OCTOBER 12, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:49)
PUBLISHED (COA).
HENSLEY V. COM.CA reversed TC's determination that affidavit supporting search warrant provided probable cause to issue search warrant. Further, TC erred in applying the “good faith exception” to the exclusionary rule in denying the motion to suppress the seized evidence. Defendant's conviction for manufacturing methamphetamine vacated.
When requested to issue search warrants, judges may not simply act as rubber stamps for the police and merely ratify the bare conclusions of others, nor may they consider information outside the affidavit. The United States Supreme Court has held that an officer's reasonable reliance on a search warrant issued by a neutral and detached magistrate could save evidence from being excluded when the warrant was later determined to be deficient for lack of probable cause. However, the Court went on to add that if the magistrate had been misled with false information, any evidence seized should be suppressed as the officer's reliance on the search warrant could not be seen as reasonable. Further, if the magistrate abandons the “detached and neutral” judicial role or if the officer's belief in the existence of probable cause was wholly unreasonable, suppression of evidence remains available as a remedy. Here, it is clear the magistrate was misled by false information provided by the officer, and the officer's later reliance on the resultant search warrant was wholly unreasonable. While nothing in the record specifically indicates Officer Hodge intentionally attempted to fraudulently obtain the instant search warrant, his failure to include with specificity any reasonable indication of probable cause in the affidavit went beyond mere negligence. The falsity of some of the information provided makes the officer's actions even more egregious, especially in light of his testimony at the suppression hearing that he was aware of the untruthfulness of his statements when they were made. The affidavit submitted by Officer Hodge included only a general statement alleging knowledge of the possibility of illegal conduct. The affidavit is silent as to any other indicia of probable cause to believe contraband or other evidence of illicit activity would be uncovered at the residence.
Digested by Scott C. Byrd
Olgin and Byrd
To comport with the void for vagueness doctrine, a statute must 1) provide fair notice to those targeted by the statute, “by containing sufficient definiteness so that ordinary people can understand what conduct is prohibited,” and 2) it must have been drafted in such a way to discourage arbitrary and discriminatory enforcement. Here, the statute clearly states on its face that a registered sex offender must give notice, on or before the day, he or she has a change in residence. Thus, if a registered sex offender will have a change in residence and if he is contemplating not registering that change with the appropriate probation and parole officer, then the statute gives more than sufficient notice that such contemplated conduct is illegal. The record supports this conclusion. During the hearing and subsequent guilty plea, Tobar testified that he knew he was about to become homeless, and he admitted that he knew he should have contacted his probation and parole officer regarding the situation. Thus, there is no dispute that he knew he should have contacted his probation and parole officer. However, he conceded that he chose not to out of fear that he would be charged with violating KRS 17.510(10). This, in fact, happened, not because he was homeless but because he failed to give notice. Thus, his argument that the statute is void for vagueness is belied by his own inherent understanding of its requirement. If we were to adopt Tobar's reasoning and declare KRS 17.510(10) unconstitutional, then homeless registered sex offenders would be exempt from the registration requirement found in KRS 17.500, et seq. This would encourage homelessness among registered sex offenders and ultimately defeat the statute's purpose: the Commonwealth's overwhelming interest in protecting the public from sex offenders. The General Assembly has decided that, as a matter of public policy, registered sex offenders must notify the appropriate legal authority when they experience a change in residence. Such public policy decisions fall within the legislature's bailiwick, and we will not disturb such decisions lightly.
Digested by Scott C. Byrd
Olgin and Byrd
LITTLETON V. COM.
Defendant's convictions and 15 year sentence vacated. TC erred by allowing the Commonwealth to impeach Defendant's testimony on a collateral matter. Littleton's motive or reason for obtaining a weapon was irrelevant to his defense of whether he had bought it or had stolen it. Evidence that Littleton may have told his wife's mother that he was going to kill her daughter is collateral to whether or not he broke into Henderson's residence and stole Henderson's pistol. Such evidence could not have been introduced into evidence for any purpose independently of self-contradiction. In sum, the prosecutor needlessly injected this irrelevant and highly prejudicial matter into the trial and that Littleton was unduly prejudiced thereby.
Digested by Scott C. Byrd
Olgin and Byrd
Search warrant did not violate the particularity requirement of Section 10 of the Kentucky Constitution or the Fourth Amendment of the U.S. Constitution. A search warrant containing an incorrect address for the premises to be searched may still be constitutionally valid if the warrant contains a description of the premises to be searched with such particularity that the officer executing the warrant is able to identify the place to be searched with reasonable effort. In the case sub
judice, the search warrant contained a detailed description of the premises to be searched. Although the warrant contained the wrong address, the warrant clearly recited that the premises to be searched was “the first trailer on the right.” As there only existed two trailers at the end of the driveway, one on the left and one on the right, an officer exercising reasonable effort could easily ascertain the proper trailer to be searched. Additionally, Deputy Henderson knew the trailer on the right was appellant's residence and had served the Hardin County arrest warrant upon McCloud at the trailer earlier that day. When Deputy Henderson returned to execute the search warrant, he was obviously able to identify the correct premises to be searched under the search warrant.
Next, CA found Deputy Blanton properly proceeded to the rear door of McCloud's trailer in execution of the arrest warrant. a valid arrest warrant also authorizes the police to enter that part of the curtilage of a private residence necessary to secure the rear door of the residence. Finally, the affidavit submitted by Deputy Blanton was sufficient to establish probable cause to issue the search warrant.
Digested by Scott C. Byrd
Olgin and Byrd
COA affirmed summary judgment terminating employment of
county planner Kelley in which the trial court concluded that if Kelley's employment was at the pleasure of the county judge/executive pursuant to KRS 67.711, that official also was vested with the authority
to terminate Kelley's employment, and in the alternative if Kelley's appointment depended on the fiscal court's approval, his employment was void ab initio since fiscal court approval was never obtained for his hiring. Thus, it was unnecessary to obtain fiscal court approval for his firing from such unapproved employment.
The functions of county fiscal courts and county commissioners are governed by KRS 67.710
which specifies that a county judge/executive's responsibilities “include, but are not limited to,” the duty to [e]xercise with the approval of the fiscal court the authority to appoint, supervise, suspend, and remove county personnel (unless otherwise provided by state law)[.] KRS 67.710(7).
Kelley's job description clearly and repeatedly provides that the county planner must follow the directions of the county judge/executive, rather than those of the fiscal
court and confirms that the county planner is appointed by, serves at the pleasure of,
and is a member of the office of the county judge/executive.
As the fiscal court is given no role in the county planner's hiring, firing, or supervision,
COA found no merit in Kelley's claim that his hiring was ratified by the fiscal court. The trial court did not err by entering summary judgment for appellees.
Digested by Michael Stevens
COA affirmed Franklin Circuit Court order affirming the decision of the Disability Appeals Committee of the Board of Trustees of the Kentucky Retirement System (Board) to deny Richard
disability retirement benefits.
Richard retired from her position and applied for disability retirement benefits claiming she was unable to return to work due to constant pain and headaches as a result of a neck ailment stemming from a car accident in 1995. Her application was denied twice by the Kentucky Retirement Systems' Medical Review Board, and she thereafter requested an
administrative hearing.
After the closing of the administrative record, the hearing officer recommended that Richard's claim be denied because she had not established by objective medical evidence the existence of a permanent mental or physical impairment which would prevent her from performing her job duties.
A reviewing court is not free to substitute its judgment for that of an agency on a factual issue unless the
agency's decision is arbitrary and capricious, and the agency's decision must be upheld if it is supported by substantial evidence.
COA concluded that the Board's decision to deny Richard's disability claim was not clearly erroneous. Although Richard's primary physician opined that she was unable to perform her job due to severe pain, other medical evidence in the record indicated that she was not
mentally or physically incapacitated and thus not disabled.
Digested by Michael Stevens
COA affirmed Order of the Franklin Circuit Court which affirmed a decision of the Kentucky Board of Tax Appeals (KBTA) determining that AutoZone Development Corporation (AutoZone) was entitled to a tax deduction for dividends paid to
shareholders which was appealed (and lost) by the Commonwealth.
AutoZone is a Nevada corporation that began doing business in Kentucky in 1995. AutoZone owns and leases land and buildings in Kentucky for the operation of
its business. AutoZone is a federally qualified Real Estate Investment Trust (REIT) pursuant to 26 U.S.C. §§ 856-859 of the United States Internal Revenue Code. AutoZone
timely filed its Kentucky corporate income tax returns for the years 1995-1997. On those returns, AutoZone claimed a deduction from
gross income for dividends paid to its shareholders. This deduction resulted in ninety-five percent of AutoZone's income being
sheltered from Kentucky's corporate income tax.
COA was presented with a pure question of law – whether KRS 141.010(13) permits a federally qualified REIT to claim a deduction from gross income for dividends paid shareholders for the purpose of calculating the REIT's net income on its state tax return.
In its October 10, 2005, order, KBTA concluded that 26 U.S.C. § 857(b)(2)(B)2 of the Internal Revenue Code permits a federally qualified REIT to claim a deduction for dividends paid to shareholders during the relevant taxable year.
KRS 141.010(13) clearly and unmistakably defines “net income” as gross income minus all deductions from gross income allowed by Chapter 1 of the Internal Revenue Code. Under Chapter 1 of the
Internal Revenue Code, the dividends paid deduction is specifically codified in 26 U.S.C. § 857(b)(2)(B)
The issue of whether the dividends paid deduction, as codified in 26 U.S.C. § 857(b)(2)(B), is an
allowable deduction under KRS 141.010(13) has never been addressed in this Commonwealth.
COA looked at Revenue Cabinet v. General Motors Corporation, 794 S.W.2d 178 (Ky.App.
1990) in which it was recognized that taxable income, as utilized in the Internal Revenue Code (26 U.S.C. § 63(a)), and net income, as used in KRS 141.010(13), are virtually “the same.”
As the deduction for dividends paid is also utilized to arrive at and effectively reduce a REIT's taxable income for federal taxation purposes, we hold that the deduction for dividends paid, as codified in 26 U.S.C. § 857(b)(2)(B), is the functional equivalent of an allowable deduction from gross income under KRS 141.010(13).
Held the deduction for dividends paid, codified in 26 U.S.C. §
857(b)(2)(B), is an allowable deduction to gross income of a REIT under
KRS 141.010(13).
Digested by Michael Stevens
The Court of Appeals reversed the Board holding that, where the claimant is allegeing an intentional violation of the general ‘safe workplace’ requirement of OSHA, an egregious violation must be proven. Here, the claimant did not prove that a specific regulation was intentionally violated when a ladder leaned up against a building, without a tie-off, fell, but alleged that the employer failed to supply a safe workplace. The Court reversed the ALJ and the Workers’ Compensation Board, holding that the violation of the general regulation must be ‘egregious’ before being found to be intentional. Finding an intentional safety violation on the part of the employer results in a 30% increase in income benefits for the claimant.
Digested by Peter Naake
Priddy, Cutler,
Miller & Meade
The Davises sought a zoning change. The Planning and Zoning Commission (“Commission”), after a public hearing, recommended the zone change with four conditions attached. The Board of Commissioners (“Board”) approved the zone change with the conditions.
The Davises appealed, arguing that the conditions were impermissible conditions subsequent that were in excess of the Board’s authority and that a severance clause in the zone change allowed it to stand without the conditions. The circuit court agreed. The Board appealed.
On appeal, the Board argued that because the Commission had been dismissed from the circuit court action, the court lacked authority to address the authority or actions of the Commission. The court disagreed, stating that the party that had final approval over enactment of the zone change, the Board, was a party, and that the Commission, whose recommendations were being reviewed, had not been a necessary party.
The Board also argued that the statute requiring a development plan gives it all-inclusive power to impose the plan and to place additional conditions upon a zone change. The court disagreed, holding that the only condition permitted by the statute is the submission of the development plan. It rejected the argument that the Board had the authority to impose additional conditions, a power that is granted only to urban county governments. The court stated that if the Commission found any part of the
Davises’ development plan to be unsatisfactory, it should have delayed approval of the zone changes, rather than approving with conditions.
The court also rejected the Board’s argument that the severability clause in the zone change should be rejected, holding that the ordinance would have been enacted without the conditions attached.
Digested by Sam Hinkle
NOT PUBLISHED (COA)
SILVERBURG V. COM.SALYER V. CITY OF STANTON
ZONING: BOARD OF ADJUSTMENT; APPEALING; VALIDITY OF ORDINANCE
2006-CA-000300
NOT TO BE PUBLISHED: 124
DATE RENDERED: 10/12/2007
SALYERS V. COM.
CRIMINAL:
2006-CA-000538
NOT TO BE PUBLISHED: 131
DATE RENDERED: 10/12/2007
CARROLL V. CARROLL
FAMILY LAW: MAINTENANCE; BURDEN AND CHALLENGING AWARD
2006-CA-000937
NOT TO BE PUBLISHED: 86
DATE RENDERED: 10/12/2007
CROUCH V. DARNALL
TORTS: GOV'T IMMUNITY IS QUESTION OF LAW; DISCRETIONARY ACTS
2006-CA-001388
NOT TO BE PUBLISHED: 86
DATE RENDERED: 10/12/2007
ROARK V. COM.
CRIMINAL: HYPNOSIS; FAIR TRIAL AND COMPETENCY OF COUNSEL
2006-CA-001490
NOT TO BE PUBLISHED: 105
DATE RENDERED: 10/12/2007
BRIEF FOR APPELLANT - GATEWOOD GALBRAITH
HUFF V. KENTUCKY RETIREMENT SYSTEM
EMPLOYMENT: GOV'T RETIREMENT BENEFITS
2006-CA-001818
NOT TO BE PUBLISHED: 104
DATE RENDERED: 10/12/2007
HELLSTRUM V. COM.
CRIMINAL: 11.42
2006-CA-001828
NOT TO BE PUBLISHED: 82
DATE RENDERED: 10/12/2007
SLATER V. COM.
CRIMINAL: DIRECTED VERDICT
2006-CA-002021
NOT TO BE PUBLISHED: 87
DATE RENDERED: 10/12/2007
MASON V. BEREA INDEPENDENT SCHOOL DISTRICT
TORTS: RECREATIONAL USE STATUTE
2006-CA-002061
NOT TO BE PUBLISHED: 77
DATE RENDERED: 10/12/2007
A plain reading of this statute indicates that
immunity is not conditioned upon the injury arising out of the recreational
activity per se, as long as the person injured was on the property for a
recreational purpose
PRINCE V. COM.
EMPLOYMENT LAW:GOV'T - PERSONAL HYGEINE AND WORK PERFORMANCE
2006-CA-002089
NOT TO BE PUBLISHED: 92
DATE RENDERED: 10/12/2007
EDMONDS V. COM.
CRIMINAL: SEARCH AND ARREST; FRUIT OF POISONOUS TREE
2006-CA-002238
NOT TO BE PUBLISHED: 75
DATE RENDERED: 10/12/2007
SAYLOR V. DEUTSCHE BANK NATIONAL TRUST CO.
PROPERTY: REAL ESTATE FORECLOSURE; AND MARRIAGE
2006-CA-002311
NOT TO BE PUBLISHED: 75
DATE RENDERED: 10/12/2007
VIOLETT V. KAFOLGLIS
FAMILY LAW: RES JUDICATA
2007-CA-000223
NOT TO BE PUBLISHED: 69
DATE RENDERED: 10/12/2007
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