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KENTUCKY SUPREME COURT MAY 2020 – APRIL 2021

I. ADMINISTRATIVE LAW

A. Dep’t for Cmty. Based Servs., Cabinet for Health & Family Servs. v.

Baker, 613 S.W.3d 1 (Ky. 2020) Opinion of the Court by Justice Lambert. All sitting. Minton, C.J.; Hughes and VanMeter, JJ., concur. Wright, J., concurs in part and dissents in part by separate opinion in which Keller and Nickell, JJ., join. Baker was employed by Livermore Elementary School to watch about ten children daily in an afterschool program. After it was reported by a five-year-old boy that a six-year-old boy had inappropriately touched him during the afterschool program, the Cabinet filed neglect charges against Baker. Baker requested an administrative hearing (CAPTA) to challenge the finding of

neglect against her. The hearing officer affirmed the substantiation of the neglect charges which resulted in Baker being placed on the federal registry of persons who have abused or neglected children. The hearing officer found that Baker failed to properly supervise the children, resulting in the boys inappropriately touching each other. Baker appealed to the McLean Circuit Court, arguing that the substantiation of neglect was not based on substantial evidence. The Circuit Court affirmed, and Baker thereafter appealed to the Court of Appeals. Instead of addressing Baker’s renewed substantial evidence argument on the merits, the Court of Appeals held sua sponte that, under KRS 620.030 and KRS 620.040, the Cabinet lacked the authority to investigate Baker and reversed. The Cabinet appealed to the Kentucky Supreme Court. Though holding that Cabinet did not lack the authority to investigate Baker, the Court held that the neglect charges were not based on substantial evidence, vacating the finding of neglect against Baker.

B. Family Tr. Found. of Ky., Inc. v. Ky. Horse Racing Comm’n, ___ S.W.3d ___, 2020 WL 5806813 (Ky. 2020)

Opinion of the Court by Justice VanMeter. All sitting. Minton, C.J.; Hughes, Lambert, Nickell, and Wright, JJ., concur. Keller, J., concurs by separate opinion. The Family Trust Foundation, Inc. (“Foundation”) appealed from a Franklin Circuit Court Opinion and Order finding that the Encore system of wagering, also known as the Exacta system, constituted “pari-mutuel wagering” under a four-part definition developed by the trial court based on 810 KAR 1:001(48). The Franklin Circuit Court found that the Encore system constituted pari-mutuel wagering because: (1) the system or method of wagering was approved by the Commission; (2) patrons wagered among themselves and not against the association; (3) amounts wagered are placed in one or more designated wagering pools; and (4) the net pool is returned to the winning patrons. After oral argument and review, the Supreme Court of Kentucky reversed the Franklin Circuit Court’s Opinion and Order. The Supreme Court held that Franklin Circuit Court erred because the Encore system allowed patrons to bet on multiple, randomly selected horse races, rather than allowing simultaneously wagering on a discrete, finite event, and thereby, did not allow patrons to wager against themselves. The Supreme Court also found that because the “initial seed pool” is furnished by racing associations, the associations are impermissibly involved in creating the seed pool. The Supreme Court remanded the case to the Franklin Circuit Court for entry of judgment consistent with its opinion.

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C. Puckett v. Cabinet for Health & Family Servs.,

2019-SC-0282-DG, 2021 WL 1679574 (Apr. 29, 2021) not final Opinion of the Court by Justice Keller. All sitting; all concur. Perry Puckett was terminated from his employment with the Commonwealth of Kentucky Cabinet for Health and Family Services (CHFS) in 2009 for excessive and inappropriate personal email usage. Puckett petitioned the Franklin Circuit Court for review of his termination. While the case was pending in Franklin Circuit Court, Puckett’s attorney learned, through discovery in a separate, unrelated case, that Jay Klein, a Division Director in the Division of Employee Management at CHFS, had actually signed the name of J.P. Hamm, CHFS’s Human Resources Director, to Puckett’s termination letter. Also while Puckett’s case was pending, it became clear that Klein did not have the requisite

appointing authority to terminate CHFS employees. Based on this new knowledge, Puckett moved to amend his complaint in circuit court to include a claim that Puckett’s termination was null and void because the person who signed the termination document lacked appointing authority to terminate him. The circuit court granted Puckett’s motion to amend his complaint and remanded the case to the Personnel Board (Board) for consideration of whether Puckett’s termination was void. After protracted litigation through multiple levels of appeals, the Franklin Circuit Court reversed Puckett’s termination. CHFS appealed to the Court of Appeals which reversed the circuit court. The Supreme Court granted Puckett’s Motion for Discretionary Review. The Supreme Court held that by failing to file an exception regarding the appointing authority of Klein, Puckett failed to preserve this issue for judicial review and could not raise the issue under Kentucky Revised Statute (KRS) 13B.140. Further, the Court held that the Board’s termination of Puckett, despite Klein’s lack of authority to terminate him, failed to meet any of the criteria for remand as set out in KRS 13B.150(2), and the circuit court erred in remanding Puckett’s case to the Board. The Court also held that in this case the doctrine of primary jurisdiction was not relevant to a determination of whether the circuit court’s remand of the matter back to the Board was proper and that the law of the case doctrine was inapplicable. Finally, the Court held that Puckett’s termination was void, as opposed to voidable, and needed to be preserved by presentation to the hearing officer or the Board, but it was not. Accordingly, the Supreme Court affirmed the Court of Appeals and reinstated the Board’s order terminating Puckett from his employment with CHFS.

II. ARBITRATION

A. LP Louisville E., LLC v. Patton, 605 S.W.3d 300 (Ky. 2020) Opinion of the Court by Justice Hughes. Minton, C.J.; Lambert and VanMeter, JJ. Concur. Keller and Wright, JJ., concur in result only. Hughes concurs by separate opinion in which Minton, C.J., and VanMeter, J., join. Nickell, J., not sitting. Tommy Patton died shortly after suffering a fall at LP Louisville East, LLC, doing business as Signature HealthCARE of East Louisville (Signature), a long-term care facility. Kenneth R. Patton, Administrator of Tommy’s Estate and Tommy’s son, brought a negligence/wrongful death claim against Signature. Signature moved the circuit court

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to compel Kenneth to arbitrate the claims based upon the arbitration agreement Kenneth signed as Tommy’s authorized representative, and in his individual capacity, to secure Tommy’s admittance to t he facility. The circuit court overruled the motion. The Court of Appeals affirmed in part as to Tommy’s Estate claims and reversed in part as to Kenneth’s individual wrongful death claim. On appeal, the Supreme Court held the arbitration agreement is enforceable as to Tommy’s Estate claim and Kenneth’s individual wrongful death claim. Applying the principles enunciated in Ping v. Beverly Enterprises, Inc., 376 S.W.3d 581, 590 (Ky. 2012), Tommy’s power of attorney document authorized Kenneth to enter into the mandatory arbitration agreement when exercising his agency powers as to Tommy’s “maintenance” and “health” by admitting him to a long-term care facility. Also, Kenneth had reasonable notice that he was signing the arbitration agreement in his individual capacity and the wrongful death claim is thus also subject to arbitration.

III. ATTORNEY DISCIPLINE

A. Ky. Bar Ass’n v. Benton, 607 S.W.3d 717 (Ky. 2020)

Opinion and Order of the Court. All sitting; all concur. In September 2013, Benton was charged and arrested for receiving stolen property valued over $10,000. In April 2016, he was found guilty by a Fayette County jury and was later sentenced to seven years in prison, as recommended by the jury. Benton appealed his conviction. The Court of Appeals affirmed the conviction, and this Court denied review, making his conviction final. Based upon Benton’s conviction of receiving stolen property over $10,000, the Inquiry Commission charged him with violating SCR 3.130(8.4)(b), which states that it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” The Inquiry Commission’s Complaint was sent via certified mail to Benton at his bar roster address on May 10, 2019, but it was returned undeliverable and unable to forward. Service of the charge was ultimately made upon the KBA’s Executive Director under SCR 3.035(2). Benton filed no response. The Board of Governors found Benton guilty of violating SCR 3.130(8.4)(b) in a vote of 18–0 and recommended he be permanently disbarred from the practice of law. Neither the KBA’s Office of Bar Counsel nor Benton sought review of the Board’s decision under SCR 3.370(7), and the Supreme Court declined to undertake review pursuant to SCR 3.370(8). Accordingly, the Court permanently disbarred Benton from the practice of law in the Commonwealth.

B. Ky. Bar Ass’n v. Calvert, 607 S.W.3d 700 (Ky. 2020) Opinion and Order of the Court. All sitting. Minton, C.J.; Hughes, Lambert, Keller, and Wright, join. VanMeter, J., concurs in part and dissents in part by a separate opinion in which Nickell, J., joins. Based on Calvert’s actions and inactions as an appointed Trustee, the Inquiry Commission filed a charge against him in June 2016. The charge alleged Calvert had committed two counts of professional misconduct. Namely, the Commission charged Calvert with violating Supreme Court Rule (SCR) 3.130- 3.4(c) when he failed to provide an accounting for the Trust as ordered by the Owen District Court and SCR 3.130-8.4(c) when he fraudulently transferred Trust funds to himself

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for his personal use. After a hearing, the KBA Trial Commissioner found Calvert had violated the charged rules. She recommended that Calvert be suspended from the practice of law in the Commonwealth for five years for his violations, participate in Kentucky Lawyers Assistance Program (KYLAP) and comply with its conditions, and pay the costs associated with the disciplinary proceeding pursuant to SCR 3.450(2). Calvert filed a notice of appeal to the Board of Governors pursuant to SCR 3.360(4) and SCR 3.365. After hearing the parties’ oral arguments, the Board of Governors adopted the Trial Commissioner’s recommendations by a vote of 19-0, noting that her findings were supported by substantial evidence. Thereafter, Calvert filed a notice of review pursuant to SCR 3.370(7), arguing to the Supreme Court that the sanction recommended by the Board was excessive. After careful review of Calvert’s file, the Court saw no reason to upset the Trial Commissioner’s recommendation or the Board’s findings of facts and conclusions of law and sanctioned Calvert accordingly.

The Court also overruled the provisions of Ky. Bar Ass’n v. Profumo, 931 S.W.2d 149 (Ky. 1996) and Clay v. Eager, 444 S.W.2d 124, 127 (Ky. 1969) holding that double fee is permitted when a testator or settlor explicitly names an attorney to serve as both fiduciary and attorney. The Court noted that while a testator or settlor may designate the same attorney to serve as both a fiduciary and attorney, it held that the attorney may NOT receive fees for both capacities.

C. Chewning v. Ky. Bar Ass’n 605 S.W.3d 332 (Ky. 2020) Opinion and Order of the Court. All sitting; all concur. Chewning moved for consensual discipline pursuant to Supreme Court Rule (SCR) 3.480(2) based on a negotiated sanction agreement with the Kentucky Bar Association (KBA). Chewning requested an order imposing a sanction of a thirty-day suspension, probated for two years on condition he attend and complete the next scheduled Ethics and Professionalism Enhancement Program (EPEP), receive no new disciplinary charges during the probationary period, and pay the costs of this proceeding. The KBA filed a response stating it had no objection to the Motion for Consensual Discipline. The disciplinary charges against Chewning were based on his role in providing a recording device to a client in a custody case. Chewning used information from the recordings to gain an advantage for his client and was eventually indicted on three Class D felonies. He later pled guilty to one count of Criminal Attempt to Commit Eavesdropping, a Class A misdemeanor, and was fined $500. Based on these events, the Inquiry Commission issued a two-count charge against Chewning, citing violations of SCR 3.130(4.4)(a) and SCR 3.130(8.4)(b). Chewning admitted he violated the two rules. Because Chewning and the KBA agreed on the appropriate sanction and caselaw supported the proposed resolution in this matter, the Court held the sanction to be the appropriate discipline for Chewning’s conduct and granted his motion.

D. Ky. Bar Ass’ v. Gevedon 605 S.W.3d 323 (Ky. 2020) Opinion and Order of the Court. All sitting; all concur. In January 2019, Gevedon was charged with theft by unlawful taking over $500.00, a Class D Felony. It was alleged that she had stolen $7,764.00 from the Morgan County Law Library Fund, where she

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served as treasurer. Gevedon pled guilty to the felony charge and received a one-year sentence with a five-year diversion. Because of the felony conviction, Gevedon was charged by the Inquiry Commission with violating SCR 3.130(8.4)(b) and SCR 3.130(8.4)(c). She and her counsel of record were served with the charges in December 2019 but a response was never filed. The Board of Governors found Gevedon guilty of violating both charges. After considering her lengthy history of disciplinary violations, the Board recommended that she be permanently disbarred. The Supreme Court agreed with the Board’s recommendation and ordered Gevedon permanently disbarred in the Commonwealth of Kentucky.

E. Grinnell v. Ky. Bar Ass’n, 602 S.W.3d 784 (Ky. 2020)

Opinion and Order of the Court. All sitting; all concur. Grinnell moved the Supreme Court to impose upon him a two-year suspension from the practice of law, with one year to serve and one year probated for two years with conditions. The Kentucky Bar Association (KBA) did not object to Grinnell’s motion, which was negotiated under SCR 3.480(2). The disciplinary matters pending against Grinnell spanned fourteen consolidated KBA files and fifty-five counts that were based, primarily, on his pattern of accepting payment from clients and subsequently failing to act in their cases. As mitigation, Grinnell stated that he suffered from anxiety and depression because of family matters and agreed, as part of the negotiated discipline, to seek professional help with the Kentucky Lawyers Assistance Program. Noting that it had previously rejected Grinnell’s motion for imposition of a one-year suspension, the Court agreed that the negotiation discipline presented in this case was appropriate to address Grinnell’s misconduct. Accordingly, the Court suspended Grinnell from the practice of law for two years with one year to serve and one year probated for two years, on the condition that he attend the next scheduled Ethics and Professionalism Enhancement Program offered by the Office of Bar Counsel; that he not incur any further charges of professional misconduct in the Commonwealth; that he enroll in KYLAP to address his anxiety and depression; that he attend a law office management course; and that, within two years, he back to his clients all of the unearned fees.

F. Ky. Bar Ass’n v. Hale, 610 S.W.3d 294 (Ky. 2020) Opinion and Order of the Court. All sitting; all concur. The Kentucky Bar Association (KBA) moved the Supreme Court of Kentucky to enter an order directing Hale to show cause why she should not be subject to reciprocal discipline after being publicly reprimanded by the Nevada disciplinary authority. The Nevada disciplinary authority publicly reprimanded Hale for Hale’s non-attorney employee engaging in the unauthorized practice of law and for an unreasonable retainer agreement (Kentucky Supreme Court Rules 3.130-5.3 and 3.120-1.5 respectively). Hale failed to show cause as to why reciprocal discipline should not be imposed. Per SCR 3.425(4), the Court granted KBA’s motion to publicly reprimand Hale.

G. Howell v. Ky. Bar Ass’n, 617 S.W.3d 410 (Ky. 2021) Opinion and Order of the Court. All sitting; all concur. In 2019, the Supreme Court suspended Howell for a period of 181 days. Following her suspension, Howell applied

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for reinstatement under SCR 2.300. The Character and Fitness Committee of the Office of Bar Admissions closely reviewed Howell’s disciplinary history, Character and Fitness Questionnaire, application for readmissions, deposition, past and present criminal and civil records, and the responses of Howell’s references, which were all positive. The Committee also considered Howell’s past issues with alcohol abuse, which she admitted contributed to her professional lapses, and her ongoing financial issues. The Committee noted that Howell had complied with all terms of her sanctions, including full compliance with her KYLAP monitoring agreements. Based on this evidence, the Committee recommended that the Board of Governors of the Kentucky Bar Association approve Howell’s reinstatement. The Board accepted the Committee’s findings of fact and determined that Howell had met all the requirements for reinstatement pursuant to SCR 2.300. Because of Howell’s history with alcohol abuse and her financial issues, the Board recommended

that she be reinstated subject to certain restrictions, including a two-year Conditional Admission Agreement, KYLAP Monitoring Agreement, and an agreement to establish a repayment plan with the Internal Revenue Service. Upon review of the record, the Supreme Court agreed that Howell should be reinstated, and agreed she should be subject to a Conditional Admission Agreement and a KYLAP Monitoring Agreement. But the Court disagreed with the Board’s condition regarding the Internal Revenue Service, noting its discomfort with the direct involvement of an unaffiliated third party to Howell’s reinstatement. Accordingly, the Court ordered Howell reinstated, subject to signing a two-year Conditional Admission Agreement and a two-year KYLAP Monitoring Agreement.

H. Hubbard v. Ky. Bar Ass’n, 602 S.W.3d 783 (Ky. 2020) Opinion and Order of the Court. Minton, C.J.; Hughes, Keller, Lambert, VanMeter, and Wright, JJ., sitting. All concur. Nickel, J., not sitting. Hubbard moved the Supreme Court to impose a sanction of permanent disbarment. The misconduct leading up to Hubbard’s motion to resign under terms of permanent disbarment began when the Court suspended him in 2019. In that case, the Court accepted a negotiated sanction and suspended Hubbard for sixty days with conditions. Upon fulfilling the conditions of his suspension, Hubbard would have been eligible for reinstatement pursuant to SCR 3.510(2). However, Hubbard failed to file an affidavit of compliance within 180 days, as required by the Rule. In December 2019, the Inquiry Commission received information that Hubbard had been representing a client in a felony criminal matter since the summer. Shortly thereafter, Hubbard filed an “Affidavit Toward Compliance,” two months after the 180-day period specified by SCR 3.510(2) had expired. However, even if Hubbard had filed the affidavit within the required time period, he had not fulfilled the required Continuing Legal Education credits at the time of his filing. Accordingly, the Inquiry Commission opened an investigation into Hubbard’s unauthorized practice of law. A complaint was issued against Hubbard in March 2020 alleging he had engaged in the practice of law while under a suspension from this Court in violation of SCR 3.130(5.5)(a). Rather than respond to the complaint, Hubbard filed a motion to resign under terms of permanent disbarment.

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In his motion, Hubbard acknowledged that the conduct leading to the disciplinary complaint violated the Rules of Professional Conduct and asked the Court to terminate the KBA proceedings against him by granting his motion to resign under terms of permanent disbarment pursuant to SCR 3.480(3). The Court agreed that Hubbard’s motion to withdraw his membership was appropriate and ordered him permanently disbarred.

I. Ky. Bar Ass’n v. Ingram, 605 S.W.3d 325 (Ky. 2020) Opinion and Order of the Court. All sitting; all concur. The inquiry Commission issued a four-count charge against George Michael Ingram in one case file and a three-count charge against him in a second file. Service of each of the charges was completed pursuant to SCR 3.035(2) by serving the KBA Executive Director. Ingram did not file an answer to either charge, and the Commission submitted the matter to the Board of Governors. The Board concluded that Ingram was guilty of each of the charges levied

against him in those two cases and recommended that he be found so by the Supreme Court. However, no proposed discipline was agreed upon by the requisite number of Board members, and therefore the Board did not make a formal recommendation as to the imposition of discipline. The Supreme Court found Ingram guilty of violating two counts of SCR 3.130(1.3), two counts of SCR 3.130(1.4)(a), two counts of SCR 3.130(1.16)(d), and one count SCR 3.130(8.1)(b) in the two case files. Ingram had no prior orders of professional misconduct but was suspended for non-payment of bar dues and non-compliance with CLE requirements. After reviewing the facts of the case and relevant caselaw, the Court suspended Ingram for 30 days to run consecutively to his administrative suspensions.

J. Ky. Bar Ass’n v. Johnson, 612 S.W.3d 209 (Ky. 2020) Opinion and Order of the Court. All sitting; all concur. Johnson was personally served with bar complaints related to charges arising from three separate disciplinary files. He failed to respond in any of the three cases, warranting indefinite suspension under SCR 3.380(2). Accordingly, the Supreme Court ordered Johnson suspended indefinitely.

K. Joy v. Ky. Bar Ass’n, 614 S.W.3d 496 (Ky. 2021) Opinion and Order of the Court. Minton, C.J.; Hughes, Keller, Lambert, Nickell and VanMeter, JJ., sitting. All concur. Conley, J., not sitting. Joy moved for consensual discipline pursuant to Supreme Court Rule (SCR) 3.480(2) based on a negotiated sanction agreement with the Kentucky Bar Association to resolve the pending disciplinary matters against him in two separate cases. Joy requested a sanction of a 181-day suspension, probated for one year with conditions. The KBA filed a response stating it had no objection to Joy’s motion. Because Joy and the KBA agreed on the sanction, and caselaw supported the proposed resolution in this matter, the Supreme Court held the sanction was the appropriate discipline for Joy’s conduct and granted his motion.

L. Lococo v. Ky. Bar Ass’n, 2020-SC-0543-KB (Ky. Apr. 29, 2021) final

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Opinion and Order of the Court. All sitting; all concur. Lococo was suspended from the practice of law after two disciplinary actions were brought against her. The first resulted in her temporary suspension. A probable-cause determination was later made that Lococo was negligent in maintaining an adequate accounting system for handling client funds and that she misappropriated for her own benefit funds held for others, resulting in an additional three-year suspension. In 2006, Lococo was suspended again for six months for conduct that occurred before the first disciplinary action began. Lococo moved for that suspension to run concurrently to the previously imposed three-year suspension. The KBA agreed and the Supreme Court granted the motion. In 2017, Lococo moved for reinstatement. At the hearing, Lococo submitted affidavits establishing that at the time of her professional misconduct she was suffering from undiagnosed Adult Attention-Deficit Hyperactivity Disorder (ADHD). The affidavits also

established that after she was suspended she sought medical treatment and has been compliant with all treatment recommendations for 17 years. The Character and Fitness Committee ultimately found Lococo had satisfied all requirements for reinstatement, including compliance with all terms of her suspension; that while under suspension she showed she was worthy of the trust and confidence of the public; that she had sufficient professional capabilities to serve the public as a lawyer; she exhibited good moral character; she appreciated the wrongfulness of her misconduct; she had manifested remorse for her professional misconduct; and she had rehabilitated herself from her past mistakes. After reviewing the Character and Fitness Committee’s findings, as well as the record of Lococo’s disciplinary actions, the Board of Governors recommended her reinstatement application be approved. It additionally recommended KYLAP monitoring and mentoring, all the requirements under SCR 3.510(4), and completion of the bar exam. After reviewing the record, the Supreme Court adopted the Board of Governors’ recommendations and ordered Lococo to be reinstated, subject to conditions.

M. Ky. Bar Ass’n v. Martin, 618 S.W.3d 484 (Ky. 2020) Opinion and Order of the Court. All sitting; all concur. Martin was retained to represent a client in connection to the probate of an estate. During the representation, Martin failed to ensure the estate was timely settled, did not file appropriate tax returns, and did not keep Thompson fully and accurately informed of the progress of the matter. Martin was able to negotiate with the Kentucky Department of Revenue to obtain a waiver of penalties and fees resulting from his failure to file the tax returns. After nearly four years, a final settlement was approved and the estate was closed. Thereafter, a three-count charge was issued by the Inquiry Commission alleging Martin violated SCR 3.130(1.1) for failure to provide competent representation, SCR 3.130(1.3) for lack of diligence and SCR 3.130(8.1)(b) for failure to respond to a lawful demand for information from a disciplinary authority. Martin did not respond. That failure ultimately resulted in a March 2020 Order of the Supreme Court suspending him indefinitely. Upon consideration, the Board of Governors unanimously agreed Martin was guilty of the alleged violations and recommended he receive a public reprimand, attend and

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successfully complete the next scheduled EPEP and pay the costs of the disciplinary proceedings. Martin made no request under SCR 3.370(7) that the Court review the Board's recommendation, and the Court declined to undertake such review. Consequently, under SCR 3.370(9), the Court adopted the recommendation of the Board of Governors. In so doing, the Court noted that Martin’s failure to respond to the disciplinary proceedings was obviously concerning. However, his unethical actions did not result in harm or prejudice to the estate or client; although untimely, he completed the matters for which he was hired; and Martin had no prior discipline since his admission to practice law in 2001.

N. McKinney v. Ky. Bar Ass’n, 619 S.W.3d 85 (Ky. 2021) Opinion and Order of the Court. All sitting; all concur. McKinney was admitted to practice law in the Commonwealth of Kentucky in March 2004. He subsequently

moved to withdraw his membership and the Supreme Court granted his motion in August 2013. At the time, McKinney had no disciplinary investigations, complaints or charges pending against him. In February 2020, McKinney applied for restoration to the practice of law pursuant to Supreme Court Rule (“SCR”) 3.500(3). The Board of Governors of the Kentucky Bar Association unanimously recommended McKinney’s application. The recommendation was supported by the Character and fitness Committee’s recommendation as to McKinney’s good character and fitness to practice law, along with a certification from the Office of Bar Counsel that McKinney had no pending disciplinary matters and was not subject to any claims against the Clients’ Security Fund. The Director of Continuing Legal Education further certified that McKinney had completed the required number of CLE credits for restoration under SCR 3.685. Upon review of the record, the Court agreed that McKinney had satisfied the requirements of SCR 3.500(3). Accordingly, he was restored to KBA membership and the practice of law in the Commonwealth.

O. Ky. Bar Ass’n v. Niemi 605 S.W.3d 335 (Ky. 2020) Opinion and Order of the Court. All sitting; all concur. Niemi failed to comply with continuing legal education requirements for the 2009- 2010 educational year and was suspended on that basis in 2011. He never sought reinstatement to the practice of law following his suspension. In spite of the suspension, Niemi sent a demand letter on behalf of a client and held himself out to be engaged in the practice of law on both his Facebook and LinkedIn pages. In January 2019, the Office of Bar Counsel mailed a bar complaint via certified mail to Niemi’s bar roster address. The complaint was returned undelivered a month later. Following further investigation, the Office of Bar Counsel discovered that Niemi’s bar roster address was invalid. In April 2019, the Office of Bar Counsel transmitted the bar complaint to the Fayette County Sheriff’s Office to attempt personal service on Niemi at his correct address. After twelve unsuccessful delivery attempts, the complaint was returned undelivered. The Inquiry Commission issued a four-count charge against Niemi in June 2019. The Inquiry Commission’s charge asserted Niemi violated SCR 3.130(3.4)(c); SCR

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3.130(5.5)(a); SCR 3.130(5.5)(b)(2); and SCR 3.130(8.1)(b). The Board found Niemi guilty on all counts. After considering his disciplinary history, the Board recommended that Niemi be suspended from the practice of law for 181 days, to run consecutively to any current suspensions. Niemi did not participate in the underlying proceedings; therefore, the matter came before the Court as a default case pursuant to SCR 3.210. After reviewing the record, the Court agreed with the Board’s recommendation and sanctioned Niemi accordingly.

P. Njuguna v. Ky. Bar Ass’n, 600 S.W.3d 264 (Ky. 2020) Opinion and Order of the Court. All sitting; all concur. In March 2013, Njuguna was found guilty on two counts of admitted violations of the Rules of Professional Conduct and was suspended from the practice of law for a period of 180 days, with 90 days to be probated for a period of five years under multiple conditions. Because Njuguna

failed to file an affidavit of compliance with the terms of his suspension within 180 days, the provisions of SCR 3.510(3) were invoked, requiring referral to the Character and Fitness Committee for proceedings under SCR 2.300 upon filing of his application for reinstatement. On March 18, 2018, less than five years from his suspension date, Njuguna moved to be reinstated and the matter was referred to the Character and Fitness Committee. Following a detailed investigation, the Committee determined the root cause of Njuguna’s disciplinary issues stemmed from a severe addiction problem which he had successfully addressed after a long and difficult process. On March 2, 2020, the Character and Fitness Committee rendered its Findings of Fact, Conclusions of Law and Recommendation finding Njuguna had complied with all conditions of his 180-day suspension, was worthy of the public trust, possessed sufficient professional capabilities, presently exhibited good moral character, and showed contrition, remorse, and sufficient rehabilitation to return to the practice of law. The Committee unanimously recommended reinstatement with conditions imposed including execution of a Conditional Admission Agreement, pursuant to SCR 2.042, concerning his continued involvement with KYLAP and a fiscal planning and debt repayment program. After reviewing the entire record, by a vote of 19-0 with two members absent, the Board of Governors concluded Njuguna had fully complied with the administrative steps, met all standards and requirements for reinstatement, and unanimously recommended reinstatement. The Supreme Court agreed with and accepted the Board’s recommendation that Njuguna’s Application for Reinstatement be approved with conditions. Accordingly, the Court ordered Njuguna reinstated.

Q. Nunn v. Ky. Bar Ass’n, 607 S.W.3d 690 (Ky. 2020) Opinion and Order of the Court. All sitting; all concur. In January 2016, Nunn was suspended from the practice of law for her failure to comply with the minimum continuing legal education (“CLE”) requirements. Nunn did not realize she had been suspended and continued to practice law until September 2019. Between 2016 and 2019 Nunn represented numerous clients as an attorney with her law firm. Upon becoming aware of her suspension, Nunn transitioned into a role as a paralegal and self-reported the facts relating to her suspension to the Office of Bar Counsel. In February 2020, the Inquiry Commission filed a charge against Nunn containing two counts in violation of SCR 3.130(5.5)(a) and 3.130(5.7)(a). Nunn admitted to violating

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SCR 3.130(5.5)(a) when she represented clients during the years she was suspended from the practice of law, and to violating SCR 3.130(5.7)(a) by providing legal advice, appearing in court, and other acts that constitute the practice of law while suspended. Nunn moved the Court to accept her negotiated sanction of a public reprimand. The KBA did not object to Nunn’s motion. After review of the record, including Nunn’s compelling mitigation evidence, her lack of a prior disciplinary history, and her cooperation throughout the disciplinary proceedings, the Court granted Nunn’s motion and publicly reprimanded her.

R. O’Neil v. Ky. Bar Ass’n, 614 S.W.3d 503 (Ky. 2021) Opinion and Order of the Court. All sitting; all concur. A client retained O’Neil to represent her in a racial discrimination case. Based on O’Neil’s actions (and inactions) in the case, the Inquiry Commission filed a five-count charge against her. The charge

alleged O’Neil violated SCR 3.130-1.1 (competence), SCR 3.130-1.3 (diligence), SCR 3.130- 4 1.4(a)(3) (keeping client reasonably informed), SCR 3.130-1.5(a) (unreasonable fee), and SCR 3.130-1.5(b) (communication with client regarding fee). O’Neil admitted she violated these rules and moved the Supreme Court to enter a negotiated sanction resolving the pending disciplinary proceeding against her by imposing a public reprimand with conditions. The Kentucky Bar Association did not object. After reviewing, the Court imposed a public reprimand.

S. Ky. Bar Ass’n v. Poteat, 607 S.W.3d 710 (Ky. 2020) Opinion and Order of the Court. All sitting; all concur. The Inquiry Commission filed a five-count Charge against Poteat arising from his failure to cease practicing law following his suspension. The Charge asserted violations of SCR 3.130(1.4)(a)(5); SCR 3.130(8.4)(c); SCR 3.130(3.4)(c); and SCR 3.130(8.1)(b). Poteat was personally served with the Charge but he did not file an answer or respond otherwise. After due deliberation, the Board of Governors voted to find Poteat guilty of violating the five Supreme Court Rules as charged. After making findings and considering Poteat’s disciplinary record, seven known applicable aggravating factors, and no known applicable mitigating factors, the Board voted in favor of permanent disbarment. Upon reviewing the record, the Supreme Court agreed with the majority of the Board that Poteat’s permanent disbarment was appropriate to protect the public and the administration of justice. The Court noted that Poteat failed to answer any of the current charges, had a disciplinary history showing a pattern of dishonesty in communication with clients, and had repeated violations of the unauthorized practice of law. The Court further concluded that Poteat’s conduct showed a disregard for the Court of Justice and the rules of ethics. Accordingly, Poteat was permanently disbarred from the practice of law in Kentucky.

T. Ky. Bar Ass’n v. Riggs-Horton, 607 S.W.3d 720 (Ky. 2020) Opinion and Order of the Court. All sitting; all concur. The Kentucky Bar Association (KBA) moved the Supreme Court of Kentucky to enter an order directing Riggs-Horton to show cause why she should not be subject to reciprocal discipline after being suspended from the practice of law for six months by the Supreme Court of Ohio, with said suspension stayed conditioned on Riggs-Horton refraining from engaging in any further misconduct. The KBA also requested the Court enter an order imposing

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identical discipline were we to find such cause lacking. The Court granted the KBA’s request under SCR 3.435(2)(b) and ordered Riggs-Horton to show cause why she should not be subject to reciprocal discipline. Riggs-Horton did not file a timely response. Accordingly, under SCR 3.435(4), the Court granted the KBA’s motion and ordered that Riggs-Horton be suspended from the practice of law in Kentucky for a period of six months, with such suspension stayed on condition Riggs-Horton engage in no further misconduct.

U. Ky. Bar Ass’n v. Rowland, 610 S.W.3d 288 (Ky. 2020) Opinion and Order of the Court. All sitting. Minton, C.J.; Hughes, Keller, Lambert, Nickell and Wright, JJ., concur. VanMeter, J., concurs in part and dissents in part by separate opinion. The Inquiry Commission of the Kentucky Bar Association (KBA) levied a four-count charge against Rowland for violating SCR 3.130(8.1)(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority);

SCR 3.130(1.3)(reasonable diligence); SCR 3.130(1.4)(a)(4) (prompt compliance with requires for information); and SCR 3.130(1.16)(d) (steps to be taken upon termination of representation). Rowland took a $2,000 retainer and did not execute any kind of payment agreement. Rowland filed some documents on his client’s behalf but then did not have any other contact with his client after repeated attempts by the client for communication. Further, Rowland failed to communicate with opposing counsel and failed to set up mediation in the case. Finally, Rowland failed to provide the client’s full case file and failed to account or refund the $2,000 retainer. After being served with the bar complaint, Rowland failed to respond to the complaint or the request for additional information. After issuing its four-count charge, Rowland answered with a one-page answer and otherwise did not participate in the disciplinary process. A trial commissioner was appointed to the disciplinary case and made several unsuccessful attempts to contact Rowland. The Supreme Court of Kentucky temporarily suspended Rowland on February 20, 2020, for failing to participate in the disciplinary process. On March 2, 2020, Rowland provided the KBA copies of letters sent to clients, pursuant to SCR 3.390, to inform them of his suspension. Additionally, Rowland requested a final determination of his disciplinary action. On March 31, 2020, the trial commissioner issued his Memorandum finding Rowland violated all four rules as alleged by the KBA and adopted the recommendation of the KBA for a 181-day suspension with conditions. The Court reviewed the trial commissioner’s order on its own initiative and adopted the findings of fact but disagreed with the penalty. Instead, the Court found the penalty to be too harsh and inconsistent with prior disciplinary cases. The Court suspended Rowland for 180 days with the only disagreement on the Court being to adopt the original trial commissioner’s recommendation of a 181-day suspension.

V. Ky. Bar Ass’n v. Schwarz, 610 S.W.3d 292 (Ky. 2020) Opinion and Order of the Court. All sitting; all concur. The Kentucky Bar Association (KBA) moved the Supreme Court of Kentucky to enter an order directing Schwarz to show cause why he should not be subject to reciprocal discipline after being indefinitely suspended from the practice of law by the Supreme Court of Ohio. Schwarz’s indefinite suspension in Ohio stems from a guilty plea for importuning for soliciting an undercover law-enforcement officer who posed as a 15-year-old boy. Schwarz failed to reply to KBA’s show cause request. Per SCR 3.425(4), the Court granted KBA’s motion to indefinitely suspend Schwarz.

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W. Scott v. Ky. Bar Ass’n, 614 S.W.3d 500 (Ky. 2021)

Opinion and Order of the Court. All sitting; all concur. Based on a negotiated sanction agreement with the Kentucky Bar Association, Scott moved for consensual discipline under Supreme Court Rule (SCR) 3.480(2). Scott, with agreement of the KBA, requested an order imposing a 180-day suspension, probated for two years on condition he commit no new crimes—neither misdemeanors nor felonies; receive no new disciplinary charges; file quarterly proof with the Office of Bar Counsel showing his continued participation in counseling and/or mental health treatment; timely pay KBA membership dues; timely satisfy all continuing legal education requirements; and, pay all costs associated with the investigation and prosecution of this proceeding pursuant to SCR 3.450. Because Scott and the KBA agreed on the sanction, and caselaw supported

the proposed resolution in this matter, The Supreme Court held the sanction to be the appropriate discipline for Scott’s conduct and granted his motion.

X. Shircliff v. Ky. Bar Ass’n, 610 S.W.3d 280 (Ky. 2020) Opinion and Order of the Court. All sitting; all concur. Shircliff moved the Supreme court of Kentucky to enter a one-year suspension stemming from a negotiated sanction pursuant to SCR 3.480(2) in order to resolve pending disciplinary proceedings against her in three separate files. In the first file, Shircliff was hired to represent a client in a child custody case and took a retainer of $1,800. In that case, Shircliff failed to file a petition to register a foreign judgment, failed to reply to communication from the client, and did not respond to attempts to account for or recover the $1,800 retainer. A bar complaint was filed and Shircliff failed to respond. The Inquiry Commission filed a change against Shircliff who filed an untimely response. In the interim, Shircliff failed to response to KBA’s motion for indefinite suspension pursuant to SCR 3.380(2) and Shircliff was indefinitely suspended on February 14, 2019. Despite the indefinite suspension, Shircliff continued to practice law and represent clients. Per the negotiated sanction agreement, Shircliff admitted to violating numerous Supreme Court Rules including, but not limited to, SCR 3.130(8.1)(b) (failing to respond to a lawful demand for information from and admissions or disciplinary authority); SCR 3.130(1.3) (diligence and promptness in representing a client); SCR 3.130(1.4)(a)(4) (promptly complying with a reasonable request); SCR 3.130(1.16)(d) (failing to return the unearned retainer); SCR 3.130(5.5)(a) (practicing law in a jurisdiction in violation of the legal profession); SCR 3.130 (5.5)(b) for failing to disclose her indefinite suspension to a court, opposing counsel, and her client); SCR 3.130 (5.7)(a) (continuing to represent clients while suspended); SCR 3.130(3.4)(c) (knowingly disobeying the Court’s order of suspension and continuing to practice law); and SCR 3.130(7.50)(5) (misrepresenting her suspension to clients when notifying of her suspension). Initially, Shircliff’s suspension was to be retroactive. However, the Court found that too lenient of a punishment especially in light of Shircliff’s continued practice of law throughout her suspension. Instead, the Court suspended Shircliff for one year from the date of this Order.

Y. Ky. Bar Ass’n v. Skouteris,

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2020-SC-0230-KB, 2020 WL 7395381 (Ky. 2020) not final Opinion and Order of the Court. All sitting; all concur. Skouteris had nineteen separate disciplinary complaints in Tennessee, which were all resolved when he submitted a conditional guilty plea admitting he knowingly and intentionally misappropriated client funds. In conjunction with that disciplinary action, the Supreme Court of Tennessee ordered Skouteris to pay restitution of more than $1,000,000 for funds he wrongfully received and retained in settlement of personal injury cases. Skouteris also admitted he knowingly misled clients as to the status of their cases and the filing of pleadings and admitted he generally failed to adequately communicate with clients. Skouteris also admitted to forging client signatures on settlement paperwork and representing clients while suspended from the practice of law. The Supreme Court of Tennessee accepted Skouteris’s guilty plea wherein he admitted

to violating numerous Tennessee Rules of Professional Conduct. As a result of those violations, the Supreme Court of Tennessee disbarred Skouteris. However, at the time, that court’s rules did not provide for permanent disbarment; as a result, pursuant to Tennessee’s Supreme Court Rule 9 §§ 28 and 30.4, Skouteris may apply for reinstatement in Tennessee after five years if he has made the required restitution at that time. Thereafter, the KBA filed a petition with this Court asking that we impose reciprocal discipline pursuant to SCR 3.435(4). Skouteris filed no response to the Supreme Court’s show cause motion, apart from filing a motion that this Court treated as a motion for enlargement of time and an accompanying affidavit from the director of the Christian recovery program Skouteris completed and for which he now works. This response did not serve to prove by substantial evidence that Tennessee lacked jurisdiction, there was fraud in the underlying proceedings, or why the Commonwealth should impose substantially different discipline. Because Skouteris failed to show cause as to why the Court should not impose reciprocal discipline, the Court suspended him from the practice of law in the Commonwealth of Kentucky for a minimum of five years, until such time as he is reinstated to the practice of law in Tennessee and until he is reinstated to the practice of law by Order of this Court pursuant to SCR 3.510.

Z. Ky. Bar Ass’n v. Smith, 612 S.W.3d 207 (Ky. 2020) Opinion and Order of the Court. All sitting; all concur. The Inquiry Commission charged Smith with violating SCR 3.130(1.4)(a)(4); SCR 3.130(1.16)(d); and SCR 3.130(3.4)(c) for his failure to communicate with his client and failure to return the unearned portion of a fee. Because the Board of Governors of the Kentucky Bar Association failed to satisfy SCR 3.3750(c) and did not recommend a sanction, the Supreme Court was compelled to review the record de novo. In doing so, the Court noted that this was not the first instance in which Smith had failed to adequately communicate with his clients, nor the first time that he had refused to return the unearned portions of his fee. In July 2015, Smith was privately admonished for similar conduct.

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After reviewing the facts of the present case, the Court determined that Smith had violated the rules as charged. Given Smith’s previous transgressions, and finding no mitigating factors in his favor, the Court ordered Smith suspended from the practice of law in the Commonwealth for a period of sixty-one days.

AA. Ky. Bar Ass’n v. Stith, 612 S.W.3d 930 (Ky. 2020) Opinion and Order of the Court. All sitting; all concur. Stith was an associate attorney for Wael Ahmad. Ahmad filed a bar complaint against Stith for Stith’s failure to adequately represent clients, which included missing appeals deadlines, misplacing documents, and failing to seek guidance on cases he was not qualified to practice. Before leaving the firm, Stith disclosed to Ahmad that he was struggling with alcohol impairment. Service of the bar complaint was unsuccessful at Stith’s roster address and person

service was eventually perfected by the Fayette County Sheriff’s Department. Stith failed to respond to the complaint. The Inquiry Commission charged Stith with violating SCR 3.130(1.1) (competency), SCR 3.130(1.3) (reasonable diligence), SCR 3.130(1.4)(a)(3) (communication), and SCR 3.130(8.1)(b) (failure to respond to a lawful demand from a disciplinary authority). The Kentucky Bar Association (KBA) provided to Stith an authorization form for Kentucky Lawyer’s Assistance (KYLAP) along with the charge. Despite numerous attempts by the KBA, Stith failed to participate in the disciplinary process including failing to answer either the initial bar complaint or the charge against him. Due to his failure to respond, the KBA requested that the Supreme Court of Kentucky indefinitely suspend Stith. Accordingly, the Court granted the KBA’s request and indefinitely suspended Stith.

AB. Summers v. Ky. Bar Ass’n, 612 S.W.3d 213 (Ky. 2020) Opinion and Order of the Court. All sitting; all concur. On March 22, 2012, Summers was suspended from the practice of law in Ohio for six months. A reciprocal order was entered on October 25, 2012, in Kentucky for a period of 180 days. However, in July 2012, prior to the reciprocal order being entered in Kentucky, Summers was retained by his client to appear in U.S. District Court in New Hampshire in a criminal matter. He received a retainer, which included travel expenses. Another Ohio attorney and a local attorney appeared in court with the client. Summers did not provide representation at the court appearance. At his sentencing, the client discovered that Summers was suspended in Ohio. On August 1, 2018, Summers entered a plea of guilty to criminal contempt in violation of 18 U.S.C.§ 401(1) and stipulated that in July 2012, while he was suspended in Ohio, he engaged in the practice of law for his client. Summers was sentenced to six months in federal prison and ordered to pay restitution in the amount of $26,000.00. On December 19, 2019, Summers completed his incarceration. Summers admits that he violated SCR 3.310(5.5)(a) and SCR 3.310(8.4)(c). Pursuant to SCR 3.480(2), Summers and the KBA agreed to a negotiated sanction of 180-day suspension. Upon review of the record and similar case law, the Court agreed the negotiation sanction was appropriate and suspended Summers from the practice of law in the Commonwealth of Kentucky for a period of 180 days.

AC. Wade v. Ky. Bar Ass’n, 605 S.W.3d 329 (Ky. 2020)

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Opinion and Order of the Court. All sitting; all concur. Wade was suspended based on charges of professional misconduct relating to two separate criminal proceedings in Jefferson and Bullitt Counties. The Supreme Court’s order indicated that Wade’s suspension was to last for four years and six months or until he satisfied the full terms and conditions of the proceedings in the two criminal cases, whichever event were to occur last. The order also made his reinstatement subject to approval from the Character and Fitness Committee under SCR 3.505, and it imposed the condition that Wade continue participation in KYLAP and execute a release in favor of the Office of Bar Counsel so that Bar Counsel could obtain status-report information concerning his participation in KYLAP. Wade applied for reinstatement in November 2018. The Character and Fitness Committee instructed Wade by letter to file a Character and Fitness Questionnaire for Certification for Reinstatement Form (“Questionnaire”), and provided directions on

how to complete it, under SCR 2.300(1)(e). Wade never responded and never filed the Questionnaire, despite multiple attempts to contact him over the course of several months. After eight months of trying and failing to have Wade submit the Questionnaire, the Committee issued a recommendation to deny Wade’s application for reinstatement. Wade was mailed a copy of a motion from bar counsel to the Board of Governors to accept the recommendation of the Committee, but Wade again failed to respond. In November 2019, the Board of Governors voted unanimously to accept the negative recommendation of the Committee to deny Wade’s application for reinstatement. The Court agreed with the Board’s recommendation noting that, at a minimum, Wade had failed to show compliance with the 2016 suspension order. Accordingly, Wade’s application for reinstatement was denied.

AD. Ky. Bar Ass’n v. Weiner, 614 S.W.3d 494 (Ky. 2021) Opinion and Order of the Court. All sitting; all concur. The Inquiry Commission petitioned the Supreme Court to temporarily suspend Weiner, asserting there was probable cause to believe Weiner’s current struggle with illicit substance abuse poses a substantial threat of harm to his clients or the public and deprives him of the physical or mental fitness to continue to practice law. In its petition, the Inquiry Commission noted there were four separate disciplinary investigations and a criminal prosecution presently pending against Weiner. Weiner did not respond to the Inquiry Commission’s communications and failed to respond to this Court’s October 2020 order to show cause why he should not be subject to the requested temporary suspension. The Court reviewed the uncontroverted allegations of the Inquiry Commission and agreed there was probable cause to believe Weiner’s conduct poses a substantial threat of harm to his clients as required by SCR 3.165(1)(b). The Court further agreed there was a reasonable basis to believe Weiner “is addicted to intoxicants or drugs” and he “does not have the physical or mental fitness to continue to practice law.” Consequently, the Court agreed with the Inquiry Commission that, when coupled with SCR 3.165(1)(b), Weiner’s license to practice law should be temporarily suspended pending disciplinary proceedings pursuant to SCR 3.165(1).

IV. CIVIL PROCEDURE

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A. Estate of Benton v. Currin, 615 S.W.3d 34 (Ky. 2021)

Opinion of the Court by Justice VanMeter. All sitting; all concur. The Kentucky Supreme Court granted discretionary review to determine the proper procedure for a successor-in-interest to substitute and revive a case following the death of the original party. Appellant Marcum, as executrix of Benton’s estate, appealed the Court of Appeals’ ruling that revival could only be accomplished by filing both a motion under KRS 395.278 and CR 25.01. The Supreme Court reversed, finding that while KRS 395.278 operated as the one-year statute of limitations within which a party must revive a case, the proper procedure for revival was fully contemplated in CR 25.01. The Court reasoned that the purpose of revival was to inform all parties, and the trial court, of the original party’s death and the successor-in-interest’s intention to continue the litigation. Consequently, the Court held that Marcum was only required to file a motion for substitution in accordance with CR 25.01 within the one-year limit

set forth in KRS 395.278. The Court remanded the case with instructions to consider the unaddressed issues raised by the parties in the original appeal.

V. CONSTITUTIONAL LAW

A. Overstreet v. Mayberry, 603 S.W.3d 244 (Ky. 2020) Opinion of the Court by Chief Justice Minton. All sitting; all concur. Eight members of Kentucky Retirement Systems’ defined-benefit retirement plan sued trustees and officers of the plan and various private hedge fund sellers and actuarial and advisement firms for losses sustained to the plan assets. The Franklin Circuit Court denied defendants’ motion to dismiss based on immunity and constitutional standing. Defendants’ appealed to the Court of Appeals, and the Kentucky Supreme Court accepted transfer of the case. The Court held the plaintiffs lacked an injury in fact sufficient to support constitutional standing as plaintiffs suing directly for losses sustained to the plan, as representatives suing on behalf of Kentucky Retirement Systems, and as taxpayers suing on behalf of the Commonwealth. The Court remanded the case to the Franklin Circuit Court with direction to dismiss for lack of constitutional standing.

B. Commonwealth v. Curry, 607 S.W.3d 618 (Ky. 2020) Opinion of the Court by Justice Lambert. All sitting; all concur. The Commonwealth of Kentucky sought certification of law after the Jefferson District Court’s ruled that provisions of Kentucky’s speed limit law, KRS 189.390 (3)-(5), violated the void-for-vagueness doctrine. The Court held that the statutory provisions, interpreted in the context of the proper statutory and regulatory scheme, provided citizens fair notice of the applicable speed limits on Kentucky highways.

C. Calloway Cnty. Sheriff’s Dep’t v. Woodall, 607 S.W.3d 557 (Ky. 2020) Opinion of the Court by Justice VanMeter. Minton, C.J.; Hughes, Lambert, and Nickell, JJ., concur. Keller, J., concurs in part and concurs in result only by separate opinion in which Wright, J., joins. Steven Spillman was injured during his employment with the Calloway County Sheriff’s Department (the “Department”). Thereafter, Spillman was awarded permanent partial disability benefits (“PPD”). In January 2017, more than four years after the accident that caused his injuries, Spillman died following a surgery necessitated by that injury. Karen Woodall,

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Spillman’s widow, and his daughter, Jennifer Nelson, were appointed co-administrators of his estate (the “Estate”). Woodall, as surviving spouse, filed a claim for income benefits under KRS 342.750(1)(a). The Estate sought a lump-sum benefit under KRS 342.750(6). The ALJ denied all benefits and dismissed all claims finding that the claims were time barred. The Workers’ Compensation Board (the “Board”) found Woodall was eligible for surviving spouse benefits but agreed that the Estate was not entitled to a lump-sum death benefit. The Court of Appeals affirmed the decision of the Board. The parties appealed to the Supreme Court of Kentucky. On review, the Supreme Court affirmed the decision of the Court of Appeals and clarified that the four-year limitation in KRS 342.750(6) does not apply to income benefit claims by surviving spouses under KRS 342.750(1)(a). Moreover, the Supreme Court held a claim for income benefits by an injured worker’s surviving spouse has no temporal limitation and that such a claim can be made regardless of whether the total

amount of an injured worker’s PPD benefits have been paid out. The Court also held that the 4-year limitation for a lump sum benefits award in KRS 342.750(6) did not violate equal rights protections under the state or federal constitutions. The Supreme Court also held the KRS 342.750(6) did not constitute special legislation under Sections 59 and 60 of the Kentucky Constitution and clarified that the appropriate test to determine whether a statute qualifies as special legislation is whether the statute applies to a particular individual, object, or locale.

D. Commonwealth, Cabinet for Health & Fam. Servs. v. K.S., 610 S.W.3d 205 (Ky. 2020)

Opinion of the Court by Justice Lambert. All sitting; all concur. The Court considered whether KRS 620.100 or the Kentucky Constitution require that indigent parents receive reasonably necessary expert assistance in dependency, neglect, and abuse proceedings. The Court held that the statute did not mandate funding for experts. However, it held that the due process provisions of the Kentucky Constitution require that parents receive expert funding in certain circumstances. Looking to Ake v. Oklahoma, 470 U.S. 68 (1985) for guidance, the Court set out a new test to guide family courts in their consideration of requests for expert assistance.

E. Beshear v. Acree, 615 S.W.3d 780 (Ky. 2020) Opinion of the Court by Justice Hughes. All sitting; all concur. After Governor Andy Beshear declared a state of emergency due to the COVID-19 pandemic and issued additional executive orders and emergency regulations to address public health and safety issues, three Northern Kentucky business owners (Plaintiffs) filed suit in Boone Circuit Court challenging various orders affecting the reopening of their businesses and the Governor’s authority generally in emergencies. The Attorney General intervened, and the parties obtained a restraining order that prohibited enforcement of certain of the emergency orders. After a similar action was filed elsewhere in Scott County, the Supreme Court entered an order on July 17, 2020 staying all injunctive orders directed at the Governor’s COVID-19 response until those orders were properly before the Court. The order authorized the Scott and Boone Circuit Courts to proceed with matters pending before them and issue all findings of fact and conclusions of law they deem appropriate, but no order, however characterized, would be effective. On July 20, 2020 the Boone Circuit Court issued an order that would have granted the temporary injunction against enforcement of the Governor’s orders but for the Court’s July 17 stay order. The Court heard oral argument on September 17, 2020, focused

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on the legal issues that Plaintiffs and the Attorney General raised in the Boone Circuit Court challenging the Governor’s COVID-19 executive orders and regulations. The Supreme Court held that (1) the Governor properly declared a state of emergency and validly invoked the emergency powers granted to him in Kentucky Revised Statute (KRS) Chapter 39A; (2) KRS 39A is a constitutional delegation of legislative authority and does not violate the separation of powers provisions of Sections 27 and 28 of the Kentucky Constitution; (3) the Governor was not required to address the COVID-19 emergency solely through regulations pursuant to KRS Chapter 13A; (4) the challenged orders did not violate Sections 1 or 2 of the Kentucky Constitution because the challenged orders were not arbitrary, i.e., lacking a rational basis, except for one subpart of one order regarding social distancing at entertainment venues that initially made no exception for families or individuals living in the same household; and (5) the Boone Circuit Court improperly issued injunctive relief prohibiting enforcement of the

Governor’s orders and regulations. The Court lifted the stay as to any affected cases challenging the Governor’s COVID-19 response and allowed those cases to proceed consistent with the Court’s Opinion. As to the Boone Circuit Court litigation, the July 20, 2020 Order that was held in abeyance was reversed and remanded for further proceedings, if any, consistent with the Court’s Opinion.

VI. CRIMINAL LAW

A. Brafman v. Commonwealth, 612 S.W.3d 850 (Ky. 2020)

Opinion of the Court by Chief Justice Minton. All sitting; all concur. Appellant Karen Brafman was arrested and charged with first- and second-degree arson, and six counts of attempted murder, four of which the trial court enhanced as hate crimes. Appellant was found to have set fires at two ends of the victims' trailer while they slept inside, and at a time Appellant alleged she was deeply intoxicated. Appellant was convicted and received the equivalent of a life sentence consistent with the jury's recommendation. Appellant appealed as a matter of right, claiming (1) she was improperly denied a voluntary intoxication instruction, (2) that the Commonwealth's Attorney committed prosecutorial misconduct when it improperly concealed evidence related to Appellant's intoxication, subsequently opposed the instruction, and made improper closing statement, (3) the trial court's hate-crime designation was insufficiently supported by the evidence, (4) the arson instructions to the jury inadequately instructed on intent and "substantial step" elements, (5) a text message screenshot admitted against her was not authenticated properly, (6) that phone calls admitted against her were unduly prejudicial, and, finally, (7) cumulative error, if nothing else, required reversal.

First, the Supreme Court held the trial court's denial of the voluntary intoxication instruction was not error when the only admitted evidence of intoxication was the defendant's own general assertions of intoxication and self-induced amnesia. However, the Supreme Court reversed on the second issue, finding the Commonwealth's Attorney committed reversible prosecutorial misconduct when, knowing an investigator-witness personally observed Appellant's intoxication at the time of arrest, he argued against the instruction in conference with the court and falsely implied directly to the jury in closing argument that no one had seen Appellant intoxicated. This improperly deprived Appellant of a defense she was entitled to

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present. Third, it was held that the trial court's hate-crime designation was not supported by a sufficient nexus of racial motivation. Fourth, the arson instructions were held to be technically adequate as a matter of law, but it was recommended on remand that clearer, elemental model instructions should be used. Fifth, the text message was held inadequately authenticated, and the Court discussed the unique issues of authenticating digital phone screenshots. However, being unpreserved and at most mildly cumulative on certain issues, this error was not palpable. Sixth, admitting the phone calls was error for similar lack of foundation, but admitting it was not palpable, reversible error. Finally, the Court passed on any cumulative error analysis, having found prosecutorial misconduct alone warranted reversal. The Supreme Court therefore reversed the trial court's judgment for prosecutorial misconduct and the hate crime enhancement for lack of evidence of a suspect motivational nexus. The Supreme Court ordered a new trial to be conducted in

accordance with its opinion.

B. Bowen v. Commonwealth, 605 S.W.3d 316 (Ky. 2020)

Opinion of the Court by Justice Keller. All sitting. Hughes, Keller, Lambert, Nickell, and Wright, JJ., concur. Minton, C.J., concurs in part and dissents in part by separate opinion in which VanMeter, J., joins. A Mason County jury found Ricky Allen Bowen guilty of attempted murder and theft by unlawful taking of a firearm. The trial court, consistent with the jury’s recommendation, sentenced Bowen to twenty years of imprisonment on the attempted murder charge and five years of imprisonment on the theft by unlawful taking charge, to run concurrently for a total sentence of twenty years. The Supreme Court affirmed Bowen’s conviction. At trial, Bowen testified that he took a gun from his landlord’s barn with the plan that he would kill his girlfriend with whom he had an argument, and then kill himself. Unbeknownst to Bowen, the gun was loaded with two shells of “rat shot” or “snake shot” that is typically used for pest control and consists of small pellets that spread out when the gun is fired. Bowen shot his girlfriend, admittedly trying to kill her, but was unsuccessful because of the rat shot that was loaded in the gun. He then realized he no longer wanted to kill her and tried to help her. On appeal, Bowen argued that the trial court erred by (1) declining his request for a renunciation jury instruction and (2) denying his motion for directed verdict on the charge of theft by unlawful taking of a firearm. The Supreme Court noted there was no evidence that Bowen made any efforts to abandon his commission of the crime or took any steps to avoid its commission prior to the shooting. Rather, he completed the act of shooting his girlfriend, but failed to kill her as he had intended. Accordingly, the Court hold that the trial court did not abuse its discretion in declining to give a

renunciation instruction. As to Bowen’s second argument, the Court noted that Bowen admitted his intent to use the gun as a murder weapon. Had Bowen carried out his plan, there would be no abandonment or return of the property by Bowen; rather, he would have been dead, leaving the gun behind as a key piece of evidence that may have been confiscated by police. Furthermore, a reasonable jury could believe that Bowen, who had been arguing with his girlfriend the evening before, intended to kill only her and not himself. A reasonable jury could believe that, under those circumstances, he had

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never planned to return the murder weapon to its rightful owner. The Court therefore concluded that, under the evidence as a whole, a reasonable jury could infer that Bowen intended to permanently deprive Darnell of the gun. Accordingly, the Court held that the trial court did not err in denying Bowen’s motion for directed verdict on the charge of unlawful taking of a firearm. Chief Justice Minton, joined by Justice VanMeter, concurred in part and dissented in part. Chief Justice Minton would affirm the attempted murder conviction but would reverse the theft by unlawful taking conviction because the record contains no evidence that Bowen intended to deprive Darnell of the gun.

C. Carlisle v. Commonwealth, 601 S.W.3d 168 (Ky. 2020)

Opinion of the Court by Justice Keller. All sitting. Minton, C.J.; Hughes, Lambert, VanMeter, and Wright, JJ., concur. Nickell, J., concurs in result only by separate

opinion. Rodney Carlisle, Jr. appealed his conviction of three counts of first-degree trafficking in a controlled substance. These charges stemmed from a routine traffic stop for faulty equipment, during which the driver consented to a search of the truck. Based on items discovered in the truck, including a digital scale, syringes, butane, and several cell phones, the officer searched both the driver and the passenger, Carlisle, and discovered a suspected narcotic in a small plastic baggie in Carlisle’s waistband. On appeal, Carlisle argued that the trial court should have suppressed evidence that was found on his person because it was the result of illegal searches and seizures. The Supreme Court first held that the traffic stop had not concluded at the time the officer inquired into the contents of the truck and asked to search the truck. The Court next considered whether the stop had been improperly prolonged by any unrelated questioning or inquiries by the officer. The Court held that the officer’s questioning of the driver about his travel plans (i.e., where he was from, where he was going, and why) were related to the traffic stop, as was his search of the men’s criminal histories. The Court also found that it was reasonable to detain Carlisle during the search of the truck by instructing him to wait near a police cruiser. Lastly, the Court held that the search of Carlisle’s person had been supported by probable cause and exigent circumstances.

D. Carson v. Commonwealth, 2019-SC-0585-MR (Ky. Apr. 29, 2021) not final Opinion of the Court by Justice Lambert. All sitting. Minton, C.J.; Conley, Hughes, Nickell, and VanMeter, JJ., concur. Nickell, J., concurs in result only. Keller, J., dissents without opinion. A criminal case wherein the Court considered the propriety of a detective’s testimony concerning his use of a specialized technique to spot a criminal suspect’s deception during an interrogation. The Court held that the detective’s testimony went beyond the permissible scope of a lay opinion. Under Kentucky precedent, law enforcement officers are permitted to testify as to his or her observations of a defendant during an interrogation and opine as to the defendant’s demeanor. However, when the detective testified that the defendant’s deceptive behavior was revealed by the technique, he infringed on the jury’s role to determine the veracity of a witness or the defendant.

E. Commonwealth v. Crowe, 610 S.W.3d 218 (Ky. 2020)

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Opinion of the Court by Justice Keller. Minton, C.J.; Hughes, Keller, Lambert, VanMeter, and Wright, JJ., sitting. All concur. Nickell, J., not sitting. Michael Wayne Crowe pled guilty to manslaughter in the first degree for the death of his wife, Felicia Walker. After pleading guilty but before he was sentenced by the trial court, Crowe moved the trial court to classify him as a domestic violence victim pursuant to Kentucky Revised Statute (“KRS”) 439.3401(5). This classification would reduce his parole eligibility from 85% of his sentence to 20% of his sentence. The trial court denied Crowe’s motion finding that the smothering of Walker by Crowe did not occur as the result of domestic violence and abuse. The Court of Appeals reversed the trial court, and the Supreme Court granted the Commonwealth’s motion for discretionary review. The Court first clarified the appellate standard of review of a trial court’s determination regarding the domestic violence exemption to violent offender parole

eligibility. Whether a defendant is a victim of domestic violence or abuse is a factual finding that is reviewed for clear error. Whether the domestic violence or abuse endured by a defendant occurred with regard to the offenses committed by that defendant is a mixed question of law and fact and is reviewed de novo. In applying that standard of review to the trial court’s determination in this case, the Court held that the trial court did not err in finding Crowe was a victim of domestic violence, as its finding was supported by substantial evidence. However, the Court held that the trial court did err when it found that Crowe was not a victim of domestic violence with regard to the manslaughter. The Court reaffirmed its prior holdings that an act of domestic violence need not cause the commission of the crime in order for the defendant to be eligible for the domestic violence exemption under KRS 439.3401(5). That is to say, the defendant need not have committed the crime because of the domestic violence nor must the crime be the result of the domestic violence for the defendant to be eligible for the domestic violence exemption under KRS 439.3401(5). The domestic violence need only be involved in the commission of the crime or there must be a relationship or a connection between the two. In this case, the evidence put forth was sufficient to satisfy Crowe’s burden of proving by a preponderance of the evidence that he was a victim of domestic violence in regard to the manslaughter of Walker.

F. Curry v. Commonwealth, ___ S.W.3d ___, 2020 WL 2831836 (Ky. 2020)

Opinion of the Court by Justice Lambert. All sitting. Minton, C.J.; Hughes, Lambert, and VanMeter, JJ., concur. Keller, J., concurs in part and concurs in result only in part by separate opinion in which Nickell and Wright, JJ., join. Defendant was convicted of one count of murder, one count of being a felon in possession of a

handgun, and was found to be a first-degree persistent felony offender in relation to the fatal shooting of his roommate. The defendant claimed the shooting was in self-defense and that he was therefore entitled to jury instructions on both self-defense and no duty to retreat. As a matter of first impression this Court considered whether being a convicted felon in possession of a handgun was an “unlawful activity” for the purposes of entitlement to an instruction on no duty to retreat under Kentucky Revised Statute (KRS) 503.055(3). This Court reiterated that entitlement to an instruction on self-defense does not automatically entitle a defendant to an instruction on no duty to retreat and held that being a felon in possession of a firearm is an

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unlawful activity under KRS 503.055(3). Accordingly, the defendant was not entitled to a jury instruction on no duty to retreat. The Court further held that the trial court did not abuse its discretion in declining to strike two potential jurors for cause.

G. Daniel v. Commonwealth, 607 S.W.3d 626 (Ky. 2020) Opinion of the Court by Justice Lambert. All sitting. Minton, C.J.; Hughes, Nickell, VanMeter, and Wright, JJ., concur. Keller, J., concurs in part and dissents in part by separate opinion in which Nickell, J., joins. Daniel was convicted of murder following the death of her roommate. Daniel asserted that the decedent died as a result of suicide. The Court held: (1) the trial court erred by failing to grant Daniel KRS Chapter 31 funds for an expert after Daniel made the requisite showing of entitlement to expert funds under Benjamin v. Commonwealth, 266 S.W.3d 775 (Ky. 2008). The Court reversed Daniel’s conviction based on this error and remanded for a new trial; (2) the trial court abused its discretion by admitting evidence that Daniel’s friend spent a $2 bill that was sentimentally significant to the decedent; (3) the trial court did not err by allowing the Medical Examiner to use a Styrofoam head for demonstrative purposes; (4) there were no errors in relation to jury instructions on burden of proof or extreme emotional disturbance; and, (5) the trial court did not err by failing to suppress a statement made by Daniel to a deputy jailer after her arrest.

H. Commonwealth v. Daughtery, 617 S.W.3d 813 (Ky. 2021) Opinion of the Court by Chief Justice Minton. All sitting; all concur. Samuel W. Daughtery pleaded guilty to three felony counts of distributing child pornography in violation of Kentucky Revised Statute (KRS) 351.340 and he received a five-year concurrent sentence on each count, probated for five years. The Commonwealth appealed the trial court’s amended judgment, arguing the trial court erred by issuing a ruling attempting to block Daughtery’s lifetime registration under the Sex Offender Registration Act (SORA). The Court of Appeals found Daughtery was not a sex offender for purposes of SORA, but was still required to register as he committed a crime defined as “against a minor.” However, the appellate court affirmed the judgment, holding that Daugherty’s three felony convictions exempted Daughtery from SORA registration because they were his first such offenses and arose from a single course of conduct. The Commonwealth sought discretionary review in the Supreme Court arguing that the Court of Appeals created a new exception to SORA lifetime registration for first-offender, single-source offenders. The Court agreed and reversed the Court of Appeals, holding that Daughtery qualifies for lifetime SORA registration for his crimes because (1) he was thrice convicted of crimes involving “a minor or depictions of a minor, as set forth in KRS Chapter 531” per the plain text of KRS 17.500(3)(a)(11) and KRS 17.520(4); and (2) the Court of Appeals erred by creating a new single-course-of-conduct exception to avoid application of KRS 17.520(4).

I. Davis v. Commonwealth, 620 S.W.3d 16 (Ky. 2021) Opinion of the Court by Justice Keller. All sitting; all concur. A Fayette Circuit Court jury found Jonathan F. Davis guilty of one count of theft of mail matter and of being a persistent felony offender in the first degree (PFO) for stealing two Amazon packages from Stacey and Mike Davis’s front stoop. Consistent with the jury’s recommendation, the trial court sentenced Davis to three-and-a-half years’ imprisonment on the theft

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charge, enhanced to the maximum twenty years’ imprisonment. On appeal, Davis raised several issues: (1) that the trial court erred in denying his motion for a directed verdict; (2) that the trial court erred in denying his request for a lesser jury instruction on theft by unlawful taking under $500; (3) that the trial court erred in denying his Batson v. Kentucky, 476 U.S. 79 (1986), challenge to the Commonwealth’s strike of Juror #4070; (4) that the trial court erred in admitting victim impact testimony during the guilt phase of the trial; and (5) that a clerical error in the final judgment required correction.

The Kentucky Supreme Court held that the trial court did not err in denying Davis’s motion for a directed verdict because Stacey and Mike’s front stoop was an “authorized depository” for mail matter under Kentucky Revised Statute (KRS) 514.140. The Court further held that theft by unlawful taking under $500 is not a lesser offense of theft of mail matter for jury instruction purposes, and therefore the trial court did not err in

denying Davis’s request for an instruction on theft by unlawful taking. The Court held that the trial court did not err in denying Davis’s Batson challenge, as Davis did not show purposeful discrimination after the Commonwealth provided a valid race-neutral reason – the lack of life experience and the possibility she would be more forgiving based on her young age – to strike the juror. Finally, the Court held that any error in admitting victim impact testimony was not palpable error and that the clerical error in the judgment regarding restitution did not rise to the level of palpable error. The judgment of the Fayette Circuit Court was affirmed.

J. Deal v. Commonwealth, 607 S.W.3d 652 (Ky. 2020) Opinion of the Court by Chief Justice Minton. All sitting; all concur. The Court found reversible error when the trial court allowed the Commonwealth to show the jury a thirty-five-minute video of a police interview of the defendant—recorded in jail two months post arrest on the underlying murder charge—in which the defendant is shown handcuffed and wearing jail garb. The Court reviewed U.S. Supreme Court precedent and established for Kentucky jurisprudence a two-part test for trial courts confronted with a criminal defendant’s due-process challenge to a specific trial event or trial practice. The trial court must: (1) determine whether the proposed event or trial practice is inherently prejudicial to the extent that it threatens to undermine the fairness of the jury’s fact-finding process and, if so, (2) determine whether the proponent of the event or practice can show beyond a reasonable doubt that the event or practice is justified because it serves some identifiable and essential state interest. Here the Commonwealth offered no explanation as to why the playing of the video of the interview was necessary as opposed to using the available audio version of the interview.

K. Dooley v. Commonwealth, 617 S.W.3d 373 (Ky. 2021) Opinion of the Court by Chief Justice Minton. All sitting; all concur. Appellant David Dooley was arrested and charged with murder and tampering with physical evidence. Appellant was convicted by a jury and sentenced to forty-three years’ imprisonment. Appellant appealed as a matter of right, claiming (1) that the trial court improperly admitted unduly prejudicial evidence that Appellant had committed time fraud; (2) that the trial court improperly admitted various pieces of allegedly irrelevant tangible evidence; (3) that the trial court erred in allowing a witness to testify in violation of

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KRE 615; (4) that the trial court improperly denied Appellant’s request for a missing-evidence instruction; and (5) cumulative error requiring reversal. First, the Supreme Court held the trial court did not err in admitting evidence of Appellant’s time fraud, because under the facts of the case the Commonwealth offered it to prove a sufficiently coherent motive to murder and as evidence of identity under KRE 404(b), and the presentation of evidence was of a length and detail proportionate to its probative value. Second, the trial court improperly admitted a utility knife and latex gloves found four months after the crime in Appellant’s vehicle, having no specific connection to the crime under KRE 104 and KRE 901, but this error was harmless. The Court found not error in the trial court admitting a bottle of bleach when it was found near in time and location to the crime scene and under circumstances that bleach was possibly connected to the crime. Third, the trial court did not err under KRE 615 when, after a witness was allegedly influenced by the

Commonwealth before testifying, the trial court held a conference to assess the alleged error and proceeded to allow the witness to testify subject to cross-examination regarding the alleged violation. Fourth, the trial court did not err in refusing to tender a missing-evidence instruction where Appellant had not shown the Commonwealth disposed of evidence in bad faith and where there was no indication such evidence would have had exculpatory value. Finally, the Supreme Court held that the only errors of admitting the knife and latex gloves, even taken together, did not amount to reversible cumulative error. Accordingly, the Supreme Court affirmed the trial court's judgment.

L. Downs v. Commonwealth, __ S.W.3d __, 2020 WL 6865549 (Ky. 2020) Opinion of the Court by Justice VanMeter. All sitting; all concur. Terrence Downs appeals as a matter of right from his twenty-five-year sentence for convictions of first-degree manslaughter, tampering with physical evidence, possession of a handgun by a convicted felon, and second-degree persistent felony offender. The Supreme Court reversed his convictions and sentence, finding a per se Sixth Amendment violation due to Downs being deprived of his right to counsel at a critical stage of the proceedings – during an in-chambers hearing the trial court conducted on the fitness and ability of his private attorney to try the case. The Court held that the trial court’s decision not to inform Downs of the Commonwealth’s allegations against defense counsel and not offer him the opportunity to retain independent counsel to represent his interests was error of constitutional magnitude and mandates reversal. Further, regarding jury instructions, the Court directed the trial court on remand to include the necessary element of intent if the evidence supports an instruction on provocation under KRS 503.060(2).

M. Exantus v. Commonwealth, 612 S.W.3d 871 (Ky. 2020) Opinion of the Court by Justice Lambert. All sitting; all concur. Exantus unlawfully entered a home and killed a seven-year-old child. He also assaulted two other children and the father of all three children thereafter. Exantus was found not guilty by reason of insanity of murder and first-degree burglary and was found guilty but mentally ill of two counts of second-degree assault and one count of fourth-degree assault. The Court held: (1) as a matter of first impression, the jury’s verdicts of not guilty by reason of insanity and guilty but mentally ill were not impermissibly inconsistent. (2) The trial court did not err by denying defendant’s motions for directed verdict. (3) The trial court did not err by failing to instruct the jury on the

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lesser-included offense of fourth-degree assault in relation to the two counts of second-degree assault. (4) The jury instructions’ failure to define the term “dangerous instrument” was harmless error. (5) The trial court did not err by failing to strike three jurors for cause. Further, the defendant’s arguments that the jurors should have been struck for cause based on their responses during “death qualifying” individual voir dire were rendered moot when the defendant was found not guilty by reason of insanity of the capital offense of murder and the aggravating offense of first-degree burglary. (6) The trial court erred by admitting evidence that the defendant had previously shaken his infant daughter resulting in physical injury to her, but that error was harmless. The evidence was introduced to challenge the basis of the defense’s expert witness’ opinion that the defendant was legally insane during the commission of his crimes. The trial court erred by not making the requisite finding under KRS 703(b) that the evidence was trustworthy, necessary to illuminate testimony, and unprivileged. The error was harmless because the evidence could

otherwise properly be used to challenge the basis of the expert’s opinion and the defendant was found not guilty by reason of insanity of murder and burglary and guilty but mentally ill of three counts of assault.

N. Fisher v. Commonwealth, 620 S.W.3d 1 (Ky. 2021) Opinion of the Court by Chief Justice Minton. All sitting; all concur. Appellant Rick Fisher was tried jointly with a co-defendant for complicity to murder and tampering with physical evidence, for which he was convicted and sentenced to thirty-years’ imprisonment. Appellant appealed as a matter of right claiming (1) the admission of a co-defendant’s unredacted out-of-court statements to a jail cell-mate against Appellant in a joint trial violated the Confrontation Clause of the United States Constitution under Bruton v. United States and Richardson v. Marsh; (2) that the trial court improperly admitted hearsay against Appellant through the recording of a phone call he made from jail; and (3) that the Commonwealth’s Attorney improperly questioned a witness, amounting to prosecutorial misconduct and warranting reversal and retrial. First, the Supreme Court clarified the Confrontation Clause only applies to testimonial statements, even those statements made out-of-court, so the trial court did not err in admitting a co-defendant’s unredacted out-of-court statement implicating Appellant when the co-defendant’s statement was made in what she thought at the time was a private conversation with a cell-mate, as opposed to a more official fact-finding inquiry; and the Court held the statement was hearsay but was excepted as a statement against the declarant’s penal interest where the co-defendant’s statement implicated her in complicity to murder. Second, admitting the jail phone call was not error, as it contained no hearsay where there was no identifiable assertion of fact. Finally, where the Commonwealth Attorney used questioning methods to coax and suggest answers through an unprepared witness, the Court found the questioning highly improper, but that the misconduct ultimately did not warrant reversal under the circumstances. Accordingly, the Supreme Court affirmed the trial court.

O. Hargroves v. Commonwealth, 615 S.W.3d 1 (Ky. 2020) Opinion of the Court by Justice Nickell. All sitting; all concur. Armed with a loaded revolver, Hargroves knocked on the door of Williams’ apartment. When Williams opened the door, Hargroves saw his girlfriend, Dixon, and their toddler, sitting on a couch. Williams and Dixon were not romantically involved; Hargroves, Dixon and

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Williams were good friends. Hargroves quickly fired six shots into the apartment and fled on foot. Williams named Hargroves as the shooter before dying of multiple gunshot wounds. Dixon was shot once in the chest and hospitalized for five days. The child was unharmed. Neither Hargroves nor Dixon testified at trial. Hargroves was convicted of murder, first-degree assault, first-degree wanton endangerment, and possession of marijuana. He was sentenced to a total of forty-five years’ imprisonment. When apprehended, Hargroves admitted shooting Williams. His admission, plus Williams’ identification of Hargroves as the shooter, erased any doubt about the culprit’s identity. The sole question was why he shot. Hargroves, who clearly recalled events preceding the shooting, claimed alcohol blurred his memory of the actual shooting. A detective asked if he acted in self-defense, but Hargroves said nothing. Less than two hours later, setting the foundation for a self-defense theory, Hargroves

spontaneously said he shot Williams because Williams choked him so violently he could barely breathe. Hargroves, an experienced criminal, spoke freely to officers and initiated dialogue at least once. His comments were captured on body cameras worn by officers. Portions were played at trial. Hargroves said he intended to shoot Williams, but expressed anger only toward Dixon, including seeing her and their child with another man (not Williams) the previous night. Held: First, instructions on EED and voluntary intoxication were properly denied due to failure of proof. Second, detective’s response to Commonwealth inquiry about charging decision was cumulative of trial court’s reading of indictment and not palpable error. Hargroves’ opening statement had made charging decision relevant by revealing three defenses, including self-defense, and less than two minutes in a four-day trial was devoted to it. Third, prosecutor properly reenacted shooting during case-in-chief, making medical examiner who plotted bullet trajectories subject to cross-examination. Finally, Court rejected defense claim Miranda warning given soon after arriving at police station grew stale in less than 2.5 hours. No bright line rule establishes when a Miranda warning may become stale, but totality of circumstances must be considered when evaluating potential staleness. Factors include: whether Miranda rights were given; accused’s age and schooling; conditions and length of detention and interrogation; whether lengthy gap occurred; how and why new conversation was initiated and by whom; change in accused’s circumstances; whether all conversations pertained to same charge or set of charges; and, accused’s experience with law enforcement and judicial system.

P. Hodge v. Commonwealth, 610 S.W.3d 227 (Ky. 2020)

Opinion of the Court by Justice VanMeter. Minton, C.J.; Hughes, Keller, Lambert, Nickell, and VanMeter, JJ., sitting. All concur. Wright, J., not sitting. On transfer from the Court of Appeals, the Supreme Court held that the Laurel Circuit Court did not err in denying Hodge’s motion for DNA testing with respect to hair found at the residence of Bessie and Edwin Morris, for whose June 1985 murders, burglary and robbery, Hodge was convicted and sentenced to death. The Court noted that Hodge’s DNA arguments had been raised and rejected both by this Court and the federal courts, but nonetheless proceeded to address the merits of his claims due to the severity of his sentence. With respect to Hodge’s claim that testing seven hairs may prove that co-

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defendant Bartley had entered the Morrises’ house with him, the Supreme Court noted the proof that Bartley was also at the crime scene that night and that DNA results of hair testing showing that Bartley was inside the home with Hodge would not have influenced the jury to find Hodge not guilty as any evidence that Bartley’s hairs were inside the home would not demonstrate that Hodge was not also inside and helped to kill and rob the two victims and burglarize the residence. Based on the extensive evidence of Hodge’s direct involvement inside the residence, the Court concluded that no reasonable probability exists that Hodge’s “verdict or sentence would have been more favorable if the results of DNA testing and analysis had been available at the trial leading to the judgment of conviction; or DNA testing and analysis will produce exculpatory evidence[.]” KRS 422.285(6)(a).

Q. Hubers v. Commonwealth, 617 S.W.3d 750 (Ky. 2020) Opinion of the Court by Justice Hughes. All sitting; all concur. On April 15, 2015, a

Campbell County jury convicted Shayna Hubers of the murder of her boyfriend, Ryan Poston. After discovering that a convicted felon served on the jury, Hubers moved for a new trial and the Campbell Circuit Court granted her motion. Her sixteen-day retrial in August 2018 once again ended with Hubers’s conviction. The trial court sentenced her to life imprisonment in accordance with the jury’s recommendation. Hubers appealed as a matter of right, raising issues concerning jury selection, her motion to change venue due to pretrial publicity, and the admissibility of various items of evidence. The Supreme Court held that a juror’s knowledge that a prior trial of the same case ended with a conviction is not automatically disqualifying. Further, despite heightened media coverage of the case, the trial court acted properly in seating a qualified jury and by denying Hubers’s change of venue motion but allowing the parties to mail a juror questionnaire prior to trial and conducting individual voir dire of each potential juror. Other issues included the admissibility of various items of evidence, including evidence of the victim’s prior drug use, and admission of testimony regarding Hubers’s lack of remorse. The Court also addressed the unavailability of a witness due to mental infirmity under Kentucky Rule of Evidence (KRE) 804(a)(4) and concluded that consideration of sworn testimony from two reliable witnesses was sufficient for the trial court to determine that a witness was unavailable. Finding no error, the Court affirmed the judgment and sentence of the Campbell Circuit Court.

R. Jenkins v. Commonwealth, 607 S.W.3d 601 (Ky. 2020) Opinion of the Court by Justice Wright. All sitting; all concur. A Fayette Circuit Court jury convicted Appellant, Carlos Deandre Jenkins, of first-degree assault, eight counts of first-degree wanton endangerment, tampering with physical evidence, and of being a persistent felony offender (PFO). Jenkins was sentenced to life imprisonment, and now appealed to the Supreme Court of Kentucky as a matter of right. Ky. Const. §110(2)(b). On appeal, Jenkins alleged the trial court erred by: (1) denying a missing evidence instruction, (2) admitting cell phone location evidence, and (3) failing to grant a directed verdict on the PFO charge. The Supreme Court affirmed Jenkins’s felony convictions, holding the trial court did not err in denying a missing evidence instruction or by admitting cell phone location evidence. However, the Court held the trial court should have granted Jenkins’s motion for directed verdict motion on the PFO charge, as the Commonwealth failed to prove a sentence of more than one year had been imposed in Jenkins’s prior out-of-state conviction pursuant to KRS

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532.080(2). In reaching its holding, the Court overruled James v. Commonwealth, 647 S.W.2d 794 (Ky. 1983), reversed on other grounds by James v. Kentucky, 104 S. Ct. 1830 (1984). The Court emphasized that, “while the statute does not require actual imprisonment, it does require proof of the imposition of a sentence of one year or more, even if the sentence was then probated.”

S. Commonwealth v. Jennings, 613 S.W.3d 14 (Ky. 2020) Opinion of the Court by Justice Nickell. All sitting; all concur. Keith Jennings, a registered sex offender, was prohibited from accessing the internet as a term of his probation. After violating this term, Jennings moved the Kenton Circuit Court to remove the restriction. The motion was denied and the trial court sanctioned Jennings for the violation. Jennings appealed to the Court of Appeals which relied on Packingham v. North Carolina, 137 S.Ct. 1730 (2017) and Doe v. Commonwealth, ex rel. Tilley, 283 F.Supp.3d 608 (E.D.Ky. 2017), in its analysis of internet restrictions on sex offender probationers. The Court of Appeals vacated and remanded the matter upon concluding the complete internet ban was not narrowly tailored, burdened more First Amendment rights than necessary to further the government’s interests, did not increase public safety, and was unconstitutionally vague. On grant of discretionary review, the Supreme Court agreed with the Court of Appeals that complete internet bans may pass constitutional muster in extraordinary circumstances, but held limited, focused, and rationally-related restrictions are more typically required. Total bans should be exceedingly rare. However, the Supreme Court concluded Jennings had not challenged the terms of his probation when imposed as required by Butler v. Commonwealth, 304 S.W.3d 78, 80 (Ky. App. 2010)—having done so only after he had violated the internet restriction and was facing revocation. This failure was fatal to the appeal. ccordingly, because the Court of Appeals erred in reaching the merits of the untimely challenge, its decision was reversed.

T. Lee v. Ky. Dep’t of Corrs., 610 S.W.3d 254 (Ky. 2020) Opinion of the Court by Justice Hughes. Minton, C.J.; Hughes, Keller, Nickell, VanMeter and Wright, JJ., sitting. All concur. Lambert, J., not sitting. Criminal Appeal, Discretionary Review Granted. Kenneth Lee was convicted of twelve counts of robbery and was classified by the Kentucky Department of Corrections (DOC) under KRS 429.3401(1) as a violent offender, despite the Jefferson Circuit Court not stating in its judgment that any of Lee’s victims suffered serious physical injury or death. Lee petitioned Lyon Circuit Court to declare his violent offender classification unconstitutional, primarily relying on an apparent inconsistency between Pate v. Department of Corrections,466 S.W.3d 480 (Ky. 2015), and Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008). Benet holds that a defendant automatically becomes a violent offender at the time of his conviction of an offense specifically enumerated in KRS 439.3401(1), regardless of whether the final judgment contains a designation about the victim suffering serious physical injury or death. The Lyon Circuit Court dismissed Lee’s petition for a declaration of rights and the Court of Appeals affirmed. Upon discretionary review, the Kentucky Supreme Court concluded Benet accurately interprets KRS 439.3401(1), overruled the portion of Pate inconsistent with Benet, and affirmed the Court of Appeals and Lyon Circuit Court. Because KRS 439.3401(1)(m) clearly provides that one who commits first-degree robbery is a violent offender, the DOC properly classified Lee as a violent offender. The plain language of KRS

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439.3401(1) requires a trial court judgment to state if a victim of any crime listed in KRS 439.3401(1) suffers death or physical injury, if such a finding is supported by the facts of a case. Because none of Lee’s victims suffered serious physical injury or death, the trial court was not required to make any such designation in Lee’s final judgment.

U. Commonwealth v. McCarthy, 2019-SC-0380-DG (Ky. Apr. 29, 2021) not

final Opinion of the Court by Justice Hughes. All sitting. Minton, C.J.; Keller, Lambert, and Nickell, JJ., concur. VanMeter, J., concurring in part and dissenting in part by separate opinion in which Conley, J., joins. Criminal Appeal, Discretionary Review Granted. McCarthy was arrested for driving under the influence (DUI) and refused to submit to a warrantless blood alcohol test. He moved pretrial to exclude from evidence his refusal to submit to the test. The trial court ruled McCarthy’s refusal to

submit to a blood test could not be used to enhance his criminal penalty for DUI and could not be used as evidence that he was guilty of DUI, as otherwise allowed under KRS 189A.105(2)(a)1; however, the refusal could be introduced to explain the Commonwealth’s lack of scientific evidence as to McCarthy’s blood alcohol content. A jury found McCarthy guilty of DUI, fourth offense. The Court of Appeals concluded the trial court erred by allowing the refusal to be entered into evidence and, finding the error was not harmless, reversed the conviction. Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), announced that the Fourth Amendment prohibits warrantless blood tests; without a warrant, either a valid consent or evidence of exigent circumstances is required. Given that warrantless blood tests are invalid under the Fourth Amendment absent a valid exception to the warrant requirement, a defendant cannot be criminally sanctioned for refusing to consent. Because KRS 189A.105 imposes an unauthorized penalty on refusal to submit to a warrantless blood test, the trial court properly determined McCarthy’s refusal could not be used to enhance his penalty upon his conviction of DUI. The trial court also properly ruled that McCarthy’s refusal could not be introduced as evidence of his guilt during the DUI prosecution. Kentucky precedent, Deno v. Commonwealth, 177 S.W.3d 753 (Ky. 2005), and Coulthard v. Commonwealth, 230 S.W.3d 572, 582 (Ky. 2007), generally prohibits introduction of evidence that a defendant exercised his constitutionally-recognized right to be free from a Fourth Amendment search. McCarthy’s right to refuse a blood test was inadmissible as evidence of his guilt of DUI and nothing arose via McCarthy’s defense that would have rendered it otherwise admissible as rebuttal or impeachment evidence, a concept recognized in Coulthard. Because the erroneously admitted evidence was not harmless beyond a reasonable doubt, the Supreme Court affirmed the Court of Appeals, reversed McCarthy’s conviction and remanded the case to the trial court for further proceedings.

V. Commonwealth v. Mitchell, 610 S.W.3d 263 (Ky. 2020)

Opinion of the Court by Justice Keller. All sitting; all concur. LeeCole Mitchell entered a conditional guilty plea to the charge of felon in possession of a handgun, reserving the right to appeal the trial court’s denial of his motion to suppress evidence obtained from the search of a vehicle in which he was a passenger. Mitchell argued that the stop was impermissibly extended under Rodriguez v. United States, 575 U.S. 348 (2015), to facilitate the dog sniff.

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At the suppression hearing, the Commonwealth argued the stop was not impermissibly extended to facilitate the dog sniff and that officers possessed reasonable suspicion transforming the stop into a Terry stop justifying Mitchell’s detention until the dog’s arrival. The trial court found the stop was not unreasonably delayed but did not address the Commonwealth’s reasonable suspicion argument. The Court of Appeals reversed, finding that the stop was impermissibly extended and that the Commonwealth was precluded from arguing reasonable suspicion to justify the extension.

The Kentucky Supreme Court granted discretionary review to decide whether the officers impermissibly extended Mitchell’s stop and whether Smith v. Commonwealth, 542 S.W.3d 276 (Ky. 2018), precluded the Commonwealth’s reasonable suspicion argument. The Supreme Court affirmed the Court of Appeals’ holding that Mitchell’s stop was impermissibly extended but reversed its holding that the Commonwealth’s

reasonable suspicion argument was precluded.

In affirming the impermissible extension, the Court stated the permissible duration of a stop is a fluid and fact dependent analysis. Courts must review the actual actions taken by the officers during the stop. Here, it was unrefuted that officers ceased conducting the original purpose of the stop to discuss the need for a canine unit and that the completion of the citation corresponded with the arrival of the canine unit. There is no de minimis or “reasonableness” exception for delays attributed to actions unrelated to the stop’s original purpose.

As to officers’ reasonable suspicion, the Court held the Court of Appeals erred in finding the issue precluded. The Court of Appeals incorrectly applied Smith to the Commonwealth’s argument. Smith concerned a case where the Commonwealth was seeking to reverse a trial court’s suppression of evidence by introducing a new argument at the appellate level. Under CR 52.04, a party seeking to reverse a trial court is precluded from arguing issues not brought to the attention of the trial court, but the restriction does not apply to arguments seeking to affirm a trial court. Furthermore, the Commonwealth argued reasonable suspicion to the trial court, but the trial court failed to make any findings relevant to that argument. Due to a lack of factual findings or conclusions of law on the record regarding officers’ reasonable suspicion, the issue was remanded to the trial court.

W. Ray v. Commonwealth, 611 S.W.3d 250 (Ky. 2020) Opinion of the Court by Justice Lambert. All sitting. Minton, C.J.; Hughes, Lambert, VanMeter, and Wright, JJ., concur. Keller and Nickell, JJ., concur in result only. Ray was convicted of one count each of attempted murder, first-degree robbery, first-degree burglary, first-degree wanton endangerment, and violating an emergency protective order/domestic violence order. Ray broke into the home of his father-in-law and attacked his estranged wife. On appeal, Ray argued that the trial court erred by failing to grant his directed verdict motions on the charges of first-degree robbery and first-degree wanton endangerment. The Commonwealth responded that Ray failed to properly preserve the issue for appeal due to his failure to move for directed verdict on all of the charges against him, as well as all of their lesser included offenses, and thereafter failed to object to the jury being instructed on first-degree robbery and first-degree wanton endangerment. The Court held that the rule cited by the Commonwealth had historically been inconsistently applied and was cumbersome and

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inconsistent with modern trial practice. The Court overruled Kimbrough v. Commonwealth, 550 S.W.2d 525 (Ky. 1977), and its progeny insofar as it requires a defendant to move for directed verdict on all of the charges against him and all of their lesser included offenses and thereafter object to a jury instruction on a particular charge in order to preserve a failure to grant a directed verdict issue for appeal. The Court held that in order to preserve a directed verdict issue for appeal, a criminal defendant need only move for a directed verdict at the close of the Commonwealth’s evidence; renew the same directed verdict motion at the close of all the evidence, unless the defendant does not present any evidence; and in those motions identify the particular charge the Commonwealth allegedly failed to prove and which elements of the charge the Commonwealth allegedly failed to prove. The Court further held that the trial court did not err by denying Ray’s motions for directed verdict, and that no reversible errors occurred during the sentencing phase of Ray’s trial.

X. Pope v. Commonwealth, 617 S.W.3d 364 (Ky. 2021) Opinion of the Court by Justice Hughes. All sitting; all concur. Christopher Pope was found guilty by a Lincoln County jury of trafficking in a controlled substance (heroin) in the first degree. The charge stemmed from Pope selling heroin to a confidential informant during a controlled buy. The controlled buy was arranged by deputies from the Boyle County Sheriff’s Department who apparently anticipated the buy would occur in Boyle County. However, Pope instructed the informant that he would not make the sale in Boyle County and to meet him at a fast-food restaurant in adjoining Lincoln County. The Boyle County deputies received prior verbal approval from the Lincoln County Sheriff’s Department for their investigative activities in Lincoln County, surveilled the entire transaction, and testified before a Lincoln County grand jury. Following Pope’s indictment by that grand jury, a Boyle County officer arrested Pope in Boyle County. Pope’s primary argument on appeal is that the circuit court erred by denying his pretrial motion to either suppress the evidence from the undercover drug buy or dismiss the indictment because the Boyle County deputies lacked jurisdiction to conduct an investigation in Lincoln County. Held: Although Pope’s jurisdiction argument is premised on KRS 431.007(1), that statute does not apply in Pope’s case. Instead, KRS 218A.240(1) applies; KRS 218A.240 pertinently directs law enforcement agencies charged with enforcing the state’s controlled substance laws to cooperate with one another in the effort. To the extent the Boyle County officers needed permission for their out-of-county surveillance activities, it was granted by the Lincoln County Sheriff’s Department. Furthermore, without an explanation of how the Boyle County deputies violated his constitutional rights or reliance on a statute which mandates exclusion of evidence upon its violation, suppression of evidence is not a remedy available to Pope.

Y. Rhoton v. Commonwealth, 610 S.W.3d 273 (Ky. 2020)

Opinion of the Court by Justice Keller. All sitting; all concur. Rickey Allen Rhoton entered a conditional guilty plea to charges of first-degree possession of a controlled substance, possession of a controlled substance not in original container, and possession of drug paraphernalia. Rhoton moved to suppress the evidence based on the trooper impermissibly extending his stop of Rhoton for a seatbelt violation to facilitate a canine search.

At the suppression hearing, the trial court found that while the stop exceeded the trooper’s ordinary seatbelt stop, it was not excessive given the trooper’s discovery of an

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outstanding warrant for the arrest of Rhoton’s passenger and the need to take the passenger into custody. Furthermore, even absent the need to take the passenger into custody, the trooper’s observation of a container he associated with drug activity, coupled with the stop’s location, provided an independent reasonable suspicion of criminal activity to justify prolonging the stop. The Court of Appeals affirmed the trial court.

The Kentucky Supreme Court granted Rhoton’s motion for discretionary review to address two questions. First, was Rhoton’s stop impermissibly extended? Second, was the trooper’s observation of a small container, readily available from local merchants, sufficient independent reasonable suspicion for a search?

The Supreme Court held that actions taken to facilitate the arrest of Rhoton’s passenger did not impermissibly extend his traffic stop. While the stop exceeded the

time for an ordinary seatbelt violation, this was not an ordinary stop. Officers are permitted to run routine warrant checks, and the resulting notification of an outstanding warrant provided the trooper independent probable cause to extend a stop for the time reasonably necessary to address the warrant. Citing the recent opinion from Carlisle v. Commonwealth, 601 S.W.3d 168 (Ky. 2020), the Court held that in the interest of officer safety, those at the scene can be detained until a stop is complete. While Carlisle dealt with the detention of a passenger as officers investigated the driver, the Court concluded there was no reason for the rule to apply differently to the detention of a driver while processing the passenger. Having found that Rhoton’s traffic stop was not impermissibly extended, the Supreme Court declined to address whether the trooper’s observation of the container combined with the stop being in a high-crime area provided independent reasonable suspicion to extend the stop.

Z. Taylor v. Commonwealth, 617 S.W.3d 321 (Ky. 2020)

Opinion of the Court by Justice VanMeter. All sitting; all concur. Chazerae Taylor appeals as a matter of right from his twenty-year sentence for convictions of wanton murder and four counts of first-degree wanton endangerment. A jury convicted Taylor of murder under a theory of aggravated wanton conduct under KRS 507.020(1)(b), which requires a person to act “under circumstances manifesting extreme indifference to human life . . . [and] wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.” With respect to first-degree wanton endangerment, the jury found that Taylor engaged in conduct that created “a substantial danger of death or serious physical injury to another person.” KRS 508.060(1). The Supreme Court affirmed Taylor’s convictions and sentence, finding that the trial court did not err by denying his motions for a directed verdict of acquittal on these charges. Under KRS 501.020(3), the Court held that a jury could have reasonably found that Taylor’s conduct was “wanton” – that he

knew, or should have known, a shoot-out was rendered substantially more probable by his firing the initial, and multiple, shots into the air amid a late-night crowd gathered in a parking lot to socialize, and that he consciously disregarded a risk that a reasonable person in the same situation would not have disregarded. Regarding causation per KRS 501.060, the Court held that a reasonable jury could have concluded that Taylor’s conduct set into motion the foreseeable response gunfire that resulted in the victim’s death and created a substantial danger of death or serious physical injury to the four people in the victim’s immediate vicinity. With respect to whether others’ responsive gunfire was an intervening event that cut off the chain of

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causation between Taylor’s conduct and the victim’s death and the endangerment to those near her, the Court held that the inquiry was the same: “Did the defendant know, or have reason to know, that the result (as it actually occurred) was rendered substantially more probable by his conduct?” The Court concluded that the chain of causation remained unbroken in this case and accordingly affirmed.

AA. Taylor v. Commonwealth, 611 S.W.3d 730 (Ky. 2020) Opinion of the Court by Justice VanMeter. All sitting; all concur. Taylor and Kaballah appealed as a matter of right their convictions for Criminal Attempt – Murder, First Degree Assault, and of being a Persistent Felony Offender. The defendants alleged multiple errors, and the Court held that both Defendants should have received Miranda warnings prior to an interrogation which occurred while both were incarcerated and directly after the incident leading to interrogation was committed. Evidence showed that both defendants were in custody during questioning and that no knowing and voluntary waiver of rights occurred. Further, the trial court should not have allowed a transcript of one Defendant’s phone call drafted by the Commonwealth to be shown to the jury during closing arguments. However, both errors were deemed harmless. The Court affirmed all other claims of error on appeal. Accordingly, the Court affirmed the judgment and sentence imposed by the trial court.

AB. Thomas v. Commonwealth, 605 S.W.3d 545 (Ky. 2020) Opinion of the Court by Chief Justice Minton. All sitting; all concur. Opinion of the Court by Chief Justice Minton. All sitting; all concur. For crimes committed when he was seventeen years old, Thomas was prosecuted in circuit court as a youthful offender. He pleaded guilty to first-degree robbery, first-degree assault, second-degree wanton endangerment, and murder, with a twelve-year sentence recommended for the first four charges and twenty-year sentence recommended for the murder charge. The plea agreement provided all charges would run concurrently for a total of twenty years, but the agreement also contained a hammer clause that allowed the Commonwealth to recommend imposition of the statutory maximum for all offenses if Thomas failed to show for final sentencing. Thomas failed to appear at sentencing, so when Thomas was ultimately brought back before the trial court, it sentenced Thomas to the statutory maximum: life plus fifty years. After a successful appeal from the denial of his collateral attack on the judgment, the trial court imposed the same sentence on remand. On Thomas’s direct appeal from the resentencing, he claimed the trial court erred by: (1) failing to allow him to withdraw his guilty pleas, (2) denying his motion to disqualify the trial judge, and (3) sentencing Thomas, a youthful offender, without considering probation or conditional discharge as sentencing options. The Supreme Court affirmed on all issues except for Thomas’s sentencing. The Court held that the trial court erred in failing to consider probation or another form of conditional discharge in accordance with KRS 533.010 before sentencing Thomas to imprisonment, as the relevant violent-offender statute is inapplicable to youthful offenders even if the youthful offender was over the age of 18 by the time of sentencing.

AC. Towe v. Commonwealth, 617 S.W.3d 355 (Ky. 2021) Opinion of the Court by Chief Justice Minton. All sitting; all concur. A circuit court jury convicted Joshua Towe of two counts of first-degree sexual abuse and two counts of first-degree sodomy and fixed his punishment at imprisonment for life. He appealed

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to the Supreme Court as a matter of right arguing several trial errors, including that the jury instructions violated the Double Jeopardy Clause of the Kentucky and United States’ Constitutions, that the Commonwealth presented insufficient evidence to sustain a conviction of first-degree sodomy, and that the Commonwealth’s Attorney’s improperly vouched in closing argument for the reliability of the victim’s testimony denied him a fair trial. The Supreme Court reviewed found that no error occurred and affirmed Towe’s judgment.

VII. EMPLOYMENT

A. Barnett v. Cent. Ky. Hauling, LLC, 617 S.W.3d 339 (Ky. 2021) Opinion of the Court by Chief Justice Minton. Minton, C.J.; Conley, Hughes, Keller, Nickell, and VanMeter, JJ., sitting. Minton, C.J.; Conley, Hughes, Keller, Nickell, and VanMeter, concur. Lambert, J., not sitting. The Supreme Court was asked to consider

whether the Kentucky Civil Rights Act (KCRA) bars an employer from discharging an employee because of the disability of an individual with whom the employee associates. Both the trial court and the Court of Appeals found the KCRA does not provide such protection because it associational discrimination is not mentioned or implied in the statute. The Supreme Court agreed, holding that although the KCRA bars an employer from discharging an employee because of disability, it does not protect against discrimination for association with a disabled person.

B. Britt v. Univ. of Louisville, 2019-SC-0399-DG, 2021 WL 1133207 (Ky. Mar. 25, 2021) not final

Opinion of the Court by Justice Lambert. Minton, C.J.; Conley, Hughes, Keller, Lambert, and VanMeter, JJ., sitting. Nickell, J., not sitting. Minton, C.J.; Conley, Hughes, Keller, Lambert and VanMeter, JJ., concur. In this breach of contract action, the University of Louisville claimed that they were immune from suit under the Kentucky Model Procurement Code, codified at KRS 45A. The Court held that Dr. Britt and the University executed a series of valid, written contracts, thus potentially waiving governmental immunity. However, because Dr. Britt failed to bring her action within one year from the termination date of her last written contract pursuant to KRS 45A.260, her action was not timely.

C. Norton Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696 (Ky. 2020) Opinion of the Court by Chief Justice Minton. Minton, C.J.; Hughes, Keller, Lambert, VanMeter, and Wright, JJ., sitting. All concur. Nickell, J., not sitting. Appellee Donna Disselkamp began working as an Imaging Services Supervisor for Appellant Norton Healthcare, Inc. in 2001. In 2012, when Appellee was 60 years old, Appellee was terminated following allegations from her immediate supervisor that Appellee falsified data used to prepare “Quality Management Team” reports. Following a jury trial on Appellee’s claims of age discrimination and retaliation in violation of the Kentucky Civil Rights Act, the jury found in favor of Appellant on all claims. The Court of Appeals found reversible error in only one of the five claims of error raised by Disselkamp; holding that the trial court erred in including in the age discrimination jury instruction the requirement that Disselkamp show that she was replaced by a “substantially younger” employee.

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The Supreme Court affirmed the Court of Appeals’ decision. The Court held that the trial court misstated the law by including in the age discrimination jury instruction the element that the Appellee was replaced by a substantially younger employee. The Court ruled that in an age discrimination case based on circumstantial evidence, the trial court, not the jury, is to make the factual finding that the plaintiff satisfied its burden of proving each element of the McDonnell Douglas paradigm, including whether the plaintiff was replaced by a substantially younger employee, before the age discrimination claim is submitted to the jury to make the ultimate determination as to whether unlawful discrimination occurred. Based on the previous finding of reversible error, the Appellee’s argument that the trial court erred in refusing to allow Plaintiff to recall a key witness is rendered moot. As to Appellee’s arguments regarding errors contained in the retaliation jury instruction, the Court held that the jury instruction on Appellee’s retaliation claim did not misstate the law by including the name of Appellant’s Human Resource Manager among the list of potential retaliators, as the

use of the word “or” between the three potential retaliators listed allowed the jury to find in Appellee’s favor by finding that only one of individuals unlawfully retaliated against the plaintiff. The Court, however, declined to consider Appellee’s argument that the retaliation jury instruction misstated the law by providing that the jury would find in favor of the Appellee if it found that Appellee engaged in a protected activity by complaining to Appellant about “harassment and gender discrimination” because Appellee failed to preserve this argument for appellate review, as Appellee’s proposed instruction was not so different as to “fairly and adequately present the party's position as to an allegation of instructional error,” as required under CR 51(3). Finally, the Court held that the trial court did not abuse its discretion in denying Appellee’s request for a missing evidence instruction because Appellee either failed to show that the evidence was material to her case or failed to show that the evidence even existed.

VIII. EVIDENCE

A. Thomas v. Univ. Med. Ctr., Inc., __ S.W.3d __, 2020 WL 5103681 (Ky. 2020) Opinion of the Court by Justice Keller. Minton, C.J.; Hughes, VanMeter, Wright, JJ., Foster and Bentley, S.J.; sitting. All concur. Lambert and Nickell, JJ., not sitting. Dennis Thomas, in his capacity as Administrator of the estate of his deceased wife, Glenda Thomas, and in his individual capacity, appealed the decision of the Jefferson Circuit Court to exclude from evidence a Root Cause Analysis (“RCA”) and to grant a directed verdict in favor of Neurosurgical Institute of Kentucky, P.S.C. (“NIK”) and the Court of Appeals’ affirmation of the trial court. Glenda Lee Thomas underwent an anterior cervical discectomy and fusion procedure. The surgery was performed at University Medical Center, Inc. (“UMC”) by Dr. Aasim Kazmi, a sixth-year neurosurgical resident, under the supervision of Dr. Todd Vitaz, the attending surgeon. After the surgery, Mrs. Thomas suffered from anoxic encephalopathy, or brain injury from lack of blood flow. She passed away a few days later, after supportive care was withdrawn. Dennis Thomas, in his capacity as administrator of his wife’s estate and in his individual capacity, filed a medical negligence suit against UMC, Drs. Vitaz, Jernigan, and Kazmi, and NIK, a private neurosurgery practice to which Dr. Vitaz belonged. He

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later added claims of negligent training and supervision. During discovery, UMC revealed the existence of a “Root Cause Analysis and Action Plan” (“RCA”). Thomas argued that (1) the trial court erred in excluding the RCA under Kentucky Rule of Evidence (“KRE”) 407; (2) the Court of Appeals misconstrued the evidence in the record and improperly considered and applied KRE 403; (3) the trial court erred in excluding the RCA when offered for impeachment purposes; and (4) the trial court erred in directing a verdict in favor of NIK. Th Supreme Court held that the trial court erred in excluding the RCA under KRE 407; however, that error was harmless. As a matter of first impression, the Court held that whether a post-incident investigatory report like the RCA is admissible turns on whether the report recommends a remedial change and whether that change was implemented. Generally speaking, KRE 407 will not prevent the admission of the

report when its suggested remedial measures are not taken, as the information would not have made the incident less likely to occur. However, the Court acknowledged that it might be possible in rare situations to characterize such reports as “measures” which, if conducted previously would reduce the likelihood of the occurrence. If an investigatory report includes a recommendation for some remedial measure, and that measure is taken, the report is so inextricably intertwined with the subsequent remedial measure that it must be excluded as such under KRE 407. In this case, the remedial measure recommended in the RCA was not taken, and the RCA itself was not a remedial measure, so the trial court erred in excluding the RCA under KRE 407. However, that error was harmless because the trial court properly excluded the RCA under KRE 403. The probative value of the RCA was minimal, and the potential for undue prejudice, confusion of the issues, or misleading the jury was high. Further, the Court held that the trial court did not err in excluding the RCA when offered for impeachment purposes, as it did not directly contradict the witness’s statements.

IX. FAMILY LAW

A. A.G. v. Cabinet for Health & Fam. Servs., 2020-SC-0273-DGE (Ky. Apr. 29, 2021) not final

Opinion of the Court by Justice Lambert. All sitting; all concur. A termination of parental rights action in which the Court reversed the Court of Appeals and vacated the judgment of the Jefferson Family Court. The Court held that the record did not contain substantial evidence of dependency, neglect, or abuse sufficient to support termination pursuant to KRS 425.090. Further, the Court held that a noncustodial parent who is not subject to allegations of neglect or abuse is not required to complete a home study under KRS 615.030, the Interstate Compact for the Placement of Children.

B. Blackaby v. Barnes, 614 S.W.3d 897 (Ky. 2021) Opinion of the Court by Justice VanMeter. All sitting; all concur. The Kentucky Supreme Court granted discretionary review to address the effect of a grandparent visitation petition filed by a paternal grandfather, Appellant Shayne Blackaby, after his son’s parental rights lapsed by virtue of his death, and after an adoption by the child’s maternal grandmother, Appellee Nancy Barnes, had been finalized. The Shelby Circuit

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Court dismissed Blackaby’s petition for grandparent visitation on grounds that he lost standing to seek formal visitation after the adoption of his grandchild had been finalized. The family court also found that Blackaby did not meet the stepparent exception established in Hicks v. Enlow, 764 S.W.2d 68 (Ky. 1989). The Court of Appeals affirmed. The Supreme Court reversed and held that the grandparent visitation statute, KRS 405.021, does not contemplate the situation at hand and that the public policy considerations of the stepparent exception articulated in Hicks extend equally to an intra-family grandparent adoption such as this one. The Court remanded the case to the family court with instructions to conduct an evidentiary hearing on whether Blackaby can prove, as required by KRS 405.021, that continued visitation would be in the best interests of the child.

C. Cabinet for Health & Fam. Servs. v. H.L.O.,

2020-SC-0276-DGE (Ky. Apr. 29, 2021) not final Opinion of the Court by Justice Keller. All sitting; all concur. E.R.-L.O. was born in February 2016, and at birth, both she and her mother, H.L.O., tested positive for Methamphetamine and Buprenorphine. E.R.-L.O. was placed in the Cabinet’s custody, where she has remained her entire life. Following an evidentiary hearing in February 2019, the Letcher Circuit Court terminated H.L.O.’s parental rights. The circuit court specifically found three grounds justifying H.L.O.’s termination. First, H.L.O. had continuously or repeatedly failed or refused to provide or had been substantially incapable of providing essential parental care and protection with no reasonable expectation for improvement considering the age of the child. KRS 625.090(2)(e). Second, for reasons other than poverty alone, H.L.O. had continuously or repeatedly failed to provide, or was incapable of providing, essential food, clothing, shelter, medical care, or education with no reasonable expectation of improvement in the immediately foreseeable future. KRS 625.090(2)(g). Third, E.R.-L.O. had been in the custody of the Cabinet for fifteen of the past forty-eight months. KRS 625.090(2)(j).

A divided Court of Appeals reversed the trial court’s termination. The Court of Appeals held that the circuit court’s findings pursuant to KRS 624.090(2)(e) and (g) were not supported by clear and convincing evidence. It went on to say that while E.R.-L.O. had been in the Cabinet’s custody for the requisite length of time under KRS 625.090(2)(j), the facts of the case were such that the circumstances should not be held against H.L.O.

The Kentucky Supreme Court granted discretionary review. The Supreme Court reversed the Court of

Appeals, holding that the circuit court’s findings under KRS 625.090(e) and (g) were supported by

substantial evidence. The Court held that the circuit court’s consideration of H.L.O.’s relationship with

her significant other was relevant to the circuit court’s assessment of H.L.O.’s protective capacity, her

ability to support E.R.-L.O., and her reasonable expectation for improvement in these measures. The

Court then turned to E.R.-L.O.’s time in the Cabinet’s custody, holding that for purposes of KRS

625.090(2)(j), it is a measure of the time from the first custody order, not from a permanent commitment

order.

D. Greene v. Boyd, 603 S.W.3d 231 (Ky. 2020)

Opinion of the Court by Chief Justice Minton. All sitting; all concur. Michael Greene moved the Oldham Family Court to modify the parenting schedule of his two minor children with his former wife, Elizabeth Boyd. The family court denied the motion to modify, and Greene appealed. The Court of Appeals found that the family court judge

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had erroneously admitted and considered hearsay statements and impermissible medical expert testimony in the investigative report and testimony of the court-appointed Friend of the Court (“FOC”). But the Court of Appeals ultimately found those errors to be harmless and affirmed the family court’s judgment. The Kentucky Supreme Court accepted discretionary review and affirmed the Court of Appeals. The Court held that hearsay statements contained in the testimony and report of an FOC are admissible in a contested custody hearing, as long as the notice and procedural requirements contained in KRS 403.300(3) are met or the parties are otherwise given sufficient notice and an opportunity to challenge the sources of the statements when compliance with the notice requirements in KRS 403.300(3) is not feasible. Because Greene had sufficient notice and an opportunity to challenge the sources of the hearsay at issue, there was no error. Additionally, the Court held that an FOC’s ability to render opinions is constrained by KRE 701 and 702, so an FOC

may not express medical opinions that require qualification as a medical expert witness. Additionally, the court’s appointment of an FOC amounts to a determination that the person is qualified to offer opinion evidence concerning the fitness of a parent and child’s custody arrangement. Because the FOC’s opinions at issue were not medical opinions but were instead opinions concerning the fitness of the parent’s ability to care for her children, the family court did not err in admitting and considering them.

E. M.C. v. Commonwealth, Cabinet for Health & Fam. Servs., 614 S.W.3d 915 (Ky. 2021)

Opinion of the Court by Justice Lambert. All sitting; all concur. The Cabinet filed a dependency, neglect, or abuse (DNA) petition against the biological father of three teenaged children. The Cabinet’s sole allegation was that the father did not stop drinking against the Cabinet’s wishes and that he refused to attend alcoholics anonymous or an intensive outpatient program. The evidence at the adjudication hearing on the DNA petition was that the father would drink a few beers on the back deck of the home after making and eating dinner with the children. The father never drank to the point of stumbling, falling down, or blacking out. The father did not drink in the morning or during the day and he did not drink in front of the children. The Cabinet worker testified that she had no concerns about the children’s attendance or performance in school and that the children were being properly fed, clothed, and otherwise cared for. The Cabinet worker observed nothing in the home that was a threat to the children’s health or well-being. The family court found that the children were neglected by their father under Kentucky Revised Statute 600.020(1)(a)2, 3, 4, and 8. In its subsequent disposition order the family court waived reasonable efforts by the Cabinet for reunification and changed the permanency goal for the children to adoption. The Court of Appeals affirmed. The Supreme Court reversed, holding that the family court abused its discretion by finding that the children were neglected. Though the Court agreed that the father would be well-advised to continue seeking substance use treatment, there was not sufficient evidence to find that the children were neglected as a result of the father’s drinking. The children were of an advanced age and the evidence was uncontroverted that they were being properly cared for by the father.

F. Normandin v. Normandin,

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2018-SC-0451-DG (Ky. Apr. 29, 2021) modified on rehearing Opinion of the Court by Justice Keller. Minton, C.J.; Hughes, Lambert, Keller, VanMeter, and Wright, JJ., sitting. Minton, C.J.; Hughes, Lambert, VanMeter, and Wright, JJ., concur. Nickell, J., not sitting. Laura R. Normandin (Laura) and Scott W. Normandin (Scott) divorced in 2016. The Normandins had a high income, of which a very significant portion was attributable to Restricted Stock Units (RSUs) that Scott received from his employer. Scott’s RSUs were normally granted annually but did not vest until three-years after grant. The family court found the RSUs granted during the marriage, but vesting after date of decree, were entirely non-marital property. Furthermore, the family court did not include the income attributable to the RSUs in its child support calculation. The family court found the parties’ monthly income to be in excess of the support guidelines and ordered a support obligation from the top of the guideline but declined to adjust upward. Lastly, the trial court set a modest maintenance obligation for forty-eight months. The Court of Appeals affirmed each of

the family court’s findings and conclusions. Laura appealed to the Kentucky Supreme Court the classification of Scott’s RSUs as well as the calculation of child support and maintenance.

The Kentucky Supreme Court granted discretionary review to decide whether restricted stock units granted during marriage but vesting after decree of divorce represented marital or nonmarital property. The Kentucky Supreme Court, applying Grasch v. Grasch, 536 S.W.3d 191 (Ky. 2017), found that the RSUs, like Grasch’s contingency fee contract, represented both marital and nonmarital income. The RSUs granted during the marriage but vesting after decree of dissolution were presumptively marital in proportion to the number of months married during the vesting period. Finally, that presumption may be overcome by either party through contrary evidence.

In addressing the child support calculation, the Supreme Court reiterated to the lower courts that KRS 403.212 includes “income from any source” and that the RSUs represented such income and should have been included in the gross monthly income calculation. Citing Laymon v. Bohanan, 599 S.W.3d 351 (Ky. 2020), the Supreme Court stated that the party seeking to use a different income from that recently experienced bears the burden to show that the past income is unlikely to be realized. Therefore, by failing to include the value of the RSUs in calculating income, the family court erred in not including approximately half the Normandins’ expected income.

Lastly, the Supreme Court held that the family court did not abuse its discretion in its calculation of maintenance. The family court correctly addressed the factors relevant to such a determination, even if they were not itemized in its opinion. While the award was modest, it was not an abuse of discretion in light of the assets available to each party.

The issues of RSU classification and child support calculation were remanded to the family court to be addressed in light of this opinion.

G. Pinto v. Robison, 607 S.W.3d 669 (Ky. 2020) Opinion of the Court by Justice Keller. Minton, C.J.; Hughes, Nickell, VanMeter, and Wright, JJ., concur. Lambert, J., not sitting. Lisa and Justin Pinto are the parents of two children. After their divorce, Lisa was granted full custody of the children, and Justin was granted visitation. Approximately ten years later, Lisa passed away, and

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Justin was eventually granted full and sole custody of the children. Lisa’s parents, the Robisons, moved for grandparent visitation under KRS 405.021(1). The trial court denied the Robisons’ motion, finding KRS 405.021(1)(b) and (c) to be unconstitutional under Troxel v. Granville, 530 U.S. 57 (2000), and Walker v. Blair, 382 S.W.3d 862 (Ky. 2012). The Court of Appeals reversed, concluding that KRS 405.021(1)(b) and (c) was narrowly tailored to a very specific set of circumstances and served to protect the relationships a child had with his or her grandparents before the death of the child’s parent. The Supreme Court granted discretionary review. The Supreme Court first reviewed Troxel, 530 U.S. 57, and Walker, 382 S.W.3d 862. It then turned to KRS 405.021(1)(b) and (c), and held that, on its face, the statute runs afoul of a parent’s fundamental constitutional right to the care and custody of his or her child. The Court noted that the preponderance of the evidence standard utilized in the statute is lower than the clear and convincing evidence standard that is required under Walker for a grandparent to rebut the presumption that a parent is acting in the child’s best interest by limiting or denying visitation. Because proving such a relationship by a mere preponderance standard is the only element required by the statute to give the grandparents a rebuttable presumption in their favor, which in turn effectively rebuts the presumption in favor of the parent, the statute fails to accord the parent’s determination regarding his or her child the “special weight” required by Troxel. Accordingly, the Court held that KRS 405.021(1)(b) and (c) is violative of the United States Constitution’s Due Process Clause on its face and reversed the Court of Appeals.

H. R.M. v. Cabinet for Health & Fam. Servs., 620 S.W.3d 32 (Ky. 2021) Opinion of the Court by Chief Justice Minton. All sitting; all concur. Appellant-parents, R.M. and S.M., appealed the Court of Appeals’ opinion affirming a family court’s order permanently terminating parental rights (TPR) to the Appellants’ two boys, D.M. and V.C.M., per KRS 625.090. Appellant-parents moved the Court for discretionary review, which was granted, claiming (1) there was a lack of substantial evidence to support a finding that TPR was in the children’s best interests; (2) that the Cabinet for Health and Family Services failed to make reasonable efforts at reunification as required by law; and (3) the family court admitted prejudicial evidence of another family member’s abuse which unfairly skewed the best interest analysis against the Appellants. First, the Supreme Court held there was substantial evidence supporting TPR was in the children’s best interests where they were left in a van for two hours on a hot summer morning; the children were not enrolled in school but were made to panhandle; when the children were eventually taken into foster care they had

extensive dental neglect, struggled with sexual misbehavior indicative of sexual abuse or indirect exposure to sexual abuse in close family units; and where, most importantly, the Appellant-parents failed to demonstrate an understanding or willingness to change the conditions constituting neglect after several years of rehabilitative social work. All the findings were amply supported by the record and uncontradicted, demonstrating adoption with foster parents was in the children’s best interests. Second, the Cabinet made reasonable efforts when it spent years attempting to reunify the Appellant-parents with the children, while the parents continued the lifestyle practices that led to the children’s removal and resulted in inexcusably slow

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progress towards reunifying with their children. Finally, the Court held the evidence of another family member’s abuse was relevant and admissible where the facts involved Appellants and their children traveling unusually closely with this family member in a caravan of family units traveling the country panhandling and engaging in suspected criminal activity, and that in any case it was harmless error since the family court presumably did not assign unfair blame to the Appellants for the family member’s act. Accordingly, the Supreme Court affirmed the decision of the Court of Appeals.

X. GOVERNMENT CONTRACTS

A. Dolt, Thompson, Shepherd & Conway, P.S.C. v. Commonwealth ex rel. Landrum, 607 S.W.3d 683 (Ky. 2020)

Opinion of the Court by Justice Wright. Minton, C.J.; Hughes, Lambert, Keller, VanMeter, and Wright, JJ., sitting. Minton, C.J.; Hughes, Keller, and Lambert, JJ.,

concur. VanMeter, J., concurs in part and dissents in part by separate opinion. Nickell, J., not sitting. In 2007, then-Attorney General Greg Stumbo filed suit against Purdue Pharma regarding the OxyContin epidemic. Stumbo’s successor, Jack Conway, pursued the action after he took office. The trial court entered judgment on liability in favor of the Commonwealth and Conway engaged in a competitive bidding process to hire outside counsel to assist in the Commonwealth’s litigation. Dolt, Thompson, Shepherd & Kinney won the bid. Under the agreement, Dolt Thompson would be paid on a contingency basis “[i]f the Commonwealth receives . . . a settlement or award.” Conway settled with Purdue Pharma, with half the settlement to be paid in a lump sum and the other half to be paid in installments. Purdue Pharma made the initial lump-sum payment to Dolt Thompson and later then-Attorney General Andy Beshear authorized Dolt Thompson to pay itself the agreed-upon attorneys’ fees and expenses from the settlement funds. At some point the Attorney General’s office realized the contract with Dolt Thompson had expired even though the firm had continued to provide services and incur costs. The Finance Cabinet instructed the Attorney General’s office to request a new contract, which it then approved. Then, the General Assembly specified in the budget bill based in March 2016 that the Attorney General pay the attorney’s fees and expenses in the Purdue Pharma case. A year and a half after the budget bill was passed, the Finance Cabinet sent a letter to Attorney General Beshear asserting that he “may have unlawfully authorized or facilitated payment to” Dolt Thompson. Beshear filed a complaint in Franklin Circuit Court seeking a declaration that the 2016 contract was enforceable and the payment to Dolt Thompson was proper. The Cabinet filed a motion the same day against Dolt Thompson and the trial court consolidated the two actions. When the trial court granted Beshear’s and Dolt Thompson’s motions for summary judgment, the Cabinet appealed to the Court of Appeals, which reversed and remanded to the trial court. The Office of the Attorney General and Dolt Thompson filed a motion for discretionary review with the Supreme Court of Kentucky, which was granted. The Supreme Court reversed the Court of Appeals and reinstated the trial court’s order granting summary judgment. The Supreme Court held that the Model Procurement Code applies to contracts entered into by the Attorney General’s office and that equitable estoppel does not apply in state government procurement; however, the trial court’s grant of summary judgment was proper in light of the Legislature’s direction for the Attorney General to pay attorney’s fees in the 2016 budget bill.

B. Lassiter v. Landrum, 610 S.W.3d 242 (Ky. 2020)

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Opinion of the Court by Justice Lambert. All sitting; all concur. The Court addressed the subpoena powers of the Secretary of the Finance and Administration Cabinet. The Court held: (1) under KRS 45.131 and KRS 42.142, the Secretary may issue subpoenas as part of an investigation into a possible violation of Kentucky’s Model Procurement Code; and (2) the Secretary may issue subpoenas to non-government employees as part of an investigation into a possible violation of Kentucky’s Model Procurement Code.

XI. IMMUNITY

A. A.H. v. Louisville Metro Gov’t, 612 S.W.3d 902 (Ky. 2020) Opinion of the Court by Justice Nickell. All sitting; all concur. James Hatcher presented himself to the Louisville Metro Department of Corrections (LMDC) to serve time for civil contempt for falling behind on child support. During intake he identified

no required prescription medication and mentioned only one active medical condition—a cold making it difficult for him to hear and causing him to sniffle. Less than 24 hours later, he died of ischemic cardiac disease and coronary artery atherosclerosis. His Estate maintains he died from an unwritten LMDC policy preventing inmates from receiving habit-forming, lawfully-prescribed narcotic or psychotropic drugs, and guards routinely ignoring inmate health issues and showing deliberate disregard and indifference for inmate lives and rights in violation of KRS 71.040 which requires jailers to treat inmates humanely.

Hatcher’s Estate filed suit in Jefferson Circuit Court claiming negligence and gross negligence; intentional infliction of mental and emotional distress amounting to the tort of outrage; medical and nursing malpractice; personal injury, wrongful death; loss of parental consortium on behalf of Hatcher’s two minor daughters; and constitutional violations for which it sought compensatory and punitive damages from Louisville Metro Government (LMG); LMDC Director Tom Campbell (Campbell) in both his official and individual capacities; and six LMDC guards. Ultimately, the circuit court granted summary judgment and dismissed all claims with prejudice. The Court of Appeals unanimously affirmed. After granting requests for discretionary review from both sides, the Supreme Court unanimously affirmed in part and vacated in part. Held: LMG may invoke sovereign immunity for alleged violation of KRS 71.040. Louisville and Jefferson County merged in 2003 forming a “consolidated local government” covered by the same sovereign immunity afforded counties under KRS 67C.101(2)(d) and (e). Housing state prisoners—one of LMDC’s responsibilities—is a governmental function to which sovereign immunity applies. KRS 71.040 applies uniquely to “jailers,” but LMG does not have a jailer. Instead, duties relating to prisoners previously performed by the Jefferson County Jailer and Sheriff were transferred to LMDC, as a “department,” but not to LMDC employees. Thus, LMG—through LMDC—must humanely treat prisoners, but because sovereign immunity has not been explicitly waived by KRS 67C.101(2)(e), the Estate could not create a waiver by claiming money damages under KRS 446.070 in connection with an alleged violation of KRS 71.040. The most that can be sought from LMG is equitable relief. Campbell, in his official capacity as appointed Director of LMDC under KRS 67B.040, is covered by the same sovereign immunity insulating LMG. Despite the Estate calling Campbell an “acting jailer” and a “de facto jailer,” he is neither, having never run for,

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nor been elected, jailer. Thus, he could not be held legally responsible in his official capacity for treating a prisoner inhumanely and violating KRS 71.040. Campbell was also not subject to liability in his individual capacity. Having had no contact with Hatcher, and being unaware of his incarceration or medical distress, Campbell was protected by qualified official immunity in his individual capacity. The Estate alleged violation of the Jural Rights Doctrine based on a denial of money damages for the alleged violation of KRS 71.040. The Supreme Court did not review this claim due to the Estate’s failure to notify the Attorney General of the constitutional challenge as required by KRS 418.075. The Court of Appeals reviewed, and rejected, this claim rather than enforcing strict statutory compliance, resulting in the panel’s Opinion being partially vacated. Citing St. Luke Hosp., Inc. v. Straub, 354 S.W.3d 529, 536 (Ky. 2011), and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Estate sought to create new causes of action for four state constitutional violations and allowing inmates to sue for money damages for violation of KRS 71.040. All requests were denied because adequate claims, including multiple torts, already exist; the Estate argued lawfully prescribed medication was withheld from Hatcher but identified no physician-diagnosed medical need or prescribed medication linking Hatcher’s death to an allegedly flawed LMDC policy; the Estate had filed a 42 U.S.C. § 1983 action in federal court but dismissed it; and, there was no need to create a remedy when the legislature had chosen not to act. Finally, the General Assembly has not waived sovereign immunity to bring a claim for loss of parental consortium. Unless and until it does, such a claim is barred.

B. Howard v. Big Sandy Area Dev. Dist., Inc.,

2018-SC-0601-DG, 2020 WL 7394979 (Ky. 2020) not final Opinion of the Court by Chief Justice Minton. All sitting; all concur. The estate of Ms. Emma Jean Hall, represented in this negligence action by and through her executrix, Ms. Kimberly Howard, passed away from a bed sore. Ms. Hall was staying in her home when the bedsore developed. She was able to stay in her own home thanks in part to the part-time help arranged and partially state-funded through a Homecare Program, a non-medical assistance program that helped elders in the region with basic chores and self-care in their own homes. Homecare in Hall's region was implemented by the Big Sandy Area Development District (BSADD). Howard brought the negligence action on behalf of Hall's estate claiming BSADD's Homecare aides were negligent for not identifying Ms. Hall's bedsore and not helping her obtain treatment before it progressed to a lethal state. Before the case ever reached trial, the trial court granted BSADD's motion for summary judgment on two grounds: (1) that BSADD enjoyed governmental immunity, and (2) that, even if it was not so immune, BSADD did not owe an identifiable duty of care to Ms. Hall. On appeal, the Court of Appeals affirmed the trial court on the same grounds. The Court of Appeals held that BSADD enjoyed governmental immunity because it was a child-entity of the General Assembly, having been established by statute, and because it performed an integral state function in caring for the poor and elderly populations of the state.

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The Supreme Court affirmed the grant of summary judgment, but on different grounds than the trial court and the Court of Appeals, namely holding that BSADD did not enjoy governmental immunity. Applying Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 413 S.W.3d 90 (Ky. 2013), the Supreme agreed that BSADD had immune parentage, since it was created directly pursuant to statute passed by the General Assembly, an immune parent. However, the Supreme Court held that BSADD did not perform an integral state function because its basic Homecare services were not truly essential "welfare" services as characterized by the Court of Appeals, BSADD played a proprietary and non-essential role in providing Homecare and its several other services to the region, and because BSADD's operation and effects were exclusively regional, not state-wide. Therefore, the Supreme Court held BSADD did not enjoy governmental immunity. However, the Supreme Court found BSADD's employees did not owe or breach any particular duty to Ms. Hall, as Ms. Hall's homecare services, though helpful, were minimal, non-medical, and not based in

agency to Ms. Hall. Summary judgment was, therefore, proper. Accordingly, the Supreme Court affirmed the Court of Appeals, but not on the issue of immunity.

C. Louisville & Jefferson Cnty. Metro. Sewer Dist. v. Hill, 607 S.W.3d 549 (Ky. 2020)

Opinion of the Court by Justice VanMeter. Minton, C.J.; Hughes, Keller, Nickell, and Wright, JJ., concur. Lambert, J., not sitting. An African American former administration services manager for Louisville & Jefferson County Metropolitan Sewer District (“MSD”) brought action against MSD alleging a violation of the Whistleblower Act and racial discrimination in violation of Kentucky’s Civil Rights Act (“KCRA”). The Jefferson Circuit Court granted partial summary judgment in favor of MSD and Hill appealed. The Court of Appeals affirmed in part and reversed in part. Both parties moved for discretionary review, which was granted. The Supreme Court of Kentucky affirmed the Court of Appeals as to the dismissal of Hill's KCRA claims but reversed the Court of Appeals’ determination that MSD is subject to the Whistleblower Act. Specifically, the Court held that MSD is not political subdivision of Commonwealth and, thus, it did not qualify as an “employer” for purposes of the Whistleblower Act. The Court further held that Hill failed to show that he was engaged in a protected activity, as required to make a prima facie case of retaliation under the KCRA. The Court remanded the case, directing the trial court to enter final judgment in favor of MSD on all of Hill's claims.

D. N. Ky. Area Dev. Dist. v. Wilson, 612 S.W.3d 916 (Ky. 2020) Opinion of the Court by Chief Justice Minton. Minton, C.J.; Hughes, Keller, Lambert, VanMeter, and Wright, JJ., sitting. Hughes, Keller, Lambert, and VanMeter, JJ., concur. Wright, JJ., concurs in result only by separate opinion. Nickell, J., not sitting. Mary Wilson sued her former employer, Northern Kentucky Area Development District (NKADD), alleging they violated the Kentucky Whistleblower Act (KWA). Wilson worked as a case manager in the Meals-on-Wheels program that NKADD facilitated. She argued she was retaliated against after she reported a co-worker for alleged misconduct. NKADD claimed Wilson was barred from suit because they were not a political subdivision of the state and therefore not an employer for purposes of the KWA.

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The trial court found that the interests that NKADD served were not functions “integral to state government” as required under the Comair test. Wilson appealed the granting of NKADD's motion for summary judgment. The Court of Appeals concluded that NKADD was a political subdivision by statute. The Supreme Court reversed the Court of Appeals finding that NKADD was a political subdivision of the state for purposes of the KWA. The Court disagreed with the Court of Appeals conclusion that NKADD was a political subdivision by statute because of oversight in their statutory analysis. Applying Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 413 S.W.3d 90 (Ky. 2013), the Supreme Court, found that NKADD was created by an immune parent, since it was established directly pursuant to statute passed by the General Assembly, a governmental entity. Further, the Supreme Court held that NKADD did not provide an integral state function because its services, such as the Meals-on-Wheels program, were proprietary and not essential to providing care to the elderly. Further, the court found NKADD did not serve a state-wide function, but only served a local eight-county region. Therefore, the Supreme Court held NKADD was not a political subdivision of the state and as a result, not an employer for purposes of the KWA.

E. Ruplinger v. Louisville/Jefferson Cnty. Metro Gov’t, 607 S.W.3d 583 (Ky. 2020)

Opinion of the Court by Justice VanMeter. All sitting; all concur. The United States District Court, Western District of Kentucky, requested that the Supreme Court of Kentucky certify the law on two issues: (1) whether the General Assembly waived sovereign immunity from suit in the Kentucky Religious Freedom Restoration Act (“KRFRA”) codified as KRS 446.350; and (2) whether, if the KRFRA provides a waiver of sovereign immunity, does KRS 446.070 nevertheless entitle government defendants to immunity from suit. After review, the Supreme Court held that KRFRA contains no express waiver of sovereign immunity, and further, KRS 446.070 does not constitute a broad waiver of sovereign immunity. Thus, the Supreme Court certified that sovereign immunity as to monetary damages is waived neither as to the KRFRA, nor in conjunction with KRS 446.070.

F. Upper Pond Creek Vol. Fire Dep’t, Inc. v. Kinser, 617 S.W.3d 328 (Ky. 2020)

Opinion of the Court by Justice Keller. Minton, C.J.; Hughes, Keller, Lambert, VanMeter, and Wright, JJ., sitting. Minton, C.J.; Hughes, Keller, Lambert, and VanMeter, JJ., concur. Wright, J., dissents by separate opinion. Nickell, J., not sitting. Members of the Upper Pond Creek Volunteer Fire Department (“Pond Creek”) responded to an incident where they found Ronnie Kinser lying beside his car, with his arm pinned beneath the car’s front tire. The first responders ultimately freed Kinser,

but he suffered serious injuries, and his arm was eventually amputated. Relevant to this appeal, Kinser and his wife filed a complaint against Pond Creek and unknown employees of the fire department. They alleged claims against the fire department of intentional or negligent training, supervision, hiring, and retention. They alleged that the employees of the fire department intentionally or negligently failed to follow their training in providing care and intentionally or negligently failed to provide proper care to Kinser.

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Pond Creek asserted government immunity under Kentucky Revised Statute (“KRS”) 75.070, which provides that a volunteer fire department “shall [not] be liable in damages for any omission or act of commission or negligence while answering or returning from any fire or reported fire, or doing or performing any fire prevention work under and by virtue of this chapter.” The trial court found that it could not make a determination of immunity based on the limited information in the record. It stated, “at this point the Upper Pond Creek Volunteer Fire Department is not entitled to immunity, and the parties shall continue to conduct discovery on this matter.” The trial court also clarified that the fire department could raise the issue of immunity “after sufficient proof has been discovered to allow the Court to make sufficient findings on this issue.” The fire department appealed. The Court of Appeals dismissed the appeal holding that the trial court’s order was an interlocutory order that was not immediately appealable,

and as a result, the Court of Appeals lacked jurisdiction. The Supreme Court granted discretionary review and concluded that the trial court did not make a final ruling on the issue of immunity. The Court stated that additional factual development was necessary to answer the questions of whether the fire department’s actions were governmental as opposed to proprietary and whether the employee’s actions were discretionary as opposed to ministerial. Accordingly, the Court affirmed the Court of Appeals.

XII. INSURANCE

A. Foreman v. Auto Club Prop.-Cas. Ins. Co. 617 S.W.3d 345 (Ky. 2021)

Opinion of the Court by Chief Justice Minton. All sitting. Minton, C.J.; Conley, Hughes, Keller, Nickell, and VanMeter, JJ., concur. Lambert, J., concurs in result only. Keller, J., concurs by separate opinion in which Conley and Nickell, JJ., join. Brent and Kathleen Foreman brought a declaratory judgment action in the circuit court against Auto Club Property-Casualty Insurance Company for payment under their homeowner’s insurance policy for property damage caused by a house fire started by their teenage son, in a suicide attempt. Auto Club denied liability based on the intentional-loss exclusion in the policy. The circuit court granted summary judgment in the Foremans’ favor, finding the policy exclusion inapplicable because their son was unable to form the intent to cause a loss required for the exclusion to apply. The Court of Appeals reversed, holding that the trial court erred in ignoring unambiguous policy language that contained an objective component for judging the son’s expectation of property damage when he started the fire. The appellate court explained that when the son’s acts were viewed objectively,

undisputed evidence triggered the exclusion. The case was remanded and the Foremans had the burden of proof to overcome the exclusion with evidence that their son lacked mental capacity to understand the physical consequences of his act, regardless of whether he could discern right from wrong, and noting substantial evidence already of record that precluded summary judgment in favor of the Foremans under that objective standard.

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The Supreme Court granted discretionary review and agreed with the Court of Appeals’ analysis that the trial court’s grant of summary judgment in favor of the Foremans was erroneous but held that, on remand, the Foremans may litigate a potential lack of capacity defense.

B. Isaacs v. Sentinel Ins. Co., 607 S.W.3d 678 (Ky. 2020) Opinion of the Court by Justice Wright. Minton, C.J.; Hughes, Keller, Nickell, and VanMeter, JJ., concur. Lambert, J., not sitting. Appellant, Darryl Isaacs, was struck by an automobile while bicycling on a road in Louisville. Isaacs settled with both the driver who struck him and with his personal underinsured motorist (UIM) coverage. Isaacs’s law firm, a professional services company (PSC), had a commercial automobile policy with Sentinal. That policy included UIM coverage. When Isaacs was not fully compensated for his injuries and his wife, Theresa, was not fully compensated for her loss of consortium claim, they filed a UIM claim with Sentinal. Sentinal denied the

claim and the Isaacses filed a motion for declaratory judgment in Jefferson Circuit Court, asking that court to declare that Sentinal was obligated to provide UIM benefits under the terms of the commercial policy. The trial court granted summary judgment in favor of Sentinal, finding that Isaacs did not qualify as an insured under the terms of the policy under the facts of the case. The Isaacses appealed to the Court of Appeals, which unanimously affirmed the trial court. The Isaacses then sought discretionary review from the Supreme Court of Kentucky, which granted review and affirmed. The Supreme Court first held a PSC is not synonymous with its sole shareholder. The Court also held that the policy language at issue was unambiguous and it would “not disturb the parties’ contractual rights in the absence of an ambiguity.”

C. Merritt v. Catholic Health Initiatives, Inc., 612 S.W.3d 822 (Ky. 2020) Opinion of the Court by Justice Hughes. All sitting; all concur. Harold Merritt, individually and as administrator of the Estates of Kimberly Merritt and Harold Merritt, III brought a medical negligence action against various health care defendants following the deaths of his wife and newborn son. The Fayette Circuit Court denied Merritt’s motion for declaratory relief as to his bad faith insurance claim against First Initiatives Insurance, Ltd., a foreign captive insurance entity that provides self-insurance for Catholic Health Initiatives, Inc. The trial court determined that the Unfair Claims Settlement Practices Acts (UCSPA) does not apply to a captive insurer pursuant to Kentucky Revised Statute (KRS) 304.49-150(1) and granted Catholic Health and First Initiatives’ motion for summary judgment, dismissing all claims against them. The Court of Appeals affirmed both rulings, and Merritt sought discretionary review in the Supreme Court. The sole issue before the Court was whether First Initiatives, as a captive insurer, is subject to the UCSPA. KRS 304.12-230. The Court held that the Legislature has clearly and unequivocally excluded captive insurers from the requirements of the UCSPA. First Initiatives was not registered and did not pay taxes in Kentucky, and its principal place of business was in the Cayman Islands. Further, First Initiatives was not in the business of insurance as it only provided captive self-insurance for Catholic Health, with no risk shifting or risk distribution. Additionally, the trial court did not abuse its discretion in denying Merritt further discovery because Merritt represented the issue was ripe for decision in his motion for declaratory judgment, and further

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discovery could have no effect upon the determination that First Initiatives was a foreign captive insurer.

D. Metzger v. Auto-Owners Ins. Co., 607 S.W.3d 695 (Ky. 2020) Opinion of the Court by Justice Wright. All sitting; all concur. Appellants, Diana Metzger and her husband Gary, are members of a limited liability company (LLC). The LLC bought a commercial automobile insurance policy from Auto-Owners Insurance. The LLC’s policy from Auto-Owners included underinsured motorist (UIM) coverage. Diana Metzger drove her personal vehicle to a store to purchase inventory to resale at the LLC and was struck by an automobile in the parking lot while walking back to her personal vehicle. When the other driver’s coverage added to the settlement Metzger reached with her personal UIM coverage did not fully compensate Metzger for her injuries or Gary for his loss of consortium claim, they attempted to collect UIM benefits from the LLC’s policy with Auto-Owners. Auto Owners denied the claim, as

Metzger was not occupying an automobile covered by the policy pursuant to the policy’s language. Metzger filed a declaratory action with the Jefferson Circuit Curt, asking that court to declare Auto-Owners was obligated to provide UIM benefits under the LLC’s policy and Gary filed a derivative claim for loss of consortium. Auto-Owners filed a motion for summary judgment, which the trial court granted. Metzger appealed to the Court of Appeals which unanimously affirmed the trial court. Metzger then sought discretionary review from the Supreme Court of Kentucky, which granted review and affirmed, as “[t]he policy’s terms unambiguously distinguished between policies in which the named insured was an individual and those in which the named insured was not.” Because the policy terms were unambiguous, the Court would “not disturb the parties’ contractual rights.”

XIII. JUDGES

A. Abbott, Inc. v. Guirguis, 2018-SC-0577-DG, 2021 WL 728860 (Ky. 2021) not final

Opinion of the Court by Justice VanMeter. Minton, C.J.; Conley, Hughes, Keller, Nickell and VanMeter, JJ., sitting. Minton, C.J.; Hughes, Keller, Nickell and VanMeter, JJ., concur. Conley, J., concurs in result only. Lambert, J., not sitting. Abbott petitioned for discretionary review of the Court of Appeals’ decision affirming the Hopkins Circuit Court’s ruling that a certain plot of land belonged to Guirguis because the railway from which Abbott purchased a quitclaim deed only possessed an easement, which expired when the railway filed a notice of abandonment. The Kentucky Supreme Court vacated the Court of Appeals’ opinion, finding that the trial judge was required to recuse pursuant to KRS 26A.015 and SCR 4.300, Canon 3E. The Court held that parties moving for recusal must present an affidavit setting forth factual allegations to support their motion. Additionally, the Court held that the test for recusal is an objective one, “made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.” The Court clarified the appellate standard of review, holding that judicial recusal must be reviewed de novo. Finally, the Court stated that as a matter of law, and without contrary evidence, a presumption exists that a railroad acquires a right-of-way easement, and not fee ownership, to construct its roadbed. The Court remanded the case to the Hopkins Circuit Court to determine the location of the tracts conveyed, whether the disputed property bisected or adjoined the railroad right-of-way, and which parties, if any,

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retained any interest in the land formerly subject to the right-of-way claimed by Abbott.

B. Gentry v. Jud. Conduct Comm’n, 612 S.W.3d 832 (Ky. 2020) Opinion of the Court by Justice VanMeter. All sitting; all concur. Dawn M. Gentry appealed the Judicial Conduct Commission’s finding that her conduct warranted her removal from office. The Kentucky Supreme Court affirmed the Judicial Conduct Commission. The Court explained that the absence of one lay member at her hearing did not violate Ky. Const. § 121 because, while that section created the Commission it also empowered the Court to establish rules of procedure for the Commission. Therefore, SCR 4.120, which requires a minimum of five members of the Commission be present for the presentation of evidence, did not violate the Kentucky Constitution and was satisfied in this case. The Court reaffirmed its holding in Nicholson v. Judicial Retirement & Removal Comm’n, 562 S.W.2d 306 (Ky. 1978), which upheld the Commission’s dual investigatory and adjudicatory functions, finding the combination did not violate the due process rights of the accused. Along these lines, the Court held that the Commission’s refusal to recuse an alternate member of its panel was not error because, although the member was exposed to evidence that did not conform to the KRE, the information was transmitted and received while the Commission was fulfilling its investigatory function, and not during the hearing, where the Commission was limited to reviewing only evidence that conformed to the KRE. Additionally, the Court held that the Commission’s decision to add additional counts against Judge Gentry did not amount to vindictive prosecution. Further, the Court held that SCR 4.160’s incorporation of the civil rules, and the Commission’s decision to deny discovery requests pursuant to CR 26, 30, 33, and 36 did not violate Judge Gentry’s due process rights because SCR 4.210 governs judges’ procedural rights. The Court also held that the Commission’s decision to amend the charges against Judge Gentry did not violate SCR 4.190 or her due process rights. Finally, the Court emphasized the difficulty in comparing the misconduct of judges and held that Judge Gentry’s behavior represented a pattern of misconduct which warranted removal from the bench.

C. Maze v. Jud. Conduct Comm’n, 612 S.W.3d 793 (Ky. 2020) Opinion of the Court by Justice VanMeter. Minton, C.J.; Hughes, Nickell, VanMeter, and Wright, JJ., sitting. Beck and Collins, S.J., sitting. Minton, C.J.; Beck, Collins, Hughes, Nickell, concur. Wright, J., concurs in result only. Lambert and Keller, JJ., not sitting. Beth Lewis Maze appealed the Judicial Conduct Commission’s order finding that Judge Maze had violated the judicial canons on five separate occasions, and publicly reprimanding her. The Kentucky Supreme Court affirmed the Judicial Conduct Commission. The Court explained that pursuant to Ky. Const. § 121 and SCR 4.025, the Commission is empowered to adjudicate charges against judges, including those who retire or resign; including removing judges from office for cause, after they’ve formally resigned. The Court also held that SCR 4.190 and SCR 4.170(2), when read in tandem, allow a judge only one informal appearance before the Commission, to facilitate a resolution without the initiation of formal proceedings. However, once formal proceedings have been initiated, the Commission is not required to grant a judge another informal meeting. Additionally, the Court held that pursuant to KRS 34.330 and SCR 4.030, the Commission was entitled to subpoena grand jury testimony regarding Judge Maze’s criminal indictment; and that the Commission’s investigate powers took precedence over concerns of grand jury secrecy. Finally, the

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Court held that the Commission’s use of outside evidence in its investigatory file did not violate Judge Maze’s due process rights. Wright, J. wrote separately to express his opinion that the Commission’s reasoning for Count IV was mistaken.

XIV. LOSS RECOVERY ACT

A. Commonwealth ex rel. Brown v. Stars Interactive Holdings (IOM) Ltd., 617 S.W.3d 792 (Ky. 2020)

Opinion of the Court by Justice Wright. All sitting. Keller, Lambert, and Nickell, JJ., concur. VanMeter, J., dissents by separate opinion, in which Minton, C.J., and Hughes, J., join. . Appellees/Cross-Appellants (collectively, PokerStars), ran an international illegal internet poker website. The Commonwealth, Appellant/Cross-Appellee, filed an action in Franklin Circuit Court pursuant to Kentucky’s Loss Recovery Act, Kentucky Revised Statutes (KRS) Chapter 372, to recover treble

damages for Kentuckian’s losses on the illegal gambling site. The trial court granted summary judgment in favor of the Commonwealth. Appellees/Cross-Appellants (PokerStars) appealed to the Court of Appeals. The Court of Appeals reversed, holding there was no standing under the Loss Recovery Act in the present case. The Commonwealth petitioned the Supreme Court of Kentucky for discretionary review, and the Court granted the motion. Thereafter, PokerStars filed a cross-motion for discretionary review, which the Court also granted. The Court held the Commonwealth qualified as a “person” under the Loss Recovery Act; PokerStars, because it took a “rake” from the winnings of the poker games” was a “winner” under the Act; the award amount was properly calculated and did not violate either the Due Process Clause or the Excessive Fines Clause; and the Commonwealth’s amended complaint met Kentucky’s notice-pleading standard.

XV. OPEN RECORDS

A. Univ. of Ky. v. The Kernel Press, Inc., 620 S.W.3d 43 (Ky. 2021)

Opinion of the Court by Justice Hughes. All sitting; all concur. The Kernel, the University of Kentucky’s student-run newspaper, filed two Open Records Act (ORA) requests pursuant to Kentucky Revised Statutes (KRS) 61.870-.884 seeking disclosure of various documents, including all documents pertaining to the University's investigation of sexual assault allegations made by two graduate students against a professor, James Harwood. Although the University provided some personnel records and a copy of Harwood's resignation letter and separation agreement, a second request for the investigative file was denied. On review pursuant to KRS 61.882, the Attorney General ordered the University to disclose the records with appropriate redactions. The University declined and sought judicial review. The Fayette Circuit Court conducted an in camera examination of the investigative file maintained by the University and concluded that the entire file was protected as “education records” under the Family Education Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g. The Court of Appeals reversed the trial court's order, finding that the University failed in the first instance to comply with its statutory obligations under the ORA and, when challenged, failed to meet its burden of showing that the requested records are exempt from disclosure. On discretionary review, the Supreme Court determined that the University failed to comply with its obligations under the ORA and that the trial court clearly erred in

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finding the entire investigative file exempt from disclosure. The University's one-paragraph, four-sentence response to The Kernel’s request for an investigative file that was ultimately determined to contain 470 pages of documents of varying types was insufficient. Further, grouping the investigative file together and treating it as one giant record to avoid production is patently unacceptable. The ORA generally favors disclosure and a public agency has the obligation to prove that requested documents fit within an exception to the ORA. Additionally, it was incumbent upon the University to specifically claim the FERPA exclusion where legally applicable and to articulate how a given document qualifies as an “education record.” FERPA was clearly not intended as an “invisibility cloak” that can be used to shield any document that involves or is associated in some way with a student, which was the approach taken by the University in this case. The Court of Appeals’ decision was affirmed and the case was remanded to the trial court for further proceedings in accord with the ORA and the Court’s opinion.

XVI. PLANNING & ZONING

A. Kenton Cnty. Bd. of Adjustment v. Meitzen, 607 S.W.3d 586 (Ky. 2020) Opinion of the Court by Justice Hughes. Minton, C.J.; Nickell, and VanMeter, JJ., concur. Wright, J., dissents by separate opinion in which Keller, J., joins. Lambert, J., not sitting. After the Kenton County Board of Adjustment unanimously granted approval of Jessica Swope and Aimee Glover’s conditional application to allow the operation of a nursery school in a residential zone, adjoining property owners Ian Meitzen and Donald Nageleisen initiated an administrative appeal pursuant to Kentucky Revised Statute (KRS) 100.347(1). The circuit court dismissed the appeal because Meitzen and Nageleisen failed to claim that they were “injured or aggrieved” by a final action of the Board, as required by the plain language of the statute. The Court of Appeals reversed the circuit court order, finding that substantial compliance with the statute authorizing the appeal was sufficient. The Supreme Court concluded that a party must claim to be “injured or aggrieved” to perfect an appeal to circuit court under KRS 100.347(1). Finding that the statute is clear and unambiguous, the Court determined that Meitzen and Nageleisen failed to claim an injury or grievance in their complaint. Further, because no appeal to the courts from an administrative agency exists as a matter of right, strict compliance with KRS 100.347(1) was required. The Court also addressed standing and jurisdiction, concluding that to have standing, a party must be injured or aggrieved by a final action of the Board, but for a circuit court to have jurisdiction, a party must strictly comply with KRS 100.347(1) and Metizen and Nageleisen’s failure to comply with the statute justified dismissal. Accordingly, the opinion of the Court of Appeals was reversed.

XVII. RETIREMENT SYSTEMS

A. Elder v. Ky. Ret. Sys., 617 S.W.3d 310 (Ky. 2020) Opinion of the Court by Justice Nickell. All sitting; all concur. Edward Elder was hired as a school custodian in 1995. He was a model employee until 2007 when debilitating symptoms associated with Hereditary Hemorrhagic Telangiectasia (HHT) began to ravage his body. Unbeknownst to Elder, he had inherited HHT from his mother at conception, but he remained asymptomatic until 2007—a dozen years after joining the

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County Employees Retirement System (CERS)—and was not formally diagnosed with HHT until 2008. Work became increasingly difficult due to ongoing medical treatment, ultimately prompting Elder to seek early retirement. Having just fifteen years’ service credit, he had to satisfy KRS 61.600(3)(d) and demonstrate he was asymptomatic and could not have reasonably known he had HHT when hired and joined CERS. In preparing his application for disability retirement benefits in 2011, without benefit of counsel, he was told no pre-employment medical records were available. He supported his claim with more than 2,000 pages of medical records documenting a steep rise in medical issues beginning in 2007, but his earliest medical records were from 2005, after a decade of work. Two divided medical review panels of three physicians each recommended denying

Elder’s claim because HHT is genetic and from a medical standpoint, “pre-existing.” Following a hearing, at which Elder was the sole witness and the ALJ deemed his testimony credible, the ALJ recommended granting benefits based on Kentucky Retirement Systems v. Brown, 336 S.W.3d 8 (Ky. 2011). Rather than adopting the ALJ’s recommendation, Kentucky Retirement Systems (Systems)—knowing Kentucky Retirement Systems v. West, 413 S.W.3d 578 (Ky. 2013), was pending in this Court on a petition for rehearing—remanded the matter to the ALJ for reconsideration under West when it became final. Systems read West to require every claimant with less than sixteen years’ service credit to submit “medical records dated prior to and immediately subsequent to the disability retirement claimant’s membership and/or expert testimony explaining the onset of a condition[.]” Having acquired counsel, Elder opposed remand to no avail. After reconsideration on remand—without receipt of new proof—the ALJ recommended denial of Elder’s claim because he had submitted no pre-employment medical records—a disqualifying factor under West according to Systems. In its final order, Systems adopted the ALJ’s revised factual findings and recommendation to deny benefits. It also struck newly-acquired medical records—including one dated before Elder’s hire—and denied his request for rehearing. The Franklin Circuit Court and Kentucky Court of Appeals affirmed. In this matter of first impression, the Supreme Court held a genetic condition is not legally “pre-existing” under KRS 61.600(3)(d) simply because inherited at conception. The Court further held Brown is the controlling case on burden of proof required to successfully establish a disability benefits claim, and rejected Systems’ argument that West requires filing of pre-employment medical records in every case submitted under KRS 61.600(3)(d) to prove date of condition’s onset. Elder had been told his pre-employment medical records were unavailable, leaving him no such records to submit with his application, but when he subsequently acquired pre-employment records, Systems refused to reopen the administrative record so they could be considered. The Court held Elder’s own testimony and affidavit, combined with post-employment medical records from several treating physicians—while not in form of affidavit, deposition or hearing testimony—documented beginning of HHT treatment and formal diagnosis of condition—thereby establishing “compelling” proof, consistent with Brown, that Elder was asymptomatic and could not have reasonably

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known he had inherited HHT prior to joining CERS. In reversing and remanding matter to Systems for further proceedings, Court held Systems erroneously directed ALJ to reconsider claim under West and compounded error by striking the very type of medical records Systems argued Elder needed to prove a successful claim.

XVIII. TAXATION

A. Pleasant Unions, LLC v. Ky. Tax Co., 615 S.W.3d 389 (Ky. 2021) Opinion of the Court by Justice Hughes. All sitting; all concur. Civil Appeal, Discretionary Review Granted. Kentucky Tax Company, LLC acquired from Taylor County a certificate of delinquency for property owned by Pleasant Unions, LLC in Campbellsville, Kentucky. At the time Kentucky Tax Company bought the certificate of delinquency in 2010, KRS 134.490(1) and (2) required the purchaser to give two separate notices to the delinquent taxpayer. The statute mandated notice “by first-

class mail with proof of mailing” shortly after the third-party purchaser received delivery of the certificate of the delinquency, KRS 134.490(1) (within 50 days), and again before instituting an action to collect the amount due on the certificate, KRS 134.490(2) (at least 45 days). Kentucky Tax Company brought suit to foreclose its lien on the property and to collect the amounts Pleasant Unions owed. Pleasant Unions denied receiving the required notices and opposing summary judgment, challenged Kentucky Tax Company’s compliance with the notice requirements of KRS 134.490. The Court of Appeals affirmed the trial court, finding an affidavit from Kentucky Tax Company’s attorney tendered in support of its summary judgment motion was sufficient proof of mailing. Held: The attorney’s affidavit merely stating he caused notices to be sent by first-class mail does not constitute proof of mailing as required by KRS 134.490, and therefore, summary judgment was premature. When notice sent by first-class mail is a person’s right under a Kentucky statute, proof of the means employed to effect such notice must reflect specific actions taken to accomplish the mailing.

XIX. TORTS

A. Russell v. Johnson & Johnson, Inc., 610 S.W.3d 233 (Ky. 2020) Opinion of the Court by Justice Wright. Minton, C.J.; Hughes, Keller, Lambert, VanMeter, and Wright, JJ., sitting. All concur. Nickell, J., not sitting. Appellants, Clifford Russell and his wife Jeanene (“Russells”), alleged state tort claims against the collective Biosense Appellees (“Biosense”) for injuries caused by an investigational, Class III medical device. The Russells attempted written discovery to gather information on the investigational device, but Biosense objected and then moved for judgment on the pleadings. Biosense argued federal preemption of all claims due to the limited preemption clause in the Medical Device Amendments of 1976. Although the Russells argued they asserted non-preempted state tort claims, the trial court granted Biosense’s motion, dismissing the Russells’ claims; the Court of Appeals affirmed. The Russells petitioned the Supreme Court of Kentucky for discretionary review, which was granted. Following the Kentucky Rules of Civil Procedure, the Supreme Court reversed the Court of Appeals; “[Kentucky’s] high standard necessary for granting a judgment on the pleadings requires there be no possible way the opposing party can prevail.” Further, the Supreme Court “refuse[d] to mandate a heightened pleading standard and, therefore, reiterate[d] Kentucky’s requirement of bare-bones, notice pleading.” The Supreme Court also clarified the interaction of

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Kentucky’s state claims and causes of action with the limited federal preemption clause in the Medical Device Amendments of 1976, explaining it “is not a blanket federal preemption of state causes of action.”

B. Seiller Waterman, LLC v. RLB Props., Ltd., 610 S.W.3d 188 (Ky. 2020) Opinion of the Court by Justice Hughes. All sitting; all concur. Civil Appeal, Discretionary Review Granted. RLB Properties, Ltd. brought an action against Seiller Waterman, LLC and three of its attorneys (collectively “Seiller Waterman”). The action stemmed from Seiller Waterman’s prior representation of Skyshield Roof and Restoration, LLC and Jacob Blanton, on whose behalf Seiller Waterman filed a materialman’s and mechanic’s lien against commercial property owned by RLB Properties, and subsequently filed a third-party complaint against RLB Properties. RLB Properties’ complaint against Seiller Waterman alleged wrongful use of civil proceedings(WUCP) and abuse of civil process; civil conspiracy; slander of title;

violation of KRS 434.155 by filing an illegal lien; negligence; and negligent supervision. The Jefferson Circuit Court dismissed all claims either for failure to state a claim upon which relief can be granted or for failure to file timely under the applicable statute of limitations. The Court of Appeals affirmed the dismissals, except for the slander of title, civil conspiracy, and KRS 434.155 violation claims, finding that KRS 413.245 would not time bar the claims if malice were proven. Held: The trial court did not err by dismissing the action. Neither the desire to earn attorney fees nor the filing of a claim seeking damages on behalf of a client constitutes an improper purpose sufficient to sustain a WUCP claim. A professional negligence claim may not be brought against an attorney by a party who is neither the client nor an intended third-party beneficiary of the attorney’s work. KRS 413.245, the one-year statute of limitations applicable to the rendering of professional services, remains applicable to claims against attorneys when malice is alleged.

C. Smith v. Fletcher, 613 S.W.3d 18 (Ky. 2020) Opinion of the Court by Justice Keller. Minton, C.J.; Hughes, Keller, Lambert, Nickell, and Wright, JJ., sitting. Minton, C.J.; Hughes, Lambert, Nickell, and Wright, JJ., concur. VanMeter, J., not sitting. Mark and Chinena Smith filed a complaint against Advanced Practice Registered Nurse Wynetta Fletcher, Dr. Amjad Bukhari, and Dr. James Detherage under the Kentucky Medical Review Panel Act (“MRPA”), Kentucky Revised Statutes (“KRS”) 216C.005, et seq., declared unconstitutional by Commonwealth v. Claycomb, 566 S.W.3d 202 (Ky. 2018). After the claims worked their way through the panel process, the Smiths filed a complaint in Fayette Circuit Court against Nurse Fletcher, Drs. Bukhari and Detherage, and the entities that allegedly employed them. Subsequent to the filing of the Smiths’ complaint in circuit court, the Supreme Court’s decision in Claycomb, wherein it declared the MRPA unconstitutional, was finalized. The defendants then moved the circuit court to dismiss the Smiths’ complaint as violative of the statute of limitations. The trial court found the complaint to be untimely and dismissed the case. The Smiths appealed, and the Supreme Court accepted transfer of the case from the Court of Appeals. The Supreme Court held that KRS 413.270, Kentucky’s Savings Statute, applied to the Smiths’ claims. The court further held that the 90-day period permitted under KRS 413.270 did not begin to run until February 14, 2019, the day Claycomb became final. Because the Smiths filed their complaint in Fayette Circuit Court on January 18, 2019, their complaint was timely filed, and the circuit court erred in dismissing it as

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untimely. Because the Court held that the Smiths’ claims were filed timely under KRS 413.270, it declined to address whether any other statute or equitable principle saved their claims. However, KRS 413.270 only saves those claims that were filed with the medical review panel. The Smiths only filed claims against Nurse Fletcher, Dr. Detherage, and Dr. Bukhari under the MRPA. They did not file claims against the entity defendants, namely Health Plus, PSC, King’s Daughters Health System, Inc., KentuckyOne Health Medical Group, Inc., and KentuckyOne Health, Inc., until they filed a complaint in circuit court. As such, the claims against those entity defendants were untimely filed, and because no other statute or principle tolls the limitations period as to these defendants, the Court affirmed their dismissal.

XX. WORKERS’ COMPENSATION

A. Anderson v. Mt. Comprehensive Health Corp.,

2020-SC-0133-WC, 2021 WL 1134287 (Ky. Mar. 25, 2021) not final

Opinion of the Court by Justice Keller. All sitting; all concur. Diane Anderson appealed the Court of Appeals’ affirmation of the Administrative Law Judge’s dismissal of her cumulative trauma injury claim as untimely under KRS 342.185(1). Anderson filed her claim in October 2018. Anderson left her job as a nurse for Mountain Comprehensive Health Care in November 2017 due to debilitating pain, and Anderson testified at her deposition she was first informed of the injury’s connection to her work the following January, which would have been January 2018. At Anderson’s hearing before the ALJ, however, the doctor's report entered into evidence was dated January 2017. The ALJ accepted the date on the doctor's report and found Anderson's 618-day delay in providing notice to her employer was insufficient and not "as soon as practicable" under KRS 342.185(1). The Board and Court of Appeals affirmed the ALJ, holding the typographic error was not the type of mistake that a petition for rehearing is meant to correct and did not constitute newly discovered evidence.

Anderson appealed to the Kentucky Supreme Court as a matter of right. The Kentucky Supreme Court reversed, holding that the ALJ, Board, and Court of Appeals applied the wrong provision of KRS 342.185. Effective July 2018, the Kentucky General Assembly added KRS 342.185(3) to govern notice of cumulative trauma injuries. The new notice provision instituted a two-year statute of limitations from when the worker is first informed of her injury's work-related nature. Unlike the notice provision in subsection one, the notice provision associated with cumulative trauma does not include the limitation that such notice be given “as soon as practicable after the happening thereof." Furthermore, the Kentucky General Assembly made the operation of the statute retroactive, and thus it applied to Anderson’s claim.

Based on the new notice provisions of KRS 342.185(3), Diane Anderson's claim was timely whether the doctor first informed her of the work-related nature of her injury in January 2017 or January 2018. For this reason, Anderson's case was reversed and remanded to the ALJ for further proceedings consistent with the opinion.

B. Brownwood Prop., LLC v. Thornton, 2020-SC-0167-WC, 2021 WL 1679680 (Ky. Apr. 29, 2021) not final

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Opinion of the Court by Justice Lambert. All sitting; all concur. The employee was injured while working on a horse farm owned by the employer. At the time of the employee’s injury, the farm was in the process of being restored to a fully functioning horse farm. It was undisputed that the employer was an employer “solely engaged in agriculture” under KRS 342.630(1). Therefore, the dispositive issue was whether the employee was a “person employed in agriculture” in accordance with the definition of agriculture under KRS 342.0011(18), i.e., whether her job duties were “any work performed as an incident to or in conjunction with the farm operations.” The Court held that her job duties, which primarily consisted of mowing grass around the numerous residences on the farm in addition to cleaning one of the guest houses, met the definition of agriculture. Accordingly, the agricultural exception to workers’ compensation coverage applied, and the employee was not entitled to workers’ compensation benefits.

C. Ford Motor Co. v. Duckworth, 615 S.W.3d 26 (Ky. 2021)

Opinion of the Court by Justice Hughes. All sitting; all concur. Deborah Duckworth filed a worker’s compensation claim in June 2013 for a cumulative trauma injury she sustained while working at Ford Motor Company. Duckworth claimed her injury manifested on November 8, 2007 and Ford filed a special answer alleging Duckworth’s claims were barred by the statute of limitations. In its Opinion and Order the ALJ concluded that for cumulative trauma claims, the date a claimant is advised by a physician that she has a work-related condition is the date of injury for statute of limitations purposes, and a claimant is not required to self-diagnose a work-related injury. Further, pursuant to Kentucky Revised Statute (KRS) 342.185(1), if income benefit payments have been made, the claimant must file a claim within two years after the suspension of payments or within two years of the date of the accident, whichever is later. Because the parties stipulated that the last temporary total disability payment was made in August 2011, her claim was filed within two years of that date and thus not time barred. The Workers’ Compensation Board and the Court of Appeals affirmed the ALJ. The Supreme Court held that the ALJ has authority to determine the manifestation date for cumulative trauma injuries. The parties did not agree on the manifestation date, making that issue subject to further proceedings. The ALJ relied on the medical evidence in the record in identifying the manifestation dates of Duckworth’s injury and did not exceed the scope of his authority. The ALJ properly applied KRS 342.185(1) in determining which occurred later – the manifestation date or the date of the last temporary total disability payment – before correctly concluding that Duckworth filed her claim within two years of the later date. Further, Ford was not deprived of due process because it had adequate notice and ample opportunity to be heard on the statute of limitations issue because “dates of injury” were listed as being at issue in

the Benefit Review Conference Order and Ford filed a special answer soon after Duckworth filed her claim to specifically assert a notice and statute of limitations defense.

D. Jolly v. Lion Apparel, Inc., 2019-SC-0631-WC, 2021 WL 1679580 (Ky. Apr. 29, 2021) not final

Opinion of the Court by Justice Lambert. Minton, C.J.; Conley, Hughes, Keller, Lambert, and VanMeter, JJ., sitting. All concur. Nickell, J., not sitting. Workers’ Compensation. Petition for Reconsideration. Time for Appeal. An improper petition for

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reconsideration does not toll the running of time to file an appeal. Where a party improperly filed a second petition for reconsideration of a decision outside the 14-day window of KRS 342.281, and the same party thereafter appealed to the Board, the appeal was untimely.

E. Martin v. Warrior Coal LLC, 617 S.W.3d 391 (Ky. 2021) Opinion of the Court by Justice Hughes. All sitting. Minton, C.J.; Conley, Hughes, Keller, Nickell and VanMeter, JJ., concur. Lambert, J., dissents without separate opinion. In June 2017, the Kentucky General Assembly passed House Bill 223 which amended Kentucky Revised Statute (KRS) 342.040. Prior to its amendment, KRS 342.040 provided for 12% interest on workers’ compensation income benefits that were due but unpaid. After the amendment, the statute now provides for an interest rate of 6% on due but unpaid benefits unless an exception applies. As reflected in the Legislative Research Commission Note to the statute, 2017 Kentucky Acts Chapter 17,

Section 5 provides that “[KRS 342.040, as amended, shall] apply to all [workers’] compensation orders entered or settlements approved on or after June 29, 2017, the effective date of that Act.” Charles Martin filed a workers’ compensation claim in October 2017 as a result of his employment with Warrior Coal. He was awarded workers’ compensation income benefits by an Administrative Law Judge (ALJ) on April 27, 2018 for his April 1, 2016 compensable injury. The ALJ applied the 12% interest rate to Martin’s due and unpaid installments of compensation through June 28, 2017 and the 6% interest rate thereafter. Warrior Coal asked the ALJ to reconsider the decision to award interest at the 12% rate for all unpaid installments due prior to June 28, 2017. The ALJ declined reconsideration and the Workers’ Compensation Board agreed with the ALJ, but the Court of Appeals found in favor of Warrior Coal on this issue. Held: By applying the interest rate amendment to orders and settlements approved on or after the Acts effective date, the General Assembly made clear that the date of an award or settlement is controlling, even though the award may encompass events which occurred before the statute was amended and made effective. Applying Holcim v. Swinford, 581 S.W.3d 37 (Ky. 2019), although the General Assembly’s legislative statement regarding the temporal application of amended KRS 342.040 is not codified, because of the temporary nature of the language, codification was not required to give it effect. Based on the General Assembly’s non-codified but express language regarding its intent with respect to the 6% interest rate set forth in the 2017 amendment, the entirety of Martin’s benefit award is subject to the amended 6% interest rate.

F. Maysey v. Express Servs., Inc., 620 S.W.3d 63 (Ky. Mar. 25, 2021) Opinion of the Court by Justice Hughes. All sitting; all concur. Nathaniel Edward Maysey sustained a serious work-related injury while employed by Express Services, Inc., a temporary staffing company. Express Services placed Maysey at Magna-Tech Manufacturing, LLC where he worked for five days operating machinery before being involved in an accident that resulted in the amputation of his left arm above the elbow. Maysey settled with Express Services prior to the final adjudication of his workers’ compensation claim, and the sole remaining issue was whether Maysey was entitled to a 30% enhancement of benefits from Express Services as a result of workplace safety violations pursuant to Kentucky Revised Statute (KRS) 342.165(1). The ALJ denied the enhancement and the Workers’ Compensation Board and Court of Appeals affirmed.

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The Supreme Court reluctantly affirmed the Court of Appeals based on KRS 342.165(1). Finding Maysey’s case virtually identical to Jones v. Aerotek Staffing, 303 S.W.3d 488 (Ky. App. 2010), the Court held that Maysey was required to prove that Express Services, not Magna-Tech, intentionally failed to comply with a safety statute or regulation. While several obvious safety violations existed at the Magna-Tech facility, Express Services had no knowledge of the unsafe practices and therefore could not have intentionally failed to comply with safety statutes or regulations. Despite Jones being rendered in 2010, the legislature has not amended KRS 342.165 and the Court cannot rewrite the statute to extend its application to temporary staffing employers, who have little to no control over the workplace where the injury occurred.

G. Slaughter v. Tube Turns, 607 S.W.3d 692 (Ky. 2020)

Opinion of the Court by Justice Nickell. All sitting; all concur. Porter Slaughter sustained a work-related injury to his right shoulder in 1996 and a second work-

related injury to his left shoulder, chest, and neck in 1997. The two claims were consolidated, and a settlement agreement was approved in November 1997. Income benefits were paid for the right shoulder injury but not the left shoulder injury, although Slaughter remained eligible for medical expenses for that injury. Motions to reopen the left shoulder claim were denied in 1999 and 2001 as untimely under the then-current versions of KRS 342.125(3). Following a left shoulder surgery, Slaughter was granted leave to reopen his claim in November 2016 and was awarded medical expenses and TTD benefits in early 2017. On July 10, 2018, Slaughter moved once again to reopen the left shoulder claim asserting he was entitled to income benefits based on a recent surgery and increased impairment. Tube Turns objected, asserting recent amendments to KRS 342.125(3) prohibited reopening a claim more than four years after entry of an original award or settlement. Slaughter asserted the 2017 award extended the limitations period citing Hall v. Hospitality Resources, Inc., 276 S.W.3d 775 (Ky. 2008). The CALJ agreed with Tube Turns and denied the motion. The Board affirmed and on appeal, the Court of Appeals concluded Hall had been superseded by the 2018 amendments to KRS 342.125(3) which restricted motions to reopen to a four-year period following an original award. The Court of Appeals also concluded the legislature had explicitly declared the amendments were to apply retroactively. On appeal, Slaughter’s attempt to revive a previously abandoned constitutional challenge to the statutory amendment was rejected. On the merits, the Supreme Court held the 2018 amendments to KRS 342.125(3) removed any doubt as to the legislature’s intent following the decision in Hall and explicitly specified orders granting or denying benefits entered after the original award or settlement are not to be considered “original orders” for purposes of extending the statutory deadline for filing motions to reopen. Further, in enacting KRS 342.25(8), the legislature expressly declared the revised time limitations were to be retroactively applied irrespective of the date of injury or award. Accordingly, the Court held the CALJ correctly denied the 2018 motion to reopen as untimely.

H. Viwin Tech Windows & Doors, Inc. v. Ivey,

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___ S.W.3d ___, 2021 WL 1133621 (Ky. Mar. 25, 2021) Opinion of the Court by Justice VanMeter. All sitting. Minton, C.J.; Conley, Hughes, and Lambert, JJ., concur. Keller and Nickell, JJ., concur in result only. The issue before the Court was whether Appellee Mark Ivey’s pre-employment lower back disc herniation and two surgeries required an impairment rating to be carved out of his permanent partial disability rating for which his employer, ViWin Tech, would be responsible. The Court held that such carve-out is required, and therefore remanded the case to the Board for remand to the ALJ to make a factual determination of that carve out percentage in accordance with the AMA Guides.

XXI. WRITS

A. Barnes v. Goodman, 2020-SC-0088-MR, 2021 WL 1134290 (Ky. Mar. 25, 2021) pet. rehrg pending

Opinion of the Court by Justice Nickell. All sitting; all concur. Keller, J., concurs by separate opinion in which Lambert, J., joins. Affirms denial of petition for writ of prohibition and/or mandamus to stay all civil discovery until conclusion of criminal trial in context of parallel civil and criminal cases due to Barnes—only criminal defendant involved in civil proceeding and only party seeking stay—not establishing “great and irreparable harm,” as required by Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). Barnes argued Lehmann v. Gibson, 482 S.W.3d 375 (Ky. 2016), supports granting a writ to prevent any party—defendant or Commonwealth—from skirting limited criminal rules, by using broader civil discovery rules to access otherwise off-limits proof. She sought a total ban on civil discovery until conclusion of her criminal case to prevent Commonwealth from abusing civil discovery—although it was not a party to the civil case—and using that proof to convict her. The Court read Lehmann as simply “protecting” the integrity of the criminal prosecution.” Id. at 384. Nothing in Lehmann directly addresses prohibiting Commonwealth from misusing civil discovery or protecting criminal defendant, neither of which was at issue. Any perceived misuse of more liberal civil discovery by Commonwealth can be addressed by requesting protective ruling from trial court in criminal case. Here, same judge is presiding over both civil and criminal cases. Opinion adds more factors to seven identified in Lehmann, including length of requested stay and its impact on party opposing stay. That item was particularly relevant in this wrongful death/negligence case in which family of now-deceased psychiatric hospital patient claims Barnes, a now-former hospital employee, attacked patient resulting in patient’s death a few days later.

Opinion states any stay must be of specified duration and discovery cannot linger for years. Since March 2019, Barnes has been under indictment for abusing patient. When Barnes first asked for stay, her criminal trial was to occur in April 2020, with any delay being portrayed as “short” and “brief.” Criminal trial did not occur as planned, and now, two-years post-indictment, still has not occurred and is not on trial calendar. Case will not receive scheduling priority because Barnes is not in custody and has not requested speedy trial. Patient’s family alleges corporate defendants have

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already destroyed evidence and though the corporate defendants have no Fifth Amendment right to assert, have allegedly stymied taking of other depositions in solidarity with Barnes. Trial court consistently found Barnes could achieve personal goal of protecting her Fifth Amendment right against self-incrimination by requesting protective order for herself before the criminal court without staying all civil discovery since no other civil defendant needs protection. Opinion identifies other, less onerous options to total stay, echoing Lehmann directive that trial courts remain flexible and not grant stay as “default position.” Opinion discusses “contention interrogatories” and follows Maze v. Kentucky Judicial Conduct Commission, 575 S.W.3d 204, 210 (Ky. 2019). Like Judge Maze, Barnes may still invoke her Fifth Amendment right in both her civil and criminal trials.

B. Beck v. Scorsone, 612 S.W.3d 787 (Ky. 2020) Opinion of the Court by Chief Justice Minton. All sitting; all concur. Real Party in Interest, Andrea Brandenburg, filed suit for negligence against the University of Kentucky Medical Center, three named medical professional Appellants employed by the Medical Center, Sandra Jones Beck, Justin Peterson, and Jennifer Tavitian, and ten other medical professionals identified as unknown and yet unnamed defendants, also employed by the Medical Center. Appellants appealed to the Supreme Court from the Court of Appeals’ denial of their application for a writ of prohibition, which sought to prevent the trial court from enforcing a protective order that forbid them from ex parte communication with Brandenburg’s unnamed treating physicians and healthcare providers employed by the Medical Center. The Appellants asserted that the trial court’s order erroneously denied them the right to confer informally with coworkers inside their own practice group and to retain the same attorney for the common defense of all claims. The Appellants argued the trial court’s erroneous order resulted in an irreparable injury incapable of remedy by appeal or otherwise, requiring a writ. The Court of Appeals denied the Appellants' writ petition, finding the injury to be insufficient to issue a writ and not irreparable as required by the writ standard. The Supreme Court reversed the Court of Appeals and remanded for a writ to be issued in the Appellants' favor. The case was found not to present the irreparable injury ordinarily required for a writ, but that the trial court’s order is exceptional in how it disturbs an otherwise orderly administration of justice. The trial court order was apparently issued arbitrarily, seemingly based on the trial judge's expressed policy preference, inconsistent with Caldwell v. Chauvin, 464 S.W.3d 139 (Ky. 2015). That case harbors no preference for or against ex parte communications with treating

physicians, absent an articulable reason to bar the practice in a particular case. The Supreme Court clarified that there may be reasons to prohibit the practice on a case-by-case basis, but that the trial court must not deny that opportunity to civil litigants, even in the medical malpractice context, without some specific articulable reason as may be in the particular case before the court. The Supreme Court reversed the Court of Appeals and remanded with an order to issue the writ for Appellants consistent with its opinion.

C. Brooks ex rel. Elderserve, Inc. v. Hagerty, 614 S.W.3d 903 (Ky. 2021)

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Opinion of the Court by Justice Keller. All sitting; all concur. Charles E. Brooks, through his guardian and conservator Elderserve, Inc., appealed the Court of Appeals’ denial of a petition for a writ of mandamus directing the Jefferson Family Court to grant his motion to amend his petition for an annulment to include a petition for dissolution of marriage from Taylor Toney. The Jefferson Family Court, citing Johnson v. Johnson, 170 S.W.2d 889 (Ky. 1943), and its strict prohibition of guardian-initiated divorces, denied Brooks’ request to amend his annulment petition to include an action for dissolution. The Court of Appeals denied the writ petition, holding, in part, that the family court had not erred in relying on Johnson. Both the Jefferson Family Court and the Court of Appeals, while citing Johnson as their authority, requested that the Supreme Court reevaluate the value of Johnson as a controlling precedent.

The Supreme Court affirmed the Court of Appeals’ denial of the writ petition as the Jefferson Family Court’s denial was proper as Johnson was good precedent at the

time. However, based on changes to Kentucky guardianship statutes since Johnson’s rendering, the Court overruled Johnson to the extent it prohibited guardian-initiated divorces. Accordingly, the Court held a guardian may seek permission from the district court overseeing guardianship to initiate a dissolution of marriage action on behalf of his ward. The district court must conduct a hearing, and if it determines the action is in the best interests of the ward, the district court shall permit the guardian to file such action in the family court.

D. Henderson Cnty. Healthcare Corp. v. Wilson, 612 S.W.3d 811 (Ky. 2020) Opinion of the Court by Justice Keller. All sitting; all concur. Jacqueline E. McGuire (hereinafter “Ms. McGuire”) was a resident at Henderson County Health Care Corporation d/b/a Redbanks Skilled Nursing Facility (hereinafter “Redbanks”) from 2010 to 2016. According to the complaint filed by Roland McGuire (hereinafter “McGuire”), who is Ms. McGuire’s brother, Ms. McGuire suffered multiple injuries while at Redbanks, including serious bedsores. Ms. McGuire eventually died at another facility, and McGuire, as administrator of her estate, filed suit against Redbanks. During the discovery process, McGuire served Redbanks with requests for production of documents. Redbanks refused to turn over certain documents arguably included within these requests, and McGuire filed a motion to compel. Specifically disputed were nurse consultant reports and whether the Federal Quality Assurance Privilege (FQAP), 42 U.S.C. § 1396r(b)(1)(B) and 42 U.S.C. § 1395i-3(b)(1)(B), protects these reports from disclosure. The trial court granted McGuire’s motion to compel, ordering Redbanks to turn over the reports. Redbanks filed a petition for a writ in the Court of Appeals to prohibit the trial court from enforcing its order. The Court of Appeals denied the writ petition, and Redbanks appealed to the Supreme Court.

As an issue of first impression in Kentucky, the Supreme Court adopted a case-by-case approach that allows a trial court to determine how a document was generated, why it was generated, and by whom it was generated before determining if the FQAP applies to the document. After setting out guidelines for trial courts to follow, the Court held that the nurse consultant reports at issue in this case were protected by the FQAP. Accordingly, the Court reversed the Court of Appeals’ denial of Redbanks’ writ petition.

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E. Iqtaifan v. Hagerty, 604 S.W.3d 400 (Ky. 2021) Opinion of the Court by Justice Lambert. All sitting; all concur. Family Law. Foreign Judgments. Writ of Mandamus. Opinion of the Court affirming the Court of Appeals’ denial of a writ of mandamus against family court judge for failure to dismiss a petition for dissolution of marriage on grounds that the parties were already divorced under the laws of the Kingdom of Jordan. Court held that appellant/real party in interest was not entitled to writ relief of any kind, and specifically held that the family court was not acting outside its jurisdiction by not automatically giving full faith and credit to a divorce decree from a foreign country under the Full Faith and Credit Clause of the United States Constitution. Family court had jurisdiction and discretion to grant comity to the foreign decree, if appropriate in the judgment, of the family court.

F. Lawson v. Woeste, 603 S.W.3d 266 (Ky. 2020)

Opinion of the Court by Justice Hughes. All sitting; all concur. Alexandra Lawson sought a writ of prohibition to stay a child custody order entered by the Campbell Circuit Family Court pending her direct appeal. In the underlying action the trial court ordered that Lawson’s two minor children relocate from their residence in Mississippi to live with their father in Kentucky. Lawson argued that she is entitled to a first- or second-class writ because the trial court either lacked subject matter jurisdiction to enter the relocation order or had the requisite jurisdiction but acted erroneously. The Court of Appeals denied the writ. The Supreme Court affirmed the Court of Appeals, determining that Lawson is not entitled to a first-class writ because continuing, exclusive jurisdiction under Kentucky Revised Statute (KRS) 403.824(1) is an issue of particular-case jurisdiction. Under the statute a trial court that has had and exercised subject-matter jurisdiction in a child custody matter must decide whether it should continue to exercise jurisdiction or whether it should “decline jurisdiction” over the case due to a change in circumstances, which is exactly what the trial court did in this case. Even if the trial court misconstrued or misapplied KRS 403.824 – an issue the Court does not and should not reach on a writ petition – it nonetheless maintained subject-matter jurisdiction. Additionally, the Court held that Lawson is not entitled to a second-class writ because Lawson has an opportunity for recourse through her direct appeal to the Court of Appeals. The extraordinary relief of a second-class writ is not available when a trial court’s alleged error in the exercise of its jurisdiction can be addressed in the normal appellate process.

XXII. WRONGFUL DEATH

A. Simms v. Estate of Blake, 615 S.W.3d 14 (Ky. 2020) Opinion of the Court by Justice Lambert. Minton, C.J.; Conley, Hughes, Keller, Lambert, and VanMeter, JJ., sitting. All concur. Nickell, J., not sitting. A probate case wherein the Court, as a matter of first impression, interpreted KRS 391.033 and KRS 411.137 (collectively “Mandy Jo’s Law”.) The trial court found that Appellant was precluded from recovering any portion of his biological son’s wrongful death settlement award because he had “willfully abandoned” his son. On appeal to this court, Appellant argued (1) the trial court’s failure to remove Appellees as co-administrator’s

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of his son’s estate warranted reversal; (2) the trial court mistakenly applied the preponderance of the evidence standard of proof; (3) the trial court clearly erred in finding that Appellant willfully abandoned his son; and (4) Appellees were equitably estopped from raising Mandy Jo’s law. The Court rejected each of Appellant’s arguments, holding: (1) that the failure to remove Appellees as co-administrators was harmless error; (2) that, under Mandy Jo’s law, claimants must show that a parent willfully abandoned their child by a preponderance of the evidence; (3) that the trial court did not clearly err in finding that Appellant willfully abandoned his son; and (4) equitable estoppel did not prevent Appellee’s from raising Mandy Jo’s law as an affirmative defense.