SCOKY 2009 Minutes: November 25, 2009 (Nos. 249-273)

November 25, 2009 Supreme Court Minutes

  • Decisions 249-273
  • 25 decisions with 10 published
  • 3 published disciplinary cases
  • 5 motions for rehearing denied (none granted)
  • 9 motions for discretionary review granted with 42 motions denied
  • 3 COA decisions ordered not published
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Link to full text published decisions with Questions Presented as noted on the SCOKY minutes are as follows:

249 – CRIMINAL LAW (SENTENCING CREDIT FOR TIME SPENT ON PAROLE)

COMMONWEALTH OF KENTUCKY V. LADONNA H. THOMPSON

Questions Presented:
Retroactive application of HB 406. Counting time spent on parole toward a prisoner’s sentence.

OPINION AND ORDER BY CHIEF JUSTICE MINTON

I. INTRODUCTION .

In April 2009, the Pulaski Circuit Court granted a permanent injunction prohibiting the Department of Corrections (DOC) from releasing any prisoner from custody or parolee from supervision "as a result of any change caused or occasioned by the retroactive application of House Bill [HB] 406 [the 2008-10 biennial budget]." Four months later, the Franklin Circuit Court refused the Kentucky Attorney General's request for a temporary injunction, which would have temporarily enjoined the DOC from implementing HB406 in an allegedly retroactive

Because of the apparent disagreement between the two circuit courts concerning the effect     of HB 406 and because these cases presen tissues of great and immediate statewide importance, this Court granted transfer from the Court of Appeals of both the DOC's petition for a writ of prohibition against the Pulaski Circuit Court and the Attorney General's appeal of the Franklin Circuit Court's refusal to grant a temporary injunction . After careful consideration, we grant the writ against the Pulaski Circuit Court and affirm the Franklin Circuit Court's denial of a temporary injunction .

250

CRIMINAL LAW – DEATH SENTENCE AFFIRMED

JAMES HUNT VS. COMMONWEALTH OF KENTUCKY

Questions Presented:
Retroactive application of HB 406. Counting time spent on parole toward a prisoner’s sentence.

OPINION AND ORDER BY CHIEF JUSTICE MINTON

I. INTRODUCTION .

In April 2009, the Pulaski Circuit Court granted a permanent injunction prohibiting the Department of Corrections (DOC) from releasing any prisoner from custody or parolee from supervision "as a result of any change caused or occasioned by the retroactive application of House Bill [HB] 406 [the 2008-10 biennial budget]." Four months later, the Franklin Circuit Court refused the Kentucky Attorney General's request for a temporary injunction, which would have temporarily enjoined the DOC from implementing HB406 in an allegedly retroactive manner .

Because of the apparent disagreement between the two circuit courts concerning the effect of HB406 and because these cases presentissues of great and immediate statewide importance, this Court granted transfer from the Court ofAppeals of both the DOC's petition for a writ of prohibition against the Pulaski Circuit Court and the Attorney General's appeal of the Franklin Circuit Court's refusal to grant a temporary injunction . After careful consideration, we grant the writ against the Pulaski Circuit Court and affirm the Franklin Circuit Court's denial of a temporary injunction .

251

MEDICAL MALPRACTICE, DISCOVERY OF PEER REVIEW DOCUMENTS

KAREN SALEBA VS. HON. JAMES R. SCHRAND

Questions Presented:
Medical Malpractice. Discovery of Peer Review Documents.

OPINION OF THE COURT BY JUSTICE ABRAMSON AFFIRMING

Karen Saleba and The Good Samaritan Hospital of Cincinnati, Ohio
(hereinafter Saleba), petitioned the Kentucky Court of Appeals for a
writ prohibiting Judge James Schrand of the Boone Circuit Court from
requiringthem to disclose various peer review docum(,.-titsrelating to
Saleba's interpretation of certain pap smear specimens and Saleba's   
roficiency as a cytotechnologist. The Court of Appeals denied the writ,
finding that.Saleba had flied to demonstrate that the trial court was
acting outside of itsjurisd i.cticon

or about to art erroneously. Arguing primarily that the trial
court.erred in applying Kentucky law as opposed to Ohio law to
determine whether the peer review documents were privileged, Salebea   
ow appeals to this Court as a matter ofright. Kentucky Const.§
110(2)(x);CR 76.36(7)(a). Because the trial court did not act
erroneously in applying Kentucky law or in ordering the Good Samaritan
Hospital to produce the relevant peer review documents, the Court of
Appeals properly denied Saleba's petition for a writ . Therefore, the
Court of Appeals decision isaffirmed and Saleba's request fo ra writ is
denied.


252

PRESS'S ACCESS TO DISCOVERY IN CRIMINAL CASE

COURIER-JOURNAL, INC. VS. HON. JUDITH MCDONALD-BURKMAN


Questions Presented:
Denial of press request for pre-trial access to discovery material in a criminal case.

OPINION OF THE COURT BY JUSTICE CUNNINGHAM AFFIRMING

Cecil New is accused of kidnapping and killing 4-year old Cesar Ivan Aguilar-Cano and Leaving his body in a dumpster in the summer of 2007.The criminal case is currently pending in Division Nine of the Jefferson Circuit Court and isstyled Commonwealth v.Cecil New, Indictment No.07-CR- 003969 . A jury trial is scheduled for February 26, 2010 .

OnJanuary 14,2008,the Commonwealth filed nearly 3,000 pages of written discovery with the court, pursuant to Jefferson County Local Rule JRP 803(G) . This rule requires all criminal discovery documents to be filed with thecourt and made part of the record. Additionally, on that day, New moved to seal all discovery documents in the court record, claiming that having them open to the public and news media would deprive him of his right to a fair trial.

Appellant, Courier-Journal, Inc.,opposing the motion, moved to intervene in the case . A hearing was held on February 6, 2008, and by order dated March 3, 2008, the trial court granted New's motion and sealed the entire discovery filed in the record.Appellant then sought a writ of mandamus or prohibition with the Court of Appeals.  On April7,2009, the Court of Appeals denied Appellant's petition, and this appeal followed. On appeal, Appellant contends that it has both a First Amendment and common law right of access to the discovery documents, and that both courts erred in their application of relevant case law. According to Appellant, the lower courts' analyses were based upon "pure speculation that the records …contained `inflammatory, graphic, and possibly irrelevant material"' that would infringe on New's fair trial rights. For these reasons, Appellant asks this Court to reverse the decision of the Court of Appeals and order that the records be unsealed .

253

WORKERS COMPENSATION – Nondisclosure of restrictions on hiring and causal relationship with injuries

BAPTIST HOSPITAL EAST VS. AUGUST POSSANZA

Questions Presented:
Workers' Compensation. KRS 342.165(2). Whether evidence that a worker would not have been hired had he disclosed a lumbar lifting restriction will prove a causal relationship between the non-disclosure and a neck injury incurred while exceeding the restriction.

OPINION OF THE COURT AFFIRMING

An Administrative Law Judge (ALJ) dismissed the claimant's application for benefits due to his misrepresentation of his physical condition when applying for employment. The Workers' Compensation Board reversed, holding that the ALJ misapplied KRS 342.165(2) by relying on the fact that the employer hired the claimant to show a causal relationship between his misrepresentation and work-related injury. The Court of Appeals affirmed .

We affirm.We view whether exceeding the claimant's lumbar lifting restriction helped to cause his neck injury to be a medical question. The medical evidence reveals no causal relationship.

254

CRIMINAL LAW – Lethal injection protocols required of state

THOMAS C. BOWLING VS. KENTUCKY DEPT. OF CORRECTIONS

Questions Presented:
Criminal defendants must file all claims in one declaratory judgment action. Lethal injection protocol must be promulgated as an administrative regulation, pursuant to KRS 13A.

OPINION OF THE COURT BY JUSTICE ABRAMSON
AFFIRMING IN_PART AND REVERSING IN PART

Appellants Bowling and Baze were convicted of murder and sentenced to death in 1991 and 1994, respectively. Each has pursued and exhausted all direct appeals and collateral attacks in the state courts and, jointly, they prosecuted a declaratory judgment action challenging Kentucky's lethal injection protocol on several grounds including the prohibition on cruel and unusual punishment set forth in the Eighth Amendment of the U .S. Constitution and Section 17 ofthe Kentucky Constitution. That declaratory judgment action prompted a seven-day bench trial in the circuit court, with Appellants' constitutional arguments ultimately being rejected by both thisCourt in Baze v.Rees, 217 S.W.3d 207 (Ky.2006) and the United States Supreme Court in Baze v.Rees, –U.S.-, 170 L.Ed.2d 420 (2008). In this second declaratory judgment action, those Appellants challenge the same lethal injection protocol but this time they contend that it is unenforceable because it was not properly adopted as an administrative regulation in.accordance with Kentucky's Administrative Procedure Act (APA) . While unquestionably "death is different", the principles of resjudicata are no less applicable to capital defendants than other parties who pursue reliefin ourjustice system. A declaratory judgment action is the appropriate means of challenging implementation of a defendant's death sentence, given the necessity ofjoining the Department of Corrections which is not a party to the criminal action, but piecemeal litigation through successive actions is not allowed. Simply put, Appellants Bowling and Baze were required to join all claims regarding implementation of their sentences of execution in their original declaratory judgment action, and they are precluded as a matter of law from reserving arguments for subsequent actions. Accordingly, resjudicata precludes consideration of Bowling and Baze's second declaratory action.

255

CRIMINAL LAW – Concurrent sentencing statute

SAMUEL RAY PRATHER VS. COMMONWEALTH OF KENTUCKY

Questions Presented:
Defendant entitled to benefit of concurrent sentencing statute, KRS 532.110(1)(a); who pled guilty to misdemeanors and a felony, received diversion on the felony conviction, but was subsequently ordered to serve the sentence on the felony.

OPINION OF THE COURT BY JUSTICE SCHRODER
REVERSING AND REMANDING

We accepted discretionary review in this case to determine whether a defendant was entitled to the benefit of the concurrent sentencing statute,KRS 532 .110(1)(a), ifhe pled guilty to misdemeanors and a felony at the same time and received diversion on the felony conviction, but was subsequently ordered to serve the sentence on the felony.We hold that the concurrent sentencing provision was applicable to Appellant's case and thus reverse and remand for Appellant to be credited for time served on the misdemeanor convictions.

256

TORTS – Notice requirements to city under KRS 411.110 re personal injury on sidewalks

EVELYN DENTON VS. CITY OF FLORENCE

Questions Presented:
Personal Injury. Notice to City. At issue is whether the timely but partially inaccurate notice of injury complied with KRS 411 .110.

OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING AND REMANDING

This is an appeal from an opinion of the Court of Appeals affirming the decision of the Boone Circuit Court dismissing Appellant's complaint against the City of Florence on the grounds that she did not comply with KRS411.110 by failing to provide the city with the correct date of her injury. For reasons that Appellant, Evelyn Denton, did comply with KRS 411.110's notice requirements by stating that her accident occurred &qu
ot;on or about January 18, 2006," we hold that the trialcourt improperly dismissed her claim. We, therefore, reverse the decisions ofthe Court ofAppeals and the Boone Circuit Court and remand this matter to the trial court for further proceedings consistent with this opinion .

257

CRIMINAL LAW -  PFO, Expert Testimony during sentencing, Voluntary Intoxication Defense to Specific Intent Burglary

DAVID WEAVER V. COMMONWEALTH OF KENTUCKY

Questions Presented:
First-Degree Burglary and First-Degree Persistent Felony Offender. Defendant entitled to present expert testimony during the guilt phase of the trial that was relevant to his defense that voluntary intoxication rendered him unable to form the specific intent to commit burglary.

OPINION OF THE COURT BY CHIEF JUSTICE MINTON
REVERSING AND REMANDING

A circuit court jury convicted David Weaver offirst-degree burglary and of being a first-degree persistent felony offender (PFO 1). The trial court sentenced him in accordance with the jury's recommendation to twenty years' imprisonment . Because the trial court did not allow Weaver to present during the guilt phase of the trial expert testimony relevant to his defense that voluntary intoxication rendered him unable to form the specific-intent element of the burglary offense,we reverse and remand for proceedings consistent with this opinion.


258

INSURANCE – Underinsured Motorist Benefits (UIM), Coots Notice, and Claim for Advanced Liability Limits after tortfeasor bankrupts

AUTO OWNERS INS. CO. VS. OMNI INDEMNITY CO.

Questions Presented:
Insurance. Underinsured Motorist Benefits. Issues include whether the final resolution of a UIM claim due to the UIM carrier's own action of settling with the insured plaintiff prior to trial prevents the UIM carrier from compelling an adjudication of damages in order to recoup its Coots advance from the alleged tortfeasor's liability carrier.

OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING AND REMANDING

I. Introduction

This is an appeal from an opinion of the Court of Appeals affirming the decision of the Jefferson Circuit Court dismissing Auto Owners Insurance Company's (Appellant's) claims against Omni Indemnity Company (Appellee) on the grounds that Appellant had no independent cause of action against Appellee because Troy Edlin, the purported tortfeasor, was dismissed from the case after filing a Chapter 13 Bankruptcy action and any payment made by Appellant was merely an overpayment for which it bore the risk of loss. For reasons that Appellant is entitled to seek subrogation from Appellee in the amount paid to its policy holder, Connie Herre, we hold that the trial court improperly dismissed Appellant's claim. We, therefore, reverse the decisions ofthe Court ofAppeals and the Jefferson Circuit Court and remand this matter to the trial court for further proceedings consistent with this opinion.

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