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frivolous appeals to the Supreme Court is sufficient and does not discriminate against unsuccessful appellants who have superseded a money judgment.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 .

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."

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."

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.

AFFIRMING IN PART AND REVERSING IN PART
Date: 5/19/2005
TO BE PUBLISHED

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.

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.

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

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

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.

SEE ALSO:

2005-SC-000049-TG.pdf

2005-SC-000050-TG.pdf

GOV. FLETCHER   V.  ATTY GEN STUMBO
REVENUE AND TAXATION - Spending Without Approved Budget
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."

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.    

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.

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.

SC held that although "the jury shall `recommend' whether the sentences shall be served concurrently or consecutively[,] [t]here is nothing mandatory 
or binding upon the judge as to the recommendation ."' "The recommendation remains only a recommendation and has no mandatory effect. Here, the jury recommended consecutive sentences. The judge, however, disagreed with the jury's recommendation and ordered the sentences to be served concurrently ; this action was well within his power."  If the Commonwealth had sought a certification of law pursuant to CR 76 .37(10), then the Supremes would have had jurisdiction to address this issue. Here, however, the Commonwealth seeks a reversal of the lower court's dismissal of the wanton endangerment charge by way of a matter of right appeal, and the Supremes  are without jurisdiction to do so.

As held previously in Commonwealth v. Hocker, 865 S .W.2d 323, 325 (Ky. 1993), "medical testimony is not an absolute requisite to establish 
serious physical injury or even physical injury" and, further, the victim is competent to testify as to his own injuries. See also Ewing v. Commonwealth,390 S .W.2d 651 (Ky. 1965), see also CR 76.12 (4)(g).

2003-SC-000658-MR.pdf

An instruction on eyewitness identification is not required in Kentucky.  The trial court's decision not to grant the requested jury instruction was proper under Evans v. Commonwealth ,' and no KRE 404(b) evidence was proffered at trial.

SC affirms TC murder conviction and life sentence. On appeal, defendant argues improper admission of hearsay; improper denial of recusal motion; improper bolstering of prosecution witness; and misstatement as to parole eligibility.

TC permitted hearsay testimony of neighbor that victim said defendant "would be angry whenever he found out about" their impending divorce under the "state of mind" exception. SC held it was error to admit the statement under this exception because it does not reflect the victim's present intention, but rather her belief about defendant's reaction to a past action she had taken. SC held, however, that error was rendered harmless by the testimony of other witnesses. On recusal, SC held judge was not precluded from hearing the case because 10 years prior he had the prosecutor against the defendant on an unrelated charge. SC also held that Commonwealth did not improperly bolster the credibility of two witnesses during closing argument. Finally, though parole officer incorrectly testified that defendant would be eligible for parole sooner with a life sentence than with a 50-year sentence, SC held that it is unlikely this error would have made a difference in sentencing.

AUBURN HOSIERY MILLS, INC.   V.   ELVIS BIKIC
WORKERS COMP - Statute of Limitations (Tolling Per KRS 342.040(1))

In this case the claimant, who could not speak English, was injured on the job but never paid TTD benefits.  He filed his claim more than two years after the date of the injury, and argued that the Employer was estopped from arguing statute of limitations, because it had never notified the Commissioner that the claimant’s TTD benefits were denied, and therefore the Commissioner never notified the claimant that his statute of limitations would run two years from the date of injury.  The ALJ awarded benefits, but the Board reversed, stating that the employer was not estopped from asserting a limitations defense.  The Court of Appeals reinstated the award, and the Supreme Court Affirmed, finding that the claimant gave unrebutted testimony that he told his employer he would be off from work for a surgery, and that therefore the plain wording of KRS 342.040(1) required the employer to notify the Commissioner’s office of the denial.  Because the employer failed in its statutory duty, and consequently the Commissioner did not notify the claimant of his deadline for filing, the employer was estopped from asserting the S.O.L. defense.

AUDOBON METALS  LLC   V.  THOMAS
WORKERS COMP – BEGINNING DATE OF PERMANENT AWARD

The claimant had a facial fracture and cervical injury which resulted in a high impairment rating.  At issue in this appeal was when the period of permanent disability began.  Since the worker’s award would end when he became eligible for normal old-age Social Security benefits (66, in this case), the beginning date of the permanent award would make a large difference.  The employer argued that, because he had some time off in 2003 for dental surgery, the day he returned to work after that period of  TTD would begin his period of permanent disability.  The ALJ agreed, however, the Board reversed stating that the PPD award began following the date he first returned to work, not some two years later when the dental surgery was performed.  The Supreme Court affirmed, based on the wording of the statutes, which allow a period of permanent disability to be interrupted by periods of temporary total disability. 

BEATTY   V.  NORTON HEALTHCARE
WORKERS COMP - Idiopathic Falls and Employer's Responsibility

This appeal is a recitation of the existing law on whether workers’ compensation is applicable when a worker falls from a non-work related medical condition and injures themselves while on the job.  The law is basically that, if the employment in any way caused the injury to be worse, such as if the worker strikes her head on a work bench while falling, then it is a work related event.  If the worker falls without hitting anything but the floor, it is not a work related event.  The ALJ found that the claimant fell from an unrelated medical condition, and that her fall was not made worse by anything connected with the work.  The Courts affirmed the finding and the dismissal.