This just in. The United States Supreme Court has granted certiorari in two Kentucky death penalty cases (Thomas Clyde Bowling & Ralphy Baze) apparently to review the constitutionality of lethal injection as a form of capital punishment. SCOKYBLOG is in the process of compiling the relevant documents and will post them hopefully later today.

Given the news of Justice McAnulty’s passing, I’m finding this afternoon to be a pretty melancholy one, and it is more difficult than I expected to plug along on my typical Rendition-week reading and posting. There are simply too many reminders that the Kentucky Court of Justice lost an outstanding jurist and an even better human being. Frankly, my heart’s too heavy right now to pull out the Rosetta Stone and try to figure out which of the unsigned Opinions of the Court came from Justice McAnulty . . . primarily because there have to be a finite number of those remaining, and the thought that one of them must be the last one he produced is something that I just don’t want to think about.

Persons far more eloquent than I am will eulogize Justice McAnulty in the coming days. All I can add is that I enjoyed every single interaction that I ever had with him . . . from listening to his wry Court-of-Appeals updates to the telephone call I received from him after I sent his Assistant an email to see if I could obtain the text of a speech he gave in Western Kentucky in which he sparked a state-wide conversation about judicial selection. [It was no surprise to learn that Justice McAnulty spoke from bullet points, but it was a shock that he took ten or fifteen minutes of his time to give me a full run-down on his thoughts and what he’d said. My original plan was to type up my furiously-scribbled notes of that conversation on SCOKYBLOG, but I never did. To be perfectly honest, the conversation was such a shot in the arm to me personally that didn’t want to share it with everyone.] I viewed a videotape recently of an Oral Argument that I had before the Court in June, and I discovered that I was so in love with the sound of my own booming and rapid voice that Justice McAnulty was forced to repeat the word “Counsel?” a couple of times before I yielded the floor to his question (which was a proverbial softball, and one that I proceeded to foul tip). I’m sure he’s forgiven me. This afternoon, I’m just saddened that I won’t have any other opportunities to practice in front of him.

---

At its August 2007 Court Conference Week, the SCOKY granted discretionary review to fifteen (15) cases. Click on the hyperlinks in the case names for the Court of Appeals’s Opinions in each.

Cheyenne Resources, Inc., et al. v. Elk Horn Coal Corporation (2006-SC-0721-DG)

Pennington v. Commonwealth (2006-SC-0861-DG)

Bianchi v. City of Harlan (2006-SC-0895-DG)

Louisville/Jefferson County Metro Government v. City of Prospect (2006-SC-0903-DG)

Childers Oil Co., Inc. v. Adkins, et al. (2007-SC-0032-DG)

Cameron v. Cameron (2007-SC-0105-DG)

Commonwealth v. Stone (2007-SC-0107-DG)

Rose v. Commonwealth (2007-SC-0123-DG)

Commonwealth v. McCombs (2007-SC-0127-DG)

Bedingfield v. Commonwealth (2007-SC-0128-DG)

Louisville/Jefferson County Metro Government v. Molly Malone’s (2007-SC-0315-DG)

Strange v. Commonwealth (2007-SC-0328-DG)

Coffman v. Rankin (2007-SC-0348-DGE)

James v. DeVashier (2007-SC-00365-DG)

Jewish Hospital Healthcare Services, Inc. v. Brewster (2007-SC-0366-DG)

Encompass Insurance Co. v. Kugland (2007-SC-0370-DG)

It its August renditions, the SCOKY resolved a total of 9 discretionary-review cases (7 in 5 separate Opinions and another 2 by Orders dismissing), leaving it with a monthly “DR-grant deficit” of 6 cases. For the year, the SCOKY’s cumulative “DR-grant deficit” stands at 38 cases.

This is probably old news to most anyone with an interest, but, like we’ve apparently had our head in the clouds for the past month or so. In any event, Justice McAnulty’s family has created a website, www.justicemcanulty.com, which they use to post updates about the Justice’s recovery. The site also allows well-wishers to leave words of encouragment for the Justice and his family.

In all honesty, August Court Conference Week sorta snuck up on us here at SCOKYBLOG. We’d been lulled into complacency during the hot summer break, and didn’t even think about the fact that the August Oral Arguments were this week until over the weekend. In any event, links to the briefs in the August Oral Arguments are below.

Wednesday, August 15, 2007

9:00 a.m. RANKINS V. COMMONWEALTH (2005-SC-690-DG)

“Appeals. Hearsay. Issues include (1) whether the Commonwealth may appeal from a district court’s final order dismissing a case, and (2) whether a witness’ statements to a police officer are admissible as excited utterances.” Discretionary review granted 6/7/2006 Jefferson Circuit Court, Judge Ann Shake For Movant: Bruce P. Hackett For Respondent: David A. Sexton

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

10:00 a.m. GRIPSHOVER V. GRIPSHOVER (2005-SC-000729-DG) AND (CROSS-MOTION) GRIPSHOVER V. GRIPSHOVER (2006-SC-000256-DG)

“Domestic Relations. Dissolution of Marriage. Division of Real Property. Issues include the extent and divisibility of marital interest in real property that has been placed in an irrevocable trust and the application of Brandenburg v. Brandenburg, 617 S.W .2d 871 (Ky. App. 1981).” Discretionary review granted 3/15/2006 and 6/7/2006 Boone Circuit Court, Judge Linda Bramlage For Movant/Cross-Respondent: David A. Koenig For Respondent/Cross-Movant: D. Anthony Brinker

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

11:00 a.m. LACH V. MAN O WAR, LLC (2005-SC-1014-DG)

“Partnerships. Discovery. Issues include whether general partners effected unlawful conversion of limited partnership to limited-liability company; whether transfer of partnership assets to limited-liability company was unlawful; whether general partners breached fiduciary duty to limited partner; and whether trial court improperly limited discovery by plaintiff limited partner.” Discretionary review granted 8/17/2006 Fayette Circuit Court, Judge Gary D. Payne For Movant: Glen S. Bagby, J. Robert Lyons, Jr. and Elizabeth U. Mendel For Respondent: Phillip D. Scott, Theodore R. Martin, Carroll M. Redford, III, and Robert S. Ryan

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

2:00 p.m. HODGE, ET AL. V. HON. EDDY COLEMAN, SPECIAL JUDGE, ET AL. (2007-SC-73-OA)

“Writ of Mandamus to compel expenditure of funds for indigent post-conviction petitioners.” Letcher Circuit Court, Judge Eddy Coleman For Appellants: Armand I. Judah, Laurence E. Komp, Heather Christina McGregor and David M. Barron For Respondents: Rickey L. Bartley, David A. Smith and James J. Barrett, III

[Briefs Not Yet Available]

Thursday, August 16, 2007

9:00 a.m. COMMONWEALTH V. COKER (2005-SC-981-DG)

“Criminal Law. Peremptory Challenge. Batson Violation. Prosecutor exercised peremptory challenge on black venire person who responded positively to defense counsel’s questions, reasoning that the answers demonstrated a defense bias. The issue is whether the prosecutor’s reason was pretextual.” Discretionary review granted 8/17/2006 Franklin Circuit Court, Judge Roger Crittenden For Movant: William Robert Long, Jr. For Respondent: Shannon Dupree

Appellant’s Brief

Appellee’s Brief

10:00 a.m. COMMONWEALTH V. BOWLES (2005-SC-39-DG)

“Criminal Law. RCr 11.42. Ineffective Counsel. The issue is whether criminal defendant received effective assistance of counsel at trial.” Discretionary review granted 2/15/2006 Christian Circuit Court, Judge James E. Higgins, Jr. For Movant: Samuel J. Floyd, Jr. For Respondent: Susan Jackson Balliet

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

11:00 a.m. MOORHEAD V. MANNING (2006-SC-251-DG)

“Attorney Fees. Issues include the propriety of new litigation, subsequent to final disposition of contract and attorney fee litigation, as a procedure for pursuing post judgment attorney fees.” Discretionary review granted 9/13/2006 Jefferson Circuit Court, Judge Denise Clayton For Movant: John H. Dwyer, Jr. and James Hays Lawson For Respondent: W. David Kiser and Simon Brooks Berry (Note: Justice Schroder is recused)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Friday, August 17, 2007

9:00 a.m. SHANE V. COMMONWEALTH (2006-SC-96-MR)

“Burglary and First Degree PFO – 35 years.” Jefferson Circuit Court, Judge F. Kenneth Conliffe For Appellant: Frank Wm Heft, Jr. For Appellee: David W. Barr

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

10:00 a.m. COMMONWEALTH V. BISHOP, ET AL. (2006-SC-123-DG)

“Criminal Law. Arrest Powers. Issues include whether a fourth-class city’s “Home Rule” powers may limit the authority of city police, absent emergency, to the municipal geographical boundaries.” Discretionary review granted 8/17/2006 Clay Circuit Court, Judge Jerry D. Winchester For Movant: Bryan D. Morrow For Respondents: Stephan Charles and Charles Edward Keith (Note: Justice Minton is recused)

Appellant’s Brief

Appellee’s Brief

11:00 A.M. JONES V. CROSS (2005-SC-854-DG) AND (CROSS-MOTION) CROSS V. JONES (2006-SC-164-DG)

“Official Immunity. KRS 70.040. Issues include whether KRS 70.040 grants a limited waiver of a sheriff’s official capacity immunity for allegedly negligent actions of a deputy sheriff. The cross-motion questions the constitutionality of KRS 70.040.” Discretionary review granted 2/15/2006 and 4/12/2006 Barren Circuit Court, Judge Phillip R. Patton For Movant/Cross-Respondent: Marc A. Lovell and Travis Wayne Calvert For Respondent/Cross-Movant: Lee Huddleston (Note: Justice Minton is recused)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Appellee’s Reply Brief

Amicus Curiae Brief of St. Matthews Fire Protection District

SCOKYBLOG assumes that anyone inclined to check in on this blog will already be aware of the unfortunate news that broke late yesterday that Justice William McAnulty has (from all reports extremely reluctantly)resigned his seat on the Kentucky Supreme Court. In a week or so, after this news has sunk in, SCOKYBLOG will ponder some of the “what does this mean?” questions. For now, however, we’ll just say that we’ll miss seeing Justice McAnulty on the bench and we look forward to the day when he’s back in a position of prominence in the Kentucky legal community.

After a week or so without a post about the SCOKY (and particularly given that, in the intervening period, traditional media sources reported the unfortunate news about Justice McAnulty’s illness [SCOKYBLOG’s only comment upon which is our prayers for his rapid and complete recovery), I wanted to offer the only explanation I have for SCOKYBLOG’s sloth.

Harry Potter.

Yep, Harry Potter.

Sure, I may be SCOKYBLOG’s EiC, and may be thirty-something husband and father, but I’m a kid at heart, and, for better or worse, I got hooked on the Harry Potter phenomenon several years back. While it might be more socially acceptable among my peers to be hooked on something like “the white horse,” in terms of intensity, chasing the dragon doesn’t hold a candle to a Harry Potter addiction.

So, a couple of weeks ago, when it became clear that some of the details of the sixth Harry Potter book (Harry Potter and the Half-Blood Prince, or “HBP” for the initiated) had become fuzzy since the last reading, I decided that I needed to do some remedial reading to prepare for the release of the seventh and final book next Saturday (7/21).

Unfortunately, quality “reading time” in my house is at a premium. I have read the Madeline book aloud a couple of times, and I made it half-way through Mike Mulligan and the Steam Shovel earlier this week before my daughter dozed off, but I’ve found it difficult to find the time to make large dents in HBP. So, I’ve had to settle for what little reading time I can borrow from other activities. GIven that work demands have ramped up the last couple of weeks, I’m afraid that Harry-Potter-reading-time and SCOKYBLOG-musing-and-typing-time have been in a zero-sum relationship.

So, that’s my explanation. Not an excuse. Just an explanation.

Fortunately, this “perfect storm” of Harry Potter activities, e.g., the new movie, the book release, etc., should die down soon, and we can return to a more-normal schedule of updating SCOKYBLOG.

As of today, the SCOKY has rendered 106 Opinions, 20 Opinions and Orders in KBA Cases, and a handful of other Opinions and Orders to which the Supreme Court minutes do not include hyperlinks (and thus could be anything from a full-blown Opinion to a one-line “grant, vacate, and remand for reconsideration in light of [case]” Order). In any event, even if we assume that every Opinion and Order warrants the “Opinion” label, the total is no more than 140. Spread amongst the 7 Justices, that would be an average of 20 Opinions per Justice, or approximately 3 and 1/3 Opinions each per month.

During the same time frame, the Court of Appeals has rendered 704 Opinions. Spread among the 14 Court of Appeals Judges, that would be an average of just over 50 Opinions per Judge, or approximately 8 and 1/3 Opinions each per month. Of course, with the addition of the Senior Status Judges, there are really more than 14 Judges writing Opinions, so we re-ran the math and divided the 704 Opinions among 18 Judges. [We could come up with at least 5 Senior Status Judges (Paisley, Knopf, Buckingham, Henry, and Rosenblum) pretty quickly from reviewing the recent COA Minutes, and decided to divide them by 2 (because they are at least theoretically part-timers who are working 180 days a year) and then add another 1.5 Judges because (a) we figured we probably forgot about at least one Senior Status Judge, and (b) there were a smattering of “holdover” Opinions in the early months of the year from Judges who were no longer on the bench. (Justice Barber, for instance, rendered at least one Opinion a full 6 weeks after his term ended).] Even divided among 18 Judges, the 704 Opinions add up to 39 Opinions for each Judge, or an average of 6.5 Opinions each per month, i.e., approximately twice the output from the SCOKY Justices.

These statistics fall in the “food for thought” category. There could be any number of explanations for the COA’s ability to “double-up” the SCOKY in terms of productivity ranging from “the SCOKY’s Opinions are more thorough and address more issues” to “the SCOKY has to deal with all of those MDRs, which should be figured in there somewhere.” The extended page limits for briefs to the SCOKY might account for part of the difference. So, we thought we’d just toss the numbers out there and see if anyone else had any thoughts.

As of the June renditions, which chronologically speaking is the mid-point of the SCOKY’s 2007 term, the SCOKY has rendered a total of 16 Opinions in cases to which the SCOKY previously granted discretionary review. Not a huge sample size, but we decided to crunch some numbers anyway. Here’s what we came up with:

The Court has rendered Opinions in 7 criminal and 9 civil cases.

Of the “DG” Opinions rendered to date, Justice Noble has authored the most (4). Justices Minton and Schroder have each authored 3 Opinions. Justices Cunningham and Scott have authored 2 Opinions apiece. Chief Justice Lambert and Justice McAnulty have each authored 1 Opinion.

In 13 (81.25%) of the Opinions, the Court reversed the Court of Appeals in whole or in part.

In 7 (43.75%) of the cases, less than all seven of the Justices decided the case. (In one of those 7, the case was nevertheless decided by a full Court that included 2 Special Justices.) The recent COA Justices were the most likely to recuse, with Justice Minton far in the lead with 5 recusals, and Justices McAnulty and Schroder each recusing in a single case. Justice Scott also recused on one occasion.

Given the recent media attention to the number of 5-4 decisions from the United States Supreme Court in its most-recent term, perhaps the most interesting thing about the Opinions rendered to date by the SCOKY is an apparent lack of divisiveness. In 12 (75%) of the Opinions, the participating Justices unanimously joined in a single Opinion. (4 cases were 6-0 rather than 7-0 because of a single Justice’s recusal). In another 2 cases, the participating Justices’ votes were unanimous as to the result reached. Thus, in 14 of the 16 cases (or 87.5%) of them, the SCOKY reached a unanimous result. There have been no 4-3 cases to this point.

In only 3 cases (2 criminal / 1 civil) did Justices write separate concurring or dissenting Opinions. Justice Scott wrote the two dissenting opinions (both of which appeared in criminal cases). Justice McAnulty (a civil case) and Justice Cunningham (a criminal case, and one of the ones in which Justice Scott filed a dissenting opinion) each filed one concurring opinion.

Perhaps it is a good thing that there was not a great deal of dissension. Karlos Brown v. Commonwealth of Kentucky (2005-SC-0078-DG), the only case to generate more than one separate opinion (and thus the leader of the pack in terms of divergent views), is a bit of a head-scratcher. The same four Justices (Lambert, C.J., Cunningham, Minton, Noble, J.J.) joined both the Opinion of the Court by Justice Noble and the separate concurring opinion by Justice Cunningham that plainly disagrees with a portion of the lead opinion’s reasoning. The concluding sentence of Justice Cunningham’s separate concurring opinion reads: “I concur in the result of the majority opinion herein, but would vary somewhat as to its reasoning and direction.” Logically, it is difficult to imagine how a Justice could both join an Opinion and also join a concurring opinion that is critical of its analysis. Imagining how four Justices could do so is even more difficult. If a majority of the Court agreed with the Cunningham view, why wasn’t it reflected in the Opinion of the Court? Given that only 6 Justices sat in this case, and there were two dissenting votes (McAnulty, Scott, J.J.), perhaps the ultimate vote distribution was a compromise position designed to avoid an unpalatable plurality opinion and ensure that the Court’s Opinion would have precedential value.

Of course, any conclusions about the unexpectedly high level of unanimity in DG Opinions should take into account the fact that it typically takes the SCOKY longer to render Opinions in cases where the Justices disagree as to the reasoning and/or the result than it does to render Opinions in cases where everyone agrees. Cases can languish for a month or two (or considerably longer) while a Justice finishes up a dissenting opinion. And occasionally a well-written dissenting opinion will end up with a “new” majority of votes, requiring a re-write of the lead Opinion followed sometimes by another month or two waiting for the “old” lead Opinion’s author to finish his/her “new” dissenting opinion. Given the fact that much of the Court’s present membership is new to the Court, and that the Opinions they have generated may still be in the “drafting and discussion” phase, SCOKYBLOG looks to see the percentage of 5-2 and 4-3 cases increase in the future.

Back on March 26, 2007, SCOKYBLOG had this to say after viewing the Oral Argument in Dunn v. Felty (2005-SC-0295-DG):

SCOKYBLOG sees this one as an affirmance of the Court of Appeals. Our best guess is 5-2, with Justices Scott and Cunningham as the most-likely dissenters, and Justtice Noble as the most likely author of the majority Opinion.

Chalk another one up in the “correct prediction” column for SCOKYBLOG. The June renditions included a well-written-and-analyzed, unanimous Opinion of the Court by Justice McAnulty affirming the Court of Appeals and holding that Mr. Dunn had blown his statute of limitations.

Between now and the August renditions, SCOKYBLOG’s predictors will endeavor to get their hands on as many Oral Argument videotapes as possible and will go on record with additional predictions.

After musing over our incorrect prediction that Justice Noble would author the Court’s Opinion in Dunn v. Felty, SCOKYBLOG believes it appropriate to make as many excuses for that oversight as possible. So, to begin with, it’s exceedingly difficult to predict who will author an Opinion. Many times, a prediction about the Court’s overall result is little more than a blind guess, and predictions about individual justices’ leanings are even more suspect. (For example, from Oral Argument, it certainly looked as if Justices Cunningham and Scott might be willing to reverse the COA in Dunn v. Felty. The Opinion rendered, however, is unanimous. Maybe their initial views changed as a result of the Oral Argument. Maybe they initialy voted to dissent, but were persuaded by Justice McAnulty’s draft Opinion and decided to join instead. Maybe they were always of the view that the SCOKY should affirm the COA, but wanted to make the Appellee’s counsel work at little at Oral Argument. You never can tell.).

Of course, even if the coin lands on the right side and we correctly predict the Court’s result, and furthermore correctly assume that a given Justice is part of that numerical majority, trying to predict the ultimate author is a crap-shoot. Most of the time, our prediction boils down to “well, it’s probably going that way, and Justice X seemed to be leaning that direction and was the most vocal.” There are a number of other variables, however, that make such a prediction hazardous. Normally, the Chief Justice (who makes all case assignments in Oral Argument cases regardless of whether he is in the majority after the post-Oral Argument straw vote) makes an effort to distribute the case-load as evenly as possible. In other words, if there are 9 cases orally argued in a month, most Justices will probably end up with one assignment and a couple will end up with two. (A particularly clever Justice who found himself or herself without a case assignment as of the 11:00 a.m. Oral Argument on Friday morning could “duck” an assignment that month if he or she cast his or her “straw vote” contrary to the Court’s majority.) Much of the time, one or more Justices will volunteer to write the opinion (sometimes in an effort to avoid a real “stinker” of a case coming up later in the week), and the Chief Justice ends up assigning most of the cases (probably 75-85%) to a volunteer. (The remaining cases, which involve a disproportionate amount of “billboard law” and other mind-numbing issues, typically end up getting assigned to a particularly congenial Justice who is willing to “take one for the team,” or perhaps to a Justice who foolishly makes eye contact with the Chief at the wrong time.) So, to get back to the point regarding the difficulty of predicting the author of an Opinion, even if Justice X would be a good fit for a particular opinion, e.g., part of the straw-vote majority and interested enough in the issues in the case to consider volunteering, he or she may have his or her eye on another case for one reason or another. Sometimes, the Justice knows there’s a case later in the day or later in the week in which he or she led the fight for granting discretionary review or a case that would allow the Court to address one of his or her “pet issues.” There’s a real science to knowing when to say “I’d like to take a stab at writing that one, Chief.” If you do so on a case that you’re only lukewarm about, you might miss out on a case that really fascinates you. But, if you wait for the case that fascinates you, and end up in a dissenting position, you might end up saddled with some awful case involving the UCC or coal leases or the like.

So, we’ll continue to make authorship predictions when we feel moved to do so, but those predictions should be taken with a nano-grain of salt.

At its June, 2007 Court Conference, the SCOKY granted discretionary review to 7 cases, which are listed below (along with links to the COA’s opinion, where available):

Holt v. Commonwealth (2006-SC-0391-DG)

Triple Crown Subdivision Homeowners Association, Inc. v. Oberst (2006-SC-0934-DG)

Early v. Oldham County Board of Education (No Opinion Rendered by COA; Case Dismissed by Order)(2007-SC-0008-DG)

Reinhardt v. Mudd (2007-SC-0201-DG)

Justice v. Hall (2007-SC-0215-DG)

Porterfield v. Renaker (2007-SC-0223-DG)

Jenkins v. Commonwealth (2007-SC-0248-DG)

Moore Pontiac, Buick, GMC, Inc. v. Scott (2007-SC-0282-DG)

In its June renditions, the Court resolved 6 DR cases (all by Opinion) leaving it with its smallest-to-date monthly “DR-grant-deficit” of just a single case. For the year, the SCOKY’s cumulative “DR-deficit” stands at 32 cases. Historically, the SCOKY has made a substantial dent in its DR-cases in the August renditions. (Six weeks of writing time uninterrupted by a momentum killing “reading week” followed by a Court Conference week allows the Court to really “crank” out opinions.). As such, we’ll have to check in and see what the numbers look like in August.

Reports from the Oral Argument in Shown v. Shown, which was argued last Thursday morning, are that one of the attorneys arguing the case referred to Justice Will T. Scott as “the Justice on the end.” Given that of the Justices who currently occupy the SCOKY bench, Justice Scott has the second-longest tenure, one could interpret this as an indication that the SCOKY Justices have a fairly low profile, even among the attorneys actually arguing cases before them. (More likely, however, the attorney’s inability to come up with Justice Scott’s name on the spot likely has more to do with the pressure and stress of that situation). In any event, however, those of us who take advantage of the text-messaging capabilities of our cell phones to communicate about the SCOKY [a group that looks suspiciously like the high school chess club], are currently referring to Justice Scott as “TJOTE,” which stands, of course, for “the Justice on the end.”

WEDNESDAY, JUNE 13, 2007

9:00 a.m. W.D.B., A CHILD UNDER EIGHTEEN V. COMMONWEALTH (2006-SC-937-DGE)

“Juvenile. Infancy Defense. The “infancy defense” relates to the rebuttable presumption (applied in criminal proceedings) that a child between the ages of 7 and 14 is incapable of forming criminal intent. The issues include whether the infancy defense is viable in proceedings in juvenile court as opposed to circuit court prosecutions, in light of the Juvenile Code’s emphasis on rehabilitation and treatment as opposed to being purely punitive in nature.” Discretionary review granted 3/14/2007 Henderson Circuit Court, Judge Stephen Hayden For Movant: Timothy G. Arnold For Respondent: Perry T. Ryan

[Briefs Not Yet Available]

10:00 a.m. COMMONWEALTH V. B.J., A CHILD UNDER EIGHTEEN (2007-SC-25-DGE)

“Juvenile Law. Habitual Truancy. Was due process denied when the family court proceeded with adjudication and disposition hearings in the child’s absence?” Discretionary review granted 3/14/2007 Jefferson Circuit Court, Judge Eleanore Garber For Movant: Irvin G. Maze and David A. Sexton For Respondent: Frank Wm Heft, Jr. and Terra Lynn Meek

Appellant’s Brief

Appellee’s Brief

11:00 a.m. KAPLAN V. PUCKETT (2006-SC-18-DG)

“Legal malpractice. Puckett was found guilty of arson-related murder. Puckett was acquitted at new trial granted because prosecution witness had withheld exculpatory evidence at first trial. Puckett subsequently prevailed in legal malpractice action against original defense counsel. The issue is whether the malpractice verdict may stand in light of the withheld evidence.” Discretionary review granted 8/17/2006 Jefferson Circuit Court, Judge F. Kenneth Conliffe For Movant: George R. Carter For Respondent: Bill V. Seiller

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

THURSDAY, JUNE 14, 2007

9:00 a.m. PARKER V. COMMONWEALTH (2005-SC-343-MR)

“Murder, Attempted Murder, Second degree Assault, and Tampering with Physical Evidence – 25 years.” Jefferson Circuit Court, Judge Stephen P. Ryan For Appellant: Trevor W. Wells For Appellee: George G. Seelig

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

10:00 a.m. MATHERLY LAND SURVEYING, INC., ET AL. V. GARDINER PARK DEVELOPMENT., LLC, ET AL. (2005-SC-576-DG) AND (CROSS-MOTION) NILSEN, ET AL. V. MATHERLY LAND SURVEYING, INC., ET AL. (2006-SC-163-DG)

“Limitations. KRS 413.245. Issues include the professions and professional services covered by KRS 413.245, and the date upon which alleged damages became fixed and nonspeculative.” Discretionary review granted 2/15/2006 and 4/12/2006 Jefferson Circuit Court, Judge F. Kenneth Conliffe For Movants/Cross-Respondents: Robert M. Brooks and David B. Blandford For Respondents/Cross-Movants: Elizabeth U. Mendel and Marc A. Lovell For Gardiner Park Development, LLC, Gardiner Design & Development and Gregory S. Gardiner: F. Larkin Fore and Sarah Megan Fore

Appellant’s Brief

Appellee Gardiner’s Brief

Appellee Nilsen’s Brief

Appellant’s Reply Brief

11:00 a.m. SHOWN V. SHOWN (2005-SC-855-DG)

“Domestic Relations. Pensions. Division of Marital Property Upon Dissolution of Marriage. In case in which division of teacher spouse’s pension is sought, issues relate to the effect of KRS 403.190(4) upon KRS 161.700.” Discretionary review granted 6/7/2006 Ohio Circuit Court, Judge Ronnie C. Dortch For Movant: Candy Y. Englebert and Darron Lee Brawner For Respondent: Gregory Boyd Hill

Appellant’s Brief

Appellee’s Brief

FRIDAY, JUNE 15, 2007

9:00 a.m. DOLLAR GENERAL STORES, LTD. V. SMITH (2005-SC-867-DG)

“Forum Non Conveniens. At issue is whether Kentucky’s Savings Statute, KRS 413.270, applies to dismissals based on forum non conveniens.” Discretionary review granted 5/10/2006 Casey Circuit Court, Judge James G. Weddle For Movant: Kevin G. Henry and Kevin W. Weaver For Respondent: Jonathon N. Amlung

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

10:00 a.m. HUNSAKER, ET AL. V. DEPARTMENT OF TRANSPORTATION (2005-SC-974-DG)

“Eminent Domain. Issues include whether grantees of original landowner, who were substituted for original owner in condemnation proceeding, were improperly adjudged liable to the Commonwealth for difference between amount disbursed to original owner and the lesser amount of compensation finally awarded.” Discretionary review granted 8/17/2006 Letcher Circuit Court, Judge Stephen K. Mershon For Movants: James W. Craft, II For Respondent: Phillip Wicker

Appellant’s Brief

Appellee’s Brief

11:00 A.M. COMMONWEALTH V. SWIFT (2006-SC-155-DG)

“Criminal Law. Instructions. Possession of marijuana (for own use) as a lesser included offense of cultivating marijuana. Issues include whether a lesser included instruction should have been given in the situation where the defendant denied having anything to do with growing the marijuana.” Discretionary review granted 8/17/2006 Ohio Circuit Court, Judge Ronnie C. Dortch For Movant: Samuel J. Floyd, Jr. For Respondent: Albert William Barber, III (Note: Justice Schroder is recused)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Since January, the Court has rendered just shy of 50 Opinions in matter-of-right criminal cases, which should be a sufficient sample size to run a few numbers.

In the 49 rendered Opinions, the SCOKY has:

Affirmed the underlying judgment in 81.6% (40) of the Opinions

Affirmed the underlying judgment unanimously (as to result) in 73.5 % (36) of the Opinions.

Flat-reversed or reversed-and-remanded the entire case in 12.2% (6) of the Opinions.

Partially reversed the judgment in another 6.12% (3) cases).

Justices have dissented from the result (either with or without separate opinion) in 9 of the 49 Opinions. Justice Scott has been the most frequent dissenter in these cases, and has written or joined 4 dissenting opinions (all in cases where the majority of the Court voted to reversed the judgment below). Dissenting from 3 Opinions have been Justices Cunningham (1 from an “affirm” Opinion, 2 from “reverse” Opinions), Minton (1/2), Noble (2/1), and Schroder (3/0). Justice McAnulty has dissented from 2 Opinions (1/0/1). Chief Justice Lambert has not dissented from any of the 49 Opinions in the matter-of-right criminal cases.

For what it’s worth, the Court affirmed unanimously with respect to the other 3 Opinions rendered in matter-of-right appeals (all appeals from denials of writs by the Court of Appeals),

What, if anything, these statistics mean is anyone’s guess. SCOKYBLOG will endeavor to keep track and update these statistics after the August Renditions and again at the end of the year.

Listed below are the 8 cases to which the SCOKY granted discretionary review in May. The hyperlink on the name will take you to the Opinion rendered by the Court of Appeals.

Brewster v. Colgate Palmolive Co. (2006-SC-0584-DG)

Humana, Inc. v. Blose (2006-SC-0783-DG)

Com., Education Cabinet v. Solly (2006-SC-0858-DG)

Kugland v. Encompass Insurance Co. (2007-SC-0002-DG)

Hartsfield v. Commonwealth (2007-SC-0077-DG)

Gilbert v. Nationwide Mut. Ins. Co. (2007-SC-0078-DG)

De Vasier v. James (2007-SC-0130-DG)

Carneal v. Commonwealth (2007-SC-0203-DG)

By granting DR in these 8 cases, and resolving 3 cases in which it had previously granted DR, the SCOKY increased its “DR deficit” by 5 cases in May, bringing the total deficit to 31 cases.

After correctly predicting the results in Commonwealth v. York and in the Autry v. WKU cases, SCOKYBLOG stubbed its toe on Clark v. Commonwealth. Although hedging its bets as much as possible, SCOKYBLOG ultimately predicted a split decision affirming the conviction. The Court however, ultimately rendered a split decision reversing the conviction (in part upon an issue that SCOKYBLOG didn’t give a snowball’s chance in hell of securing a reversal). Although its collective head had swelled with the 2-for-2 start, SCOKYBLOG never realistically anticipated that it would run the table. Oral arguments are just the starting point of the Court’s deliberation process, and, as it turned out, the record in this case turned out not to permit the Court to review the issue that occupied most of the Oral Argument. SCOKYBLOG has a couple of videos to review, and will get a couple more predictions up before the June rendition date. Hopefully, we can make it to the July break still above .500.