Ky Supreme Court - Decisions - May 2005

MAY 2005 KY SUPREME COURT.

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  this month  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).

• May 19, 2005 - Supremes - 2005/23

THE ELK HORN COAL CORP.  V. CHEYENNE RESOURCES, INC.
APPEALS - KRS 26.A.300 Penalty on Appeal
2002-SC-000743-DG.pdf
Judge:  KELLER
REVERSING
Date: 5/19/2005 - PUBLISHED

This case involved an appeal of a $9.5 million judgment and the staying of the enforcement of that judgment during the appellate process by posting a supersedeas bond and because the discretionary review to the Supremes further delayed enforcement of that judgment, the trial court assessed as additional damages a penaly equal to 10% of the superseded amount per KRS 26A.300.

SC held KRS 26A .300 violates the equal protection provisions of both the Kentucky and United States Constitutions and that it also violates the separation of powers provisions of the Kentucky Constitution and therefore vacated that part of the judgment imposing the 10% penalty.

The alternate means, i.e., CR 73 .02(4), for deterring frivolous appeals to the Supreme Court is sufficient and does not discriminate against unsuccessful appellants who have superseded a money judgment.  KRS 360.040, which provides judgment interest, and was enacted to compensate for delay, also acts to deter frivolous appeals  The relationship between KRS 26A.300 and its goal is "so attenuated as to render the statute arbitrary and irrational.  Although the goal of KRS 26A.300 is laudable, it is not rationally related to the statute, and that KRS 26A.300 denies Appellant equal protection. It, therefore, fails constitutional scrutiny.

FYI:  KRS 26A.300 provides -

(1) When collection of a judgment for the payment  of money has been stayed as provided in the Rules of Civil
Procedure, there shall be no damages assessed on the first appeal as a matter of right contemplated by Section 115 of
the Constitution of Kentucky.

(2) When collection of a judgment for the payment of money has been stayed as provided in the Rules of Civil
Procedure pending any other appeal, damages of ten percent (10%) on the amount stayed shall be imposed
against the appellant in the event the judgment is affirmed or the appeal is dismissed after having been docketed in an
appellate court.

(3) Similar damages of ten percent (10%) shall be imposed when a petition for writ of certiorari, petition for
rehearing, or other petition which stays collection of a judgment for the payment of money is denied by an
appellate court under circumstances not constituting a first appeal under subsection (1) of this section.

(4) No additional penalty shall be imposed upon a party as a consequence of a review subsequent to a petition
or a second appeal.

(5) Damages imposed under subsection (2) or (3) of this section shall not be payable and shall be void if the
decision of the trial court awarding the payment of money is ultimately reversed .

WILSON   V.   RUSSELL
APPEALS - Final Order (Judgment NOV)
2003-SC-001015-DG.pdf
JUDGE: LAMBERT
VACATING AND REMANDING
Date: 5/19/2005 - PUBLISHED

Judgment nothwithstanding the verdict in negligence case was interlocutory and not final.  Appeal not perfected.

CHARLES E. KING    V.   KBA
ATTORNEY DISCIPLINE
2005-SC-000246-KB.pdf
Date: 5/19/2005

COM. V.  BERRY
CRIMINAL - Right to Counsel and Right to Self-Representation
2003-SC-000357-DG.pdf
Judge: GRAVES
REVERSING
Date: 5/19/2005 - PUBLISHED

SEE ALSO:
2004-SC-000231-DG.pdf

In a 6-1 vote, SC reversed the CA's decision and reinstated Berry's convictions for Assault in the Second Degree and PFO 1.  On the morning of trial, Berry asked the Court for permission to represent himself.  After an extensive colloquy in which Berry acknowledged the risk of substantial prison time, the judge concluded that his waiver was acceptable under Faretta v. California, 422 U.S. 806 (1975).  The CA concluded otherwise and reversed his convictions.  SC examined the record to determine if Berry knowingly and intelligently waived his right to counsel.  The majority concluded that he was "made aware of the dangers and disadvantages of self-representation," that he knew what he was doing by choosing this course of action, and that "his choice (was) made with eyes open."  Justice Keller wrote a brief dissent in which he stated that the trial judge did not do an adequate job of warning Berry about the dangers of acting pro se.   

COM. ATTY R. DAVID STENGEL    V.     KBA
CRIMINAL - Ethics Opinion E-243 and Use of Subpoenas
2004-SC-000305-.pdf
Date: 5/19/2005 - PUBLISHED

COMPANION CASES:
2004-SC-000332-KB.pdf
2004-SC-000336-KB.pdf
2004-SC-000339-KB.pdf
2004-SC-000346-KB.pdf
2004-SC-000347-KB.pdf
2004-SC-000349-KB.pdf
2004-SC-000350-KB.pdf
2004-SC-000357-KB.pdf

Multiple Commonweath's Attorneys filed motions under SCR 3.530(5) for review of Ethics Opinion E-243 which had previously been adopted by the KBA Board of Governors.  The Supreme Court vacated all portions of KBA Opinion E-423 to the extent it addresses Grand Jury practices and proceedings and use of subpoena's therein.  The Ethics Opinion was promulgated prior to Supreme Court's  January 2005 amendment of RCr 5 .06, which added the statement that "RCr 7 .02 shall apply to Grand Jury subpoenas."

GUTIERREZ    V.    COM
CRIMINAL - Injunction (Validity and DVO)
2003-SC-000130-MR.pdf
Judge:  KELLER
AFFIRMING
Date: 5/19/2005 - PUBLISHED

SC affirmed Gutierrez's convictions for Murder, Burglary in the First Degree, Violation of a Domestic Violence Order (DVO) and other offenses and upheld his underlying sentence of 60 years.  The primary issue on appeal was whether the trial judge erred by allowing the Commonwealth to use the violation of the DVO as a substantive charge and as an aggravating circumstance in the Murder charge.  A few months before breaking into the victim's home and stabbing her to death, the Trimble District Court entered a DVO against Gutierrez at the victim's request.  Before trial, his counsel moved to exclude evidence of the DVO by challenging its validity.  SC held that defendants like Gutierrez are generally barred from collaterally attacking DVOs in subsequent criminal prosecutions for violating the DVOs because they are civil orders that must ordinarily be attacked in the courts in which they were issued.  (The only exception involves a collateral attack of a civil order on the basis that the issuing court lacked subject matter or personal jurisdiction.)  The Court further held that "the validity of a DVO is (also) not a proper subject of inquiry when it is offered as proof of an aggravating circumstance in a capital murder prosecution."

 

HILBERT   V.   COM
CRIMINAL - Defenses (Self-Defense, Instructions, No Duty to Retreat)
2002-SC-000095-MR.pdf
Judge:  GRAVES
REVERSING AND REMANDING
Date: 5/19/2005 - PUBLISHED

 

In a 5-2 decision, SC reversed and remanded Hilbert's convictions for a new trial on two counts of Murder. He was convicted at trial and sentenced to Life without the Possibility of Parole for 25 years.  Hilbert did not testify at trial but sought self-protection instructions based on his statements, introduced through other witnesses, that the two victims assaulted him and "kept coming at me."  The trial judge denied his request for such instructions, reasoning that the defendant must testify that he had a subjective belief in the need to use deadly force.  SC held that defendants who seek self-protection instructions need not actually testify at their trials in order to receive them. Hasty v. Commonwealth, 272 S.W.2d 325 (Ky. 1954).  Evidence of the defendant's subjective belief can be circumstantial, such as what happened here.

Statements from the defendant that the victims charged and assaulted him shortly before the shootings along with evidence of an injury to the defendant's forehead are sufficient to justify the giving of self-defense instructions.  The Court further held that, when a trial judge correctly instructs the jury on self protection, "it need not also give a no duty to retreat instruction."  Justices Wintersheimer and Keller dissent, stating that the evidence in support of a self protection instruction showed that Hilbert's belief was not subjectively reasonable.   

HOWELL  V.  COM
CRIMINAL - Forfeitures and Defendant's Attorney Fees and Costs
2002-SC-001064-MR.pdf
Judge:  COOPER
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Date: 5/19/2005 - PUBLISHED
SEE ALSO:
2003-SC-000219-TG.pdf

Because the trial court was required to order forfeit all property that it found "subject to forfeiture" under KRS 218A.410(1), and because the Commonwealth, not Appellant Howell, had title to the forfeited currency at all relevant times, the court had no option to use any part of that currency to reimburse the costs of Appellant's defense .

MATTHEWS   V.   COM
CRIMINAL
2003-SC-000378-MR.pdf
Judge:  KELLER
AFFIRMING
Date: 5/19/2005 - PUBLISHED

Trial court did not commit reversible error by refusing to grant mistrial after a witness referred to defendant's prior incarceration, admitting prior misdemeanor charge, and admitting victim's hospital records.

MEREDITH  V.  COM.
CRIMINAL - Crimes (Complicity)
2002-SC-000741-MR.pdf
Judge:  GRAVES
AFFIRMING
Date: 5/19/2005 - PUBLISHED

SC affirmed conviction of D after jury trial on charges of Robbery and Murder. SC ruled that TC did not err in denying directed verdict motion. No error for TC to allow testimony that D needed money to pay his child support as motive for Robbery.

D was the driver in the Robbery/Murder. There was no evidence that the plan was for the co-defendant to kill the victim, and the evidence tended to show that an argument between the co-defendant and victim resulted in the shooting death of the victim. Thus, the victim’s murder was "imputed" onto D. SC held that under KRS 507.020, if the D’s participation in a felony (e.g. Robbery) constitutes wantonness manifesting extreme indifference to human life, D is guilty of murder. Justice Johnstone and Lambert filed a dissenting opinion saying they would vacate D’s murder conviction.

MILLS  V.   COM.
CRIMINAL - Applicability of Civil Rules; Ineffective Assistance Counsel
2002-SC-000216-MR.pdf
Judge: KELLER

AFFIRMING IN PART AND REVERSING IN PART

Date: 5/19/2005 - PUBLISHED

D was convicted at trial of Robbery, Burglary and Murder and sentenced to death. D filed an 11.42 petition, TC denied the petition and refused to hold an evidentiary hearing. SC affirmed the trial court's order overruling RCr 11 .42 motion, except as to D's claims regarding his attorney's alleged ineffective assistance and the prosecutor's alleged misconduct relating to the possibility that another person killed the victim and possibility that exculpatory evidence was not turned over to the defense, and as to D's claim of ineffective assistance of counsel related to the presentation of mitigating evidence during the penalty phase. Case remanded for an evidentiary hearing on those issues.

SMITH   V.   COM.
CRIMINAL - Sentences
2004-SC-000402-TG.pdf
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
Date: 5/19/2005 - PUBLISHED

D was convicted at trial of multiple burglaries and theft charges and received a 70 year sentence. Because the highest felony D was convicted of at trial was a class C felony, the highest sentence he could receive was 20 years. Case remanded to reduce his sentence to nor more than 20 years.

Also held that it was harmless error for KY to introduce a pawn ticket from Missouri through a KY police officer as a business record because the police officer could not verify the authenticity of the receipt.

TAYLOR    V.   COM
CRIMINAL - Recanted Testimony's Reliability
2004-SC-000018-MR.pdf
Judge:  LAMBERT
AFFIRMING
Date: 5/19/2005 - PUBLISHED

This is another opinion in the famous 1984 "Trinity Murder Case" involving defendants Wade and Taylor. In this opinion, the SC denies Taylor’s appeal of TC denial of his 60.02 motion for a new trial.

Of note is that Wade gave a police confession that also implicated Taylor and also fingered Taylor as the triggerman in the double murder. Wade’s confession was played for the jury at Taylor’s trial, despite the fact that Wade did not testify and was not subject to cross examination. Eleven years after Taylor’s trial, Wade testified at Taylor’s 11.42 hearing and recanted his confession to police as it related to Taylor. The TC did not find Wade’s recantation credible.

Citing Crawford v. Washington, SC held that Wade’s statement should not have been admitted at trial as such violated the Sixth Amendment confrontation clause. However, looking at the remainder of the evidence, SC held that the admission of the statement was harmless error and thus, Taylor could not receive a new trial. Justice Cooper filed a dissent noting that Crawford required that Taylor be given a new trial.

DR. FANKHAUSER   V.  COBB
EDUCATION - Dismissal; directed verdict
2002-SC-000368-DG.pdf
Judge:  KELLER
AFFIRMING
Date: 5/19/2005 - PUBLISHED

SEE ALSO:
2003-SC-000396-DG.pdf

Affirmed decision of circuit court in action arising out of disciplinary proceeding against school principal.  The Fayette County Board of Education had alleged on appeal that the tribunal had improperly imposed sanctions less than the termination sought by the Board.  Held: the Supreme Court adopted the position of the state court of appeals in Gallatin County Board of Education v. Mann, 971 SW2d 295, that a tribunal convened under KRS 161.790 "has inherent authority to modify the sanction imposed on a teacher."  The Supreme Court also rejected the Board's arguments that the hearing officer's use of jury-style instructions and presence during the tribunal's deliberations amounted to reversible error.

GULLION   V.   GULLION
FAMILY LAW - Custody Changes (CR 59.05 & KRS 403.340 and Need for Affidavits to Alter, Amend or Vacate)

2004-SC-000494-DG.pdf
Judge:  LAMBERT
REVERSING AND REMANDING
Date: 5/19/2005 - PUBLISHED

SC considered Mom’s motion for discretionary review to decide whether there is a basis in case law or the Kentucky Rules of Civil Procedure to require affidavits to accompany a CR 59 .05 motion to alter, amend or vacate a custody judgment.  Affidavits are clearly required for KRS 403.340 motions when a party seeks to modify a custody order.  However, modification of a custody order pursuant to KRS 403.340 is not possible when awaiting TC ruling on a CR 59.05 motion, thereby rendering a final judgment.  Because the language of CR 59 .05 does not require affidavits to be filed, SC held that affidavits are not required in support of a CR 59.05

motion to alter, amend or vacate a judgment.

SC considered the ancillary issue whether TC abused its discretion in granting Appellant's CR

59.05 motion to alter or amend its judgment. Dad argued that TC considered evidence that occurred subsequent to its ruling that the father be the primary custodian.  CR 59.05 provides: "A motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment." SC held that a party cannot invoke CR 59.05 to raise arguments and to introduce evidence that should have been presented during the proceedings before the entry of the judgment. Although TC may grant a CR 59.05 motion if the movant presents newly discovered evidence that was not available at the time of trial, "newly discovered evidence" must be of facts existing at the time of trial.  Thus, it is improper for TC to rely upon evidence of events that occurred subsequent to the trial in ruling on a CR 59.05 motion.

BREWER   V.   NATIONAL INDEMNITY CO.
INSURANCE - Fiduciaries
2004-SC-000270-CL.pdf
Judge:  LAMBERT
CERTIFICATION OF LAW PER SIXTH CIRCUIT
Date: 5/19/2005 - PUBLISHED

The Fourth Circuit certified a question to the Supreme Court of Kentucky essentially asking whether a personal representative may, after settling with a negligent insured and his insurer, maintain an action against the insurer for underinsuring the negligent insured.

A wrecker owned by a Kentucky corporation, driven by a Kentucky resident, and insured by an auto liability policy issued in Kentucky, struck and killed a West Virginia resident in West Virginia. Suit was filed by the personal representative and removed to the US DC for the SD of WV.  The complaint was amended to include both a wrongful death claim and a negligent underinsurance claim in that the insurer allegedly negligently insured the wrecker for only $100,000 instead of the minimum amount of commercial coverage of $750,000. The parties settled with the insurer paying the $100,000 coverage for a release of its insured and an agreement to litigate the underinsurance claim. Insured agreed to assign its underinsurance claim to the personal representative. The parties signed one 5-page agreement.

Insurer, National Indemnity, subsequently reneged and moved to dismiss the underinsurance claim, arguing that the personal representative and decedent had no privity and therefore no standing to sue because National Indemnity wasn't a party to the assignment agreement. The 4th Circuit held that KY law applies and certified the question to the Supreme Court of Kentucky, which held that contrary to National Indemnity's assertions, the settlement agreement shows that they were clearly a party to the agreement to assign & litigate the remaining claim.

GOV. FLETCHER   V.  ATTY GEN STUMBO
REVENUE AND TAXATION - Spending Without Approved Budget
2005-SC-000046-TG.pdf
Judge:  COOPER
AFFIRMING IN PART AND REVERSING IN PART
Date: 5/19/2005 -  PUBLISHED

SEE ALSO: 2005-SC-000049-TG.pdf
2005-SC-000050-TG.pdf

 

Held: the Governor does not possess the constitutional, inherent or emergency powers to appropriate funds from the state treasury, or otherwise exercise legislative powers, to maintain governmental services when the General Assembly has failed to do so.  In so ruling, the Supreme Court explicitly overturned Miller v. Quertermous, Ky., 202 SW2d 389 (1947).

The Court rejected the Governor's argument that the appeal should be dismissed as moot since the General Assembly subsequently ratified the emergency appropriations and expenditures.  The Supreme Court noted that legal challenges to similar actions by the previous administration had been so dismissed.  Therefore, the Court availed itself of an exception to the mootness doctrine: where an issue is "capable of repetition, yet evading review."

LAMB   V.   HOLMES
TORTS - Defenses (Immunity, School Searches)
2003-SC-000495-DG.pdf
Judge:  SCOTT
REVERSING
Date: 5/19/2005 - PUBLISHED

This case arose from allegations that a few teachers and administrators from a public middle school "strip searched" three female students in a locker room to find a missing pair of shorts.  The local school board had a policy prohibiting "strip searches" of students but the phrase was not defined.  The students claimed that they were required to pull their shorts down and their shirts up in order to reveal their underwear.  The teachers and administrators countered that they merely required the students to flip their waistbands out to reveal whether the students were wearing the missing shorts.  The students later filed suit against the school board and the teachers / administrators alleging various theories of liability, including negligence, intentional infliction of emotional distress, and Section 1983 violations.  The school board moved for summary judgment on behalf of all defendants which the trial judge granted.  CA reversed in part and remanded.  On discretionary review, SC reversed the CA's opinion by a 6-1 vote and held that: (1) the teachers and administrators were entitled to qualified official immunity because the law at the time the searches were conducted did not clearly establish that searches conducted in either manner (as described above) were unreasonable; (2) "[q]ualified official immunity protects state and local officials who carry out executive and administrative functions from personal liability so long as their actions do not violate 'clearly established statutory or constitutional rights of which a reasonable person would have known'" citing Harlow v. Fitzgerald, 457 U.S. 800 (1982); and (3) the actions of the teachers / administrators were made in good faith, were discretionary in nature and were within the scope of their authority because the board's policy prohibiting "strip searches" contemplated nude searches only.  Justice Keller dissented, stating that the policy in question covered less-than-nude searches.   

CABINET FOR FAMILIES AND CHILDREN   V.  DR. CUMMINGS
TORTS - Kentucky Whistleblower Act
2002-SC-000788-DG.pdf
AFFIRMING IN PART, REVERSING IN PART
Date: 5/19/2005 - PUBLISHED

SEE ALSO: 2002-SC-000791-DG.pdf

The Kentucky Whistleblower Act is not an avenue for suits against policy makers and managers in their individual capacity.

HARGIS  V.  BAIZE
TORTS - Negligence Per Se (statutory violation; KOSHA)
2002-SC-000969-DG.pdf
Judge:  COOPER
REVERSING AND REMANDING
Date: 5/19/2005 -TO BE PUBLISHED

The statute under which the KOSHA regulations were promulgated (KRS 338.031(1)(b)) specifically provides that "[e]ach employer . . . [s]hall comply with occupational safety and health standards promulgated under this chapter." Since those standards are promulgated in the regulations adopted by the Kentucky Occupational Safety and Health Standards Board, KRS 338.051(3); KRS 338.061(1), the violation of a KOSHA regulation would constitute a violation of KRS 338.031(1)(b), thus triggering the right of  action created by KRS 446.070.

HUNTER  EXCAVATING   V.  BARTRUM
WORKERS COMP - X-Rays (Constitutionality of limiting number)
2004-SC-000485-WC.pdf
EN BANC OPINION OF COURT
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Date: 5/19/2005 - PUBLISHED

This decision will have considerable impact on the practice of black lung law in Kentucky.  Over 400 cases have been held in abeyance waiting for the ruling.  Essentially, the statute governing black lung claims requires that the best lung x-rays be sent to a panel of experts.  If the expert panel reaches a consensus on what the x-rays find, that consensus carries presumptive weight.  However, it may be rebutted by clear and convincing evidence that the consensus is incorrect.  The Supreme Court held that the procedure allows additional interpretations of the same x-rays previously submitted to be used to rebut the consensus.  However, no new x-rays can be submitted.  The statute allows the ALJ to conduct further proceedings, so it is not unconstitutional as violating due process, but the regulations which do not allow additional readings to be submitted were beyond the Commissioner’s authority to promulgate regulations, and were therefore stricken.

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