upon a ruling which admits or excludes evidence unless a
substantial right of the party is affected; and
*****
(2) Offer of proof. If the ruling is one excluding evidence, the
substance of the evidence was made known to the court by offer or
was apparent from the context within which questions were asked.
By its very terms, thi~ rule applies to the admission or ·exclusion of
evidence and it allows for the possibility of an offer of proof which, as Appellee
LFUCG notes, can be simply a statement by counsel as to the substance of the
excluded evidence. ROBERT LAWSON, THE KENTUCKY EVIDENCE LAW HANDBOOK 29
(5th ed. 2013) ("In 2007 ... the Supreme Court amended Rule 103 to allow for
the use of the "proffer" (a statement by counsel in lieu of testimony from a
witness) to preserve error for an improper exclusion of evidence.") If KRE 103
applied, the remedy for Wilson's denied request is apparent, i.e., make a proffer
as to the anticipated substance of Enlow's testimony. However, this rule is not
really implicated by the underlying discovery ruling. Although denying Wilson
leave to depose Enlow may deprive him of evidence he would like to offer, the
I
ruling is in essence an order denying discovery, not excluding evidence.
5
In Inverultra, we reviewed our mandamus law generally regarding denial
of discovery and then addressed the only two "outliers" where a higher court
intervened by writ due to. a denial of discovery: Volvo Car Corp. v. Hopkins, 860
S.W.2d 777 (Ky. 1983) and Rehm v. Clayton, 132 S.W.3d 864 (Ky. 2004). 449
S.W.3d at 345-47. We concluded that both cases were confined to their
specific facts. In Volvo there was an exigent need for discovery, a "specific risk
of information loss outside the ordinary" and in Rehm the petitioner had been
denied all 'discovery whatsoever pending the appeal of a related case. Id. at
34 7. Inverultia had no such facts-it had not been denied all discovery and it
had not identified an exigent situation where crucial information would be lost
in the absence of a writ-so we concluded "its appeal remedy [was] wholly
adequate." Id. Moreover, the writ standard r~quires proof of "great injustice
and irreparable injury." Hoskins v. Maricle, 150 S.W.3d 1, 19 (Ky. 2004). Even
if the adequacy of the appeal remedy was questionable, Inverultra had only
gene.ral speculation on this element, certainly no evidence of "incalculable or
ruinous injury". Inverultra, 449 S.W.3d at 348.
The denial of Wilson's motion to depose Enlow is a similarly inadequate
basis for the extraordinary remedy of a writ. If the trial court erred, the error
can be reviewed on appeal of the trial court's finil order. Roberts v. Knuckles,
429 S.W.2d 29, 30 (Ky. 1968) (citing cases where court denied writ "to control a
trial court's disposition of a motion for discovery" due to the adequacy of
remedy by appeal). Wilson can continue his objection at any trial or hearing,
and additionally invoke KRE 103 at the appropriate time by making to the best
6
of his ability a proffer regarding what Enlow could and might provide if Wilson
were allowed to depose him. Given the adequacy of an appeal, it is
unnecessary to address Wilson's inability to identify ru:tY great injustice or
irreparable harm flowing from the trial court's order.
For the foregoing reasons, we affirm the Court of Appeals' denial of
Wilson's petition for a writ of mandamus in this matter.
All sitting. All concur.
COUNSEL FOR APPELLANT:
William C. Jacobs
COUNSEL FOR APPELLEE:
James D. Ishmael, Jr., Judge
Fayette Circuit Court
COUNSEL FOR REAL PARTIES
INTEREST:
Barbara Ann Kriz
Kriz, Jenkins, Prewitt & Jones, P.S.C.
7
Willis Wilson v. Hon James D. Ishmael Judge, Fayette Circuit Court
Combined Opinion