April 18, 2008 - KENTUCKY COURT OF APPEALS DECISIONS
(2008:19)
PUBLISHED (COA).
COM. V. LOPEZ
CRIMINAL LAW: Judge's decision permitting withdrawal of guilty plea after
termination of pre-trial diversion program affirmed since no final judgment
2006-CA-001500-MR
PUBLISHED: AFFIRMING
PANEL: COMBS PRESIDING; DIXON, KNOPF CONCUR
FLEMING COUNTY
DATE RENDERED: 4/18/2008
Defendant had pled guilty and sentenced which included pre-trial diversion
program's placement in Kentucky Se Offender Treatment Program. Defendant
was terminated from SOTP for failing to admit to his involvement in the offenses
for which he was indicted and failure to successfully complete a "therapy
task" within an allotted 90-day period.
By statute, defendant was then to be sentenced according to
his plea. COA affirmed judge's decision permitting withdrawing plea of guilty as
he contended the counselors at SOTP wished for defendant to admit to conduct
which he claimed to be innocent. RCr 8.10 allows a defendant to withdraw
his guilty plea any time before "judgment" which means "final
judgment", and since the diversion program essentially delays the final
adjudication, then the withdrawal of the guilty plea is a viable possibility.
Digested by Michael Stevens
PENNINGTON V. GREENUP COUNTY BOARD OF EDUCATION
SOVEREIGN IMMUNITY: School board employees afforded same immunity, if any, to
which agency entitled; discretionary vs. ministerial acts are not bright line
and measured against Yanero
RENDERED:
APRIL 11, 28, 2008; 2:00 P
PUBLISHED: AFFIRMING
GREENUP COUNTY
DATE RENDERED: 4/18/2008
Parent of child who was mentally retarded brought action against school and his teacher when child fell and broke his ankle at school outing.
The circuit court granted summary judgment to both defendants, holding that the Board of Education is protected from suit by governmental immunity and that Ms. Kelley (teacher) is protected by qualified immunity.
The issue presented on this appeal was whether or not the circuit court erred when it found that Tracey Kelley's actions in supervising Andrew were discretionary rather than ministerial in nature, resulting in the legal conclusion that Ms. Kelley is entitled to the protection of qualified official immunity. COA affirmed.
The child broke his ankle when he reached over and attempted to kiss another student.
The extent to which local school boards and their employees are protected from suit by governmental immunity is an area of law which has received considerable attention in Kentucky's appellate courts in recent years. Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), the most frequently cited recent Kentucky case relating to governmental immunity, involved a high school student who was injured when he was struck by a baseball thrown by another student on school grounds. In Lamb v. Holmes, 162 S.W.3d 902 (Ky. 2005), our Supreme Court, relying on qualified official immunity, dismissed a 42 U.S.C. § 1983 “strip search” action against school employees.
It is now familiar law in Kentucky that when an employee of a local board of education is sued in her representative capacity, her “actions are afforded the same immunity, if any, to which the agency, itself, would be entitled[.]” Yanero at 522.
The courts cannot make a “bright line” rule of demarcation between discretionary and ministerial acts. The act or acts complained of in each case must be measured against the standards quoted above from Yanero. Consistent application of those standards can prove difficult, as seen in Williams at 150 (teachers' duty to supervise students a ministerial function); Sloas at 479-481 (deputy jailer's supervision of inmates while cutting trees and brush a discretionary function) and Lamb at 909 (search of students by school personnel a discretionary function).
After examining these precedents and others, the COA was unable to conclude that the circuit court erred as a matter of law by granting summary judgment in favor of Ms. Kelley.
For purposes of “discretionary versus ministerial” analysis, it was the COA's opinion that the teacher's decisions required as much personal deliberation and judgment as that exercised by the employees in Sloas and Lamb, and we are unable to rationally distinguish the relevant factual bases of those recent cases from that of the present case.
Digested by Michael Stevens
BOARD OF TRUSTEES V. EST. OF DAISEY CHANEY
GOVERNMENT RETIREMENT: KERS may discontinue retirement disability benefits
if it determines employee was no longer incapacitated prior to his/her normal
retirement date
Commonwealth
Of Kentucky
PUBLISHED: AFFIRMING
PANEL: MOORE PRESIDING; COMBS, CAPERTON CONCUR
FRANKLIN COUNTY
DATE RENDERED: 4/18/2008
The Board of Trustees of the Kentucky Employees Retirement Systems (KERS)
appealed circuit court setting aside the Board’s order adopting a report and recommended order of a KERS hearing officer in which the officer recommended KERS suspend the retirement disability benefits of the decedent, Daisy
Chaney. KERS argued its hearing officer’s recommendation was supported by substantial evidence, thus concluding that the circuit court erred. However, finding that the hearing officer’s recommendation was not supported by substantial evidence, the COA AFFIRMED.
In her application, Chaney claimed that she was unable to perform her duties as a case worker due to her physical and mental condition. However,
KERS’ medical review board denied Chaney’s application. Eventually, Chaney appealed her claim to the Disability Appeals Committee, which denied her application. After Chaney died, her estate continued her appeal.
Once KERS terminated Chaney’s retirement disability benefits, her estate filed a complaint with the Franklin Circuit Court seeking, pursuant to KRS 61.665(5) and KRS 13B.140, appellate review of the Board of Trustees’ final order adopting the hearing officer’s report. In the estate’s complaint, it argued that
KERS’ termination of Chaney’s benefits was arbitrary, capricious and not supported by substantial evidence.
The circuit court noted that the record contained no evidence addressing whether Chaney’s mental condition improved, became worse or continued without change in the preceding two to three years in which Chaney did not seek counseling and further noted that KERS had asserted that Chaney’s condition was not permanent because she could have improved with twelve months of therapy.
The circuit court concluded that Dr. Ebben opined that Chaney could have recovered with appropriate treatment, but he never found that she had recovered. Thus, the circuit court denied
KERS’ motion to alter, amend or vacate.
According to KERS, if Chaney’s mental condition was disabling, then she would have sought treatment for it as she did prior to being approved for benefits.
According to KRS Chapter 61, an employee of the Commonwealth may retire on disability if, since the last date of employment, the employee is mentally or physically incapacitated. An employee is incapacitated if he is unable to perform his job or a job of like duties and his incapacity is permanent. KRS 61.600(1) and (3)(a)-(c).
An employee’s incapacity will be considered permanent if it is expected to continuously last for a period of not less than twelve months from the employee’s last day of paid employment. KRS 61.600(5)(a).
Once an employee has been approved to receive retirement disability benefits, KERS may discontinue such benefits if it determines that, prior to the employee’s normal retirement date, he is no longer incapacitated. KRS 61.615(2).
KERS’ burden was not just to prove that Chaney experienced an improvement in her condition but that she experienced such an improvement she was no longer incapacitated as that term is defined in KRS 61.600.
Because the hearing officer’s report and recommended order were not
supported by substantial evidence, the Franklin Circuit Court correctly set aside the Board of Trustees’ order adopting the hearing officer’s recommendation. Consequently, the decision of the Franklin Circuit Court was affirmed.
Digested by Michael Stevens
NOT PUBLISHED (COA)
HICKS V. ARCHIE
Punitive damages more about reprehensibility than just ratio to compensatories
RENDERED:
APRIL 18, 2008; 10:00 A
NOT PUBLISHED: 36
DATE RENDERED: 4/18/2008
APPCO-KY INC. V. OLDCASTLE MOUNTAIN MATERIALS
Summary judgment prematurely granted in deed case
Commonwealth
Of Kentucky
NOT PUBLISHED: 40
DATE RENDERED: 4/18/2008
NOLAND V. COM
Commonwealth
Of Kentucky
NOT PUBLISHED: 34
DATE RENDERED: 4/18/2008
BRUMMETT V. COM
Commonwealth
Of Kentucky
NOT PUBLISHED: 33
DATE RENDERED: 4/18/2008
PUCKETT V. COM
Commonwealth
Of Kentucky
NOT PUBLISHED: 30
DATE RENDERED: 4/18/2008
UNINSURED EMP. FUND V. HARDIN COUNTY PLANNING AND DEV. COMM.
Appeal dismissed for being taken from interlocutory order
RENDERED:
APRIL 18, 2008; 10:00 A
NOT PUBLISHED: 38
DATE RENDERED: 4/18/2008
PITNEY V. 8635 INC.
No material fact dispute as opposed to res judicata in detainer action served as
basis for summary judgment
Commonwealth
Of Kentucky
NOT PUBLISHED: 35
DATE RENDERED: 4/18/2008
RYAN V. KRS
Creditable service for retirement
Commonwealth
of Kentucky
NOT PUBLISHED: 48
DATE RENDERED: 4/18/2008
RIGGS V. COM
Commonwealth
Of Kentucky
NOT PUBLISHED: 35
DATE RENDERED: 4/18/2008
LITTLE V. STEWART
Affirmed directed verdict
Commonwealth
Of Kentucky
NOT PUBLISHED: 44
DATE RENDERED: 4/18/2008
METRY V. METRY
Maintenance determined not to be rehabilitative but open-ended and thus
permanent
Commonwealth
Of Kentucky
NOT PUBLISHED: 35
DATE RENDERED: 4/18/2008
PENDLETON V. COM
Commonwealth
Of Kentucky
NOT PUBLISHED: 42
DATE RENDERED: 4/18/2008
LOWDER V. LOWDER
Business law issues relating to sale of business and stock in funeral home
Commonwealth
Of Kentucky
NOT PUBLISHED: 45
DATE RENDERED: 4/18/2008
GRAY V. SOUTHERN FARM BUREAU LIFE INS. CO.
Insurability determined by underwriters for life ins. policy
Commonwealth
Of Kentucky
NOT PUBLISHED: 47
DATE RENDERED: 4/18/2008
MACHNIAK V. COM
Commonwealth
of Kentucky
NOT PUBLISHED: 42
DATE RENDERED: 4/18/2008
CISSELL V. CISSELL
Family law
Commonwealth
Of Kentucky
NOT PUBLISHED: 40
DATE RENDERED: 4/18/2008
M.D. V. D.B.
Child neglect
200-CA-00(NP)
NOT PUBLISHED: 45
DATE RENDERED: 4/18/2008
SWIFT PORK CO. V. CAMEJO
WORKERS COMP
Commonwealth
of Kentucky
NOT PUBLISHED: 45
DATE RENDERED: 4/18/2008
MCCORD V. MCCORD
Custody award
Commonwealth
Of Kentucky
NOT PUBLISHED: 45
DATE RENDERED: 4/18/2008
ROBINSON V. ROBINSON
Motion to modify custody and two year rule
Commonwealth
Of Kentucky
NOT PUBLISHED: 33
DATE RENDERED: 4/18/2008
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