This opinion was modified from its original form issued March 4, 2005, without changing it's holdings. The original LawWire summary was as follows: 

UNIVERSITY OF LOUISVILLE FOUNDATION INC. V. CAPE PUBLICATIONS, INC.
ADMINISTRATIVE LAW - Open Records Statute

Held: privacy interests of donors to non-profit fund-raising organization for state university outweigh the public’s interest in disclosure of the donors.  The Court of Appeals went on to hold that unless the donor specifically waives the right to privacy, then the record of their donation is exempt from disclosure.

COA affirmed denial of D’s 11.42 petition. Defense counsel was not ineffective for not seeking a extreme emotional disturbance instruction during D’s robbery trial.

COA affirmed TC order dismissing petition of review of prison disciplinary proceeding. Prisoner claimed that prison failed to prove chain of custody for urine sample that was positive for drugs.

D appealed order denying his 60.02 motion. COA denied 60.02 on a number of grounds. First, COA said that D’s arguments on appeal were different than those before the TC, so these new arguments were barred. Secondly, generally, D must file an appeal, then an 11.42 petition, then a 60.02 motion. See, Gross v. Commonwealth, 648 S.W. 2d 853, 856 (Ky. 1983). D did not do this.

CA affirmed TC's denial of expungement motion.  Shaffer was indicted for rape, sodomy, and murder in 1989 but all charges were later dismissed with prejudice.  He then petitioned the trial court for expungement of the dismissed charges pursuant to KRS 431.076.  CA held that this statute gives trial courts discretion to grant or deny such petitions.  Consequently, there was no error.    

TC's denial of 11.42 motion affirmed.

TC's denial of 11.42 motion affirmed

Affirmed circuit court’s denial of request for writ to prohibit district court from enforcing order for criminal defendant to be involuntarily treated and forcibly medicated to attain competence to stand trial for menacing and resisting arrest.  The appellant’s sole argument was that the authorizing statute, KRS 504.110, is unconstitutional in light of the U.S. Supreme Court’s decision in Sell v. U.S., 539 U.S. 166 (2003). 

In affirming the denial of the writ, the panel declined to decide the case on its merits, instead following the general rule that “a writ of prohibition is not the proper remedy when the issue is a claimed constitutional defect because the remedy of appeal is adequate.”

Another frequently incarcerated parent appealed termination of his parental rights, claiming that there was insufficient evidence for termination, that TC based decision solely on his incarceration and thus TC’s decision was clearly erroneous.  CA held that, although it is true that incarceration of the parent cannot alone justify termination of his rights, it is a factor to be considered in termination decisions.  Further, repeated incarcerations as a result of the parent’s dedication to a criminal lifestyle may be, as they were in this case, sufficient to support a finding of substantial and continuing neglect.  This finding combined with incarceration provides substantial evidence for termination.  TC’s judgment affirmed.

Wife appealed from TC’s judgment awarding Husband non-marital equity in marital residence, arguing that income received from husband’s non-marital rental properties should have been characterized as marital property, and thus TC inappropriately awarded Husband equity in house based on his income received from rental properties.

CA resolved the issue by stating the following:  “In 1996, the General Assembly amended KRS 403.190(2)(a) so that income from gifted or inherited property will be marital only if one spouse's activities contribute to the production of the income. But the placement of the rule in a particular statutory exception rather than in a general exception indicates that the Legislature intended for it to apply only to gifted and inherited property and not to other types of assets.  Terry never argued to the trial court that he acquired the rental properties by gift, decent, bequest or devise.  Moreover, the statute specifically excepts such property acquired ‘during the marriage and the income derived therefrom.’ Thus, income from non-marital property acquired prior to the marriage remains marital.”  Thus, Husband’s income from non-marital rental properties was marital and he was not entitled to a greater non-marital interest on that basis.

Wife also argued that Husband provided inadequate tracing of other non-marital claims.  CA reaffirmed the Supreme Court’s position that tracing to a mathematical certainty is not always possible, that testimony alone may be sufficient, but that a higher standard should be applied to skilled business persons.  Husband’s tracing was sufficient under these standards. 

Editor’s Note:  If you are seeking further clarification of the appellate court’s position on the marital character of income generated from non-marital property, this case will not be helpful to you.  Although we domestic relations practitioners wait in great anticipation for the sequel to Sexton, the phrase “active v. passive income” is nowhere to be found nor is Sexton cited in this opinion.

This appeal involved the distribution of proceeds of a foreclosure sale to Springfield State Bank. Natasha Cook contended the the Bank’s share of the proceeds should have been limited to about $200.00, not the nearly $5,500.00 it was awarded, and that Natasha and her sister are entitled to the difference. COA disagreed and affirmed lower court, noting KRS 382.520, moreover, provides that real estate mortgages “may secure any additional indebtedness, whether direct, indirect, existing, future, contingent, or otherwise, to the extent expressly authorized by the mortgage.”

CA affirms the TC dismissal of this action against the Kentucky Cabinet for Families and Children for failure to state a claim. Appellant had alleged, among other things, discrimination and invasion of privacy relating to a dependency court action in Jefferson Family Court. This appeal is from an order of Jefferson Circuit Court, Hon. Tom McDonald, judge, presiding.

Neither the complaint below nor the pro se brief on appeal describe the factual basis of appellant's claims, but CA holds that, absent a waiver of sovereign immunity, the Cabinet, as an agent of state government, cannot be sued for reasonable actions taken in good faith during the course of its investigations. There was no showing of bad faith or malice, so CA affirms.

[John Hamlet] 

This opinion was modified from its original form issued May 6, 2005, without changing it's holdings. The original LawWire summary was as follows: 

ANDERSON    V. HOMELESS AND HOUSING COA
WORKERS COMP – SUBSTANTIAL EVIDENCE

This claim is notable for having gone to the Supreme Court once on the issue of whether the claimant was covered by workers compensation since he worked for a charitable organization for what were called living expenses.  That question having been answered in the affirmative, the ALJ this time found that he had failed to prove that his knee injury was caused by his fall through a roof while working.  On appeal the Court also noted that he failed to preserve the issue of insufficient findings of fact, by using a Petition for Reconsideration, and dismissed the appeal.  However, the Court of Appeals noted that Dr. Templin stated that he could not testify that the fall caused the claimant’s knee injury, because the symptoms in that knee did not arise until several weeks after the fall.