April 22, 2010 Supreme Court Minutes

April 22, 2010 Supreme Court Minutes (CLICK
HERE FOR ENTIRE MINUTES)

  • Decisions:  72-92
  • Total:  21
  • Published:14
  • Disciplinary Cases (published): 10
  • Rehearing motions:  4 denied none granted
  • Discretionary Review Motions:  4 of 29 granted
  • Running Tally for 2010.
    • PUB/NPO Ratio: 
      • Jan 2010 14 of 24 published
      • Feb 2010 none
      • Mar 2010 24 of 47 published
      • Apr 14 of 21 published
      • Running tally 52 of  published
    • Motions for rehearing –
      • Jan 2010 2 of 9 grants
      • Feb 2010 none
      • Mar 2010 0 of 6 granted
      • Apr 0 of 4
      • Running tall 2 of 19 grants
    • MDR (distcretionary review) 
      • Jan  2010 11 of 55 granted
      • Feb 2010  None
      • Mar 2010 8 of 56 granted
      • Apr 2010 4 of 29 granted
      • Running tally 23 of 140 grants
    • Reversals or otherwise not affirmed in entirety (including
      vacated): 
      • Jan 2010
      • Published: 12 of 14
      • NonPublished: 3 of 10
      • Combined: 15 of 24 decisions were reversed in whole or in part
      • Feb 2010 None
      • Mar 2010
        • Published: 11 of 14
        • Nonpublished 3 of 7
        • Combined:  29 of 54
  • COA decisions ordered not published: 3
    • Bentley v . Trinity Christian Academy / fayette
    • Comm. v. Lawson / laurel
    • Bryant v. Hopkins and Grange Ins. Co. / floyd
  • Click here
    for full text of minutes for this month
  • Click here
    for table full for text of minutes of other months

Link to full text published decisions with Questions Presented as
noted on the SCOKY minutes are as follows

72

UNIVERSITY OF THE CUMBERLANDS V. REV. ALBERT M. PENNYBACKER
OPINION OF THE COURT BY JUSTICE ABRAMSON – AFFIRMING
CUNNINGHAM, J., CONCURS BY SEPARATE OPINION IN WHICH SCOTT, J., JOINS. SCOTT, J.,
CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION IN WHICH VENTERS, J., JOINS.

Questions Presented:
Affirm trial court’s holding that the appropriation to the Pharmacy School violates Section 189 of the Kentucky Constitution, which prohibits public funding of “any church, sectarian or denominational school,” and that the Pharmacy Scholarship Program violates Section 59 of the Kentucky Constitution, which prohibits special legislation.

In the 2006 Budget Bill, the Kentucky General Assembly appropriated $10 million for the construction of a pharmacy school building on the campus of the University of the Cumberlands, a Baptist college located in Whitley County . The legislature also appropriated $1 million for a Pharmacy Scholarship Program to benefit pharmacy students "at a private four (4) year institution of higher education with a main campus located in an Appalachian Regional Commission county …." KRS 164.7901(l). In a declaratory judgment action challenging both appropriations, the Franklin Circuit Court held that the Pharmacy School appropriation violated Sections 5 and 1.89 of the Kentucky Constitution and the Pharmacy Scholarship Program violated Section 51 . This Court granted transfer of the case from the Court of Appeals pursuant toKentucky Rule ofCivilProcedure 74.02. Following reviewofthe
record and applicable law, we affirm the circuit court's holding that the Pharmacy School appropriation violates Section 189, which prohibits public funding of "any church, sectarian or denominational school," and further find the Pharmacy Scholarship Program violates Section 59, which prohibits special legislation.

73
WILLIAM BUCK V. COM.
OPINION OF THE COURT BY JUSTICE SCHRODER – AFFIRMING
ALL SITTING. ALL CONCUR.

Questions Presented:
Criminal Law. Ex Post Facto. The issue is whether the 2006 Amendments to
the Sex Offender Registration Act violate Ex Post Facto provisions of
the United States and Kentucky Constitution.

In this case, we are called upon to evaluate this Court's holding in Hyatt v.Commonwealth, 72 S .W .3d 566 (Ky.2002), in light of 2006 amendments to the Kentucky Sex Offender Registration Act (SORA) . After considering the arguments of the parties and the relevant case law, we continue to hold that SORA does not Violate the ExPost Facto Clause f the UnitedStates Constitution or the Kentucky Constitution.

74

ARTRIP V. NOE

OPINION OF THE COURT BY JUSTICE CUNNINGHAM – AFFIRMING
NOBLE, J., CONCURS IN RESULT ONLY BY SEPARATE OPINION, IN WHICH SCOTT AND
VENTERS, JJ., JOIN.

Questions Presented:
Child Support. Social Security Benefits. The question presented, involving the interplay between KRS 403.211(3)(d) and (14) (now (15)), is whether a parent is entitled to reduction in a child support obligation relating to a disability entitlement received by the children as a result of the other parent's disability.

For the following reasons, we affirm the decision of the Court of Appeals. KRS 403.211(15)
This statute states in pertinent part: A payment of money received by a child as a result of a parental disability shall be credited against the child support obligation of the parent. A payment shall not be counted as income to either parent when calculating a child support obligation.

75
BLUE MOVIES V. LOUISVILLE/JEFFERSON COUNTY METRO GOV'T

OPINION OF THE COURT BY JUSTICE SCHRODER –
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
VENTERS, J., CONCURS BY SEPARATE OPINION IN WHICH ABRAMSON AND CUNNINGHAM, JJ., JOIN.

Questions Presented:
First Amendment. Adult Entertainment. Twenty-First Amendment. Issues
include the constitutionality of certain provisions regulating adult
entertainment establishments, particularly a provision prohibiting
alcohol sales, a provision requiring disclosure of principal owners and a
"no touching" provision.

76
JONES V. HENLEY
OPINION OF THE COURT BY JUSTICE SCHRODER REVERSING

Questions Presented:
KRS 532.043(5) violates Section 27 and Section 28 of the Kentucky Constitution by impermissibly conferring an executive power to revoke a post-incarceration or post-parole conditional release upon the judiciary.

77
HANEY V. MONSKEY
OPINION OF THE COURT BY JUSTICE SCOTT REVERSING
Questions Presented:
Qualified Official Immunity. Issue is whether a counselor for the Louisville Zoo's children's camp was performing ministerial or discretionary function when carrying out the "night hike" activity with a group of children

78
SPURLOCK V. BEGLEY
OPINION OF THE COURT BY JUSTICE CUNNINGHAM REVERSING

Questions Presented:
Contracts. Limited Liability Corporations. The issue is whether the defendant had a sufficient ownership interest in a limited liability corporation that he could sell to the plaintiff.

79
ST. CLAIR V. COM.
OPINION OF THE COURT BY CHIEF JUSTICE MINTON – REVERSING AND REMANDING
SCOTT, J., CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION IN WHICH CUNNINGHAM, J., JOINS. CUNNINGHAM, J., CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION IN WHICH
SCOTT, J., JOINS.

Questions Presented:
Death sentence reversed because the trial court’s erroneous jury instruction failed to comply with this Court’s directive to follow the statutory language in instructing the jury on the applicable aggravator required to support a death sentence and deprived the defendant of his right to a unanimous verdict.

80
HILL V. KENTUCKY LOTTERY CORP.
OPINION OF THE COURT BY JUSTICE VENTERS REVERSING AND REMANDING
Questions Presented:
Defamation. Privilege. Post-Judgment Interest. Civil Procedure. Issues involve the privilege defense to a defamation claim, assessment of a reduced rate of postjudgment interest, and whether the appeal was timely.

81
JENKINS V. COM.

OPINION OF THE COURT BY JUSTICE SCHRODER REVERSING AND REMANDING

Questions Presented:
Criminal Law. Child Sexual Abuse. KRE 702. Issues include application of KRE 702 to the admissibility of proffered expert testimony from a forensic psychologist concerning interview techniques and their impact upon reliability of allegations of child sexual abuse.

82
MCCLANAHAN V. COM.
OPINION OF THE COURT BY JUSTICE SCHRODER – REVERSING AND REMANDING
Questions Presented:
Criminal Law. Child Sexual Abuse. KRE 702. Issues include application of KRE 702 to the admissibility of proffered expert testimony from a forensic psychologist concerning interview techniques and their impact upon reliability of allegations of child sexual abuse.

83
LASSITER V. AMERICAN EXPRESS TRAVEL SERVICES CO.
OPINION OF THE COURT BY JUSTICE VENTERS REVERSING AND REMANDING

Questions Presented:
Appellate Procedure. Is listing a party in the Notice of Appeal's caption but including language in the Notice of Appeal's body specifically excluding the party "as one against whom the appeal is taken" substantial compliance under CR 73.03. Is naming an official's department in the Notice of Appeal's caption sufficient to confer jurisdiction over the official in his official capacity?

84
FOX V. TREY GRAYSON
OPINION OF THE COURT BY CHIEF JUSTICE MINTON REVERSING AND REMANDING

Questions Presented:
Section 93 of the Kentucky Constitution gives the Senate the sole role of confirmation.

85
WINSTEAD V. COM.
OPINION OF THE COURT BY CHIEF JUSTICE MINTON VACATING AND REMANDING

Questions Presented:
Convictions and sentences for murder and robbery are affirmed. Issues discussed include: spousal privilege (KRE 504); sentence of LWOP/25 in violation of the terms of defendant’s extradition from Costa Rica; failure to grant a directed verdict of acquittal; use of other inmates to elicit incriminating statements; prosecutorial misconduct; and denial of motion for mistrial due to juror’s use of cell phones during deliberations. The judgment is reversed because the trial court erred by ordering defendant’s sentences, life imprisonment without parole for twenty-five years for the murder conviction and twenty years for the robbery conviction, to be run consecutively rather than concurrently.

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