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.     

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. 

KRS 505.020 allows prosecution for multiple offenses arising from a single course of conduct.

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.”

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.

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.  

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 Appellees 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 Appellants 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.

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 courts 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 s 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.

SC affirmed the CA's opinion that the TC properly denied Jones' RCr 11.42 motion based on his counsel's failure to object to his prosecution for an unindicted offense.  Jones was charged with two robberies of ATM customers at the same bank.  The robberies were committed on different dates.  The Jefferson Grand Jury returned an indictment charging Jones with only one of the robberies and with being a Persistent Felony Offender in the Second Degree.  The indictment included an additional count regarding the other robbery, but a "no-true bill" was entered for that offense.  Surprisingly, the trial judge, prosecutor, court clerk, and Jones' trial counsel all failed to notice that one of the robbery counts had been no-true-billed by the grand jury.  Jones was later tried on BOTH robbery counts, was convicted, and was sentenced to 40 years.  After trial, Jones' counsel moved the TC to delete any reference to the unindicted robbery count.  The TC did so but kept the overall 40-year prison term.  On direct appeal, SC affirmed the single robbery conviction, vacated the sentence, and remanded the case to the TC for a new sentencing phase in which a new jury would hear evidence of only the indicted robbery count and the PFO proof.  Consequently, the new jury gave Jones a 25-year term.  Sometime after his sentencing, Jones filed a motion with the TC alleging ineffective assistance of counsel because his attorney failed to object to his prosecution on the unindicted offense.  TC denied the motion without an evidentiary hearing and the CA affirmed.  SC also affirmed, stating that Jones suffered no prejudice from his trial counsel's failure because of the remedies initiated by the TC and SC. 

Stidham was sentenced to life imprisonment.  On appeal he contends that he was denied due process of law and his right to an unbiased jury when the trial court allowed Debra Bowling to sit as a juror. Appellant claims that Bowling was a biased juror in that she failed to disclose that her father was under indictment  There was no duty upon Bowling to come forward with information pertaining to the indictment after voir dire had been completed . There is no appearance of impropriety as Appellant suggests. Assuming Bowling had a duty to volunteer this information, the trial court correctly noted that defense counsel failed to move to strike Bowling upon being advised of the indictment .

Yenawine argued the trial court erred by not giving an instruction on arson in the third degree (KRS 513 .040); and that the trial court erred by admitting an incriminating statement obtained by the police in violation of his Fifth and Sixth Amendment rights, and in violation of his rights under Section 11 of the Kentucky Constitution.  

SC held Yenawine should have received an instruction on arson in the third degree, but that his statement to the police was not an unambiguous or unequivocal request for counsel that a reasonable police officer would have understood it as such.  Reversed and remanded.

Only an instruction on arson in the first-degree was given. A defendant is entitled to instructions on the whole law of the case where those instructions are supported by the evidence. Kentucky law has established that "an instruction on a lesser included offense is required only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that the defendant is guilty of the lesser offense

Lambert, C.J ., and Cooper, Graves, and Keller, JJ., concur with Part 1 . Graves, Johnstone, Keller, Scott, and Wintersheimer, JJ ., concur with Part II . Lambert, C .J ., files a separate opinion concurring in part and dissenting in part in which Cooper, J ., joins. Johnstone, J ., files a separate opinion dissenting in part and concurring in part in which Scott and Wintersheimer, JJ ., join .

This was an extraordinary writ which objected to the trial court's disqualification of counsel in a civil matter.  Held Babbs failed to show great and irreparable harm, which is necessary to obtain a writ, and thus the Supremes affirmed the Court of Appeals.

"Though we noted in Shoney's, Inc. v. Lewis that disqualification is a drastic remedy that should be used sparingly, we also held that in some cases disqualification is appropriate.  This is supported by the notion that 'there is no unqualified right to . . . choice of counsel' even for criminal defendants, who have a constitutional right to counsel.

The United States Supreme Court has also recognized this, noting that although the Sixth Amendment's guarantee of assistance of counsel also includes a right to counsel of one's choosing, that right is not absolute . But civil litigants cannot claim solace in the Sixth Amendment.

Thus, in a case such as this, where the litigants' dispute is civil in nature, there is not even a guarantee of counsel, much less choice of counsel . 16 52 S .W .3d 555 (Ky . 2001)."

AFFIRMING
Date: 3/17/2005
NOT PUBLISHED

This is the well-publicized case concerning the state senate seat for the 37th district. Appellee Woodward filed suit in Franklin Circuit Court seeking injunctive relief to prevent Appellant Stephenson from exercising duties and receiving benefits of the office of state senator on the grounds Stephenson did not meet the qualifications for office. The circuit court granted the injunction. The Supreme Court ordered transfer and expedited disposition of the interlocutory appeal.

On appeal, the majority framed the sole issue to be whether or not the circuit court abused its discretion in granting the injunction. The Supreme Court analyzed the order granting injunction utilizing the test from Oscar Ewing, Inc. v. Melton, Ky., 309 S.W.2d 760 (1958) , concluding that Woodward would suffer immediate and irreparable harm if Stephenson were allowed to sit as state senator and affirmed the order of injunction.

The dissent took the majority to task for not addressing the threshold issue of whether or not the circuit court had jurisdiction to hear the case; arguing that the General Assembly gas exclusive jurisdiction to determine elections and qualifications of its members pursuant to the state constitution and controlling precedent.