Ky. Decisions: Court of Appeals - Dec. 16, 2005

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MINUTES for December 16, 2005

PUBLISHED DECISIONS OF KENTUCKY COURT OF APPEALS FOR Dec. 9, 2005

THORN V. COM.
FAMILY LAW - Appeals from Family Court vs Appeals from

Juvenile Court/District Court

2004-CA-001861
Published
AFFIRMING
PJ: DYCHE
Date: 12/16/2005

Appeals from a Family Court are taken to the Court of Appeals and appeals from the Juvenile Division of a District Court are taken to the Circuit Court of that Circuit.  The Court of a Appeals in a Circuit with a Family Court lacks subject matter jurisdiction to hear appeals from Family Court.  The amendment of K.R.S 22A.020(1), effective June 24, 2003, superseded Elery v. Martin, 4 S.W.3d 550 (Ky.App.1999).   KRS 620.155 is to be used in Circuits that do not have a family court; the statute does not provide an alternative route for Family Court appeals.

 

BISCHOFF V. LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT
CIVIL PROCEDURE - Demand for Jury Trial
2004-CA-002545
Not Published
VACATING AND REMANDING
PJ:SCHRODER
Date: 12/16/2005

The holding in Bischoff v. LJCMSD that jury trial was not waived by failure to make timely request was specific to eminent domain actions, where right to jury trial on damages is guaranteed by both Ky. Constitution and statute.

In the absence of a timely demand under 38.02 (in cases other than eminent domain or any other type of action in which the right to jury trial could be deemed automatic under the constitution or statute), the court still has discretion to allow trial by jury under 39.02.

[thanks to David Kramer for cleaning up my summary of this decision.  this posting now reflects entirely his comments!]

FLETCHER (GOVERNOR) V. GRAHAM (CIRCUIT JUDGE)
CRIMINAL - Pardons and Grand Juries
2005-CA-002357
Published
OPINION AND ORDER
DENYING CR 76.36 RELIEF
PJ: KNOPF
Date: 12/16/2005

This decision was issued as a result of the special grand jury empanelled to investigate whistle-blower allegations that officials in the administration of Governor Ernie Fletcher had violated provisions of KRS Chapter 18A, the classified service statutes commonly referred to as the merit system.  In the highly publicized battle between the Governor and Attorney General, CA denied the Governor's petition for a writ of mandamus seeking to provide pardon-specific instructions to the grand jury.  In a nutshell, CA held the Governor’s pardoning power does not preclude indictment for pardoned offenses and did not in this case oblige the circuit court to instruct the grand jury concerning the effect of such pardons.

First, CA found that Governor Fletcher does have standing to raise the issue given that the indictments raise a substantial question concerning the scope of the Governor’s pardoning power and that clearly he has a present and substantial interest in defending that prerogative.  Second, CA found the Governor’s claim satisfies the prerequisites for an extraordinary writ, specifically finding there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result.

 

Going to the merits, CA stated there was no reason to suppose that the Governor’s pardoning power was intended to include the power to preempt an indictment, while on the other side of the equation, there are compelling reasons to refrain from the sort of grand-jury meddling the Governor requests.  Those reasons have to do with the separation of powers.  The constitutionally-based independence of the grand jury requires the circuit court to take care not to exercise its supervisory authority in a way that encroaches on the grand jury’s prerogative.

 

Note:  This was a solid decision by the Court of Appeals, despite the lack of guidance in the form of precedent.  The Governor's remedy is the dismissal of charges covered by his pardon, not a general preemptive strike.  In any event, stay tuned for the final word from the Supreme Court.

STATE AUTO MUT. INS. CO. V. GREENROSE
INSURANCE - Pollution Exclusion and broken basement pipe
2005-CA-000607
Not Published
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
PJ: DYCHE
Date: 12/16/2005

CA affirms in part, vacates in part, and reverses (Jefferson Cir. Ct., Hon. Martin F. McDonald, Judge, presiding).

Renter tripped in landlord's basement, dislodging an old diesel heating oil pipe and spilling old oil into the basement. Renter sued landlord for damage to his personal property; landlord sued carrier for coverage and a defense. Carrier had denied under a "pollution" exclusion. TC ordered coverage and attorney fees to landlord.

On appeal, CA holds that the exclusion is ambiguous as applied to the facts of the case, and affirms. CA vacates and remands attorney fee award because the record does not indicate the basis of such an award.

Thanks to Scott Byrd, Patrick Bouldin,  John Hamlett, Cherry Henault, Sam Hinkle, Suzan J. Hixon, Chad Kessinger,  Stephen Keller,  Michelle Eisenmenger Mapes , Peter Naake,  Paul C. O'Bryan, Alma Puissegur, Richard Schiller, Paul Schurman, and James Worthington for their efforts in digesting Kentucky's appellate decisions.