Published decisions from the Kentucky Supreme Court for March 17, 2005.
The case number following each decision is a link to the complete opinion posted at the official web site for the Kentucky Administrative Office of the Courts (AOC).
If you would like a complete listing of the published and nonpublished decisions of from the Kentucky Supreme Court for March 2005 posted by the Louisville LawWire, then click on the following dates (organized by subject matter, with short summaries and links to the full text of the decision posted at the AOC Web Site).
KBA V. HALL
ATTORNEY DISCIPLINE
2004-SC-001103-KB.pdf
Date: 3/17/2005 - PUBLISHED
KBA V. STEINER
ATTORNEY DISCIPLINE
2004-SC-000909-KB.pdf
Date: 3/17/2005 - PUBLISHED
CRIMINAL - DEATH PENALTY APPEAL
2004-SC-000880-MR.pdf
Judge: COOPER
AFFIRMING
Date: 3/17/2005 - PUBLISHED
SC affirmed dismissal of civil action death row inmate filed in the Fayette Circuit Court against Glenn Haeberlin, warden of the Kentucky State Penitentiary where inmate presently resides on death row, claiming he is exempt from the death penalty because he is mentally retarded. SC treated the action as having been properly brought under CR 60.03. SC rejected inmate's argument that his death sentence should be vacated following the United States Supreme Court's holding in Atkins v. Virginia, 536 U .S. 304, 122 S .Ct. 2242, 153 L. Ed .2d 335 (2002), that the Eighth Amendment's proscription against cruel and unusual punishment "places a substantive restriction on the State's power to take the life of a mentally retarded offender." Even if Defendant had not procedurally defaulted this claim, he has produced no evidence that creates a doubt as to whether he is mentally retarded. Denial of an opportunity to further litigate this claim will not result in a fundamental miscarriage of justice.
CRIMINAL - DWOP
2003-SC-000355-DG.pdf
Judge: LAMBERT
AFFIRMING
Date: 3/17/2005 - PUBLISHED
The question we must address is whether a case dismissed without prejudice may be redocketed and proceed as if there had been no dismissal or whether new process is required. We hold that a dismissal without prejudice is a final and appealable order, and that after dismissal without prejudice and loss of trial court jurisdiction, a defendant must be recharged.
Note: This case finally decides the debate between prosecutors and defense attorneys concerning the correct interpretation of the term "dismissed without prejudice". This close case could have an effect on the way the Jefferson County Attorney's Office does business.
CRIMINAL - JUVENILES
2003-SC-000424-DG.pdf
Judge: SCOTT
AFFIRMING
Date: 3/17/2005 - PUBLISHED
MONDIE V. COM
CRIMINAL -- Burglary; Assault; Jury Instructions
2002-SC-000534-DG.pdf
JUDGE: KELLER
REVERSING AND REMANDING
Date: 3/17/2005 - PUBLISHED
SC reversed and remanded Mondie's conviction for Second-Degree Assault. The primary issue on appeal was the trial court's failure to give an instruction on protection from burglary. The case arose when the victim, McGowan, came to Mondie's residence and confronted him in the driveway. Mondie told McGowan to leave but McGowan refused. Mondie then went inside his home and McGowan, who was not given permission to enter, followed him inside. Once again, Mondie told McGowan to leave. McGowan then hit Mondie in the mouth. Mondie went to his bedroom, retrieved a gun, and told McGowan to leave. McGowan then hit Mondie in the face once more. Mondie then shot McGowan, striking him in the chest. McGowan then left the home and drove himself away.
Mondie was indicted for First-Degree Assault in connection with the shooting. Following the conclusion of all proof at his jury trial, he submitted instructions that included one for protection against burglary. The TC refused to give the instruction and the CA affirmed, stating that "the record did not support Mondie's claim of burglary." The SC reviewed the record and determined that the jury could have reasonably believed that McGowan had entered or remained in Mondie's home with the intent to assault him -- the essential elements of burglary. Under KRS 503.080, deadly physical force in such circumstances is justifiable when the defendant believes that the person against whom such force is used is committing or is about to commit a burglary. While noting that KRS 503.080 states an "incredibly generous" rule for the use of deadly force (i.e. a dweller may use deadly force against a burglar who has any criminal purpose in mind -- even petty theft or simple assault), the SC held that the statute means what it says even if the Court may not like it. Therefore, the TC's failure to give the tendered instruction was reversible error.
RICHARDSON V. COM
CRIMINAL -- Child Sexual Abuse; Cross Examination; Mental Health History
2003-SC-000654-MR.pdf
Judge: JOHNSTONE
AFFIRMING
Date: 3/17/2005 - PUBLISHED
SC affirmed Richardson's convictions for First-Degree Rape, Second-Degree Rape, Second-Degree Sodomy, and two counts of Sexual Abuse in the First Degree and underlying sentence of 40 years. The case arose when Richardson engaged in sexual activity with a mentally disabled minor. The sexual abuse occurred when the victim was 11 to 13 years old. During jury selection, the TC refused to remove a potential juror who stated that she had been the victim of sexual abuse. Upon further questioning, the juror stated that she could still remain fair and impartial in this case. At trial, the Commonwealth introduced testimony from a variety of witnesses, including the victim and a forensic pediatrician, Dr. Betty Spivak. During the victim's testimony, she spoke of how Richardson would give her cigarettes and alcohol as a way of inducing her to have sex with him. Dr. Spivak also testified about her findings from a physical examination of the victim. Defense counsel sought to cross-examine Spivak about a reference in her written report to the victim's psychiatric history and the medications that the victim was taking. The Commonwealth objected, stating that the victim's psychiatric records were confidential and that defense counsel had not followed the procedure outlined in Commonwealth v. Barroso, 122 S.W.3d 554 (Ky. 2003) for the disclosure of such information.
The Court held that the TC's failure to strike the potential juror who noted that she was a sexual abuse victim was not an abuse of discretion. See Mills v. Commonwealth, 996 S.W.2d 473 (Ky. 1999). It also held that the victim's testimony about how Richardson would give her cigarettes and alcohol as an inducement to sexual activity was not preserved for review and was not palpable error because the evidence was probative of the defendant's "modus operandi in controlling" the victim. And finally, SC held that the TC's prohibition of trial counsel's cross-examination of Dr. Spivak on the victim's psychiatric history and prescribed medications was proper because counsel had failed to seek an in-camera review of the relevant records before trial. Barroso requires that counsel make a preliminary showing of "evidence sufficient to establish a reasonable belief that the records contain exculpatory evidence" before an in-camera review occurs. If the requisite showing is made, then the trial judge will review the records in-camera to determine if exculpatory evidence actually exists. If such evidence is found, the trial judge will notify all counsel and will establish appropriate limits on the introduction of such evidence. In the present case, defense counsel wanted to cross-examine Dr. Spivak without having made any preliminary showing that the records contained exculpatory evidence and without making any pretrial request for an in-camera review under Barroso.
WELBORN V. COM
CRIMINAL
2002-SC-001071-MR.pdf
Judge: WINTERSHEIMER
AFFIRMING
Date: 3/17/2005 - PUBLISHED
KRS 505.020 allows prosecution for multiple offenses arising from a single course of conduct.
COM. V. CRUTCHFIELD
EDUCATION
2003-SC-000483-DG.pdf
Judge: GRAVES
REVERSING
Date: 3/17/2005 - PUBLISHED
Crutchfield was elected to the Garrard County Board of Education in 2000. At that time, his uncle was employed as a bus driver by the school district. The Office of the Attorney General initiated an ouster action against Crutchfield pursuant to KRS 160.180(2)(i), which prohibits membership on a board of education by a person having a ‘relative’ employed by the school board. KRS 160.180(1) defines ‘relative’ as “father, mother, brother, sister, husband, wife, son, daughter, aunt, uncle, son-in-law and daughter-in-law.” However, the circuit court denied the OAG’s ouster petition and granted summary judgment for Crutchfield, holding the statute unconstitutional because it found no rational basis for the difference in classification between aunts and uncles, but not nieces and nephews. The Court of Appeals affirmed, and this appeal followed.
The Supreme Court concluded that the inclusion of the aunt/uncle relationship in the definition of relative was rationally related to the legitimate state interest in eliminating nepotism. The SC declined to find the legislature acted irrationally by not including the niece/nephew relationship in its definition of relative, stating “the classification need not be the least restrictive means of achieving a permissible end, nor must it be the fairest or best means that could have been used.”
FAYETTE BOARD OF ED. V. M.R.D., BY AND THROUGH HIS NEXT FRIENDS
EDUCATION
2003-SC-000448-DG.pdf
Judge: JOHNSTONE
REVERSING
Date: 3/17/2005 - PUBLISHED
Appellees are a learning disabled student and his parents. Appellees requested an administrative hearing before the Franklin County Board of Education (“FCBE” and Appellants herein), claiming failure to provide their son with a free and appropriate education. The Appellees sought, inter alia, reimbursement for costs associated with the private school in New York were they enrolled their son.
After a hearing, the hearing officer ruled in favor of the school district. The Exception Children Appeals Board and the Fayette Circuit Court both affirmed the hearing officer’s decision. However, the Court of Appeals concluded that the FCBE had not complied with the Individuals with Disabilities Educational Act (“IDEA”) in providing educational programming, and ordered that the Appellees be reimbursed. The Supreme Court granted discretionary review and this appeal followed.
The Supreme Court took issue with the standard of review utilized by the Court of Appeals. The COA had concluded that the IDEA required the court to use “modified de novo” review. This standard requires the reviewing court examine the administrative record, hear additional evidence if requested, and to base its decision on the preponderance of the evidence. However, the SC ruled that this level of review applies only to the initial reviewing court, which in this case was the circuit court. Since the IDEA does not prescribe a manner of judicial review to be conducted at the appellate level, the SC held that the COA should have reviewed the circuit court’s findings of fact “only for clear error pursuant to CR 52.01 and reviewed its conclusions of law de novo.” The SC then applied this standard or review and concluded that it was not clearly erroneous for the Circuit Court to determine the FCBE fulfilled its statutory duties to the Appellees. The SC then reversed and remanded the COA and reinstated the Circuit Court decision.
KENTUCKY ASSOCIATION OF COUNTIES ALL LINES FUND V. MAGISTRATES OF PULASKI FISCAL COURT
INSURANCE - Coverage
2002-SC-000648-DG.pdf
Judge: KELLER
REVERSING
Date: 3/17/2005 - PUBLISHED
The Supreme Court of Kentucky reverses the CA, holding that Pulaski County Fiscal Court magistrates are not entitled to insurance coverage from Kentucky Association of Counties trust fund ("KALF") for actions taken in illegally doubling their own salaries while in office.
People for Ethical Government ("PEG") filed a complaint when the magistrates doubled their salaries shortly after taking office, in clear violation of state law. The magistrates demanded a defense and indemnification from KALF; KALF declined and filed a dec action to determine the rights & responsibilities under the applicable policy. The TC found no duty to defend or indemnify; CA reversed; and now the SC reverses the CA.
Magistrates had argued (and CA agreed) that PEG's claims "sounded in tort," which was covered by the policy, in that the magistrates were essentially accused of "conversion" of state funds. Even if this were true, however, conversion is an intentional tort specifically excluded from coverage. SC, however, finds that underlying action does not sound in tort, but quasi-contract with the people of Pulaski County by virtue of the election. A dissenting opinion argues that the magistrates' action was simply an uninformed, negligent violation of state law, and therefore unintentional and that the complaint could be construed to sound in tort.
KENTUCKY RETIREMENT SYSTEMS V. LEWIS
LABOR AND EMPLOYMENT LAW - GOVERNMENT DISABILITY
2002-SC-000516-DG.pdf
2003-SC-000730-DG.pdf
JUDGE: JOHNSTONE
REVERSING
Date: 3/17/2005 - PUBLISHED
Unanimous opinion of the Supreme Court reversing COA opinion which held Appellee was not required to exhaust all administrative remedies prior to seeking judicial review of an order by a hearing officer. Appellee initially filed an application for and had been denied disability retirement benefits in 1997. She filed a substantial change application in 1999 which was also denied. A dispute arose between the parties regarding the proper procedure for evaluation of the substantial change application. Appellee contended the application required review by up to three medical examiners. Appellant asserted review by only one examiner was required. At the hearing, the officer entered preliminary orders including the procedure to be followed by the agency. Before a hearing on the merits was to occur, Appellee petitioned the circuit court for a declaratory judgment. The circuit court refused stating it lacked jurisdiction to rule on the matter because no final administrative decision on the merits of the application had been entered.
On appeal, the COA reversed and remanded finding that agency regulations did not comport with the statutory procedure established in KRS 61.665(2)(e) which violated Appellee's due process rights. Therefore, Appellant acted ultra vires in denying the application. In short, Lewis was not obliged to exhaust all administrative remedies prior to seeking judicial review.
SC held that KRS Chapter 13B governs Appellant's administrative process and that the Board of Trustees of the Kentucky Retirement Systems is responsible for entry of the final administrative orders, that prior to seeking judicial review, Appellee was required to exhaust all administrative remedies. In this case a final order had not been entered. Therefore, Appellee had not exhausted all administrative remedies. Finally, the SC ruled that in order for Appellee must first exhaust all administrative remedies which would then enable her to claim actual injury when raising constitutional issues.
LUMPKINS V. CITY OF LOUISVILLE
LABOR AND EMPLOYMENT - DISCRIMINATION (Instructions)
2003-SC-000267-DG.pdf
2003-SC-000851-DG.pdf
Judge: WINTERSHEIMER
REVERSING
Date: 3/17/2005 - PUBLISHED
Appeal from COA opinion reversing a judgment in which Appellants alleged racial discrimination resulting from a hostile work environment. Appellants were employed by the City of Louisville as lifeguards and filed a hostile work environment suit as a result of events which occurred during the summer of 1997. Although there were other incidents (which Appellee denied) the primary incident which was undisputed was that Appellants' direct supervisor subjected them to racial epithets in front of the public and other employees. TC entered a judgment in favor of Appellants which COA reversed on the basis that the bare bones instruction by the trial judge was inadequate because she had not included language that an isolated incident, unless extremely serious, is insufficient to establish a hostile work environment.
On review, the SC held that the bare bones instruction the trial court gave was appropriate for a civil rights case and clearly conveyed the Harris standard i.e., that the hostile work environment must be severe or pervasive and more than episodic. Inclusion of an instruction highlighting an isolated incident would have been prejudicial because it would have caused undue focus on specific facts or issues. SC held the terms 'severe' and 'pervasive' are not terms or art, are not arcane and are not beyond the understanding of any jury.
Since the trial court's instructions were not erroneous, the SC reviewed the case for clear error. Because there were multiple incidents of discrimination, the SC held there was sufficient evidence to support the verdict.
Justice Cooper' dissent stated the bare bones approach to jury instructions was correct. However, the facts of this case were premised on one incident. As a matter of law, that one incident did not support a claim of hostile work environment.
MCCLANAHAN V. MOUNTAIN EDGE MINING CO.
WORKERS COMP - BLACK LUNG CLAIMS PROCEDURE
2004-SC-000429-WC.pdf
Judge: AFFIRMING
Date: 3/17/2005 - PUBLISHED
The Claimant's claim for benefits under the coal workers' pneumoconiosis claims procedure was dismissed because two out of three of the x-ray readers appointed by the Department of Workers' Claims formed a 'consensus' which was given presumptive weight by the Administrative Law Judge. That was that the claimant had x-ray findings of 0/1 opacities on x-ray, a finding that does not entitle a claimant to an award under the statute. The Claimant appealed, arguing that the x-ray readers did not agree on which lung zones the opacities were found, and so they did not form a consensus. The ALJ explained on reconsideration that the definition of 'consensus' in the statute required only that the opacities be found in the same lung zones, but only that the profusion of the opacities be the same or one level apart.
MELO, M.D. V. BARNETT
WORKERS COMP - DISCLOSURE OF PROTECTED MEDICAL INFORMATION
2003-SC-000200-DG.pdf
Judge: GRAVES
REVERSING
Date: 3/17/2005 - PUBLISHED
In this case of first impression, the Supreme Court decided that no right of action exists when a patient's HIV infection status is disclosed to an employer pursuant to a workers' compensation claim procedure. The Plaintif had sued Dr. Melo, who had treated Barnett for a work-related infection, resultin from a cat bite. He was asked to consult with the treating doctor because the patient was already being treated with antibiotics for HIV infection. When the employer learned of the HIV positive status of its employee, the Plaintiff alleged that the workplace became hostile and he quit his job.
The Court ruled that because the workers' compensation statute required that Dr. Melo disclose the patient's health status to the employer for billing purposes, no cause of action existed. The Supreme Court reversed the Court of Appeals decision, and reinstated the trial court's summary judgment dismissing the case.
Thanks to Scott Byrd, Patrick Bouldin, Melissa Dimeny, Reed Ennis, John Hamlett, Cherry Henault, Sam Hinkle, Suzan J. Hixon, Chad Kessinger, Stephen Keller, Michelle Eisenmenger Mapes , Peter Naake, Paul C. O'Bryan, Bryan Pierce, Richard Schiller, Paul Schurman, and James Worthington for their efforts in digesting these decisions.
Michael L. Stevens, Editor
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