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

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

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 a week chock-full of out-of-town court appearances, which unfortunately left little time for much-needed SCOKYBLOG catch-up, I’m staring at a week that looks promising in terms of its prospects for SCOKYBLOG-time. And, we’ll begin by posting links to the briefs in the cases that were orally argued in April and May.

Wednesday, April 11, 2007

Commonwealth v. Blakeley (2006-SC-0313-CL)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Mitchell v. Allstate Ins. Co. (2005-SC-0571-DG)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Commonwealth v. Link / Link v. Commonwealth (2004-SC-0216-DG / 2005-CA-068-DG)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Appellee’s Reply Brief

Thursday, April 12, 2007

Queensway Financial Holding Co. v. Cotton & Allen, PSC (2004-SC-0254-DG)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Chapman v. Commonwealth (2005-SC-070-MR)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Friday, April 13, 2007

B.B. v. Commonwealth (2005-SC-0814-DG)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Com., Finance and Administration Cabinet v. Yamaha Motor Manufacturing Corp. of America (2005-SC-0979-DG)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Bituminous Casualty Corp. v. Kenway Contracting, Inc. (2005-SC-0013-DG)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Wednesday, May 16, 2007

Cummings v. Commonwealth (2005-SC-479-MR)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Theisen v. Estate of Wilson (2005-SC-769-DG)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

C. W. Hoskins Heirs v. Boggs (2005-SC-618-DG)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Thursday, May 17, 2007

Nordike v. Nordike (2005-SC-809-DG)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Commonwealth v. Bussell (2006-SC-001-MR)

Appellant’s Brief

Appellee’s Brief

In the next couple of weeks (or as soon as the briefs are posted at the NKU site), SCOKYBLOG will post links to the cases to be orally argued in June.

Note: As a result of the approximate two-month delay between SCOKYBLOG’s EIC’s attendance at the Oral Argument and his completion of this Report, the author must confess that he finds his six pages of squiggles masquerading as notes a bit more difficult to decipher than usual. To keep this Report as objective and accurate as possible, the author has elected not to fill in holes from memory and/or with educated guesses.

Blow-by-Blow

The SCOKY entered the courtroom at or near the scheduled time of 10:00 a.m. for the Oral Argument in Cape Publications d/b/a The Courier Journal v. University of Louisville Foundation, Inc. A larger-than-usual crowd, including a number of state government employees no doubt interested in this Open Records Act case as well as The Courier Journal’s own David Hawpe, who the author recognized from Mr. Hawpe’s frequent appearances on Friday night’s Comment on Kentucky, which the author usually catches via TiVo on Saturday morning.

Mr. John Fleischaker argued the case for the Appellant and elected to divide his time in an 11/4 split between Argument and Rebuttal. Mr. Fleischaker began his Argument by pointing the Court towards a single sentence on page 5 of the Court of Appeals’s Opinion that he argued demonstrated the Court’s disregard of both the facts and Open Records law by describing, in a derogatory sense, the Courier Journal’s motivation as “mere curiosity” when, in Mr. Fleischaker’s view, such “mere curiosity” was the core of a democratic society.

Justice Scott then asked Mr. Fleischaker how seriously the Court should take fears that allowing the inquiry sought would stifle private contributions. Mr. Fleischaker responded that although he did not know how to judge the credibility of those fears, he would advise the Court that their was no evidence in the record to support them.

Justice Scott then inquired as to whether Mr. Fleischaker agreed that there was a public interest in securing funding for Kentucky’s public universities. Mr. Fleischaker again responded that the record did not contain any evidence to support a conclusion that permitting the Open Records inquiry sought would jeopardize such funding. Mr. Fleischaker then argued that even if such a linkage could be shown, it still would not make this inquiry a private rather than public matter. Mr. Fleischaker then analogized to the well-publicized situation at a Florida university involving temporarily-suspended-member of the KBA, Shirley A. Cunningham, which Mr. Fleischaker argued would never have come to light if it had occurred in Kentucky and the Court of Appeals’s decision in this case were allowed to stand.

Chief Justice Lambert then asked a question that suggested that a desire to keep their identities private might reasonably be inferred from the fact that certain donors had made anonymous donations. In response, Mr. Fleischaker argued that the problem was with the reverse-causal inference that there were people who would not have donated unless they could do so anonymously, which Mr. Fleischaker argued was UofL’s burden to show. Mr. Fleischaker pointed out that 47,000 donors made no such request of anonymity, and that only 62 had made such a request. Mr. Fleischaker explained that the newspaper’s interest as in ascertaining whether there were any strings attached to some of the donations, e.g. for basketball tickets or football seats or curriculum.

Justice Scott then asked a question regarding whether issues of football or basketball tickets were matters of university policy. Mr. Fleischaker explained that the newspaper was primarily interested in determining whether there were documented situations of quid pro quo. Mr. Fleischaker also addressed the “privacy” issue more globally by noting that all of the Open Records case law addressing “privacy” concerns involved attempts to access information gathered by governments, which the current request did not because only the identities of those persons who voluntarily made contributions to the foundation would be disclosed through the request.

Justice Scott then asked a question regarding whether the newspaper’s argument was constitutionally based upon First Amendment claims. Mr. Fleischaker explained that this particular case is under the Open Records act, but observed that a clear analogy could be drawn to privacy in the First Amendment context.

Justice McAnulty then inquired of Mr. Fleischaker whether the statutory language (“clearly unwarranted”) required more than a mere invasion of privacy. Mr. Fleischaker responded in the affirmative and noted that the analysis required two determinations: (1) is it a private matter? and (2) if so, to conduct ad hoc balancing of the privacy interest. When Justice McAnulty expressed the view that this was primarily a factual inquiry that appellate courts do not commonly make, Mr. Fleischaker observed that the newspaper was objecting to the Court of Appeals’s blanket ruling, which ignored the statutory mandate to narrowly and strictly construe exceptions and to place the burden of proof upon the party relying upon the exception.

Attempting to frame more narrowly the actual issue of dispute between the parties, Justice Noble inquired whether it was true that the newspaper’s last request was for the names of the donors and the amounts they had given. Mr. Fleischaker responded that the newspaper had asked for the names and amounts, but had agreed to accept the names only if UofL would provide them. Justice Noble then inquired regarding the quid pro quo that Mr. Fleischaker had mentioned earlier, and Mr. Fleischaker argued that the quid pro quo was a “major part of [the newspaper’s] argument” and that names and amounts would be important in ferreting out contractual quid pro quo arrangements. In a series of follow-up questions, Justice Noble observed that the newspaper had previously successfully litigated the issue of whether the UofL Foundation was a public agency subject to the Open Records Act and that the newspaper was not aware of any less-restrictive means of obtaining the information it sought.

Justice Minton then asked Mr. Fleischaker to address the nature of the privacy right asserted. Mr. Fleischaker revisited the distinction he had addressed earlier between “government collected” information and information voluntarily disclosed to the government. According to Mr. Fleischaker, the information sought was radically different from, for example, a state tax return because everyone who “did business” with the UofL Foundation did so voluntarily.

Justice McAnulty then asked Mr. Fleischaker whether the in-kind distinction he was advocating contended that by voluntarily participating, a person waived his or her privacy interest. Mr. Fleischaker indicated that his argument was not premised upon waiver, but rather that no expectation of privacy ever existed.

Justice Noble then inquired whether it mattered who gives a gift if no amounts are disclosed. Although acknowledging that it would be more difficult to show a quid pro quo in such circumstances, Mr. Fleischaker argued that having access to information showing that a donor gave a gift one year and received a benefit in a following year may show an implicit quid pro quo arrangement. This response led to a follow-up question from the Chief Justice regarding how much information would be necessary to make these linkage. Mr. Fleischaker ultimately responded that the newspaper was entitled to sufficient information to identify the donor.

In response to a question from Justice Scott, Mr. Fleischaker agreed that one motivation for donating anonymously might well be to avoid being inundated by other requests for donations. Justice Scott then analogized to the recent legislatively-enacted “No Call” list for telephone solicitations, which Mr. Fleischaker indicated in his view was comparing apples and oranges because the “No Call” issue involved the right not to be bothered in one’s home.

The Chief Justice inquired whether an anonymous donor could claim a charitable-contribution deduction on his/her/its income tax return. Mr. Fleischaker responded that, although he was not a tax attorney and could not give a definitive answer, he believed that an anonymous donor could claim such a deduction.

Mr. Michael D. Risley argued the case for Appellee, the University of Louisville Foundation, Inc. Mr. Risley began his argument with the contention that many of Mr. Fleischaker’s argument were inconsistent with the law.

Justice Scott asked Mr. Risley to address Mr. Fleischaker’s analogy to the Florida/Cunningham situation, which Justice Scott referred to as “very interesting for the resolution of this case.” [Unfortunately, I cannot discern the tenor of the response from my notes, which read “A: public knowledge – that donation matter / [illegible, looks like it begins with an “s” and might contain a “t”] / out for public knowledge.”]

Mr. Risley then addressed the Chief Justice’s previous question regarding what particular information was private by referencing the Zink case, which he indicated held that private information included one’s marital status, social security number, and home address. In response to Mr. Fleischaker’s contention that there was no balancing to be done in this case because there was no private matter involved, Mr. Risley argued that the clearly-identified privacy concerns had to be weighed against the newspaper’s interests.

Justice Noble then inquired regarding a factual matter, i.e. (paraphrased) “is it not true that donors made donations before the Foundation was held to be a public agency?” Mr. Risley indicated that all of the donations had come prior to that determination and agreed with Justice Noble’s follow-up question/suggestion that the pre-public agency timing sequence was relevant to the privacy analysis because a person would have a reasonable expectation of privacy in connection with a donation to a private agency.

Justice Scott then asked a question regarding whether the public had a right to know how the Foundation did business and to examine the “inputs and outputs” to see if there was anything wrong. [Although my note-taking skills once again failed me here (please send all complaints to Ms. Green, who taught me study skills in the 3rd Grade), I believe from my notes that Mr. Risley’s response was that his client was not asserting any right of privacy with regard to any “outputs,” i.e., benefits conferred upon anyone.

Justice McAnulty then sought clarification as to exactly whose right to privacy the Foundation was asserting. Mr. Risley explained that the Foundation was asserting the individual donors’ rights of privacy for them as authorized under existing case law.

In response to Mr. Fleischaker’s contention that the record did not support his clients’ claims regarding donor-fatigue, or the “chilling” of donations that could occur in a climate where reasonable expectations of privacy are not respected, Mr. Risley pointed out that 62 donors specifically requested anonymity and that both the trial court and the Attorney General’s office (as demonstrated by a AG Opinion dating back to 1986) recognized the reality of that fear.

In response to the Chief Justice’s question regarding speculation about fund raising should factor into the Court’s analysis, Mr. Risley argued that it should be taken into account as part of the public’s interest in connection with the balancing of interest.

Justice Cunningham posed a hypothetical to Mr. Risley. [Although difficult to do it justice without quoting it verbatim, which unfortunately I cannot do from my notes, the gist of it was whether Mr. Risley would acknowledge that an African-American resident of Calloway County might reasonably be interested in knowing whether David Duke (who Justice Cunningham described as “the Grand Wizard of the KKK”) gave $5000 to a University.] Acknowledging that “the practical answer is ‘yes,’” Mr. Risley attempted to distinguish the hypothetical from the newspaper’s fishing expedition, which he characterized as mere curiosity. In response to Justice Cunningham’s follow-up question, which returned to the hypothetical and suggested that a parent with a college-age child might view a donation from a person with KKK ties as reflective of the political and social landscape at a particular university, Mr. Risley argued that it would be the effect rather than the donor itself that would matter and indicated that the effect of any influence would be visible and speak for itself.

Justice Scott asked whether U of L would accept such a donation as the one posed in Justice Cunningham’s hypothetical. Mr. Risley indicated that he did not think so, but acknowledged that the record did not contain any information that would provide a direct answer to that question.

Justice Minton and the Chief Justice then probed the “chilling” argument further in an attempt to ascertain whether the record contained any studies to support the donor-fatigue fear. Mr. Risley identified the requests for anonymity themselves as evidence, and the Chief Justice characterized that evidence as “merely inferential.”

Justice McAnulty inquired what harm would be associated with the public being motivated by curiosity. Mr. Risley indicated that the public’s curiosity must be balanced against the privacy interests. Justice McAnulty then inquired more directly whether the motivation should matter, and Mr. Risley acknowledged that the courts have said that the motivation itself does not matter, but that the public interest to be served is relevant.

Inquiring as to the possible results the Court could reach, the Chief Justice asked whether this was an “all or none” situation or whether the Court could require release of only the names of donors who did not request anonymity? [Once again, the squiggles let me down. They appear to read: “A: info submitted; ct” Your guess is as good as mine.]

Justice Noble then probed the weight that should be given to a donor’s request for anonymity by inquiring (1) whether the Foundation had created a procedure by which donors could request anonymity to fill a need or whether certain donors simply lableled their donations as anonymous and (2) whether a specific request for privacy should equal weight to that privacy interest. In response to this question an its follow-up, Mr. Risley staked out the position that the request should be entitled to some kind of weight.

After a “1 minute remaining” warning from the Chief Justice, Mr. Risley wrapped up by arguing that the Court of Appeals properly balanced the competing interests.

In his Rebuttal, Mr. Fleischaker first addressed Justice Noble’s question about the weight to be given to a request for anonymity. [I cannot tell from my notes whether Justice Noble herself posed the question to Mr. Fleischaker or whether he answered it independently.] Mr. Fleischaker indicated that the request does add some weight, but should not be a trump because the motivation for that secrecy might be to hide a quid pro quo arrangement or a desire to keep behind-the-scenes influence hidden.

With regard to Mr. Risley’s references to case law permitting a public agency to assert vicariously the privacy rights of individuals, Mr. Fleischaker noted that although individuals had a right to intervene, none of the 47,000-plus donors elected to intervene in this case.

In conclusion, Mr. Fleischaker argued that the potential of donor-fatigue, if it even exists, does not represent a concern that should override the public’s right to know in this case. Mr. Fleischaker observed that through its adoption of the Open Records Act, the legislature was fully aware that it would hurt the efficiency of government, and the fact that it might make a public agency’s job more difficult does not outweigh the public’s right to know. Mr. Fleischaker asked the Court to reverse the Court of Appeals’s opinion in its entirety and hold that all of the requested records were subject to disclosure.

The Clerk adjourned Court at 10:50 a.m.

The Numbers

Justices Noble (6/2) and Scott (5/3) led the way with the questioning. Chief Justice Lambert (3/2), Justice McAnulty (2/3), Minton (1/1) and Cunningham (0/1) also participated in the questioning. Justice Schroder was not sitting.

Prediction?

Before making a prediction as to how the SCOKY will resolve this case, SCOKYBLOG would like to make an official response to certain rumblings that have made their way back to us. Apparently, there are some folks who believe that such predictions are in some way inappropriate. Although we are certainly willing to listen to alternative views, which can be emailed to us backchannel with our EIC’s personal guarantee that the sender will remain private, we frankly cannot imagine any reason why it would be inappropriate for us to guess (and that’s what we’re doing, in case anyone forgot; we don’t have access to any “inside information”) how the SCOKY will rule in a particular case. Online and traditional journalists make such predictions after virtually every argument in the United States Supreme Court. We certainly wouldn’t expect anyone to settle a six-or-seven figure case before the Kentucky Supreme Court based on our windshield appraisal of where it is headed – particularly since oral argument is just a starting point for many of these opinions, and votes change all the time between oral argument and rendition. Because we see no potential opportunity cost to tossing our opinion out there for all to read, we intend to continue to make such predictions.

So, we call this one a 4-2 reversal in part. We’re not sure that there are 4 votes to pry the anonymous donors’ names loose, but the Court will likely bend over backwards to avoid a 3-3 affirmance by an equally-divided Court, and our best guess is that it will bend towards greater openness than the Court of Appeals provided.

Although I’ve witnessed at least a couple hundred SCOKY Oral Arguments in the past decade, I wasn’t aware until today that the Court Administrator’s Office has prepared a one-page Information Concerning Oral Argument document that functions essentialy as a FAQ about SCOKY Oral Argument procedure. Click on the hyperlink to read it for yourself.

In the last two or three weeks, I have received three Orders Dispensing With Oral Argument (“Non-Oral Notices”) from the SCOKY, and, as a result, the wheels have started spinning about Non-Oral Notice procedure.

Although only a small percentage of the matter-of-right cases before the Kentucky Supreme Court are ever orally argued, the Kentucky Rules of Civil Procedure operate from the assumption that all cases will be orally argued unless the Court decides otherwise. Accordingly, CR 76.16(1) provides:

Oral arguments on the merits will be heard in all cases appealed from the circuit court unless the appellate court directs otherwise on its own motion or on motion of one or more of the parties to the appeals. CR 76.12(4) provides for the parties to include in their brief statements concerning the need for oral argument in the appeal. In any case where the court orders on its own motion that oral argument shall be dispensed with, any party shall have ten (10) days from the date of the order in which to object and ask for reconsideration. No opinion shall be rendered until the time has expired for making such objection and motion for reconsideration, or if such objection and motion is made, until it can be decided.

And, in the majority of matter-of-right criminal appeals, the parties receive an Order Dispensing With Oral Argument, signed by the Chief Justice, that looks like this one, from which I have deleted the identifying information.

What SCOKYBLOG finds interesting is an apparent lack of a uniform policy as to when in the process a Non-Oral Notice is typically entered and distributed.

Standard operating procedure with regard to matter-of-right criminal appeals from the circuit courts has customarily been that after the matter is fully briefed (or the time has passed for an Appellant to file a Reply Brief), each case is administratively assigned to a Justice (essentially in a “one-for-you-next-one-for-you-next-one-for-you” process designed to approximate equalization of the workload). The SCOKY’s Clerk’s Office then boxes up the appellate record along with seven-plus copies of the briefs and SCOKY staff, occasionally under cover of darkness, wheels the box (or boxes, if everything will not fit into a single box) to the assigned Justice’s Frankfort chambers and deposit it/them in a conspicuous place where the Justice and/or his or her Office Assistant and/or clerk(s) will discover it the next time he or she is in the Frankfort office. Obviously, Justices who work out of their Frankfort offices or who have clerks or other staff who work out of the Frankfort office will discover the new case assignment earlier than others who typically visit their Frankfort offices only during Court Week and on “Cutoff Day.” In any event, at some point, usually within no more than a week or two, the Justice and/or his or her staff becomes aware of the new case assignment and then distributes copies of the briefs to each of the other Justices using color-coded folders.

What happens next is, from all indications, a matter of personal preference for a Justice. Some Justices have been known to “pre-screen” all of the matter-of-right cases as soon as they come in the door and make a windshield appraisal of whether the issues in the case might warrant an oral argument. If not, which historically has been the conclusion the majority of the time, the Justice will, in the ordinary course, prepare a draft Opinion either affirming, reversing, or some combination of the two, that he or she will then circulate to the other Justices for their consideration and discussion at an upcoming Court Conference Week. However, in the event that the Justice believes that the case warrants oral argument, he or she might instead prepare a Recommendation to Set for Oral Argument, which he or she would circulate for discussion instead of a draft Opinion.

The individual Justice to whom a case has been assigned will thus make a preliminary determination as to whether an oral argument should be held. This preliminary determination does not, of course, bind the SCOKY, and history suggests that there have been any number of occasions where draft Opinions have been circulated, only to be followed by the circulation of separate concurring or dissenting opinions, only to result in a collective decision that the issues in an individual case are “close” enough or “significant” enough that the parties should be permitted to orally argue the case before the SCOKY ultimately decides it.

In the past, many members of the criminal appellate bar have viewed a Non-Oral Notice as a likely indication that an Opinion may be forthcoming at the SCOKY’s next rendition day. This is especially the case when the Non-Oral Notice arrives just about two weeks before the next SCOKY rendition day, which some have interpreted as tending to suggest that the Non-Oral Notice was entered contemporaneously with the Justice’s circulation of a draft Opinion for the other Justices’ consideration, and that the SCOKY is making sure that it complies with CR 76.16(1) by giving the parties at least ten days to “object” (technically, to move the SCOKY under CR 76.38 to reconsider the Order that dispensed with Oral Argument).

Thus, given that the SCOKY’s March Rendition Day was Thursday, March 22nd, when I received a Non-Oral Notice entered March 2, 2007 in a case (I’ll call it “Case A”) that had been fully briefed and sent out for assignment on November 21, 2006, I thought it likely that I might find an Opinion in my case in the March Minutes. And when I received a second Non-Oral Notice entered March 13, 2007 in a case (I’ll call it “Case B”) that had been fully briefed and sent out for assignment on January 31, 2007, I suspected that another Opinion might be forthcoming (although perhaps not in March given that the Non-Oral Notice came only 9 days before the Rendition Day).

So, as is typically the case, I was sitting at my computer at 10:00 a.m. on Thursday, March 22nd feverishly hitting the refresh button. I discovered, however, that the SCOKY had not rendered an Opinion in either case.

Then, this Monday, I received another Non-Oral Notice. This one had been entered on March 23rd and concerned a case (I’ll call it “Case C”) that had been sent out for assignment only the day before when I filed my Reply Brief.

Finally, just ten minutes ago, while looking at the online docket sheets to obtain the above dates, I discovered that yesterday an Order was entered scheduling an Oral Argument in the case (“Case B”) where the Non-Oral Notice was entered just 9 days before Rendition Day.

All of this leads me to a couple of thoughts. First, I wonder whether some Justices, either before or after conducting a windshield appraisal of whether Oral Argument is warranted, draft an Order Dispensing With Oral Argument for the Chief Justice’s signature in all or virtually all of their matter-of-right criminal case assignments as soon as the cases come into the office. Such a policy would be efficient given that the SCOKY will not hold oral argument in the vast majority of such cases, and because the SCOKY could always reverse field and schedule an oral argument if it later decided one was necessary and/or appropriate. Of course, while we’re on that point, the whole CR 76.16 “oral argument unless we say otherwise” rule seems remarkably inefficient. Empirically, exceptions have devoured CR 76.16’s “general rule.” Perhaps a more efficient system would simply formalize what appears to be existing practice, remove the need for the Non-Oral Notices and potential post-Notice Motion Practice, and simply provide that, in matter-of-right criminal cases, Kentucky appellate courts will hold Oral Arguments only when the issues and arguments warrant it. While such a change would eliminate one corner of the SCOKYBLOG “Rosetta Stone” from which we form our guesses as to which Justices drafted which unsigned opinions, it might improve the process as a whole. Perhaps there is a Kentucky-constitutional basis for CR 76.16 of which I am unaware. Perhaps procedures are different in the Kentucky Court of Appeals, before which practice is also governed by CR 76.16. In any event, the three Non-Oral Notices that I received this month were food for thought.

Blow-By-Blow

At 9:02 a.m. on Wednesday, March 14, 2007, the SCOKY entered the courtroom for the Oral Argument in Dunn v. Felty (2005-SC-0295), which concerned the appropriate “starting point” for the statute of limitations in a false arrest/false imprisonment action.

Garry Richard Adams, Jr. argued the case for the Appellant. Mr. Adams chose a 10/5 division of his time between Argument and Rebuttal. Mr. Adams began his argument by introducing his client, who was seated in the first pew/bench, although behind the Appellee. Chief Justice Lambert made it painfully clear that he believed this introduction was inappropriate in advising counsel that “that is not normally done; this is an appellate court,” but then conceding “but you’ve done it.” Mr. Adams then discussed (in considerable detail) some of the underlying facts leading up to Appellant’s arrest.

Justice Scott interrupted the factual monologue with a question regarding the nature of the telephone call to the authorities that had resulted in the police responding to Appellant’s residence, which Mr. Adams described as a call regarding a fight or an argument. Mr. Adams then returned to his factual monologue until Justice Scott again interrupted it, observed for counsel’s benefit that all of the Justices were familiar with the factual background because they had read all of the facts “very, very, carefully,” and attempted to refocus counsel’s presentation on the legal issue at hand by forcing Appellant to concede that the action at issue was not a deprivation-of-rights-under-color-of-state-law 1983 action, but rather an action for damages for state, common-law claims of false arrest/false imprisonment.

Justice Scott then followed up with an “issue-clarification” (and, from this watcher’s perspective, “softball”) question along the lines of “why should we compel the filing of a claim until the underlying criminal claim is resolved?” Mr. Adams drove the pitch into the opposite field by stating that he agreed “100%” that such an action should not be filed until after the resolution of the criminal proceeding. Mr. Adams then briefly outlined the policy rationale that would form much of the rest of his argument, i.e., that the commonality of issues between the underlying criminal case and the false arrest/false imprisonment action risked unnecessarily clogging the courts and wasting judicial resources if a false arrest/false imprisonment claim had to be filed within one year of the arrest itself and, many times, before the resolution of the underlying criminal cas. In response to a follow-up question from Justice Scott, Mr. Adams clarified that the action in this case had been filed within one year of the favorable determination (an acquittal following a jury trial) of Mr. Dunn’s criminal charges.

Chief Justice Lambert then seemed to advocate the contrary perspective, noting that the action had to be filed “within one year of some point in time” and asked Mr. Adams whether Mr. Dunn could have brought the action immediately following his release from custody? Mr. Adams responded that his client could have done so, but that to do so would have been a potential waste of time until the criminal charges were resolved.

Justice Minton then asked Mr. Adams to distinguish, Wallace v. Kato, a United States Supreme Court case rendered this February. Mr. Adams explained that, in the case, the Court had applied Illinois statute-of-limitations law, which, unlike Kentucky law, does not provide for the concept of equitable tolling or the discovery doctrine. Justice Minton then proceeded to toss the “equitable tolling” language back at Mr. Adams, asking him what equitable tolling principles were applicable in the case at bar and then, when Mr. Adams tried to utilize the “court clog” policy argument as an equitable tolling principle, following up with another question pointing out that Mr. Adams had previously conceded in response to the Chief Justice’s question that his client could have filed the action upon his release from custody, which would tend to suggest that no equitable tolling principle was at work here. In response, Mr. Adams advanced a slightly different (although still somewhat non-responsive) argument regarding counsel’s ethical responsibilities to avoid filing meritless claims, which he argued required resolution of the underlying criminal action as a predicate to filing a false arrest claim.

Justice Scott then lobbed another “softball” to Mr. Adams in which he observed that, under existing law, a malicious prosecution claim could not be filed until after a successful resolution and asked Mr. Adams what effect two separate suits, one for false arrest/false imprisonment and another for the criminal proceeding, would have upon judicial economy. Mr. Adams got a lot of bat on this one, too, observing that the question was “my point exactly.” Justice Scott then attempted to lead Mr. Adams to another possible argument in his favor by asking him to address “folks who don’t get out of jail until after the prosecution is terminated.”

Justice Noble framed the inquiry slightly differently and asked Mr. Adams whether he could argue that any element of false arrest was not satified at the completion of the arrest. Mr. Adams argued that a party who had suffered a false arrest might not discover the injury until later because he might not know that the arrest is unlawful.

A discussion then arose regarding access to counsel and when and whether counsel would be able to effectively evaluate the merits of a false arrest claim. Justice Schroder asked a “what happens in the real world?” type of question focusing upon the point in time in which a potential plaintiff would commonly consult with counsel regarding the viability of a false arrest claim. In response, Mr. Adams answered anecdotally, observing that he did not practice much criminal law and that in his experience, few “criminal practitioners” practiced much civil law and arguing that the need for due diligence and a good faith basis before filing such a complaint was difficult, if not impossible, to assess prior to a resolution of the underlying criminal case. In response to Justice Schroder’s follow-up question regarding whether it would be better to investigate the matter ahead of time and whether the “due diligence” that Mr. Adams had referenced might require that investigation to occur within the first year following the arrest itself, Mr. Adams responded that a criminal defendant might have a 5th Amendment right to remain silent as to what had transpired. (In response to which Justice Schroder observed that a criminal defendant would presumably be able to speak confidentially with his own attorney without affecting his privilege against self-incrimination, the premise of which Mr. Adams ultimately agreed with just as his Argument time ended).

Lisa A. Schweickart argued the case for the Appellee. Also sitting at counsel table was, unless our eyes decieved us, former SCOKY student intern Kungu Njuguna.

Right out of the gate, Justice Scott fired off a high and tight one, asking whether Ms. Schweickart could cite a single case where a plaintiff won a false arrest claim without a favorable determination of the underlying criminal charge. Ms. Schweickart responded that she could not, but then refocused the question and discussed the Wallace v. Kato decision. Following-up with another brush-back pitch, Justice Scott pointed out that the underlying action was not a 1983 claim and asked Ms.Schweickart who would file a false arrest/false imprisonment claim without a prior determination of the underlying criminal action. Ms. Schweickart explained that, in her experience, cases had been filed before the termination of the criminal case, although they were ultimately held in abeyance.

Justice Cunningham then asked a series of questions regarding the ethical responsibilities of a criminal defense attorney in a situation where the defendant may have a viable false arrest/false imprisonment claim against the arresting officer. Essentially, Justiice Cunningham appeared to be asking what sensibly-minded criminal defense attorney would advise a client to file a false arrest/false imprisonment suit against an arresting officer while the criminal prosecution was still pending. And, the underlying assumption of the questioning was that a prosecutor might perhaps be more willing to proceed with a prosecution and less willing to dismiss a case if, by so doing, the prosecutor would place the arresting officer in jeopardy. Ms. Schweickart took the position that the special ethical responsibilities of a prosecutor prevented a prosecutor from holding charges over a defendant’s head in the manner that Justice Cunningham suggested.

Ms. Schweickart then discussed Mr. Dunn’s level of education and sophistication and argued that it only made sense to start the statute-of-limitations clock on the day of arrest because on that day, Mr. Dunn already believed that he had been unlawfully arrested. Justice Cunningham jumped in with the observation that the Court’s decision would make a rule for everyone, not just Mr. Dunn, as to which Ms. Schweickart argued that the false arrest/false imprisonment factual context was no different from any other statute-of-limitations situation in that there will always be persons who lose the right to bring claims because of ignorance. Criminal defendants, however, according to Ms. Schweickart, are in a better situation than most potential plaintiffs because all of them will have contact with an attorney.

Ms. Schweickart then again argued that because Mr. Dunn knew of his potential claim the day of his arrest, and that every element of the alleged tort would have been complete as of November 1999, the statute of limitations ran in November 2000. Justice Noble asked counsel for Appellee to “go through the elements, if you would” (apparently searching for a “hook” for further investigation that she did not get when she posed the same question to Mr. Adams), and Ms. Schweickart indicated that “arrest without probable cause” was the sum and substance of the claim.

Justice McAnulty then clarified that the tort would have been complete as of the criminal defendant’s arraignment, and Justice Noble followed up with a question as to whether a false arrest ends upon release from custody (thus allowing for damages only during the window between arrest and release), and that no defendant has anything more than his opinion and belief as to whether he was unlawfully arrested? In response to that question and its follow-up, Ms. Schweickart took the position that most of these cases will come down to a question of who is telling the truth, the arrestee or the office. Ms. Schweickart articulated a fairly nuanced argument in favor of compelling filing of such claims within one year of the arrest itself; essentially, the argument was that the government needed to know ASAP if it should be concerned about the conduct of one of its officers so that it can conduct an appropriate investigation and take any appropriate measures necessary to avoid a reoccurrence.

Justice Scott then asked Ms. Schweickart whether probable cause was the essential and common element in both a false arrest claim and a malicious prosecution claim. Ms. Schweickart responded that, in the context of this case, where there was no additional evidence against Mr. Dunn uncovered after his arrest, the determination was “very similar.” In cases where additional evidence was uncovered after arrest, however, Ms. Schweickart pointed out that the determination may well be different. Chief Justice Lambert joined in on that discussion and observed that false arrest and malicious prosecution claims differ in terms of the time period concerned, with false arrest involving the arrest itself and malicious prosection concerning post-arraignment actions.

Justice Minton then returned to the Wallace v. Kato case and asked whether it mattered that the Court had applied Illinois law. A brief discussion ensued thereafter as to whether Illinois had a 2-year or 1-year statute of limitations for tort claims.

Justice McAnulty ended the questioning of Ms. Schweickart with an inquiry regarding the application of CR 17.04’s provisions for a party under a disability or incapacity, which Ms. Schweickart indicated was no impediment to filing an action in this case.

In Rebuttal, Mr. Adams first turned to Justice Cunningham’s inquiry regarding the ethical position of a criminal defense attorney vis-a-vis advising a client to bring a civil action while the criminal action was ongoing, which he underscored by expressing his belief that, in so doing, an attorney would potentially be committing malpractice.

Justice Noble then pointed out that statutes of limitations are about “the repose of the other party, right?” Mr. Adams had no effective response to this inquiry.

Justice Cunningham then asked Mr. Adams whether “most of the time” malicious prosecution and false imprisonment claims are “on the same course.” Mr. Adams responded affirmatively and, in conclusion, observed that a “within one year of arrest” rule placed a big burden upon a layperson to know when an arrest was unlawful.

Scoreboard

Justice Scott led the way with a total of 9 questions (7 for Appellant [none during rebuttal], and 2 for Appellee, or 7/2/0). Justices Noble (1/2/1) and Minton (3/1/0) were also active questioners. Chief Justice Lambert (1/1/0) and Justices Cunningham (0/2/1), McAnulty (0/2/0) and Schroder (2/0/0) also participated in the questioning.

Prediction

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..

SCOKYBLOG’s Editor-in-Chief is back among the living after an allergy/cold-induced malaise that (especially when combined with a trial, a mediation, and a couple of looming due dates for Briefs) made timely blogging more difficult than one would suspect. Fortunately, the preliminary weather reports suggest this week’s actual-work horizon will allow smooth sailing, and the current plan is to catch up on all of the March SCOKY material that’s currently occupying a sizeable portion of my desk.

The SCOKY granted discretionary review to ten (10) cases this Month. Links to the Court of Appeals’s Opinions in each of the cases have been provided below:

Division of Unemployment Insurance v. Gaines, 2005-SC-0965-DG

Commonwealth v. Carneal, 2006-SC-0653-DG

Hinshaw (now Lenarz) v. Hinshaw, 2006-SC-0729-DGE

Jones v. Commonwealth, 2006-SC-0802-DG

Nanny v. Smith, 2006-SC-0833-DG

Lexington Diagnostic Center v. Kentucky Farm Bureau Mutual Insurance Co., 2006-SC-0857-DG

W.D.B. v. Commonwealth, 2006-SC-0937-DGE

Commonwealth v. B.J., 2007-SC-0025-DGE

Frances v. Frances, 2007-SC-0076-DGE

Bizzak v. Hume, 2007-SC-0091-DG

As far as the “running DG-tally” goes, the Court resolved three (3) DG cases (two by Opinion and another by Order dismissing), leading to a net increase of seven (7) DG cases. For the year, the SCOKY’s “net DR-deficit” stands at 18.

Upon further review, (someone called and told me that I’d made a mistake), SCOKYBLOG has discovered that its Editor was working from an out-of-date copy of the March Oral Argument Schedule, which has undergone at least two revisions, when it drafted its March Documentary Support article. Thus, we’ve gone back to the drawing board, and this should be a lot more accurate:

Wednesday, March 14, 2007

Dunn v. Felty, 2005-SC-295

Appellant’s Brief

Appellee’s Brief

Cape Publications, Inc. v. University of Louisville Foundation, Inc., 2005-SC-454

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Thursday, March 15, 1997

Commonwealth v. Perry, 2005-SC-521

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Furnish v. Commonwealth, 2004-SC-387

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Petition for Rehearing

Response to Petition for Rehearing

Friday, March 16, 2007

Jones v. Commonwealth, 2005-SC-879

Appellant’s Brief

Appellee’s Brief

Commonwealth v. Brown (2004-SC-0553-DG) / Brown v. Commonwealth (2006-SC-160)

(Briefs hopefully forthcoming)

Steel Technologies, Inc. v. Congleton, 2005-SC-551

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Amicus Curiae Brief of Kentucky Academy of Trial Attorneys

Amicus Curiae Brief

SCOKY has posted its calendar for the April 2007 Oral Arguments. Check it out here

SCOKYBLOG’s epitaph for Boyd Fiscal Court v. Phillip Sturgill, et al..

Eight days ago, the Court heard Oral Argument in Boyd Fiscal Court v. Philliip Sturgill. Two fine attorneys, from Louisa and Ashland, traveled virtually the entire length of Kentucky’s portion of I-64 to argue the case. Although the argument concerned a relatively narrow issue of law concerning the interpretation of a statute that has since been amended by the General Assembly, I was impressed with both the quality of the argument, the attorneys’ knowledge of the case and relevant authorities (which, admittedly, were quite limited). Perhaps most surprising of all, however, was the way that the argument held my attention. (To be perfectly honest, after reading the briefs, I was dreading this “snoozer.” For me, it didn’t turn out that way at all.)

Having spent a good five hours in the car just today travelling to and from Louisa, Kentucky (that’s in Lawrence Circuit Court, for those of you who haven’t made that trip), I felt for those two attorneys when I got back to the office, read the SCOKY’s Minutes, and saw that the Court had entered an Order vacating its previous Order from October 12, 2005 granting discretionary review, and then, after Oral Argument, entering an Order denying discretionary review. In other words, despite briefing and orally arguing this matter, the only ruling that these parties and their attorneys will ever get from the SCOKY is a “never mind; we’ll stick with what the Court of Appeals said.”

The Court apparently decided that it had improvidently granted discretionary review and thus called for a “do-over” and decided it didn’t really want to grant discretionary review after all. Given that an intervening and significant statutory change would have deprived any decision the Court made of any real precedential value, that may have been a reasonable result.

I sure feel for those attorneys, though, and I wish that the SCOKY had pulled the plug before these attorneys invested the time and energy that they did.

In the early going, SCOKYBLOG is perfect in prognosticating (or “blindly guessing”—pick whatever term you wish) the Court’s decisions in cases where SCOKYBLOG was able to review the Oral Argument.

Back in January, SCOKYBLOG had this to say about the probable result in Commonwealth v. York:

“Given both the pointed questioning and the Court Clerk/Court Administrator’s rapid reappearance in the courtroom after the SCOKY retired to deliberate and take its straw vote, SCOKYBLOG’s editors anticipate a reversal of the Court of Appeals.”

View the Opinion here.

So, for the time being, anyway, we’re 1-0. Or, to paraphrase Walter Sobchak, we “sure can roll.”

Blow-By-Blow

“All rise!” occurred at 9:01 a.m.

Appellant’s Argument

David A. Lambertus argued the case for the Appellant, and, despite planning to address three separate issues, opted for a 10/5 split of his time. Mr. Lambertus addressed his three arguments in the same sequence that he presented them in his brief and thus began with the Appellant’s contention that the trial court erred by failing to instruct the jury that it could return a verdict for the misdemeanor offense of Second-Degree Sexual Abuse. After observing that the language of the applicable charge of the Indictment covered a period of time after the victim’s 12th birthday, Mr. Lambertus explained that he may have previously inartfully described Second-Degree Sexual Abuse as a “lesser-included offense.”

Justice Scott led off the questioning by posing a hypothetical in which a criminal defendant was initially charged with four separate crimes arising out of four separate instances of child sexual abuse, three of which occurred during a period of time when the child was at an age that the conduct alleged would have constituted a felony and the other of which occurred during a period of time when the child was at an age that the conduct alleged would have constituted a misdemeanor. Justice Scott’s ultimate question to Appellant’s counsel was “if the Grand Jury chose not to indict on the misdemeanor offense, would that misdemeanor offense be a lesser-included offense to the others?” In response to this question and a series of follow-up questions from Justice Scott (many of which “stepped on top of Mr. Lambertus’s responses), Mr. Lambertus acknowledged that grand juries have the power to “pick and choose” what charges to indict, but protested that the hypothetical difered substantially from the case at bar in which, Mr. Lambertus alleged, there was trial testimony from which the jury could have found that Appellant committed one or more sexual abuse offenses after the victim’s 12th birthday.

When Mr. Lambertus attempted to refocus on the issue on the fact that the Indictment itself, which contained a too-broad-for-felony-purposes time-frame, was the source of the problem, Justice Scott interrputed and stated that, from his review of the record, the prosecution brought a single charge of First-Degree Sexual Abuse as to this particular victim, but the proof at trial involved multiple events of conduct that could have constituted that offense.

Justice McAnulty then inquired whether the trial court’s failure to give the instruction may have been harmless, given the jury’s verdict, which found beyond a reasonble doubt that Appellant was guilty of the felony offense, i.e., that he had engaged in sexual contact with the victim prior to the victim’s 12th birthday, Mr. Lambertus argued that this was a case where the jury could very reasonably have found that Appellant committed acts of sexual abuse against this victim only after the victim’s 12th birthday, which would have made a “huge difference” given that he received the maximum term of imprisonment for the conviction.

Mr. Lambertus then turned to the second issue that he had addressed in his brief, i.e., that the trial court erred when it sustained the Commonwealth’s objection at trial to Mr. Lambertus’s attempt to play for the jury videotapes of the child victims’ initial interviews with a social worker. Counsel explained that the videotapes in question had been made by the social worker during the investigation and that the Commonwealth turned them over to the defense with other discovery items. Mr. Lambertus emphasized that he had held the videotapes in his hand during his Opening Statement in the case and (without objection from the Commonwealth) told the jury that it would see these videotapes. After the Commonwealth closed its case-in-chief, and defense counsel asked the court staff to assist with setting up audio-visual equipment, the Commonwealth objected to playing the videotapes to the jury.

Justice McAnulty inquired as to the Commonwealth’s specific grounds of objection. Perhaps tongue-in-cheek, Mr. Lambertus indicated that he was “afraid to characterize” it, but made it clear that whatever the objection was, Appellant’s contention was that it was insufficient.

Chief Justice Lambert then inquired as to what foundation the defense had laid for the introduction of these videotapes. After Mr. Lambertus began to explain how the videotapes had been authenticated, Justice Scott chimed in with a “softball” regarding whether the images on the videotape were suffiient under KRE 901 (which Justice Scott read aloud) to authenticate the tape. Justice Scott then inquired whether the social worker had ever been called to testify and Mr. Lambertus answered that neither side had called the social worker to testify.

Justice Cunningham inquired of Mr. Lambertus whether the videotapes could be admissible for any purpose other than impeachment and followed up that question with a related question regardng whether any witness had been cross-examined about the content of the tapes. Counsel explained that Appellant’s purpose for seeking to introduce the videos was to show for the jury what Appellant alleged to be “coaching” on the part of the social worker.

Following the foundational inquiry, Chief Justice Lambert asked counsel whether Appellant “needed some vehicle to introduce that tape” such as the testimony of the social worker. In response, Mr. Lambertus explained his position that the video spoke for itself. Thus, in response to Chief Justice Lambert’s follow-up question “so, there is no test but relevancy?” counsel answered that Appellant’s position was the record established both authenticity and relevancy, which was sufficient for the introduction of these tapes.

Justice Schroder then explored whether this was a credibility issue (for a jury) or a reliability issue (for the judge) with a series of questions. Well after this inquiry had reached a dead end, Justice Scott interrupted one of Justice Schroder’s follow-up questions with a lengthy “question” that addressed the inadequacies of transcripts, the fact that most discovery documents in civil and criminal cases are “not material to trial,” the trial court’s gate-keeper function, and his concern that the social worker had not been called as a foundational witness before ultimately inquiring whether the social worker was unavailable at the time of trial. Mr. Lambertus explained that to the best of his knowledge, neither side had made any effort to secure the social worker’s testimony at trial.

Justice McAnulty then asked a “position clarification” question as to which Mr. Lambertus explained that he was not offering the videotapes to show the child victim’s prior inconsistent statements, but rather to show the context in which those witness’s claims against Appellant came about.

The Chief Justice then advised Mr. Lambertus that his time had nearly expired, and Mr. Lambertus quickly addressed the third issue concerning the admission of evidence regarding Appellant’s prior conviction for Sexual Abuse. Counsel concluded his argument by explaining that Appellant’s position was that the trial court erred in allowing the Commonwealth to introduce this evidence because the prior acts were substantially and significantly different as well as remote in time (dating back a minimum of 16-17 years).

Commonwealth’s Argument

Susan Roncarti Lenz argued the case for the Commonwealth, and addressed the three issues in the same sequence that Mr. Lambertus had addressed them. Beginning with the “lesser-included offense” issue, Ms. Lenz identified the Commonwealth’s position that Second-Degree Sexual Abuse was simply uncharged criminal conduct and not an offense that the trial court should have instructed the jury as to under the facts of this case.

Justice Schroder asked the extremely-sensible question why the Commonwealth simply didn’t amend the indictment so that the time period alleged ended at the child’s 12th birthday. In response, Ms. Lenz responded that had she been trial counsel, whe would have done so and had no explanation as to why trial counsel for the Commonwealth failed to do so. Ms. Lenz further emphasized, however, that the evidence at trial demonstrated that Appellant had committed acts of sexual abuse both before and after the victim’s 12th birthday. Counsel for the Commonwealth further emphasized that the jury returned its verdict under instructions that required the jury to find beyond a reasonable doubt that the child victim was under 12 years of age at the time of the sexual contact.

With regard to the issue regarding the videotapes, Ms. Lenz stated the Commonwealth’s postion that the trial court had not abused its discretion when it excluded these videotapes from evidence because there was no sufficient foundation proven at trial. Ms. Lenz emphasized that one of the child witnesses was asked no questions at all about the videotaped interviews, and the other child witness was asked only whether the child had a conversation with a social worker—to which the child responded affirmatively.

Justice Schroder asked Ms. Lenz how the Commonwealth could contend that the videotapewas insufficiently authenticated when it had produced the tape through discovery. Ms. Lenz responded that she did not believe it was the Commonwealth’s responsibility to authenticate the tape.

Chief Justice Lambert (still trying to determine exactly what the Commonwealth argued in the trial court and how that compared with what the Commonwealth argued on appeal) asked whether “authenticity” was the basis of the Commonwealth’s objection. Ms. Lenz responded that, to her recollection, the Commonwealth’s objection concerned the lack of a KRE 613 foundation.

Justice McAnulty (who, as a former Jefferson Circuit Court Judge presumably knew what he was talking about) then asked a series of questions regarding whether it was the practice in child-sex-abuse investigations in Louisville for social workers and law enforcement officers to work together. After a Clinton-esque response noting that the answer to the question would have a lot to do with the Court’s definition of “together,” and several follow-up questions, the Commonwealth ultimately essentially conceded the premise of Justice McAnulty’s question.

Chief Justice Lambert (still plugging along on the “what did the Commonwealth argue then and what does it argue now?” mission) then asked Ms. Lenz whether the Commonwealth’s only objection “in this Court” concerned authenticity and whether the Commonwealth was in trouble in the Court disagreed with its claims regarding a lack of authentication. Ms. Lenz responded, somewhat circularly, that an adverse determination on the authentication issue was not fatal because no proper foundation had been laid. Ms. Lenz noted that Appellant had previously articulated the purpose for seeking introduction of the videotapes as two-fold and involving both inconsistent statements and the “coaching” issue. Ms. Lenz then reiterated that Appellant had failed to lay a foundation for the prior inconsistent statements.

Justice Schroder then inquired of Ms. Lenz whether the “coaching” issue was separate issue that might transcend the foundational inquiry and attempted to refocus the discussion on his credibility v. reliability question. From SCOKYBLOG’s standpoing, Justice Schroder’s did not make any more progress with Ms. Lenz than he had with Mr. Lambertus in connection with this matter.

Ultimately, Justice Scott interrupted Ms. Lenz’s response to a follow-up question from Justice Schroder with another “softball” regarding the trial court’s gatekeeping function under KRE 403, which Ms. Lenz recognized and agreed with.

Justice Noble jumped in on the questioning and asked Ms. Lenz whether it was truly material who did the alleged “coaching.” Without elucidation, Ms. Lenz replied that “I guess you could say it was material.”

Ms. Lenz then quickly moved on to the third issue concerning the introduction of evidence concerning Appellant’s prior conviction and argued again that the trial court had acted within its discretion and properly balanced the issues of probativeness and prejudice. Ms. Lenz explained that the facts of the prior case were “similar enough” to show modus operandi and observed that when modus operandi is the basis for introducing such evidence, the remoteness lis less significant.

Justice Scott asked Ms. Lenz whether she was familar with two recent cases involving KRE 404(b) and modus operandi. Ms. Lenz indicated that she did not recall the specific cases, but asked Justice Scott to continue with his question and that she would answer it as best she could. Justice Scott then represented that the recent cases have “tightened up” on modus operandi claims and required the Commonwealth to show, essentially, a signature crime. He then asked Ms. Lenz if the Commonwealth’s evidence was sufficient to meet that standard and Ms. Lenz stated that she believed it was similar enough and referenced her previous discussion of the factual similarities.

Chief Justice Lambert noted the Mr. Lambertus’s brief had disputed the similarity and inquired what similarities existed other than the age of the children. Ms. Lenz again listed the similarities she had discussed previously, and then stated “I would love to have more facts, but those are the ones I have.”

Appellant’s Rebuttal Argument

Before Mr. Lambertus could get a head of steam, Justice Cunningham indicated to him that he was confused by Mr. Lambertus’s previous response to Justice McAnulty’s question (the “point clarifying” one, SCOKYBLOG believes) and asked Mr. Lambertus to explain what exception to the hearsay rule allowed the introduction of the videotape. Mr. Lambertus essentially, if inarticulately, articulated that Appellant sought to introduce the videotapes for a non-hearsay purpose to show the jury the coaching that took place.

Perhaps recognizing that Mr. Lambertus had not stated what he meant as clearly as he could have, Justice Noble aked him whether the videotape was even hearsay, and, after Mr. Lambertus managed a foul tip on that “softball,” guided him even further with a leading “you weren’t introducing it for the truth of the matter asserted, were you?” question with which counsel agreed.

Justice Cunningham then observed the assymetry in the fact that the Commonwealth would not have been able to introduce this videotape as inculpatory evidence against Appellant without objection.

Justice Scott then moved the discussion along to the prior conviction issue and asked Mr. Lambertus to address the significance of the recent authority he’d referenced previously. Mr. Lambertus indicated that the only “similarities” between the incidences were those that were elements of the offenses.

After Justice Noble asked a question that SCOKYBLOG’s representative was unable to hear, Chief Justice Lambert asked Mr. Lambertus to distinquish the a previous case (which the Chief Justice, who was on the Court at the time it was rendered, noted contained a “spirited dissenting opinion). Mr. Lambertus wisely referenced the subsequent cases that had modified the analytical approach to such matters and that had “gotten beyond” mere similarities in the elements of the offense.

Justice Scott then observed that the point of the recent cases was that the Commonwealth had to show commonality of facts rather than commonality of elements.

The Clerk recessed Court at 9:43 a.m.

Scoreboard.

Justice Scott and Chief Justice Lambert led the questioning with 7 and 6 questions, respectively. Justices Cunningham, McAnulty, Noble, and Schroder all were active in the questioning, with 4 questions each. Justice Minton did not ask any questions.

Prediction

SCOKYBLOG finds this one a tough call—and not only because Justice Minton’s silence makes it virtually impossible to get a “read” on him. Normally, the fact that the Court had granted discretionary review would be some indication that the Court was looking to correct an error (especially given that there isn’t really a “Big Issue That Needs Public Airing And Resolving For The Benefit Of The Bench And Bar” in this one), but only 1 of the Justices deciding the case were on the Court when it granted discretionary review, so it would be difficult to draw any inference from that at all. It was interesting that the second argument, which was scheduled to begin at 10:00 a.m., started over 15 minutes late. [The Clerk/Court Administrator came into the courtroom at 10:11 a.m. and said “[t]hat one took just a bit longer; they’ll be out in just a sec.”] The logical inference is that there was more-extensive-than-normal discussion of the case when the Court took its post-Argument straw-poll. However, given the number of issues, and the complexity of them, it’s conceivable that it just took a long time to get through all of the issues. There’s definitely a potential for a reversal for a new trial here, and SCOKYBLOG’s sees this one as a split-decision as to result, and SCOKYBLOG would not be at all surprised to see a multiciplicity of views as to the most troublesome issues. SCOKYBLOG doesn’t see any votes to reverse on the first issue. Justices McAnulty, Noble, and Schroder (and possibly Chief Justice Lambert) appear to be somewhere between likely-and-possible votes to reverse on the videotape issue. Justice Scott doesn’t look like a good candidate to reverse on the videotape issue (and might well carry a big enough stick to sway some of the possible reverse votes back to affirm), but is a distinct possibility for a reverse vote on the prior conviction issue. Because our guts tell us that chaos and confusion usually favor the Appellee, SCOKYBLOG predicts that this one will end up as a 5-2 or 4-3 AFFIRM. But, like everyone else, we’ll just have to wait and see.