Kentucky Court of Appeals Decisions (Minutes) for November 22, 2013 (Nos. 1058-1081). Re:Open Records Act and Final Agency Action; Waiver of beneficiary rights to IRA in divorce; criminal law peremptory challenges;.

Kentucky Court of Appeals Decisions (Minutes) for November 22, 2013 (Nos. 1058-1081).

24 decisions were announced by COA this date, with 6 of those decisions designated “To Be Published”).

For a copy of this week’s minutes filed at the AOC web site, click here.

Click here for complete list of all archived Court of Appeals Minutes that you can download from the Administrative Office of the Courts web site.

Short summary of the published decisions for this week are (click on the link for the full text of the decision from AOC):

1065.  Open Records Act, Final Agency Action
University of Louisville vs. William E. Sharp
Jefferson County
Judge Mitchell Perry
Reversing and Remanding
COA Published 11/22/2013

VANMETER, JUDGE: The University of Louisville appeals from an opinion and order of the Jefferson Circuit Court denying its motion for summary judgment.  We disagree with the circuit court’s conclusion that the University violated the Open Records Act and reverse its order and remand this case with directions for the circuit court to enter an order granting summary judgment in favor of the University.

In light of this authority, we are unable to say that a final agency action occurred in this case when the merger was still in the negotiating stage. The emails and their attachments constitute preliminary discussions regarding a scheduled meeting to continue the conversation. The sole purpose of the “communications meeting” was to discuss the pending merger, and strategies used to plan the meeting, including discussions relating to the invitation and agenda, are preliminary to resolution of the ultimate issue—the merger. Under the circuit court’s and the OAG’s rationale, any communication regarding the meeting loses its preliminary status when the meeting is held, even if the ultimate issue is not decided at the same time. This rationale would effectively require disclosure of all discussions regarding all meetings that take place, even if the meeting is merely a step along the road to deciding the ultimate issue.

For the foregoing reasons, the order denying summary judgment is reversed and this case is remanded to the circuit court with directions to enter an order granting summary judgment in favor of the University.

1067.  Family Law.  Property settlement agreement.  Waiver of beneficiary rights in IRA
Ruth Ann Sadler vs. Barbara Louis Van Buskirk
Fayette County
Judge Jo Ann Wise
COA Published 11/22/2013

CLAYTON, JUDGE: Ruth Ann Sadler appeals the Fayette Circuit Court’s order denying her motion to declare that Barbara Lois Van Buskirk waived beneficiary rights to Richard Van Buskirk’s Individual Retirement Account in the Buskirk’s property settlement agreement. After careful consideration, we affirm the trial court.

Interpreting the terms of the Settlement, it is certain that Richard had ownership of the Dreyfus IRA, which Barbara never challenged. As owner, Richard had the authority to designate a beneficiary, which he did. It was Barbara. Therefore, the terms of the Agreement are not thwarted by Barbara’s right to receive its beneficial interest. Barbara is not claiming ownership of the IRA but merely receiving, as a result of Richard’s authority as the owner of the account, the concomitant result of his beneficiary designation. Thus, our de novo review leads us to agree with the trial court’s decision. 

1073. Criminal Law. Appeal Dismissed on 3rd motion to vacate a denial of writ of habeas corpus
William Walker vs. Warden Brown
Oldham County
Judge Karen Conrad
COA Published 11/22/2013

LAMBERT, JUDGE: William B. Walker appeals the Oldham Circuit Court’s order denying his third Kentucky Rules of Civil Procedure (CR) 60.02 motion to vacate a 2003 order denying his petition for a writ of habeas corpus. Walker named William Seabold, Former Warden of the Kentucky State Reformatory, as the respondent/Appellee herein. The Commonwealth has filed a motion to dismiss the current appeal as frivolous, and the motion has been passed to this panel for review on the merits. After careful review, we hereby grant the Commonwealth’s motion to dismiss the appeal. 

1076.  Criminal Law.  Probation revocation hearing and due process.
Dellard Lee Gibson v. Commonwealth of Kentucky
Jefferson County
Judge Martin F. McDonald
Reversing and Remanding
COA Published 11/22/2013

LAMBERT, JUDGE: Dellard Lee Gibson appeals from a Jefferson Circuit Court order revoking probation and executing sentence.

Gibson argues that the proceedings failed to comply with the minimal requirements of due process, which include the “opportunity to be heard in person and to present witnesses and documentary evidence” and “the right to confront and cross-examine adverse witnesses[.]” Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484 (1972) (made applicable to probation revocation by Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973)). The Commonwealth agrees. Accordingly, we reverse the order revoking Gibson’s probation and remand for a new probation revocation hearing.

1078. Criminal Procedure.  Peremptory Challenges.
Robert Prickett vs. Commonwealth of Kentucky
Judge Olu A. Stevens
COA Published 11/22/2013

THOMPSON, JUDGE: Following a jury trial, Robert Prickett was found guilty of criminal facilitation to manufacturing methamphetamine, fourth-degree controlled substances endangerment to a child, illegal use or possession of drug paraphernalia, and being a second-degree persistent felony offender. He was sentenced in accordance with the jury’s recommendation to an enhanced sentence of fifteen-years’ imprisonment. On appeal, Prickett contends KRS 29A.290(2), requiring the Kentucky Supreme Court to establish the number of peremptory challenges to which parties are entitled is an unconstitutional delegation of legislative authority in violation of Section 28 of the Kentucky Constitution. The Commonwealth contends because Prickett did not present the issue to the trial court and the Attorney General was not notified of the constitutional challenge before the entry of final judgment, he is precluded from presenting the issue on appeal. Based on controlling precedent, we agree with the Commonwealth and affirm. 

1079.  Juvenile.
H.(B), A Juvenile vs. Commonwealth of Kentucky
Judge Elisle Givhan Spainhour
COA Published 11/22/2013

MOORE, JUDGE: B. H., a minor, appeals the Bullitt Juvenile Court’s order placing her in the temporary custody of the Cabinet for Health and Family Services (“Cabinet”). After a careful review of the record, we affirm because the Standard School Attendance Order was a valid court order and the court did not err in placing B. H. in the temporary custody of the Cabinet.

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