Sponsored by: The Kentucky Association Continuing Commission

2020 – 2021 Continuing Legal Education Commission Members

Jason F. Darnall, Chair Frank Hampton Moore, III Graham C. Trimble First Supreme District Second Supreme Court District Third Supreme Court District

Eric M. Weihe LaToi D. Mayo David B. Sloan Fourth Supreme Court District Fifth Supreme Court District Sixth Supreme Court District

Leigh Gross Latherow Laurance B. VanMeter Mary E. Cutter Seventh Supreme Court District Supreme Court Liaison Director for CLE

Pursuant to Supreme Court Order 2020-49, the 2020 Kentucky Update was moved to an on-demand format. This order was issued on June 8, 2020. These measures are being taken in response to the Covid-19 pandemic and to comply with all guidelines and orders aimed at preserving the health and welfare of Kentucky attorneys, other attendees of the KLU program series, KBA staff, facility and hotel staff, and other service providers who all work to bring the KLU series together each year. © 2020 by the Kentucky Bar Association Continuing Legal Education Commission. Sonja M. Blackburn, Caroline J. Carter, Mary E. Cutter, EmaLeigh C. Haines, Lori J. Reed, Editors.

All rights reserved. Published 2020. Printed by Post Printing Company.

Editor's Note: The materials included in this 2020 Kentucky Law Update Handbook are intended to provide current and accurate information about the subject matter covered as of the original publication date. The program materials were compiled for you by volunteer authors. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular or will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered of the individual legal practitioner. The faculty and staff of the 2020 Kentucky Law Update disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Opinions expressed by the authors and program presenters in these materials do not reflect the opinions of the Kentucky Bar Association, its Board of Governors, Sections, or Committees. 2020 KENTUCKY LAW UPDATE Table of Contents

For Your Information ...... iii

Program Agenda ...... vi

Online Credit Reporting Directions ...... vii

Sponsor

Lawyers Mutual of Kentucky, Inc...... x

Mandatory Updates and Ethics

KBA News and Updates ...... 1

Cyber Security for Litigators: Legal Ethics and Best Practices for Litigators ...... 16

Disciplinary Process: Dismissal to Disbarment and All Things in Between ...... 26

Federal Court Update ...... 37

Kentucky Court of Appeals Update ...... 109

Kentucky Supreme Court Update ...... 190

Legislative Update ...... 238

Managing Risk While Protecting Your Brand ...... 315

General Programming

Employment Law Essentials: Drafting Arbitration Agreements and Understanding Recent Developments in ADA ...... 337

Estate Planning Documents that Don’t Suck! ...... 362

Family Law Update ...... 393

How to Recover Your Practice if the Worst Happens: Incident Response, Disaster Recovery, and Business Continuity Plans ...... 413

Justice Through Peacemaking ...... 428

i Kentucky Update ...... 449

Kentucky Nonprofits – What You Need to Know about Taxes ...... 469

Mindfulness, Resilience, Ethics and Civility in the Law ...... 484

Reasonable Efforts in DNA Cases: Revival and Refocus Under the FFPSA ...... 490

Small Firm Practice Management in a Brave New World ...... 500

The Varying Roles of the Legal Interpreter in Judicial Settings in Kentucky ...... 509

ii FOR YOUR INFORMATION …

The Kentucky Law Update: Continuing Legal Education for All Kentucky

The Supreme Court of Kentucky established the Kentucky Law Update Program as an element of the minimum continuing legal education system adopted by Kentucky attorneys in 1984. Each fall the Kentucky Bar Association presents the program in various locations around the Commonwealth – at least one in each Supreme Court district. This program offers every Kentucky attorney the opportunity to meet the 12.0 CLE credit requirement, including the 2.0 ethics credit requirement – close to home and at no cost! can also earn continuing judicial education credits at the Kentucky Law Update.

This program was designed as a service to all Kentucky attorneys, regardless of level of experience. This service is supported by membership dues and is, therefore, each member's program. The program is a survey of current issues, court decisions, ethical opinions, legislative and rule changes, and other legal topics of general interest that are faced by the Kentucky practitioner on a daily basis. As such, the program serves both the general practitioner and the practitioner who limits his or her practice to a particular field of the law. The Kentucky Law Update program is not intended, nor designed, to be an in- depth analysis of a particular topic. It is designed to alert the lawyers of Kentucky to changes in the law and rules of practice that impact the daily .

About the Handbook and Presentations

Handbook materials are the result of the combined efforts of numerous dedicated professionals from around Kentucky and elsewhere. The KBA gratefully acknowledges the following individuals who graciously contributed to this publication:

P. Stewart Abney Stephen Embry Carla H. Montgomery Tanya Y. Bowman Angela Logan Edwards Catherine A. Monzingo Bonnie M. Brown Joshua C. Elliott Elizabeth Mosley Thomas L. Canary Nathaniel Goins Peter L. Ostermiller Rachael H. Chamberlain Jane H. Herrick Shari Polur J. Allan Cobb Zachary A. Horn Jeremiah W. Reece Scott E. Collins Andrea R. Hunt Lori J. Reed Tamara Combs Shelly A. Kamei Jeffery L. Sallee Wesley B. Deskins Matthew T. Lockaby William D. Tingley Sheila M. Donovan Jane Broadwater Long

Special Acknowledgments Special thanks to the following KBA Sections, Committees and other organizations whose participation and assistance with the 2020 Kentucky Law Update programs have been invaluable:

KBA Alternative Section Kentucky Administrative Office of the KBA Civil Litigation Section Kentucky Court of Appeals KBA Criminal Law Section Kentucky Office of Language Access KBA Elder Law Section Kentucky State Treasurer KBA Section Legislative Research Commission KBA Labor and Employment Law Section Practice Management Task Force KBA Office of Bar Supreme Court of Kentucky KBA Taxation Law Section Young Lawyers Division

iii Presentations are also made on a voluntary basis. To the individuals who volunteer in this capacity, special gratitude is owed. Individuals contributing to this program are contributing to the professional development of all members of the Kentucky Bar Association. We wish to express our gratitude in advance to these individuals.

A special thank you to all of the organizations, authors, presenters, moderators and other program volunteers of the 2020 Kentucky Law Update will appear in the January 2021 issue of the & Bar.

CLE and Ethics Credit

Attendance at all sessions qualifies attorneys for 17.75 credits of CLE, including up to 5.00 ethics credits. One credit is awarded for each 60 minutes of actual instruction as noted on the agenda provided on the KBA website.

The Kentucky Bar Association 2020 Kentucky Law Update is an accredited CLE activity in numerous other . Credit categories and credit calculations vary from state- to-state. All out of state information is available here.

Kentucky Judges, don't forget you can claim CJE credit for attending this program.

REMEMBER! Reporting attendance credits is now online. Visit the Kentucky Bar Association website. The activity number is on the KLU agenda and must be used to report credits using the Member CLE Portal.

Evaluations

The 2020 Kentucky Law Update is your program and your input is valued and needed. PLEASE take a few minutes to complete the evaluation questionnaire upon completion. You will receive an email with a link to complete the evaluation at the close of the program. We appreciate your assistance in improving this service.

iv Kentucky Bar Association 2020-2021 Board of Governors Thomas N. Kerrick J.D. Meyer Amy D. Cubbage J. Stephen Smith President President-Elect Vice President Immediate Past President Bowling Green Owensboro Louisville Ft. Mitchell

Amelia M. Adams Mindy G. Barfield Douglas G. Benge Lexington Lexington London

Rhonda Jennings Blackburn Matthew P. Cook Melinda G. Dalton Pikeville Bowling Green Somerset

Jennifer M. Gatherwright William M. “Mitch” Hall, Jr. Todd V. McMurtry Crescent Springs Ashland Ft. Mitchell

Susan Montalvo-Gesser Eileen M. O’Brien Susan D. Phillips Owensboro Lexington Louisville

James M. Ridings James A. Sigler Van F. Sims London Paducah Paducah

J. Tanner Watkins Miranda D. Click Louisville Chair, Young Lawyers Division

2020-2021 Continuing Legal Education Commission Jason F. Darnall, Chair Frank Hampton Moore, III Graham C. Trimble First Supreme Court District Second Supreme Court District Third Supreme Court District

Eric M. Weihe LaToi D. Mayo David B. Sloan Fourth Supreme Court District Fifth Supreme Court District Sixth Supreme Court District

Leigh Gross Latherow Justice Laurance B. VanMeter Mary E. Cutter Seventh Supreme Court District Supreme Court Liaison Director for CLE

Kentucky Bar Association CLE Staff

John D. Meyers Mary E. Cutter Lori J. Reed Director Director for CLE Program & Publications Attorney Section Liaison

Caroline J. Carter EmaLeigh C. Haines Sonja M. Blackburn Program & Publications Coordinator Program & Publications Coordinator Program & Publications Annual Convention Kentucky Law Update Coordinator New Program

Coleen Kilgore Terri Marksbury Clifford D. Timberlake Attorney Record Coordinator CLE Regulatory Coordinator Accreditation Coordinator

v On Demand Program

Updates & Ethics CREDIT

KBA News and Updates 0.25 CLE Thomas N. Kerrick, KBA President

Cyber Security for Lawyers: 1.00 Ethics Legal Ethics and Best Practices for Litigators Tanya Y. Bowman & Robert W. Dibert

Disciplinary Process: 1.00 Ethics Dismissal to Disbarment and All Things in Between Jane H. Herrick & Peter L. Ostermiller

Federal Court Update 1.00 CLE Marisa J. Ford & Madison T. Sewell

Kentucky Court of Appeals Update 1.00 CLE Chief Judge Denise G. Clayton & Judge Irvin G. Maze Rebecca A. Lyon & Wesley B. Deskins

Kentucky Supreme Court Update 1.00 CLE Justice Laurance B. VanMeter

Legislative Update 0.50 CLE Senator Whitney H. Westerfield

Managing Risk While Protecting Your Brand 1.00 Ethics J. Allan Cobb & Jane Broadwater Long

This program is approved in Kentucky for 17.75 credits including up to 5.00 ethics credits. The activity code for the program is 221060. Please report credits online through the CLE portal. An instructional sheet is included on page viii. A PDF download of the materials is available here. On Demand General Programming CREDIT

Employment Law Essentials: Drafting Arbitration 1.00 CLE Agreements and Understanding Recent Developments in ADA Jurisprudence Matthew T. Lockaby & P. Stewart Abney

Estate Planning Documents that Don’t Suck! 1.00 CLE Scott E. Collins, Shelly A. Kamei, & Shari Polur

Family Law Update 1.00 CLE Sheila M. Donovan & Catherine A. Monzingo

How to Recover Your Practice if the Worst Happens: 1.00 Ethics Incident Response, Disaster Recovery, and Business Continuity Plans Jeffery L. Sallee

Justice Through Peacemaking 1.00 CLE Bonnie M. Brown & William D. Tingley

Kentucky Criminal Law Update 1.00 CLE B. Scott West

Kentucky Nonprofits – What You Need to Know About Taxes 1.00 CLE Rachael H. Chamberlain

Mindfulness, Resilience, Ethics, and Civility in the Law 1.00 Ethics Zachary A. Horn

Reasonable Efforts in DNA Cases: 1.00 CLE Revival and Refocus Under the FFPSA Justice Debra Hembree Lambert & Judge Larry E. Thompson

Small Firm Practice Management in a Brave New World 1.00 CLE Jeffery L. Sallee

The Varying Roles of the Legal Interpreter in Judicial Settings 1.00 CLE in Kentucky Joshua C. Elliott Submitting CLE Credits Online 1 VISIT www.kybar.org SELECT CLE 2

SIGN IN TO YOUR 3 Member CLE Portal

SELECT Submit New Credits CLE CREDITS 4 Submit New Credits

CLICK ON THE Program BOX AND TYPE IN THE Activity Number: 221060. DO NOT PRESS ENTER. Wait for the system to locate the program and for the field to populate. 5 CLICK ON THE BOX TO SELECT THAT PROGRAM.

CLICK Next. 6

CLICK ON THE “Total CLE” SLIDE BAR AND USE YOUR MOUSE 7 AND THE ARROW KEYS ON YOUR KEYBOARD TO SELECT THE AMOUNT OF CREDITS EARNED. REPEAT FOR THE “Ethics” SLIDE BAR.

TYPE YOUR name as your certification AND signature. 8

9 CLICK Next.

YOUR CREDIT HAS NOW BEEN ADDED AND WILL APPEAR ON YOUR TRANSCRIPT. 10

vii 2020 KLU CLE WORKSHEET

THIS WORKSHEET IS FOR CALCULATION PURPOSES ONLY. DO NOT SUBMIT THIS SHEET. THIS FORM WILL NOT BE ACCEPTED BY THE KBA.

Go to www.kybar.org to report your CLE credits.

**See Credit Reporting Directions for instructions on reporting credits online.**

UPDATES AND ETHICS TALLY SECTION CLE/ETHICS ο KBA News and Updates 0.25/0.0 ______/______

ο Cyber Security for Lawyers: Legal Ethics and Best Practices for Litigators (Ethics) 1.0/1.0 ______/______ο Disciplinary Process: Dismissal to Disbarment and All Things in Between (Ethics) 1.0/1.0 ______/______ο Federal Court Update 1.0/0.0 ______/______ο Kentucky Court of Appeals Update 1.0/0.0 ______/______ο Kentucky Supreme Court Update 1.0/0.0 ______/______ο Legislative Update 0.5/0.0 ______/______ο Managing Risk While Protecting Your Brand (Ethics) 1.0/1.0 ______/______

TOTAL CLE FOR DAY ONE ______/______

GENERAL PROGRAMMING CLE AND ETHICS TALLY SECTION CLE/ETHICS Employment Law Essentials: Drafting Arbitration Agreements and Understanding 1.0/0.0 ______/______ο Recent Developments in ADA Jurisprudence ο Estate Planning Documents that Don't Suck! 1.0/0.0 ______/______ο Family Law Update 1.0/0.0 ______/______ο How to Recover Your Practice if the Worst Happens (Ethics) 1.0/1.0 ______/______ο Justice Through Peacemaking 1.0/0.0 ______/______ο Kentucky Criminal Law Update 1.0/0.0 ______/______ο Kentucky Nonprofits – What You Need to Know About Taxes 1.0/0.0 ______/______ο Mindfulness, Resilience, Ethics, and Civility in the Law (Ethics) 1.0/1.0 ______/______ο Reasonable Efforts in DNA Cases: Revival and Refocus Under the FFPSA 1.0/0.0 ______/______ο Small Firm Practice Management in a Brave New World 1.0/0.0 ______/______ο The Varying Roles of the Legal Interpreter in Judicial Settings in Kentucky 1.0/0.0 ______/______

TOTAL CLE FOR GENERAL PROGRAMMING ______/______

TOTAL CLE COMPLETED FOR BOTH ______/______Kentucky lawyers deserve steadfast support.

Our team is devoted to serving your liability malpractice needs. For more information call us at 502-568-6100 or Submit for a quick quote at www.LMICK.com

x

Lawyers_Mutual_women_B&B_8.5x10.875.indd 1 3/19/20 1:08 PM KBA NEWS AND UPDATES

I. SCR 3.025: KENTUCKY BAR ASSOCIATION

The mission and purpose of the association is to maintain a proper discipline of the members of the bar in accordance with these rules and with the principles of the legal profession as a public calling, to initiate and supervise, with the approval of the court, appropriate means to insure a continuing high standard of professional competence on the part of the members of the bar, and to bear a substantial and continuing responsibility for promoting the efficiency and improvement of the judicial system.

This rule of the Kentucky Supreme Court arises from its authority under the Kentucky to govern the practice of law. Section 116 states:

The Supreme Court shall have the power to prescribe rules governing its appellate , rules for the appointment of commissioners and other court personnel, and rules of practice and procedure for the Court of Justice. The Supreme Court shall, by rule, govern admission to the bar and the discipline of members of the bar.

The KBA Board of Governors abides by the objectives set forth in the Rules.

The programs of the Bar and its commissions and committees are used to accomplish its goals and mission. The Board is also cognizant of its responsibility to the lawyers of Kentucky as set forth in the requirements of the United States Supreme Court in Keller v. State Bar of California, 496 U.S. 1 (1990) and its progeny. The Board governs the KBA in a manner consistent with those limitations. The guiding standard is whether the program or expenditure of the KBA is necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of the legal services available to the people of the Commonwealth. The discipline and education functions of the Bar as described below illustrate how the KBA accomplishes these goals.

II. DIVERSITY IN THE PROFESSION

The Kentucky Bar Association continues its efforts to create a more diversified legal profession for the Commonwealth. In 2013, the KBA created a Diversity and Inclusion Initiative designed to support the ongoing work of the KBA's Diversity, and Inclusion in the Profession Committee on diversity. In 2014, the KBA supported a move in the General Assembly to allocate funds for scholarships at Kentucky's three law schools for students from underrepresented populations. The General Assembly approved the proposal, and those funds are included in the budget for the biennium. In April 2015, the KBA co-sponsored the first Diversity and Inclusion Summit with the Louisville Bar Association and the Louis D. Brandeis School of Law. The most recent third biennium Diversity and Inclusion Summit was held on March 22, 2019, in Covington. The KBA seeks to support all of its members

1 regardless of where they live and work and regardless of their gender, race, religion, national origin, or sexual orientation.

Additionally, the Nathaniel R. Harper Award is presented each year to recognize those individuals or entities who have demonstrated a commitment to diversifying the Kentucky Bar by promoting full and equal participation in the legal profession through the encouragement and inclusion of women, minorities, persons with disabilities, people of all sexual orientations and/or other under-represented groups. The award was created by the Young Lawyers Division of the Kentucky Bar Association (YLD) and is presented at the KBA's Membership Luncheon during the Annual Convention. The award is named for the first African-American judge in Kentucky who created the Harper in his Louisville law office at a time when African-Americans were prohibited from attending Kentucky's law schools. The YLD named the award for Harper in recognition of his efforts to create opportunities for others.

Created by the YLD in June 2010, the "Why Choose Law: Diversity Matters" program encourages young people from diverse backgrounds to become lawyers and practice in Kentucky. The program identifies high school students from each Supreme Court District to participate in the day-long program focused on the varying functions of the state and federal court systems. The students also participate as a jury in a mock demonstration; eat lunch with the KBA's Board of Governors and other attorneys; tour large and small law firms; and hear a panel of practitioners discuss what it is like to practice law. The "Why Choose Law: Diversity Matters" program was created to promote interest among students who belong to groups typically underrepresented in law school classes, including racial and ethnic minorities and those with varied religious, socio-economic, and sexual orientation backgrounds.

III. CLIENTS' SECURITY FUND

The Clients' Security Fund (CSF) is "a special fund created by the Supreme Court for the purpose of providing indemnification to clients who may suffer pecuniary loss by reason of fraudulent or dishonest acts on the part of a member of the Kentucky Bar Association." SCR 3.820. A percentage of the annual KBA dues supports the Fund ($7 per active members and $6 for judges). The Office of Bar Counsel (OBC) is the processing agent for the Fund. Claims submitted to the Fund are adjudicated by five Trustees. These Trustees consist of lawyer and non-lawyer members and are appointed by the Board of Governors.

The Trustees typically meet twice a year to consider claims but must first decide whether a claim meets jurisdictional requirements. If jurisdiction is accepted, those claims are normally placed in abeyance pending the results of any concurrent disciplinary proceedings. Upon conclusion of the disciplinary case, the Trustees will render a final decision on the claim. As a condition of reimbursement, the claimant must subrogate his or her claims against the lawyer to the Fund. The lawyer is liable to the Fund for . The CSF has awarded over $1.6 million in the last nine fiscal years.

2 IV. ATTORNEY ADVERTISING

The OBC also works to support the Attorneys' Advertising Commission (AAC). The AAC consists of up to nine volunteer lawyers. SCR 3.130 (7.02)(5) requires the Commission be provided with sufficient administrative assistance from time to time as may be required. The Executive Director and the Board of Governors have delegated this function to the OBC.

The Supreme Court Rules were recently amended to no longer require all advertisements of legal services to be submitted for review. Advertisements include billboards, brochures, print, radio, television, websites, and yellow pages, among others. The rule changes kept the option for an attorney to submit an advertisement to the AAC for an Advisory Opinion, which may help the attorney avoid future discipline for a noncompliant advertisement.

The full Commission meets at least once a year to discuss issues regarding attorney advertising. Commission members review requests for Advisory Opinions when needed throughout the year, but always within 30 days of receipt of an Advisory Opinion request.

The number of advertisements submitted to the Commission significantly and steadily increased for several years but then started to decline as the following table indicates:

KBA Fiscal Year Ads submitted to the Commission

1998-1999 395 1999-2000 376 2000-2001 320 2001-2002 523 2002-2003 787 2003-2004 746 2004-2005 884 2005-2006 987 2006-2007 1,174 2007-2008 1,344 2008-2009 1,507 2009-2010 1,514 2010-2011 1,714 2011-2012 1,689 2012-2013 1,639 2013-2014 1,651 2014-2015 1,418 2015-2016 748* 2016-2017 152 2017-2018 77

*The requirement that all advertisements be submitted to the AAC was removed by the Court, effective January 1, 2016, resulting in a significant drop in submissions.

3 The AAC, with staff support of the OBC, assists lawyers by providing an advisory opinion about whether their advertisement complies with the Rules of Professional Conduct (SCR 3.130 (7.01-7.50)) and AAC . The Commission strives to protect the public within the confines of the constraints imposed on it by the U.S. Supreme Court's interpretation of the First Amendment right of free speech, as applied to commercial speech. Its primary concern is whether advertisements may be false, deceptive, or misleading.

V. CONTINUING LEGAL EDUCATION: ADVANCING THE PROFESSION THROUGH EDUCATION

A. Mission

The mission of the CLE Commission is set by Supreme Court Rule: "To initiate and supervise, with the approval of the Court, appropriate means to insure a continuing high standard of professional competence on the part of the members of the Bar." CLE Commission efforts reflect this mission through commitment to the maintenance and improvement of each member's legal competency and professional values, and commitment to a lifetime of learning, reinforcement of professional values and skills development through CLE. These commitments are implemented through a comprehensive program of CLE regulatory activities, programming activities and special projects aimed at reaching all Kentucky lawyers.

B. Your CLE Requirement

Each Kentucky attorney must earn and report 12 CLE credits annually, with the educational year running from July 1 to June 30. Two of those 12 credits must be accredited as ethics. The KBA CLE Commission tries to make satisfying this mandatory licensure requirement as easy and meaningful as possible by offering high quality, convenient CLE, and through our regulatory accreditation processes. There are many resources available on our website to help you with the CLE requirement, from the Supreme Court Rules and FAQs to contact information for staff. Even more importantly, you can now submit your own CLE credits and apply for accreditation of programs through your member profile on our website. Specific, easy to follow instructions are on the website.

C. Kentucky Law Update

The Kentucky Bar Association provides a comprehensive survey of the changes in law and rules Kentucky practitioners need to be aware of for their daily practice. The Kentucky Law Update program consists of over 12 hours of CLE credit, including at least 2 ethics hours, over two days and is offered at nine different locations across the state1. Kentucky is the only mandatory state bar association in the country that offers a program like this to its members in good standing at no cost and close to home. Not only does this program series cover important and needed updates, but it

1 Due to the Covid-19 pandemic and resulting guidance from government and health authorities, the 2020 KLU program is being offered on demand only.

4 also offers special programming options to allow members to focus on certain areas of practice that are of particular interest to them.

D. Annual Convention

The KBA Annual Convention is the flagship CLE offering in Kentucky. The CLE programs offered cover a wide range of topics with provocative speakers, practical information and over 60 different programs from which to choose. In addition to the CLE programs, Convention presents an excellent opportunity to socialize and network with fellow attorneys, the , and nationally renowned speakers. Convention takes place in May or June of each year. Be on the lookout for information about the upcoming Convention in Lexington May 12-14, 2021.

E. Video Replay

During the last week of each educational year, the KBA offers its live Video Replay program in Frankfort. It is a one day, six-hour program consisting of video replays of KLU and Convention programs with a live moderator present to guide any discussion.

F. GPS (Good Place to Start) Mentoring Program

If you are a member for five years or less and would like the guidance of a more senior attorney, or if you are a member for over five years and would like to volunteer to serve as a mentor for newer attorneys, please take a look at our mentoring program and consider participating. It is entirely voluntary and at the discretion of those using the service.

G. Online CLE Opportunities

The KBA offers an extensive and ever-expanding online program catalog, available through the KBA website. This is an invaluable service, not only because of its convenience, but also due to the broad spectrum of timely and specific CLE offerings we are now able to make available to KBA members. Through online CLE, last-minute compliance becomes not only easier, but more meaningful as our members can choose programs helpful to their varied practices.

H. Teleseminars

KBA members may utilize their telephones to participate in live, national CLE seminars. Keep an eye on your email and e-News for details on all teleseminar offerings or check them out at http://ky.webcredenza.com/. Registration for teleseminars is available online through the KBA website. Materials for the seminars are emailed once registration is completed and can be printed or viewed on your computer. Re-broadcasts of selected teleseminars are available as live or on demand programs as well.

5 VI. THE KENTUCKY LAWYER ASSISTANCE PROGRAM

The Kentucky Lawyer Assistance Program (KYLAP) is a confidential program offered through the Kentucky Bar Association which offers help to the Kentucky legal community. KYLAP helps those with a broad range of mental health problems including alcohol and substance use disorder, compulsive gambling, other types of addictive disorders, stress, depression, and similar conditions which may impair these individuals' ability to practice law in a competent and professional manner. Lawyers suffer from addiction, depression and suicidal thoughts at a much higher rate than the general public.

Because of the sensitive nature of addiction and psychological problems, lawyers are often reluctant to seek assistance or approach a fellow lawyer who is experiencing these types of problems. Recognizing this concern, and in order to foster early and totally confidential contact with KYLAP, Supreme Court Rule 3.990 guarantees strict confidentiality in all self and third-party referrals.

Referrals to KYLAP may be in one of several ways: self-referral, third-party, agency (Office of Bar Admissions and Office of Bar Counsel), and the Kentucky Supreme Court. Self and third-party referrals provide completely confidential assistance to individuals experiencing problems with mental, psychological or emotional conditions including chemical dependency or addiction that impairs, or may foreseeably impair, their ability to practice law. Because of the strict confidentiality afforded through SCR 3.990, KYLAP is allowed great flexibility and discretion in the handling of these cases and offering assistance in a variety of methods and modalities without any involvement with bar membership or discipline. You are not "reported" to the bar when you or someone you care about is referred to KYLAP through a self or third-party referral.

In cases involving agency (Office of Bar Admissions and Office of Bar Counsel) referrals and Supreme Court referrals, an individual may be required to sign a waiver allowing KYLAP to interview the lawyer involved and give an assessment of the problem to the agency and/or monitor the lawyer's participation with KYLAP (which usually includes a Supervision Agreement). These agency and Court referrals are designed mainly for the protection of the public and to maintain the integrity of the profession and therefore are strictly monitored by KYLAP.

The KYLAP Foundation, Inc., is a 501(c)(3) non-profit corporation created to assist lawyers with financial hardship who may be unable to afford treatment. The Foundation offers forgivable loans to qualified individuals for purposes of obtaining mental health and addiction treatment including inpatient care, outpatient treatment, and medications.

KYLAP has more than 100 volunteer lawyers across the state who, when asked, are willing to go to any lengths to assist and carry the message of recovery to those suffering from mental health issues and impairment. These volunteers are the life blood of KYLAP. If you or someone you know is suffering, give us a call or visit the KYLAP website at www.kylap.org for resources including self-tests, other websites, and publications that may be helpful for you.

6 Kentucky Lawyer Assistance Program KBA Main Number (502) 226-9373 (Answered 24 hours a day / 7 days a week) P.O. Box 1437 Frankfort, KY 40602

VII. EMPLOYEE ASSISTANCE PROGRAM

The Kentucky Bar Association, through the Kentucky Lawyer Assistance Program, is excited to partner with an Employee Assistance Program to offer the opportunity for mental health support to Kentucky’s lawyers and judges. All of the assistance remains COMPLETELY CONFIDENTIAL, pursuant to SCR 3.990.

This partnership provides additional mental health support for Kentucky’s lawyers and judges. The Employee Assistance Program offers phone assistance 24 hours a day, including evenings and weekends. Simply call the KYLAP office anytime, night or day, on our DIRECT PHONE NUMBER – no operators required – and after hours you will be directly connected to our CONFIDENTIAL Employee Assistance Program. The direct number is (502) 226-9373. You may also continue to call through the main switchboard at the Kentucky Bar Association at (502) 564-3795, ext. 226. Someone will be available to you 24 hours a day, seven days a week.

If you need immediate care, KYLAP, with assistance from our Employee Assistance Program, can connect you with one of hundreds of mental health providers all across the state (and even across the country). You will have an appointment in your area (or in the area you choose) in as little as 24 to 48 hours. The provider you are referred to will be a licensed professional. If you have insurance or would like to pay privately, that will be accepted (according to the provider’s guidelines). If you are unable to pay and meet the income criteria, you will receive up to four (4) clinical sessions at no charge to you. The Kentucky Bar Association and KYLAP are providing this service to its members free of charge, when income criteria are met. If you need additional services and are unable to pay for those, additional assistance may be available through the KYLAP Foundation. www.kylap.org/foundation.

At the Kentucky Bar Association and the Kentucky Lawyer Assistance Program, we recognize that lawyers and judges are suffering from undiagnosed mental health issues, including depression and severe and chronic stress and anxiety, at a rate far higher than the general population. We understand that good mental health and wellness is essential for the sustainability of our profession. We are committed to offering this service to you to help you address mental health issues before you reach a crisis in your life and in your career2.

VIII. ATTORNEY DISCIPLINE

Bar Counsel is appointed by the Board and “shall be responsible for investigating and prosecuting all disciplinary cases and such other duties as the Board may designate.” SCR 3.155. Over the last several years, there have been significant changes in the discipline system that have been supported by the Inquiry Commission, the KBA Board of Governors, and approved or implemented by the

2 Find additional information and advertising about these services at www.KYLAP.org.

7 Kentucky Supreme Court. These changes were undertaken to increase the responsiveness to complainants; increase the speed of resolution of many complaints; reduce backlog; increase help to lawyers who demonstrate a lack of understanding of how the rules apply; and to increase public confidence in by the Supreme Court, the KBA and the Inquiry Commission.

Enhancements to the Discipline System:

A. Establishment of a "diversion" central intake system for certain types of bar complaints, providing informal warnings and referrals to resources for education or assistance.

Amendments to the Supreme Court Rules created a "diversion" alternative which is analogous to similar processes available in some other states. This process is under the direction of the Inquiry Commission and creates a set of more flexible options for resolution of what appear as "low level" ethical violations. The process includes informal "complaints" for review in the diversion process. Key components of the diversion review are:

1. Inclusion of sworn and unsworn complaints in a centralized intake process with assignment of each matter stating a colorable violation to an OBC attorney.

2. Informal preliminary investigation through contact with the attorney to determine if the matter has been addressed or requires some follow up by the attorney. Such matters include return of client files, refund or clarification of unearned fees and/or the lawyer communicating with the client about a particular matter.

3. The available option of processing the matter through the formal process to the Inquiry Commission if more significant issues appear or the matter cannot be adequately addressed informally.

B. Providing the KBA Office of Bar Counsel the ability to investigate and try to resolve or close minor issues between the public and a lawyer. This is done under Inquiry Commission guidelines, but before the formal complaint/response system that submits a bar complaint to the Inquiry Commission.

C. Last fiscal year almost one-half of all of the complaints received in the OBC office were processed through the informal resolution and diversion rule.

D. Use of remedial education in ethics, in law office management or in a particular area that the lawyer needs to learn to avoid future difficulties.

E. Providing the Inquiry Commission with the ability to conditionally dismiss the bar complaints it reviews to try to correct the problem, rather than relying solely on Private Admonitions or Charges.

8 F. Use of the resources of the Kentucky Lawyer Assistance Program (KYLAP) for disciplinary probation or referral in diversion. This process is separate from its confidential mission.

G. Enhanced and more versatile use of probation of suspensions with conditions to help the lawyer overcome the issues which caused the disciplinary issue and thus help both the attorney and future clients.

H. Amendment to the fee arbitration and legal negligence arbitration rules to streamline that process for use, not only in voluntary cases, but as a condition of discipline or diversion. Referral is available for resolution of issues arising in complaints, and for other members of the Bar.

I. The creation and use of a remedial ethics program for lawyers who could benefit from additional training on ethics issues which commonly arise. The Ethics Professionalism and Enhancement Program (EPEP) was initially developed and implemented, in part, through a grant from the Bar Foundation. EPEP is now funded by the fees of attendees. A total of 313 lawyers have completed the course. Completion of EPEP, along with a passing test score, results in the dismissal of the diverted complaint. The Supreme Court often refers lawyers to EPEP as part of discipline. This program focuses on the Rules of Professional Conduct.

J. Providing information earlier to the public about the pendency of disciplinary proceedings in serious cases related to temporary suspension, criminal charges, reciprocal discipline from other states, or of misconduct in civil cases. This was made possible by amendments to SCR 3.150 in early 2008.

K. Complaints referred to the Inquiry Commission for review after written response is received and result in a charge of misconduct now average eight months to be processed through the investigation stage. In addition, open complaints are often held in abeyance due to pending criminal charges, which implicate the right of the Respondent under the Fifth Amendment. Those files may also be held in abeyance due to pending civil litigation on the same matter, which may result in findings relevant to, or conclusive in, the discipline case. In the event a charge is issued, due process rights and the requirements of litigation and appeal result in substantially longer time periods to complete the case.

L. The median time for a charge to be submitted to the Court after issuance is 12 months. However, consistent averages indicate less than 1 percent of all licensed Kentucky lawyers have a charge lodged against them in a given year.

M. Amending the Rules of Professional Conduct, which the Court completed in July 2009, to be more in conformity with other states based in large part on the ABA Ethics 2000 Model Rules.

N. Reference to the ABA Model Standards of Discipline as another source to assist the Board and the Court in consistency of imposing discipline.

9 O. Use of "consensual" discipline, which is an agreed resolution where the lawyer and the KBA come to an agreement for appropriate discipline on a charge, and then ask the Court to approve it. This assists respondents and former clients in getting the case resolved without hearings, appeals, and generally with less expense. About half of all charges were resolved in this manner in Fiscal Year 2014-2015.

P. Enhancing the ability of complainants to learn about and obtain applications to the Clients' Security Fund (CSF), and reorganizing its procedures to assist victims of theft by their lawyer to recoup losses.

Q. Legal Negligence/Fee Arbitration

1. SCR 3.800 permits the filing of claims of legal negligence in the amount of $50,000 or less for binding arbitration.

2. SCR 3.810 permits the submission of fee disputes for binding arbitration.

3. Disputes must arise from attorney-client relationships; the amounts in controversy must exceed $2,500; and both sides must agree to participate in the arbitration.

4. Petitions are submitted to the Executive Director of the KBA, who determines whether to accept jurisdiction based on whether the requirements set forth in the rules have been met, including a written certification by the parties that a good faith effort has been made between them to resolve the dispute.

The OBC provides attorney and support staff to assist the Director in processing the petitions and, if the matter proceeds, with coordinating the appointment of the arbitrators.

IX. THE KBA WEBSITE: AN IMPORTANT TOOL FOR YOUR KENTUCKY PRACTICE

If you haven't checked out the KBA website recently, you are ignoring one of the most important tools you have access to for your Kentucky practice. While the website has grown and changed over the past few years as greater resources became available to the KBA for upgrades and improvements, many members have still not recognized the rich resources available to them at their fingertips through https://www.kybar.org.

Not only does the site include invaluable information about KBA programs and who to contact for assistance, it includes the secured options to pay your membership dues online with a credit card, register for KBA events, and locate numerous forms needed for requesting information from, or reporting information to, the KBA. You can also find other KBA members through the "Lawyer Locator" service. You can find links to the Supreme Court Rules, Civil Rules, Criminal Rules, Rules of , Ethics Opinions, Ethics Hotline, Closed and Abandoned Practices Information and more on the site. Great reference links will take you to state and

10 federal court sites, the Attorney General's Office, the and all their activities, administrative regulations and more!

In addition, did you know that every KBA member has a public member profile on the website? Your public member profile lists your contact information (e.g., email, organization’s name, address and phone number). You have the option to add a headshot image to help others put a face with your name, list your website to give visitors a direct link to additional information about you and/or your firm, add your spoken language(s) and/or sign language credentials to affirm that you are fluent in that specific language group, and add your areas of practice to communicate to the public that you practice particular fields of law.

Don’t miss out! Take some time to log in to the KBA website and review its many offerings!

X. KBA CAREER CENTER

KBA Career Center is the premier resource to connect career opportunities with highly qualified legal talent. Whether you're searching for a new hire or searching for a new career, the KBA Career Center provides avenues to help you achieve your goal. To access the KBA Career Center visit: jobs.kybar.org.

KBA Career Center will allow you to:

A. Recruit for Open Positions

1. Post your jobs, or your institutions' jobs, where legal professionals will find and apply to them.

2. Email your jobs directly to job seekers.

3. Manage jobs and applicant activity right on our site.

4. Search the resume database and contact qualified candidates proactively.

B. Manage Your Career

1. Search and apply to fresh jobs on the spot with robust filters.

2. Upload your anonymous resume so employers can contact you, but you maintain control of your information and choose to whom you release your information.

3. Receive an alert every time a job becomes available that matches your personal profile, skills, interests, and preferred location(s).

4. Access career resources and job searching tips and tools.

So, what are you waiting for? Visit the KBA Career Center today and get started!

11 XI. CASEMAKER

The KBA website is also a conduit to Casemaker, one of the fastest growing online services available today. This outstanding research tool is offered to all KBA members through the bar website free of charge. Casemaker includes both state and federal research libraries and features such as the ability to save search history, make notes, and create file folders.

A. The Federal Search Library

1. United States Supreme, Circuit, District and Bankruptcy Court Opinions.

2. Federal Court Rules.

3. United States Code.

4. Code of Federal Regulations.

5. USC Bankruptcy Reform Act.

6. U.S. Constitution.

7. Internal Revenue Service Rulings.

8. Internal Revenue Bulletins.

9. Court of Appeals – Armed Forces as well as Veteran Claims.

10. Court of Claims as well as International Trade.

11. Federal Communications Commission as well as the Energy Regulatory Commission.

12. Federal Labor Relations Authority.

13. Federal Register.

14. Federal Rules Decisions.

15. Federal Sentencing Guidelines.

16. Longshore and Harbor Workers' Compensation.

17. National Labor Relations Board.

18. NTSB Decisions.

19. Board of Immigration Appeals.

20. Black Lung Cases.

12 21. Department of Energy.

22. Patent Decisions.

23. Public .

24. Tax Court.

25. Trademark Decisions.

B. The Kentucky Search Library

1. Administrative Regulations.

2. Attorney General Opinions.

3. .

4. Constitution.

5. Ethics Opinions.

6. Court Rules.

7. Federal Court Rules.

8. Session Laws.

9. .

10. Workers' Compensation Decisions.

11. Open Meetings Decisions.

12. Open Records Decisions.

C. All state search libraries are now available and contain at minimum:

1. State Case Law.

2. State Constitution.

3. State Statutes.

4. Administrative Code.

5. Legislative Acts.

6. State Register (if such exists).

7. Court Rules.

13 State libraries may contain additional content as well, which varies by state.

Casemaker4 is included for bar members and features many advanced, highly effective search tools, including the citator CaseCheck+, multistate search, and all in an aggregated search. It also includes CaseDigest which provides regular summaries of appellate cases and CiteCheck which allows you to upload your brief, pleading or document, and receive a report stating whether your case citations continue to be good law. In addition, Casemaker offers CasemakerLibra, which links your searches to appropriate state and federal titles from a variety of publishers including the ABA.

For those just getting started or interested in the latest updates, Casemaker offers training and support in multiple formats: webinars, videos, live chat and a customer support line.

All of this is available to KBA members as a part of their membership.

vLex

The KBA, in collaboration with Casemaker, offers members free access to an advanced legal research platform, including the AI-powered legal assistant – Vincent, from global legal service provider vLex. This platform contains Casemaker's broad and comprehensive libraries covering all 50 states and federal level materials. The content collection is enhanced by books, journals and current awareness resources including over 500,000 legal blog posts from JD Supra, Mondaq and LexBlog. In addition, vLex Justis can serve as a gateway to over 120 million legal information documents from over 130 countries, permitting those KBA members who need it to directly access foreign legal material from the UK, Mexico, Canada and beyond at a low per-document rate.

XII. LEGISLATIVE OUTREACH PROGRAM

For the last two years, the Kentucky Bar Association has worked closely with the Chief Justice and the judiciary in mobilizing attorneys, judges and circuit court clerks in encouraging the legislature to more adequately fund the judiciary. The Association will remain available to assist the judiciary in this project.

XIII. COMMUNICATIONS

The Bench & Bar magazine, the official publication of the Kentucky Bar Association, is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and, in a format that both edifies and entertains the reader, keeps the Bar informed on current issues and events within the legal profession. It is a bi-monthly publication, published in January, March, May, July, September, and November.

The KBA also distributes a monthly electronic newsletter, KBA eNews, by email to provide members with up-to-date bulletins between regular publications of the Bench & Bar magazine.

14 You can also access timely information and photos by “liking” the KBA's Facebook page or following the KBA on Twitter, @KyBarNews.

XIV. KENTUCKY BAR FOUNDATION: THE CHARITABLE ARM OF THE BAR

The Kentucky Bar Foundation (KBF) was created in 1958 to improve and facilitate the administration of justice, help those in need through law-related programs, and to educate the public about the role of the judicial system and the legal profession in Kentucky. With the financial support of Kentucky attorneys, the Foundation accomplishes these objectives by providing grants for law-related programs and projects throughout the Commonwealth. The KBF awarded grants for 2020 in the sum of $250,000 and has given over $3.5 million in total grants since 1988. This has had a positive effect on the lives of many in our communities through the following types of programs:

• educating the public about law and the justice system • helping at-risk children • providing funding to assist abused women and children • assisting veterans with legal problems by funding clinics • offering free legal services • providing funding to educate high school seniors about abuse of credit • preserving

The KBF’s Partners For Justice, Fellows, Patrons and Sustaining Members' charitable contributions have helped to fund KBF grants to nonprofit organizations that have developed the above programs and other projects to better serve our citizens. To participate in the bar’s charitable law-related efforts, contact the KBF at 1-800-874-6582.

XV. IOLTA

One of the most visible programs of the Kentucky Bar Foundation is the Interest on Lawyers’ Trust Accounts Fund (IOLTA). IOLTA collects the interest generated from pooled client funds held in trust by lawyers. Routinely, a lawyer may receive money from clients that must be held in escrow for future use. Attorneys deposit small or short-term multiple client funds into an IOLTA interest-bearing account at a participating bank. The interest earned is remitted directly by the bank to the IOLTA Fund. Historically, through its interest revenues, IOLTA has made significant grants to the four regional legal services programs and funded public service fellowships at each of the three law schools in the Commonwealth.

Thanks to your participation, the Kentucky IOLTA Fund has awarded over $17 million in grants since 1988. For more information, call 1-800-874-6582.

15 CYBER SECURITY FOR LAWYERS: LEGAL ETHICS AND BEST PRACTICES FOR LITIGATORS Tanya Bowman

In 2019, more than 3,000 Kentuckians reported losing more than $17 million to cybercrime incidents.1 The Kentucky Bar Association, Lawyers Mutual of Kentucky, and others have long promoted cyber security education for lawyers in fulfillment of the Rules of Professional Conduct.2 This presentation continues that tradition by discussing current events and updates relating to: (1) ethical and other legal responsibilities of counsel; (2) threats to law practice in the current cyberspace; and (3) some approaches to minimizing your exposure to those threats.

I. UPDATING ETHICAL AND RELATED LEGAL REQUIREMENTS

A. Rules of Confidentiality

Kentucky Rule of Professional Conduct SCR 3.130(1.1) provides that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Since January 1, 2018, Rule 1.1 has included the following Comment 6: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” (emphasis added).

Similarly, Rule 1.6(a) provides that “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted[.]” In July 2018, Kentucky Bar Association Ethics Opinion KBA E-446 specifically addressed “Cybersecurity”:

Whether an attorney uses email to communicate with clients; e-files documents with the courts; stores client information electronically; shares files with others; employs mobile devices and/or accesses the internet, care must be taken to avoid disclosure of confidential client information.

Creating, using, communicating, and storing information in electronic form greatly increases the potential for unauthorized access, use, disclosure and alteration, as well

1 Federal Bureau of Investigation, 2019 Internet Crime Report, pp. 21-22.

2 E.g., J. Sallee, Securing Client Data: A Business Reasonable Approach, Kentucky Bar Association Bench & Bar Magazine 79:3, p. 8 (May 2015); R. Baxter, Cyberspace, Malpractice, And You, Lawyers Mut. Ins. Co. of Kentucky, Malpractice Avoidance Update 13:3 (Summer 2002).

16 as the risk of loss or destruction (of client information) … attorneys are consider[ed] ‘easy targets’ for cyberattacks.

Id. (citations omitted).

Thus, in Kentucky as elsewhere, the “‘competence requirement’ includes the knowledge of traditional cyber tools to protect client data.” Id., at 3-4. Attorneys “should not use any particular mode of technology to store or transmit confidential information before considering how secure it is, and whether reasonable precautions such as firewalls, encryption, or password protection could make it more secure.” Id., at 4. “What is ‘reasonable’ depends upon the facts and circumstances taken to prevent access or disclosure of confidential information.” Id. Attorneys should “undertake continuing technology education to increase cyber-preparedness, and to continually reevaluate policies and procedures in place to minimize data breaches of a client’s confidential information.” Id., at 5. While there has not been a published decision in which a Kentucky lawyer has been sued for failing to maintain client cyber-confidentiality, a federal court recently denied a motion to dismiss in such a case: Wengui v. Clark Hill, PLC, No. No. 19-3195, 2020 WL 837166 (D. D.C. Feb. 20, 2020).

Wengui “features an asylum-application process gone awry, accompanied by alleged professional misconduct, foreign-government cyber hacking, and social-media propaganda campaigns.” 2020 WL 837166, at *1. “The Court … will permit those claims to go forward that allege mis- representations surrounding and mishandling of his confidential information.” Id. Notably, Wengui alleged that he specifically warned the firm of the threat of cyber attacks, and the firm allegedly assured him that appropriate security measures were in place. Id., at *2. “Although [the firm] promised to take special precautions, they placed that information … on their server and conveyed it via a firm email account – in direct contravention of his instructions – leaving Plaintiff vulnerable to the precise sort of machinations he had forewarned[.]” Id., at *4.

The Court also found, for purposes of the motion to dismiss, that the alleged facts of misappropriating information and then publishing it as part of a media campaign against Wengui, constituted actionable injury: “Wengui therefore does not ‘speculate’ as to potential uses of the stolen information; it has already been employed as part of the CCP's persecution and harassment of him.” Id., at *5. The Court therefore allowed claims for breach of fiduciary duty, legal malpractice and breach of to proceed.3

3 Cf. Bile v. RREMC, LLC, No. 3:15-cv-00051, 2016 WL 4487864 (E.D. Va. Aug. 24, 2016). In Bile, Plaintiff’s counsel became aware during settlement negotiations that his client’s email account had been hacked. Counsel failed to inform opposing counsel of that fact, and apparently did not investigate whether his own email account might have become compromised. When the hacker used the email account of Plaintiff’s counsel to cause a settlement payment to be misdirected overseas, the results were harsh. “As technology evolves and fraudulent schemes evolve with it, the Court has no compunction in firmly stating a rule that: where an attorney has actual knowledge that a malicious third party is targeting one of his cases with fraudulent intent, the attorney must

17 B. Rules of Supervision

Due to the rapid change of cybersecurity options, an attorney may determine that taking “reasonable measurers” to avoid a theft or loss of confidential client information includes contracting with a professional to create and/or maintain the cybersecurity plan for the law firm. “When a lawyer selects a provider of any support services, the duty of competence, the duty to protect a client’s property, and the duty of confidentiality require the lawyer to investigate the qualifications, competence and diligence of the provider.” KBA E-446, at 6.

While all lawyers have a duty to evaluate their client data and systems and take reasonable steps to secure confidential information, attorneys who have managerial roles have the added duty of evaluating and correcting security issues within the law firm and prescribing policies and procedures to reduce cyber threats. Id., at 7.

Consequently, “each attorney must understand what devices the law firm uses that are connected to the office network or the internet; how client information is exchanged or stored through that system and who has access to the data, and make ‘reasonable efforts’ to combat cyber threats.” Id. In the litigation context, this suggests that attorneys may consider three distinct but overlapping repositories and communications: internal attorney work product; client data including communications; and other third-person data (adversarial or otherwise).

C. Breach Notification

SCR 3.130(1.4) provides:

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

either alert opposing counsel or must bear the losses to which his failure substantially contributed.” 2016 WL 4487864, at *13.

18 (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

In practice, Rule 1.4 “includes discussing the use of technology in client communications, the handling of confidential client information within the law firm, and the storage of that information.” KBA E-446 at 5, citing KBA E-437 (2014).

SCR 3.130(1.4) does not mandate the disclosure to a client about general cyber attacks against the law firm, or breaches of security within an attorney’s computer systems. However, if there is a disclosure of the client’s specific confidential and/or privileged information to third parties, which we believe would constitute a “significant development” affecting the client’s representation, then a disclosure must be made to the client about this development.

Id.

KBA E-446 also acknowledges that attorneys are subject to Kentucky’s data breach notification , KRS 365.732. Id. So in the event of a breach, an attorney may have a direct notification duty if the incident involved:

unauthorized acquisition of unencrypted and unredacted computerized data that compromises the security, confidentiality, or integrity of personally identifiable information maintained by the information holder as part of a database regarding multiple individuals that actually causes, or leads the information holder to reasonably believe has caused or will cause, identity theft or fraud against any resident of the Commonwealth of Kentucky.

KRS 365.732(1)(a).

Even if the compromised data is not “part of a database regarding multiple individuals,” counsel may have a duty to disclose a breach:

Any information holder that maintains computerized data that includes personally identifiable information that the information holder does not own shall notify the owner or licensee of the information of any breach of the security of

19 the data as soon as reasonably practicable following discovery[.]

KRS 365.732(3).4

This potentially broader duty is consistent with KBA E-446: “Thus, if an attorney failed to disclose to the client a breach involving the client’s unencrypted personally identifiable information then the attorney may be unethically withholding that information to protect the lawyer’s own interest to avoid a or an ethical charge by the client.” Id. at pp. 5-6.

II. THREATS TO LITIGATION PRACTICE IN THE CURRENT CYBERSPACE

As noted, in litigation, attorneys must be concerned not only with intra-firm and client data and communications, but also data and communications from adversaries or other third persons involved in litigation. So, counsel want to stay generally informed – and assure that service providers stay more specifically informed – of priority threats in cyberspace. Each year, the Federal Bureau of Investigation publishes the Internet Crime Report that categorizes not only victims by state and loss, but also by prevailing types of internet crimes. For example, in 2019 the top six types of internet crime accounted for more than 60 percent of the incidents.5

The report also identifies emerging or other noteworthy “Hot Topics” that may deserve priority consideration:6

Ransomware is a form of malware targeting both human and technical weaknesses in an effort to make critical data and/or systems inaccessible ... Recent iterations of this threat target specific organizations and their employees, making awareness and training a critical preventative measure.

Law firms and legal service providers have been included among “specific organizations” targeted across the United States. For example, “a global leader in the legal services industry, today issued the following statement: On February 29, we detected unauthorized activity on our systems, which has been confirmed as a ransomware attack.”7Also, a “Texas law firm … had its data exposed by hackers, including fee agreements and diaries from personal injury cases … A second firm … responded to suspicious activity on its network by taking it offline[.]”

4 All states as well as the District of Columbia and certain U.S. territories now have data breach notification statutes. These laws vary in both the scope of coverage, and assertions of extraterritorial jurisdiction for enforcement. Kentucky litigators who receive personal data of residents of other states should consider whether those state laws may apply to the use of that data.

5 Page 19.

6 Id., at 9 (“BUSINESS EMAIL COMPROMISE (BEC)”); 14 (“RANSOMWARE”)

7 https://www.globenewswire.com/news-release/2020/03/02/1993837/0/en/Epiq-Issues- Statement-on-Unauthorized-System-Activity.html.

20 D. Weiss, Hacking group publishes 'full dump' of law firm's data; another responds to cybersecurity incident.8 A “law firm located in Evansville, Indiana, has been the victim of a criminal cyber ransomware attack ... The firm is able to continue conducting its business since it had backups in place.” B. Endale, Evansville law firm Woods and Woods says it is victim of cyber attack.9

Another source of general information is the annual Legal Technology Survey Report. The ABA Report spans the profession from solo practitioners to large firms, and its coverage is divided into sections including “Cybersecurity.” For 2019, 26 percent of the solo and law firm respondents reported that they had experienced a data breach.10 By considering reports from different authoritative sources, and then consulting with the relevant service provider(s) for more recent and specific information, it becomes feasible to identify and prioritize potential threats to pending client matters.

III. APPROACHES TO MINIMIZING THREAT EXPOSURE

A. Cyber Security and Incident Response Planning

“Having an effective data security program will reduce the risk of confidential client information being disclosed for all lawyers in the law firm.” KBA E-446, at 7. The 2019 ABA Technology Survey Report stated that approximately 31 percent of responding solo and law firm practices include an incident response plan in their data security. Loughnane, supra. The KBA “does not mandate the specific policies or procedures that an attorney must employ to have an effective data security program, nor does it contend that there is a ‘one shoe fits all’ solution for every attorney for cybersecurity.” KBA E-446, at 7. Thus,

elements of a typical incident response plan include procedures for initial reporting of an incident, confirmation of the incident, escalation as appropriate, and investigation. Best practices include a designated incident response project manager working with a cross-disciplinary team familiar with breach reporting obligations, mitigation requirements, and steps needed for recovery. Finally, plans typically provide for a post-incident review period to allow any lessons learned to be built into a revised plan.

Loughnane, supra.

8 https://www.abajournal.com/news/article/hacking-group-publishes-full-dump-of-law-firms-data- another-responds-to-cybersecurity-incident.

9 https://www.courierpress.com/story/news/2020/02/07/evansville-law-firm-woods-and-woods- victim-ransomware-cyber-attack/4691815002/.

10 J. Loughnane, 2019 Cybersecurity, https://www.americanbar.org/groups/law_practice/publications/techreport/abatechreport2019/cyb ersecurity2019/ (“Loughnane”).

21 In the litigation context, additional questions are whether the case involves (or may involve) personal data or other categories of confidential information that require heightened security. Then, whether there are any potentially vulnerable communications channels that should be reinforced. One across-the-board security measure is encryption of files, communications and devices. “The 2019 Survey results indicate that less than half of respondents use file encryption (44%), slightly more than a third use email encryption (38%), and even fewer use whole/full disk encryption (22%).” Loughnane, supra.

Encryption is not necessary for all, or perhaps even most attorney communications. See, American Bar Assoc. Formal Op. 477R, at 5 (2017) (“the use of unencrypted routine email generally remains an acceptable method of lawyer-client communication”). But in appropriate circum- stances, encryption can secure confidential information and obviate a need for data breach notification. E.g., KRS 365.732 (public data breach notification premised upon compromise of an unencrypted database). Indeed, each litigation matter may provide an opportunity to test a lawyer’s data security plan. First, by considering the ways in which confidential information will be created, communicated and stored. Then, by evaluating whether existing security provisions will be adequate for the case.

B. Compare the Plan to an Established Framework

Without being prescriptive,11 ABA Formal Op. 477R describes a seven- point process for defining and applying cybersecurity standards to a particular matter:12

1. Understand the nature of the threat.

2. Understand how client’s confidential information is transmitted and where it is stored.

3. Understand and use reasonable electronic security measures.

4. Determine how electronic communications about client matters should be protected.

5. Label client confidential information.

6. Train lawyers and nonlawyer assistants in technology and information security.

7. Conduct due diligence on vendors providing communication technology.

11 “While it is beyond the scope of an ethics opinion to specify the reasonable steps that lawyers should take under any given set of facts, we offer the following considerations as guidance.” (p. 6).

12 Pages 6—10.

22 Although technically voluntary in the private sector, the National Institute of Standards & Technology’s Cyber Security Framework (the “NIST CSF”) is an emerging federal standard. The Federal Trade Commission has published its own analysis of how the NIST CSF:

relates to the FTC’s long-standing approach to data security. It notes that the framework is not a checklist, but rather a method by which a company can identify risks and adjust its security efforts accordingly to ensure they are as effective as possible, which is consistent with the FTC’s focus on reasonable data security. … The [FTC] blog also highlights various FTC enforcement cases in which the security problems alleged in the complaint mirror concerns addressed in the NIST framework.

FTC Blog Post Outlines How NIST Cybersecurity Framework Relates to FTC Data Security Program.13

“From the perspective of the staff of the Federal Trade Commission, NIST’s Cybersecurity Framework is consistent with the process-based approach that the FTC has followed since the late 1990s, the 60+ actions the FTC has brought to date, and the agency’s educational messages to companies[.]”14 It therefore may be prudent for attorneys whose practice includes litigation and regulatory proceedings, to consider the NIST CSF in cyber security planning and incident response.

C. The Role of Cyber Insurance

“Overall, 33% of respondents in 2019 report their firms have cyber liability insurance (compared with 34% in 2018).” Loughnane, supra. Depending upon the carrier and scope of protection, the depth of inquiry required to complete an application and binding of a cyber insurance policy itself may provide a framework for a cybersecurity program. Some issues involved in defining the scope of coverage may include:

1. Does coverage extend to any actual or alleged unauthorized breach, disclosure or other compromise of non-public information or other property (a “Breach Event”) that the firm possesses or controls by reason of legal work for a client?

2. Does coverage include payment of compensatory damages, including damages for breach notification, remediation, or forensic expenses; penalties in the nature of compensatory damages; or civil or criminal fines, sanctions, or penalties incurred by reason of a Breach Event?

13 https://www.ftc.gov/news-events/press-releases/2016/08/ftc-blog-post-outlines-how-nist- cybersecurity-framework-relates.

14 A. Arias, The NIST Cybersecurity Framework and the FTC, https://www.ftc.gov/news- events/blogs/business-blog/2016/08/nist-cybersecurity-framework-ftc.

23 3. Does coverage include public relations or other image/brand remediation expenses incurred by reason of a Breach Event?

4. Does coverage include ransomware or other payments made by reason of a Breach Event?

5. Does coverage include business interruption or systems remediation costs that the firm may incur by reason of a Breach Event?

6. Lack of sufficient coverage may cost attorneys caught in the middle of cybercrime.15

7. Failure to clarify the scope of coverage when the policy is purchased, may result in public litigation over the firm’s internal practices.16, 17

IV. CONCLUSION

Cyber security is more important than ever, given criminals’ appetites for personal, confidential, and sensitive client information that law firms possess. An effective data security program will reduce the risk of loss or damage to confidential client information. The reputational and ethical implications of not having an adequate security program and incidence response plan could be devastating. As such, it is imperative that firms protect themselves and ensure that their employees are adequately trained in effective cyber security and breach response. In the litigation context, these imperatives can extend beyond the firm itself to include

15 Beins, Axelrod, PC v. Analytics, LLC, No. 19-cv-3734, 2020 WL 1952799 (D.D.C. Apr. 23, 2020) (bank could not be liable under Computer Fraud & Abuse Act for merely allowing hacker to open an account used for transferring funds from business email compromise of a law firm); O’Neill, Bragg & Staffin, P.C. v. Bank of America Corp., No. 18-cv-2109, 2018 WL 5921004 (E.D. Pa. Nov. 13, 2018) (bank not liable where email compromise resulted in law firm partner’s mistaken authorization of wire transfer, even though wire transfer over-drafted the firm’s IOLTA sub-account and the bank drew from other clients’ IOLTA sub-accounts to cover the overdraft); Bile; supra; Deutsche Bank Nat’l Trust Co. v. Craig Buck and The Buck Law Firm, PC. No. 3:17-cv-00833, 2019 WL 1440280 (E.D. Va. Mar. 29, 2019) (where bank sued law firm for business email compromise that spoofed an email from the bank’s escrow agent to the law firm, the law firm failed to plead indemnity or statutory contribution claims against the escrow agent as a third-party defendant); cf. PNC Bank, N.A. v. Martin, No. 08-cv-00649, 2010 WL 3271725, *4 (W.D. Ky. Aug. 19, 2010) (“The Uniform Commercial Code and the account agreement place the risk of loss on [the attorney], even if [the bank] made a mistake”) (attorney liable to bank for falling victim to check- cashing fraud).

16 E.g., Moses Alfonso Ryan Ltd. v. Sentinel Ins. Co., No. 1:17-CV-00157 (D. R.I.) (Carrier’s answer denied that the policy covered ransom payments or lost billings, and asserted affirmatively that the carrier already had paid a maximum amount identified in the policy for virus-related computer & media coverage).

17 The complaint in Moses alleged that the ransomware attack disabled the firm for approximately three months and required a second ransomware payment after the decryption keys received for the first payment failed to restore the firm’s files. Doc. 1-1, at ¶10.

24 accountability for service providers, and diligence in handling data that is received from or produced to third persons in the case.

V. APPENDIX

A. KBA E-446 (2018)

B. KBA E-437 (2014)

25 ATTORNEY DISCIPLINARY PROCESS: DISMISSAL TO DISBARMENT AND ALL THINGS IN BETWEEN Jane H. Herrick and Peter L. Ostermiller

I. ATTORNEY DISCIPLINE PROCESS GENERALLY

A. Background

1. Attorneys are a self-regulated profession, (which is rare).

2. Kentucky Constitution, Section 116, gives the Kentucky Supreme Court exclusive authority to "govern admission to the bar and the discipline of members of the bar."

3. Kentucky Supreme Court Adopted Rules.

a. Created the Kentucky Bar Association (SCR 3.025).

b. Kentucky Rules of Professional Conduct ("Ethics Rules") (SCR 3.130 to 3.130(8.5)).

c. Attorney Advertising Rules are located within Ethics Rules in SCR 3.130, Section 7.

d. Procedures and processes of enforcement, plus reinstatement and/or restoration to practice (SCR 3.140 to 3.530).

e. CLE, arbitration regarding negligence, fees, and attorney disputes, Client Security Fund claims, IOLTA, and KYLAP (SCR 3.600 to 3.995).

B. Nature of the Proceedings

1. "…[I]nquisitorial, but civil in nature, not criminal or even quasi- criminal." KBA v. Signer, 558 S.W.2d 582 (Ky. 1977).

2. Primarily Complaint driven process although some inquiries initiated sua sponte by the Office of Bar Counsel based on information provided other than by a Bar Complaint.

3. Alternative sources of information could be media coverage, court opinions, informal reports of misconduct, etc.

C. Players in the Process

1. Respondent attorney.

2. Office of Bar Counsel.

26 3. Inquiry Commission.

4. Trial Commissioner.

5. Board of Governors.

6. Supreme Court.

II. OVERVIEW OF DISCIPLINE PROCESS, INFORMAL AND FORMAL

A. Informal Discipline Process

1. All attorney disciplinary proceedings begin as informal matters.

2. Process may begin from different sources.

3. Most disciplinary cases resolved at informal stage.

4. Informal proceedings before Inquiry Commission.

5. If not considered appropriate for informal resolution, case proceeds to formal stage.

B. Formal Discipline Process

1. Initiated by return of Charge by Inquiry Commission.

2. Consensual resolution process available.

3. If not resolved by consensual resolution, resolved by contested proceedings.

4. Trial Commissioner conducts evidentiary hearing and makes advisory recommendation.

5. Appeal to Board of Governors (de novo review).

6. Supreme Court makes final decision (de novo review).

III. INFORMAL DISCIPLINE PROCESS

A. Source of Disciplinary Inquiry

No standing requirement, and disciplinary inquiry may arise from multiple sources including:

1. Client or former client filing Bar Complaint.

2. Opposing party filing Bar Complaint.

27 3. Friends or family of client or former client or other participant in legal process, or any third party, filing Bar Complaint.

4. Another attorney either in compliance with reporting Rule SCR 3.130(8.3) or by Bar Complaint.

5. Judge reporting attorney pursuant to duty under Judicial Code.

6. Sua sponte investigation by Inquiry Commission if information from any source comes to its attention that attorney may have engaged in unprofessional conduct.

B. Intake

1. Initial review by Office of Bar Counsel of all Bar Complaints.

If Complaint does not state an ethics violation and is not suitable for alternative disposition, Office of Bar Counsel may decline, without investigation, to consider Bar Complaint (SCR 3.160(3)(E)).

2. Inquiry Commission may initiate sua sponte disciplinary inquiry investigation if information from any source indicates attorney may have engaged in unprofessional conduct.

3. If Inquiry Commission believes, following investigation, sufficient evidence to file Complaint, Inquiry Commission will file an Inquiry Commission Complaint (SCR 3.160(2)).

C. Complaints: Verified Bar Complaint or IC Complaint (SCR 3.160)

1. Complaint is mailed to Respondent (signed certified mail, sheriff, or constructive service on Executive Director (SCR 3.160)).

2. Responses to Bar Complaints are sent to complainant for supplemental comments.

3. Investigation by OBC may include requesting court records, interviewing witnesses, any additional information from respondent, etc.

4. The file may be placed in abeyance at request of OBC or Respondent attorney (SCR 3.180(2)).

5. After investigation, the matter is submitted for review to the Inquiry Commission.

D. Response from Attorney

1. Attorney will be served with copy of the disciplinary inquiry, (Bar Complaint, Inquiry Commission Complaint, or Investigative File letter), and requested to respond.

28 2. In some instances, attorney may be sent a copy of the Complaint and advised that a written Response does not need to be filed at that time, and that attorney may be contacted by the Office of Bar Counsel.

Typical when Office of Bar Counsel does not necessarily believe a Response is necessary, but Office of Bar Counsel may have questions concerning statements made in the Bar Complaint.

3. Written verified Response required within 20 Days – no mailbox rule (SCR 3.160(1)).

E. Responding to a Bar Complaint

Common characteristics of good Responses:

1. Not treated as an Answer in a civil case (admit, deny, assert affirmative defenses).

2. Addresses all factual matters raised in the Bar Complaint.

3. Objective document.

4. No overt personal attacks on the person who filed the Bar Complaint.

5. Reflects an understanding and application of the Rules of Professional Conduct.

6. Exhibits and Affidavits if appropriate.

7. Place the events in proper factual context of the overall legal representation.

F. Following Filing of Response or Time Has Run for Filing Response

Options available to Inquiry Commission:

1. Issue Private Admonition, with or without conditions, if conduct of attorney does not warrant greater degree of discipline (SCR 3.185).

2. Private Admonition served on attorney who has 20 days from Admonition to reject the Private Admonition.

3. If Private Admonition rejected, Charge is issued, thereby initiating formal disciplinary proceeding.

G. Alternative Options Available to Inquiry Commission under Informal Admonition Procedure (SCR 3.185(2))

29 1. Inquiry Commission may issue warning letter or conditional dismissal letter including, but not limited to, conditions such as:

a. KYLAP referral.

b. Attendance at remedial ethics program or related classes directed by Office of Bar Counsel, typically Ethics and Professionalism Enhancement Program (EPEP).

c. Fee arbitration referral under SCR 3.810.

2. Attorney who receives warning letter, within 30 days from date of letter, may request reconsideration by Inquiry Commission.

H. Alternate Disposition by Inquiry Commission (SCR 3.160(3)(a))

1. Office of Bar Counsel, under the direction of the Inquiry Commission and its Chair, may determine if case is appropriate for alternative disposition.

2. Alternative disposition may include, but not limited to:

a. Informal Resolution;

b. Fee Arbitration Referral (SCR 3.180);

c. Legal Negligence Arbitration (SCR 3.800);

d. Legal or Management Education Programs; or

e. Remedial Ethics Education Programs.

i. EPEP (Ethics and Professionalism Enhancement Program) is used when conduct of attorney reflects need for “refresher course” on basic legal ethics concepts.

ii. TAMP (Trust Account Management Program) is used when conduct of attorney concerns handling of client funds and maintenance of escrow account.

iii. EPEP and TAMP are one day programs put on by the KBA Office of Bar Counsel. Similar to a CLE program, but no CLE credit.

f. KYLAP referral under SCR 3.970(1)(c).

i. For lawyers suffering from issues concerning alcohol, drugs and/or mental health issues.

30 ii. KYLAP is not part of the disciplinary process and is a confidential process, but if part of the resolution of a disciplinary case, attorney will be required to provide authorization to Office of Bar Counsel so OBC may confirm KYLAP status of attorney.

g. Warning Letter.

I. Cases Not Suitable for Alternate Disposition (SCR 3.160(3)(b))

1. Disciplinary allegation concerns serious misconduct for which sanction would more likely result in suspension, i.e., public discipline.

2. Some ethics violations providing for Private or Public Reprimand may not be eligible for alternative disposition.

J. Consensual Discipline (SCR 3.480)

1. At informal stage or formal stage of disciplinary process, disciplinary case may be resolved by consensual resolution.

2. Requires agreement by the Office of Bar Counsel and the Respondent attorney.

3. Consensual discipline may occur at the informal stage in the proceedings, i.e., investigative or Bar Complaint stage.

4. May occur at the formal stage, following the return of a Charge, before the commencement of the evidentiary hearing before a Trial Commissioner under SCR 3.240.

5. Office of Bar Counsel and Respondent attorney must agree on proposed resolution.

6. Proposed resolution must be approved by the Inquiry Commission Chair and the Past President of the KBA.

7. If agreed by all, Verified Motion from Respondent attorney, Response from the Office of Bar Counsel, and the file are submitted to the Supreme Court for consideration of the proposed consensual resolution.

8. If Supreme Court denies Motion, depending upon directions of the Court, the parties may either attempt another consensual resolution, or the case will proceed through the Trial Commissioner/ Board of Governors/Supreme Court process.

K. Inquiry Commission

31 1. Consists of six KBA members and three lay members, which sit in panels of three, two lawyers and one lay member. All are appointed by the Kentucky Supreme Court (SCR 3.140).

2. Inquiry Commission may issue subpoenas for evidence (SCR 3.180(3)).

L. Types of Attorneys’ Conduct Which May Make Private Resolution Appropriate

1. Every disciplinary case is different and fact-driven.

2. Prior disciplinary record may be a mitigating or aggravating circumstance based on the existence or non-existence of such a record.

In the event the attorney has a prior disciplinary record, relevant considerations as to whether that record represents an aggravating circumstance may be dependent on a number of factors, including:

a. Whether the conduct and the applicable disciplinary rules in the present proceeding are similar to the facts and applicable rules in the earlier proceeding(s).

b. Whether the prior disciplinary record is recent or remote in time.

IV. FORMAL DISCIPLINE PROCESS

A. Degrees of Discipline Available at the Formal Stage of a Disciplinary Proceeding (SCR 3.380)

1. Private reprimand.

2. Public reprimand.

3. Suspension, with or without conditions, and with or without any of the period of suspension probated subject to conditions.

a. Suspension of 61 days or more: Attorney must notify active clients and all Courts in which matters are pending of suspension.

b. Suspensions of 180 days or less: Attorney subject to automatic reinstatement pursuant to SCR 3.510.

c. Suspension of 181 days or more: Attorney must file for Reinstatement, file Application and proceed through the Kentucky Office of Bar Admissions’ Character and Fitness Committee, KBA Board of Governors, and the Court.

32 d. Suspensions of five years or less: Attorney does not take a limited Bar Examination for Reinstatement.

e. Suspensions of five years or more: Attorney must take a limited Bar Examination.

4. Permanent disbarment.

B. Charges (SCR 3.200)

1. Charge is mailed to Respondent (signed certified mail, sheriff, or Executive Director (SCR 3.035)).

2. Motion to Reconsider/Dismiss Charge to Inquiry Commission any time before case submitted to Trial Commissioner (SCR 3.285).

3. Otherwise, if an Answer is filed, and case is not “law only,” a Trial Commissioner is appointed and the case proceeds either as a contested proceeding or resolved by a consensual resolution.

C. Answer (SCR 3.164)

1. Written Answer required within 30 days – no mailbox rule.

2. Answer must be verified.

3. Last opportunity to formally address ethics allegations before formal consensual discipline discussions.

4. Answer should be roadmap of attorney’s defense to allegations.

D. After Answer Filed or Time is Running for Filing of Answer

1. If no Answer is filed:

a. Case continues as a default case;

b. Proceeds to Board of Governors (SCR 3.210(1)); and

c. Board makes recommendation to Supreme Court (SCR 3.370(5)(b)).

2. If Answer filed, (conduct admitted):

a. If the Answer admits the alleged misconduct, deemed a “law only” case and no evidentiary hearing before a Trial Commissioner held.

b. Case proceeds to Board (SCR 3.210(2)).

33 c. Board only considers sanction, makes recommendation to Supreme Court (SCR 3.370(5)(b)).

3. If Answer filed, (conduct not admitted):

a. Consensual discipline discussion phase.

b. Appointment of Trial Commissioner if no consensual discipline.

C. Trial Commissioner Hearings

1. The Chief Justice appoints Trial Commissioners (TC) from the 15 Member Trial Commission (SCR 3.225).

2. Parties notified of appointment (SCR 3.240).

3. Challenges to TC appointment must be within 20 days (SCR 3.240).

4. Pretrial Conference permitted.

5. Pleadings are filed with Disciplinary Clerk at the Kentucky Bar Center – no mailbox rule.

6. Right to counsel, compel witnesses, introduce evidence, submit Briefs, etc. (SCR 3.300).

7. Subpoena witnesses, prehearing discovery, burden of proof (preponderance), briefs (SCR 3.330).

8. Introduction and admissibility of evidence/evidence taken in other proceedings (SCR 3.340).

9. Trial Commissioner has 30 days to file Report, with 60 day extension available (SCR 3.360).

10. Report includes Findings of Fact, Conclusions of Law, and any recommended sanction (SCR 3.360).

11. Motions to Amend to be filed within 10 days (SCR 3.360(3)).

12. Either party may Appeal to the Board of Governors (SCR 3.360(4)).

13. If neither party appeals the Trial Commissioner’s Report, the matter is submitted to the Supreme Court (SCR 3.360(4)).

D. Board of Governors Proceedings

1. Board functions, selection, duties and powers (SCR 3.070 to 3.100).

34 2. There are four non-lawyer appointments on the Board of Governors for disciplinary matters (SCR 3.375).

3. Notice of Appeal shall be filed within 30 days of Trial Commissioner Final Report (SCR 3.365).

4. Appellant’s Brief due to Board 30 days after Notice of Appeal filed (SCR 3.370(1)).

5. Appellee’s Brief due to Board 15 days after Appellant’s Brief filed.

6. Typically have Oral Arguments before the Board (SCR 3.370(1)).

7. Board of Governors can review de novo or adopt Trial Commissioner’s Report (SCR 3.370(5)(a)).

8. Board can also remand case to Inquiry Commission or to Trial Commissioner (SCR 3.370(5)(d)).

9. Board deliberates, votes, issues written Report within 45 days (SCR 3.370(3)).

10. Board also considers default files (no Answer filed to Charge) and law-only cases (SCR 3.210 & 3.370(5)(b)).

V. SUPREME COURT OF KENTUCKY PROCEEDINGS

A. Regardless of Reports from Trial Commissioner and the Board of Governors, the Court considers de novo:

1. All negotiated sanction Motions (SCR 3.480).

2. All Trial Commissioner Reports not appealed to the Board (SCR 3.360(4)).

3. All Board decisions on default files, law-only cases, and appeals from Trial Commissioner Report (SCR 3.370).

4. A finding of no violation, and recommendation of no sanction, is still reviewed.

NOTE: An attorney discipline matter is not over until there is a closed/dismissed/private admonition issued by the Inquiry Commission, or the Supreme Court renders a final Opinion.

B. Either Party may Appeal a Board Decision to the Kentucky Supreme Court (SCR 3.370(7)).

C. Notice of Appeal with Brief due 30 days after Board Decision

D. Response Brief due 30 days after Appellant’s Brief is Filed

35 E. Court can Request Briefs from the Parties in any Matter, even if not Contested or Appealed (SCR 3.370(8))

F. Supreme Court will Issue a Final Opinion in every Matter

VI. SUPREME COURT RENDITION

A. Supreme Court Opinions for Dismissal or Private Reprimands are Confidential

B. Supreme Court Opinions for Public Reprimands or Greater are Public

C. The Court may Impose Conditions upon a Reprimand or Suspension Case (SCR 3.380(1))

Such conditions may include, but are not limited to:

1. Restitution of attorneys’ fees to client.

2. KYLAP evaluation and/or participation.

3. Attorney must obtain additional CLE or attend EPEP.

4. No new Charges within a stated time period.

VII. WHAT ELSE IS THERE?

A. Reciprocal Discipline (SCR 3.435)

B. Temporary Suspension by Motion of Inquiry Commission (SCR 3.165)

1. Stealing money.

2. Substantial threat of harm.

3. Commit a crime regarding moral fitness to practice.

4. Mentally disabled.

5. Addicted to intoxicants or drugs.

C. Indefinite Suspension if Attorney in Default (SCR 3.380(2))

D. Automatic Suspension for Felonies (SCR 3.166)

E. Restoration to Practice following Administrative Suspension for Failure to Pay Bar Dues and/or Failure to Maintain CLE (SCR 3.500)

36 FEDERAL COURT UPDATE JULY 1, 2019 – JUNE 30, 2020 Lori J. Reed

I. PENDING FEDERAL RULES AMENDMENTS

Amendments to the following rules were adopted by the U.S. Supreme Court and transmitted to Congress on April 27, 2020. The amendments are set to go into effect on December 1, 2020. The full Congressional Rules Package is available for download at https://www.uscourts.gov/rules-policies/archives/packages- submitted/congressional-rules-package-2020.

A. Appellate Rules 35 and 40.

B. Bankruptcy Rules 2002, 2004, 8012, 8013, 8015, and 8021

C. Civil Rule 30

D. Evidence Rule 404

II. SIXTH CIRCUIT COURT OF APPEALS

A. Affordable Care Act

Averett v. U.S. Department of Health and Human Services, 943 F.3d 313 (6th Cir. 2019)

The Affordable Care Act included a provision providing a temporary increase in payments to certain physicians providing primary-care services to Medicare and Medicaid payments. Under Medicare, a physician must have had a “primary specialty designation” of certain primary-care services.1 The physicians must also attest that primary-care services accounted for 60 percent of their recent Medicare billings. Under Medicaid, the Act required physicians only to have “a primary specialty designation” of one of the same primary-care services.2 In 2012, the Centers for Medicare and Medicaid Services (CMS) promulgated a Final Medicare Payment Rule which stated physicians meeting the requirements in §1395l(x) were eligible for increased payments under the Medicare provision. However, its Final Medicaid Payment Rule required physicians to show they are board certified in their listed specialty or that 60 percent of their recent Medicaid billings were for certain primary-care services in addition to the requirements in §1396a(a). In 2015, TennCare attempted to recoup payments made to plaintiffs under the Medicaid provision by alleging they had not met the 60 percent requirement in the Final Medicaid Payment Rule. The physician plaintiffs filed suit in federal court, requesting a declaration that the 60 percent requirement is contrary to the terms of the

1 42 U.S.C. §1395l(x).

2 42 U.S.C. §1396a(a).

37 Medicaid provision and an injunction barring the requirement’s enforce- ment against them. The district court granted summary judgment to plaintiffs, declared the Final Medicaid Payment Rule invalid, and enjoined defendants from enforcing the rule against them. The Sixth Circuit affirmed, holding the term “primary specialty designation” as used in §1396a(a)(13)(C) (the Medicaid provision) means the same thing that it means in §1395l(x)(2)(A)(i)(I) (the Medicare provision) – a physician who has designated himself, as his primary specialty, one of the specialties listed in the statute. In addition, there is no 60 percent of billings requirement in the Medicaid statute, unlike the Medicare statute. The Court held the district court was correct to declare the Final Medicaid Payment Rule invalid.

B. Alcohol

Lebamoff Enterprises, Inc. v. Whitmer, 956 F.3d 863 (6th Cir. 2020)

The Sixth Circuit upheld a Michigan law that permits alcohol retailers with a state license to offer at-home deliveries to customers while denying that option to an Indiana retailer who does not have a Michigan retail license. The Twenty-first Amendment allows Michigan to treat in-state retailers operating within its three-tier system differently from out-of-state retailers that do not.

C. Americans with Disabilities Act

Mosley v. Kohl’s Department Stores, Inc., 942 F.3d 752 (6th Cir. 2019)

After visiting two Kohl’s stores in Michigan and encountering difficulties in accessing their restrooms, Mosley filed suit under Title III of the ADA requesting declaratory and injunctive relief to require the stores to make their men’s restrooms accessible and ADA-compliant. Mosley, who lives in Arizona, visits friends in Detroit annually each summer. Kohl’s filed a motion to dismiss for lack of subject matter jurisdiction, arguing Mosley lacks standing because he cannot demonstrate a plausible intent to return to the stores in question. The district court dismissed the suit for lack of standing, finding Mosley failed to show a real and immediate threat of future injury because he lives far away, has only visited the stores in question once, and did not provide a definitive plan to return to the stores. The Sixth Circuit reversed, finding Mosley established injury-in-fact for prospective injunctive relief. He sufficiently alleged both a concrete and particularized past injury and a real and immediate threat of future injury. The district court held Mosley to a higher burden of proof than is required at the pleadings stage by demanding a “credible” rather than “plausible” plan to return to the stores. The Court also noted that even if Mosely is an “ADA tester” who files similar suits around the country, that status does not deprive him of standing. When plaintiffs in Title III suits do not live near the accommodation at issue, the courts should examine whether he or she has demonstrated an intent to return to the area where the accommodation is located and a desire to visit the accommodation if it were made accessible. Plaintiffs are not required to provide a definitive plan to return to the

38 accommodation to establish threat of future injury nor are they required to have visited the accommodation more than once. The Sixth Circuit reversed the district court’s judgment dismissing the action and remanded for further proceedings.

D. Arbitration

1. GGNSC Louisville Hillcreek, Inc. v. Estate of Bramer by and through Bramer, 932 F.3d 480 (6th Cir. 2019).

Robert Bramer, a Kentucky nursing home resident, fell out of bed and sustained a fatal head injury. His estate filed suit against the home in state court, alleging negligence, violation of KRS 216.515(26), wrongful death, and loss of consortium. Defendants filed a petition to enforce an arbitration agreement against the estate in federal court. Bramer was admitted to the home on three separate occasions and received an admissions packet containing the same alternative dispute resolution agreement each time. The agreement states that it lasts in perpetuity and applies to each subsequent admission. The parties disagreed on whether the arbitration agreements are signed. The first agreement bears a mark in the signature block that is difficult to read, and Bramer’s wife signed the second agreement for her husband. The parties agree that the third and final agreement is unsigned. In September 2018, the district court entered a memorandum opinion denying defendants’ petition to arbitrate and dismissing the case. The nursing home appealed, and the Sixth Circuit affirmed. The Court adopted the district court’s analysis stating the nursing home’s act of re-presenting the identical contract to the Bramers a third time “was behavior unmistakably showing that no prior agreement controlled.”3 The effect of the Bramers’ refusal to sign the third agreement was that no contract was formed and the earlier were abandoned. “The nursing home was not required to present the Bramers with a new agreement, but it did…. [a]nd by electing not to sign the new agreement, the Bramers acquiesced in the nursing home’s abandonment of the earlier agreement.”4

2. PolyOne Corp. v. Westlake Vinyls, Inc., 937 F.3d 692 (6th Cir. 2019).

The parties entered a settlement agreement to provide structure to their ongoing dispute regarding cleanup of a Superfund site in Kentucky. It states that PolyOne must reimburse Westlake for 100 percent of allocable costs and every five years, either party may demand arbitration to modify the amount or allocation of costs. It also states either party may file a complaint in federal district court for a de novo judicial determination of which costs are allocable after the arbitration panel has issued an award allocating costs. The

3 Id. at 486.

4 Id. at 488.

39 arbitration award becomes null and void upon filing of a complaint, and the agreement prevents either party from entering the arbitration award into evidence. PolyOne requested a judicial declaration that the judicial relief provision is invalid under the Federal Arbitration Act and the agreement’s other arbitration provisions are unenforceable, in addition to an injunction to enjoin the parties’ most recent arbitration proceeding in 2017. The Sixth Circuit affirmed the district court’s dismissal of PolyOne’s complaint, holding that by demanding the 2017 arbitration leading to this suit, PolyOne waived its ability to obtain declaratory and injunctive relief for that arbitration. The Court withheld judgment on whether PolyOne’s prior conduct precludes it from ever challenging the agreement’s arbitration provisions in future litigation.

E. Attorney’s Fees

Miller v. Caudill, 936 F.3d 442 (6th Cir. 2019)

Plaintiffs filed suit against county clerk Davis after she refused to issue them marriage licenses following the Supreme Court’s decision in Obergefell v. Hodges, which recognized a constitutional right to same-sex marriage. The district court granted plaintiffs’ motion for a preliminary injunction enjoining Davis from enforcing her policy against issuing marriage licenses. While the suit was pending, Kentucky’s governor issued an executive order establishing a revised marriage license that did not contain the names of county clerks. The Kentucky General Assembly also amended Kentucky law so that county clerks are not required to sign marriage licenses. On Davis’s request, the Sixth Circuit dismissed various pending appeals and instructed the district court to vacate its preliminary injunction. The district court also dismissed plaintiffs’ damages claim sua sponte. Plaintiffs chose not to appeal dismissal of their damages claims but sought attorney’s fees under 42 U.S.C. §1988. The district court awarded plaintiffs $222,695 but imposed liability on the Commonwealth, not the Clerk’s Office or Rowan County where Davis worked. Commonwealth officials and Davis appealed the fee award. The Sixth Circuit first stated the issue of whether plaintiffs prevailed should be reviewed de novo. It then held the preliminary injunction rendered plaintiffs prevailing parties. The injunction was a court-ordered material change that gave plaintiffs all the court-ordered relief they needed, and issuance of the marriage licenses mooted their request for them. As such, they are eligible to recover attorney’s fees under §1988. Because Davis acted on Kentucky’s behalf in issuing and refusing to issue the marriage licenses, the district court properly imposed liability for the award on the Commonwealth.

F. Bankruptcy

1. In re Donnadio, 608 B.R. 507 (6th Cir. B.A.P. 2019).

At issue was whether an objection to confirmation must be sustained when a Chapter 13 plan fails to provide that the holder of a 910 claim retains the lien securing its claim until the earlier of the

40 payment of the underlying debt determined under nonbankruptcy law or discharge under §1328. The Sixth Circuit held the bankruptcy court erred in confirming the plan over the creditor’s objection because the debtor’s plan did not satisfy any option in §1325(a)(5) for treating the creditor’s claim. Because creditor did not accept the treatment of its claim under the debtor’s proposed plan (satisfying §1325(a)(5)(A)) and debtor did not surrender the vehicle (satisfying §1325(a)(5)(C)), the plan must fully satisfy §1325(a)(5)(B) to achieve confirmation over the creditor’s objection. It did not do so because the plan did not provide that the creditor would retain its lien on the vehicle as required by §1325(a)(5)(B)(i)(I). The Court also held that including lien retention language in a nonstandard provision in a debtor’s plan to address the creditor’s objection does not violate Bankruptcy Rule 9009(a). The Court reversed the bankruptcy court’s opinion and remanded for further proceedings.

2. In re Boland, 946 F.3d 335 (6th Cir. 2020).

Two victims received a $300,000 civil judgment against Boland, a lawyer and expert witness, after he created child pornography by manipulating their images from stock photos to create exhibits while defending clients charged with possessing child pornography. Boland filed for Chapter 7 bankruptcy, which allows debtors to discharge debts in exchange for liquidating most of their assets. Debts resulting from willful and malicious injury by the debtor are excepted from discharge, and the creditor bears the burden of showing a judgment is not dischargeable. A debtor willfully and maliciously injures a creditor if, acting without just cause or excuse, he knows or is substantially certain his actions will cause injury. The victims sued Boland in bankruptcy court to prevent their judgment’s discharge. To show the court their judgment was the result of willful and malicious injury, the victims had to prove Boland knew he was dealing with child pornography when creating his exhibits or showing them in court – that the pictures he used depicted real minors. The bankruptcy court discharged the debt, finding Boland did not actually use his pictures in Ohio courts after testifying in Oklahoma because he had no control over their display and that he did not know the minors in question or if they were real persons. The Bankruptcy Appellate Panel reversed, and both sides appealed to the Sixth Circuit, which reviewed the bankruptcy court’s decision directly. The Court held the bankruptcy court committed clear error in finding Boland did not use his exhibits in court after his testimony in Oklahoma and that he did not know the images of the victims were of real minors. Boland used the photos he created in Ohio courts from April 2004, when he testified in Oklahoma, through January 2005. Because he knew his photos depicted real children and continued to use them in court, he willfully and maliciously injured the two victims. It was not necessary for Boland to subjectively intend to harm the victims in order to reach this finding. The Sixth Circuit reversed the bankruptcy court’s decision and remanded with instructions to enter judgment for the victims.

41 3. In re Orlandi, 612 B.R. 372 (6th Cir. B.A.P. 2020).

Debtor owned Studio 26 salon, which entered into a lease agreement with LFLP for a unit in a shopping center. The debtor signed a lease as president of Studio 26 and a personal guaranty in his individual capacity guaranteeing the lease agreement. The debtor and his spouse filed a joint Chapter 7 petition and received a discharge in 2008. LFLP was listed as a creditor and received noticing of the filing and the discharge. In 2011, debtor on behalf of Studio 26 exercised a five-year extension option on the lease agreement. LFLP filed suit against Studio 26 when it vacated the premises prior to the end of the extended lease term. Debtor listed discharge in bankruptcy as a defense in the state action and made a motion to reopen his bankruptcy case. He alleged in the adversary proceeding that the personal guaranty was discharged and LFLP willfully violated the discharge injunction by filing the state court action. The state court action was stayed in 2016, and LFLP filed a motion for summary judgment in the adversary proceeding, arguing the discharge injunction was irrelevant because the lease extension resurrected the debtor’s personal guaranty and the language in the original lease and extension contained a survivability clause that superseded the bankruptcy filing and discharge. The bankruptcy court denied the motion for summary judgment and the case proceeded to trial, where the court held LFLP’s actions in filing the state court action to enforce the guaranty were willful violations of the debtor’s discharge injunction. The bankruptcy court granted debtor’s applications for costs and attorney fees but denied punitive damages.

The Sixth Circuit affirmed in part and reversed in part. On the day of trial, LFLP made an oral motion to dismiss two counts of the complaint on the basis that violations of the discharge injunction must be brought by motion rather than by filing a complaint in an adversary proceeding. The bankruptcy court denied the motion, noting its lateness and the fact the parties had been afforded all procedural protections. While there is a circuit split on this issue, the Sixth Circuit held the bankruptcy court did not err in denying LFLP’s oral motion to dismiss in this case. It also held a pre-petition personal guaranty is a contingent debt that is discharged in bankruptcy. When Studio 26 signed the lease extension following the debtor’s discharge, the debtor’s personal liability under the pre- petition personal guaranty was no longer enforceable. The bankruptcy court did not err in finding the filing of the state court action, to the extent it was based on the debtor’s personal guaranty, was a violation of the discharge injunction. The Sixth Circuit reversed the bankruptcy court’s ruling that LFLP willfully violated the discharge injunction and award of damages, holding it was error in light of the Supreme Court’s decision in Taggart v. Lorenzen, 139 S.Ct. 1795 (2019). The Court noted that further prosecution of the state court action would subject LFLP to a contempt finding and sanctions.

42 4. In re Berge, 953 F.3d 907 (6th Cir. 2020).

MarketGraphics collects, analyzes, and distributes data related to residential housing markets. Don Berge worked for MarketGraphics as an independent contractor until he quit to start his own firm doing the same work. He made his son, David, the sole member of an LLC associated with the venture. While working for MarketGraphics, Don signed an independent contractor agreement with MarketGraphics that contained non-compete and confidentiality provisions. MarketGraphics filed a complaint against Don, David, and their new company in federal court asserting copyright and trademark infringement, unfair and deceptive trade practices under Tennessee state law, and violations of state common law. When defendants failed to file an answer to MarketGraphics’ motion for summary judgment, it filed a proposed judgment in district court. While this was pending, Don and his wife filed for Chapter 7 bankruptcy. The district court stayed proceedings against Don, leaving his son David as the only active individual defendant. It then entered judgment against David and the business entities, permanently enjoining them and awarding MarketGraphics $332,314 in damages. David filed Chapter 7 proceedings as well, and MarketGraphics filed an adversarial complaint asserting his judgment debt was non-dischargable pursuant to 11 U.S.C. §523(a)(6). The bankruptcy court applied a two-prong test, holding that for the statute’s purposes, a prior judgment must involve an injury shown to be both willful and malicious. It found David did not act with malice and dismissed MarketGraphic’s adversarial complaint. The case then went back to the district court, which found the “willfull and malicious” issue should instead be considered under a unitary approach. It vacated the bankruptcy court’s judgment in part and remanded the case with instructions to decide the question of issue preclusion under the unitary standard. The bankruptcy court again found David did not have the level of intent under the §523(a)(6) unitary standard and dismissed the adversarial complaint. The Sixth Circuit then granted MarketGraphic’s petition to file a direct appeal and affirmed the bankruptcy court’s judgment. The Court explicitly adopted the two- pronged approach, where “willful” and “malicious” are separate elements for the courts to review. A creditor must prove both elements before a debt may be exempted from discharge. It held the prior judgment and underlying record did not preclusively establish that David acted willfully with subjective intent as required to satisfy the statute’s discharge exception.

5. In re Davis, 2020 WL 2831172 (6th Cir. Jun. 1, 2020).

Davis filed for Chapter 13 bankruptcy and sought to exclude the monthly retirement contribution she paid into her 401(k) from her disposable income. The Trustee objected to her plan, arguing wages withheld as part of voluntary 401(k) contributions are considered disposable income. The bankruptcy court sustained the

43 Trustee’s objection, and Davis appealed. The Sixth Circuit reversed, holding the hanging paragraph in 11 U.S.C. §541(b)(7)(A) excludes the 401(k) contributions that Davis’ employer withheld from her wages prior to bankruptcy from her disposable income. “[T]he hanging paragraph is best read to exclude from disposable income a debtor’s post-petition monthly 401(k) contributions so long as those contributions were regularly withheld from the debtor’s wages prior to bankruptcy.”5

G.

1. In re University of Michigan, 936 F.3d 460 (6th Cir. 2019).

John Doe filed suit against the University of Michigan for violating his due process rights during a disciplinary hearing. The Sixth Circuit remanded the case in light of a related ruling requiring live hearings and cross-examinations in those proceedings.6 On remand, the district judge scheduled a settlement conference and required the University’s president to attend. The judge refused the University’s request that the President be allowed to attend telephonically or to send a delegate in his place. He also refused the University’s request to send someone with knowledge about the sexual assault policy at issue and full settlement authority. Two days prior to the conference, the district judge held that it would be a public event because the case concerned “matters of public concern.” The University filed a petition for a writ of mandamus with the Sixth Circuit. The Court held the district judge abused his discretion when he ordered a high-ranking state official to serve as a party’s representative at the settlement conference. He also abused his discretion by ordering that the private conference be made public two days before it was scheduled to take place. Neither Congress nor the Constitution granted the district court the power to require a high-ranking state official to attend a public settlement conference. The Court granted the University’s petition for mandamus.

2. Gresham v. Meden, 938 F.3d 847 (6th Cir. 2019).

Gresham filed suit against prison employees under 42 U.S.C. §1983 alleging they improperly forced him to take his antipsychotic medication. The Sixth Circuit upheld the district court’s finding that Gresham must pay a filing fee before pursing his claim. Prisoners become ineligible to request to proceed in forma pauperis if the district court has dismissed three or more of their as frivolous, malicious, or for failure to state a claim.7 The Court held

5 Id. at *6.

6 See Doe v. Baum, 903 F.3d 575, 578 (6th Cir. 2018).

7 28 U.S.C. §1915(g).

44 the exception to this rule for prisoners under imminent danger of serious physical injury does not apply in this case. Gresham’s side effects from taking his medication do not rise to the level of serious physical injury. To proceed with his suit, he must pay the $400 filing fee.

3. Gallivan v. U.S., 943 F.3d 291 (6th Cir. 2019).

Gallivan sued the United States alleging medical negligence by the Bureau of Prisons and that the federal government was liable for that negligence under the Federal Claims Act. The district court found Ohio Civil Rule 10(D)(2), which requires a person alleging medical negligence to include a medical professional’s affidavit stating the claim has merit, applied in the federal case. Because Gallivan did not include an affidavit with his complaint, the district court dismissed his case. He appealed to the Sixth Circuit, arguing the state court rule does not apply in federal court. The Court held the Federal Rules do not require an affidavit to state a claim for medical negligence, and the district court erred in applying Ohio Rule 10(D)(2). While substantive state law governs the merits of an FTCA claim, the Federal Rules govern procedural issues. The Court vacated the district court’s judgment and remanded for further proceedings consistent with its opinion.

4. Wellfount, Corp. v. Hennis Care Centre of Bolivar, 951 F.3d 769 (6th Cir. 2020).

Hennis Care appealed the district court’s dismissal of Wellfount’s action. Wellfount filed its complaint in federal district court after withdrawing an earlier suit involving the same claims in Indiana state court. After becoming aware that the action was likely filed in the wrong forum, Wellfount moved the district court for an order dismissing its action under Rule 41(a)(2). Hennis, which had not filed an answer, entered a motion asking the district court to convert Wellfount’s motion into a dismissal under Rule 41(a)(1). The district court denied Hennis’s motion and granted Wellfount’s motion. On appeal, Hennis argued that because Wellfount was eligible to file a self-effectuating notice of dismissal under Rule 41(a)(1) and had previously withdrawn an action based on the same claims, the district court had no discretion to dismiss Wellfount’s action under Rule 41(a)(2). The Sixth Circuit affirmed. If a plaintiff has previously dismissed any action based on or including the same claim, dismissal under Rule 41(a)(1) operates as an adjudication on the merits. A court ordered dismissal under Rule 41(a)(2) is without prejudice unless the order states otherwise. Whether a plaintiff may move for a Rule 41(a)(2) dismissal when it is eligible to file a self- effectuating notice of dismissal under Rule 41(a)(1) and has previously withdrawn an action including the same claim was an issue of first impression in the Sixth Circuit. The Court found that no provision in Rule 41 requires that a plaintiff forego using Rule 41(a)(2) if eligible to file a notice of dismissal under Rule 41(a)(2).

45 H. Civil Rights Act

1. Logan v. MGM Grand Detroit Casino, 939 F.3d 824 (6th Cir. 2019).

As a matter of first impression, the Sixth Circuit held the statute of limitations in Title VII of the Civil Rights Act of 19648 may not be contractually shortened for litigation. Logan worked for MGM Grand Detroit Casino. As part of her job application, she agreed to a six- month limitation period to bring any lawsuit against the company as a condition of employment. After resigning, she filed suit under Title VII alleging employment discrimination. The district court granted summary judgment to MGM Grand because Logan failed to file suit within the six-month limitation period stated in her employment application. The Sixth Circuit reversed. In Davis v. Mills,9 the Supreme Court held that when statutes creating rights and remedies contain their own limitation periods, the limitation periods should be treated as substantive rights, which are generally not waivable in advance by employers.10 The Sixth Circuit held the 300- day limitation period to sue under Title VII is a substantive rule and may not be prospectively waived as it pertains to litigation. Contractual provisions that purport to shorten the limitation period for bringing suit under Title VII are unenforceable. In this case, Logan was entitled to the 300-day limitation period, and the Court reversed and remanded for further proceedings consistent with its opinion.

2. Jones v. Federal Express Corp., 952 F.3d 815 (6th Cir. 2020).

Jones filed a Title VII race discrimination charge with the EEOC against FedEx after his termination. The EEOC issued a right to sue letter, and Jones filed suit against FedEx in federal district court. The district court granted FedEx’s motion to dismiss, holding the suit was untimely because Jones filed suit outside the 180-day window required for filing with the EEOC under 42 U.S.C. §2000e- 5(e)(1). The Sixth Circuit reversed and remanded for further proceedings. The statutory limitations period is expanded to 300 days if a plaintiff is deemed to have initially instituted proceedings with a state or local agency with authority to grant or seek relief from discriminatory acts. These agencies are called fair employment practices agencies (FEPAs) and the EEOC may institute proceedings with a FEPA on an employee’s behalf. No EEOC charge may be filed until 60 days after proceedings commenced under state or local law have expired unless the proceedings were terminated earlier by the FEPA. FEPAs can waive the 60-day exclusive period to process a charge, and FEPA proceedings are

8 Codified at 42 U.S.C. §2000e, et seq.

9 194 U.S. 451, 454 (1904).

10 See Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 704 (1945).

46 deemed terminated within the statute’s meaning if they do so. The 300-day limitations period applies in this case. Jones did not file a charge with the EEOC within 180 days of his termination or submit a charge directly to the Tennessee Commission (THRC). Under the workshare agreement between EEOC and THRC, however, the submission of his charge to EEOC 252 days after his termination caused three things to happen automatically and simultaneously: the EEOC as THRC’s agent instituted a THRC proceeding, the THRC terminated the proceeding pursuant to its waiver, and the EEOC instituted its own proceeding. The work- sharing agreements between EEOC and FEPAs are self-executing, and Jones’s filing with the EEOC was timely by virtue of the workshare agreement. The issue of how a workshare agreement affects charges submitted to the EEOC more than 180 days after an alleged discriminatory act was an issue of first impression in the Sixth Circuit.

I.

1. Hartman v. Thompson, 931 F.3d 471 (6th Cir. 2019).

Plaintiffs, who are members of The Fairness Campaign, protested at the 2015 Kentucky State Fair Ham Breakfast. Plaintiffs were protesting the alleged discriminatory policies of Kentucky Farm Bureau (KFB), the event’s sponsor. State fair officials designated a “protest zone” for plaintiffs nearby but outside of the private, ticketed event area. Rather than using the protest zone, plaintiffs, who had purchased tickets to the breakfast, instead entered the event and stood in protest at their tables. Plaintiffs were arrested, removed from the event, and charged with failure to disperse and, in one case, disorderly conduct. The county attorney later dismissed all state charges against plaintiffs, who then filed a complaint in state court asserting constitutional violations under 42 U.S.C. §1983 and state law claims. Defendants removed the case to federal court and moved for summary judgment. The district court granted summary judgment to defendants on all claims both on the merits and on qualified immunity grounds. The Sixth Circuit affirmed, holding there was no violation of plaintiffs’ First Amendment rights in regard to the protest zone outside of the breakfast area. The Fairgrounds constitutes a limited public forum, and fair officials had a legitimate, viewpoint-neutral reason for designating a protest zone for a large group of people. No evidence showed that plaintiffs were moved to the protest zone due to the content of their speech. The protest zone was also reasonable in light of the purpose served by the forum. The ticketed breakfast event constituted a private forum, and defendants had probable cause to arrest plaintiffs under KRS 525.150 for disrupting a lawful meeting when they stood up in unison at the beginning of the program. The district court properly granted summary judgment to defendants on the §1983 and state law false arrest claims.

47 2. Brindley v. City of Memphis, Tennessee, 934 F.3d 461 (6th Cir. 2019).

Brindley sought to demonstrate outside of a Planned Parenthood clinic in Memphis. The clinic parking lot is accessed via Virginia Run Cove, which is a privately owned street that offers access to several business parking lots. A clinic employee approached Brindley, informed him the Cove is a private street, and asked him to leave. Brindley refused, and were called. An officer confirmed with a supervisor that the street is privately owned and ordered Brindley to relocate to Summer Avenue, a public street located several hundred feet from the clinic. Brindley filed suit against the City of Memphis, the police department director, and the individual officer claiming his exclusion from Virginia Run Cove violated his First Amendment rights because the street is a traditional public forum. He also sought a preliminary injunction requiring defendants to give him access to the Cove. The district court denied his motion, finding Brindley had not demonstrated a strong likelihood of success on the merits. Brindley appealed, and the Sixth Circuit reversed. If a privately owned street is indistinguishable from a public street and functions like a public street, it is a traditional public forum. The Cove looks and functions like a public street, which means it is a traditional public forum. As such, defendants’ restrictions on Brindley’s speech must be necessary to serve a compelling state interest and narrowly drawn to achieve that interest. The Court found there is no compelling state interest in excluding demonstrators from the Cove, and even if there were, defendants offered no argument that their restriction is narrowly tailored to that interest. The Court reversed the district court’s denial of Brindley’s preliminary injunction motion and remanded for proceedings consistent with its opinion.

3. In re Ohio Execution Protocol Litigation, 946 F.3d 287 (6th Cir. 2019).

Henness, sentenced to death following his conviction for aggravated murder and other offenses, filed suit challenging Ohio’s method of execution under 42 U.S.C. §1983. He asked the district court to stay his execution and to issue a preliminary injunction to enjoin the state from executing him. The district court denied relief, and Henness appealed to the Sixth Circuit. Under Glossip v. Gross,11 in order to demonstrate a likelihood of success on the merits of an Eighth Amendment challenge to a state’s method of execution, plaintiffs must show that the intended method is sure or very likely to cause serious illness and needless suffering and identify an alternative method that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain. The district court found Henness met his burden under Glossip’s first prong but failed to propose an alternative method of execution

11 135 S.Ct. 2726, 2737 (2015).

48 as required under the second prong. The Sixth Circuit held the district court erred in concluding Ohio’s method of execution was sure or very likely to cause Henness serious pain. In addition, the district court erred in finding Henness met his burden of proving midazolam is incapable of suppressing his consciousness enough to prevent him from experiencing an unconstitutionally high level of pain caused by the other two drugs in the execution protocol. The Sixth Circuit agreed with the district court’s finding that Henness failed to meet his burden under Glossip’s second prong. The Court affirmed the district court’s decision denying Henness’s requests to stay his execution and temporarily enjoin Ohio from executing him.

4. Higgins v. Kentucky Sports Radio, LLC, 951 F.3d 728 (6th Cir. 2020).

John Higgins refereed an Elite Eight game between the University of Kentucky and Northern Carolina in which the Tarheels won by scoring with less than a second left in the game. After the game, hosts on Kentucky Sports Radio criticized Higgins’ performance, reading an email on air from a listener who contemplated leaving a bad Yelp review on the page for Higgins’ roofing business. Matt Jones, the KSR host, noted this would be a bad thing to do and would constitute harassment. Thereafter, people bombarded the Facebook and Yelp pages connected to Higgins’ roofing business with bad reviews. They also flooded his business with telephone calls, making threats and false requests for service. Higgins filed suit against Kentucky Sports Radio and its hosts, alleging intentional infliction of emotional distress, invasion of privacy, tortious interference with a business relationship and civil conspiracy. Following defendants’ motion to dismiss, Higgins filed an amended complaint adding claims of negligence, harassment, and engaging in harassing communications. The district court dismissed the suit, holding the First Amendment shields KSR and its hosts from liability. The Sixth Circuit affirmed. KSR commented on a matter of public concern – the refereeing of a nationally televised college basketball game. Higgins failed to identify any express or implicit statements made by defendants that constituted incitement that UK fans should attack his business. While the Court felt KSR “did a poor job of dissuading listeners from mischief,” it noted “a party cannot be sued for incitement merely because it failed to condemn the behavior of others with sufficient firmness or clarity.”12

5. Siefert v. Hamilton County, 951 F.3d 753 (6th Cir. 2020).

The Sieferts took their child to a psychiatric hospital in Ohio when she began experiencing suicidal thoughts and depression. When their insurance company denied further coverage, they decided to bring her home, but the doctors and social workers would not let

12 Id. at 738.

49 her leave. The hospital released the child a month later only after the Seiferts signed a voluntary safety plan. The Sieferts filed suit against the county and its employees and the hospital and its doctors alleging violations of their Fourteenth Amendment substantive and procedural due process rights. The district court dismissed the hospital defendants because they were not state actors and the county defendants because they were entitled to qualified immunity. The Sixth Circuit affirmed in part, reversed in part, and remanded for further proceedings. It reversed the district court’s finding that the hospital and its employees were not state actors, holding the Sieferts alleged enough facts to keep that group of defendants in the suit. The focus is whether there is a close nexus between the state and the challenged action such that seemingly private behavior may be fairly treated as state action. In this case, the hospital and its employees worked in tandem with county social workers to block the child’s release. The Sixth Circuit also found that, reading the complaint in the light most favorable to the Seiferts, they alleged a plausible claim that defendants interfered with their parental rights and they received no process. It reversed the district court’s holding that they failed to adequately plead a violation of their procedural due process rights. The Court affirmed the district court’s dismissal of the Seiferts’ substantive due process claim, finding they failed to plead defendants engaged in deliberately indifferent, conscience-shocking behavior. It also held the Seiferts’ claim against the county entities fails under Monell v. Department of Social Services of the City of New York.13

6. Adams & Boyle, P.C. v. Slatery, 956 F.3d 913 (6th Cir. 2020).

The Governor of Tennessee adopted a three-week ban on all elective, non-urgent surgical and invasive procedures based on the state’s assertion that the ban was necessary to combat the ongoing COVID-19 pandemic. The district court issued a temporary injunction enjoining the state from enforcing its general ban on elective and non-elective surgeries against doctors performing abortions. The state filed an emergency appeal with the Sixth Circuit, which affirmed the district court’s order issuing a preliminary injunction. It directed the district court to modify the injunction so that it enjoins the state from enforcing the ban against plaintiffs to the extent they provide procedural abortions to three specific categories of patients. To the extent plaintiffs work with patients who can safely delay their procedural abortions past the ban’s expiration date on April 30, they must comply with the ban and delay the procedures.

7. Maryville Baptist Church v. Beshear, 957 F.3d 610 (6th Cir. 2020).

Maryville Baptist Church and its pastor appealed the district court’s order denying their emergency motion for a temporary restraining

13 436 U.S. 658 (1978).

50 order, claiming the court’s order effectively denied their motion for a preliminary injunction to prevent Governor Beshear and the state from enforcing two COVID-19 orders. The first order prohibited all mass gatherings including faith-based events, and the second required all organizations that are not “life sustaining” to close. Religious organizations were not identified as “life sustaining” in the order. The Church held a drive-in Easter service during which state police issued notices to congregants that their attendance amounted to a criminal act. The officers recorded the drivers’ license plate numbers and sent letters to the vehicle owners requiring them to self-quarantine for 14 days or be subject to further sanctions. The Church argued the orders violate its congregants’ rights under Kentucky’s Religious Freedom Restoration Act and the First and Fourteenth Amendments. The Sixth Circuit granted in part plaintiffs’ motions for an injunction pending appeal and to expedite briefing, oral argument and submission on the briefs. The Church is likely to succeed on its state and federal claims with respect to the ban’s application to drive-in services. The Court enjoined the Governor and all state officials during pendency of the appeal from enforcing orders preventing drive-in services at Maryville Baptist Church if the church, its ministers, and congregants adhere to the public health requirements mandated for life-sustaining entities.

8. Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020).

Congregants of Maryville Baptist Church sought emergency relief from Governor Beshear’s orders banning in-person worship services until May 20. Plaintiffs attended a drive-in Easter service at the church where police took down their license plates and placed attendance-is-criminal notices on their cars. Plaintiffs filed suit, claiming those actions and the Governor’s bans violated their free-exercise and interstate-travel rights under the Constitution. The district court denied relief on the free-exercise claim and preliminarily enjoined the state’s travel ban. Plaintiffs appealed, asking the Sixth Circuit to issue an injunction pending appeal based on their free-exercise claim. The Sixth Circuit granted plaintiffs’ motion for an injunction pending appeal, enjoining the Governor and state officials from enforcing orders prohibiting in-person services at Maryville Baptist Church if the Church, its ministers, and congregants observe public health requirements mandated for life- sustaining entities.

9. EMW Women’s Surgical Center, P.S.C. v. Friedlander, 2020 WL 2845687 (6th Cir. Jun. 2, 2020).

The Sixth Circuit affirmed the district court’s grant of a permanent injunction preventing the Commonwealth of Kentucky from enforcing House Bill 454, which sought to require patients to undergo a procedure to end fetal life before receiving an abortion performed through dilation and evacuation. House Bill 454 violates the Fourteenth Amendment because it unduly burdens an

51 individual’s right to elect to have an abortion prior to viability, and those burdens dramatically outweigh any benefit the provides. The district court’s grant of facial relief in the form of a permanent injunction was proper because the legislation imposes an undue burden on all of the individuals it restricts and cannot be rewritten to limit relief to certain especially unconstitutional applications of the law.

10. Wilson v. Williams, 2020 WL 3056217 (6th Cir. Jun. 9, 2020).

Petitioners, who are inmates at Elkton Federal Correctional Institution, filed suit under 28 U.S.C. §2241 to obtain release from custody to limit their exposure to COVID-19. The district court entered a preliminary injunction on April 22, 2020, directing respondents to evaluate each subclass member’s eligibility for transfer from Elkton by any means, including compassionate release, parole or community supervision, transfer furlough, or non- transfer furlough within two weeks, to transfer those deemed ineligible for compassionate release to another Federal Bureau of Prisons facility where testing is available and physical distancing is possible, and not allow those transferred to return to Elkton until certain conditions are met. The BOP appealed, and the Sixth Circuit reversed, holding petitioners failed to show a likelihood of success on the merits of their Eighth Amendment claim. It held the district court abused its discretion in granting the preliminary injunction and vacated it. Petitioners’ claims were properly brought under §2241 because they challenge the fact or extent of their confinement by seeking release from custody. However, this limits the type of relief available to them. The district court’s order requiring transfer from Elkton to another BOP facility was not proper under §2241. Petitioners are unlikely to succeed on the merits of their Eighth Amendment claim because as of April 22, 2020, the BOP responded reasonably to the known serious risks posed by COVID- 19 to the prisoners at Elkton. Petitioners failed to provide sufficient evidence that the BOP was deliberately indifferent to the risk of harm presented by the virus.

J. Criminal Law

1. U.S. v. Lopez, 929 F.3d 783 (6th Cir. 2019).

Lopez entered the U.S. without authorization with his family at age four. He received deferred action under DACA14 in January 2017. Three months later he was arrested for driving under the influence and charged with being an alien in possession of a firearm while illegally or unlawfully in the U.S. after police found two weapons in his car. He moved to dismiss the indictment arguing that he was

14 Deferred Action for Childhood Arrivals. Under DACA, aliens who meet certain criteria could apply for deferred action in which the Department of Homeland Security would defer any removal proceedings against them for a set period of time.

52 not illegally or unlawfully in the U.S. under 18 U.S.C. §922(g)(5)(A) at the time of his arrest and that the statute was unconstitutionally vague as applied to him. The district court held Lopez had been illegally or unlawfully in the U.S. when arrested but granted his motion on the ground the statute is unconstitutionally vague. The Sixth Circuit reversed, holding Lopez was an alien within the scope of the statute. His participation in the DACA deferred action program did not change his status as an alien illegally or unlawfully within the U.S. The Court declined to address Lopez’s argument for the first time on appeal that he lacked knowledge he was in the U.S. illegally or unlawfully, leaving the issue for the district court to address on remand. It dismissed the district court’s order dismissing the indictment and remanded for further proceedings.

2. Clark v. Lindsey, 936 F.3d 467 (6th Cir. 2019).

In his direct appeal, Clark argued his convictions for criminal sexual assault and domestic violence should be set aside based on a Sixth and Fourteenth Amendment violation that occurred when a scheduling error on his attorneys’ part prohibited defense counsel from being physically present at his competency hearing. The Michigan Court of Appeals rejected this argument on the basis his attorneys were able to communicate with Clark and the court about the competency report and the parties agreed he would no longer challenge his competence. Clark thereafter filed a §2254 habeas petition claiming the absence of his attorneys at the competency hearing automatically requires the to be undone and his release from prison due to a structural error in the proceeding. The district court denied his petition, and the Sixth Circuit affirmed. The Court noted that no Supreme Court case has ever found structural error unless the government was responsible for counsel’s absence or where the attorneys, court and client in fact communicated about the matter at issue.

3. U.S. v. Asgari, 940 F.3d 188 (6th Cir. 2019).

Asgari, an Iranian scientist working in the U.S., was charged with stealing trade secrets and committing visa and wire fraud. A month before trial, he learned the federal government intended to withhold classified information from discovery. The district court reviewed the information consistent with the Classified Information Procedures Act of 1980, found none of the information would help Asgari, and allowed the government to withhold it. Asgari filed a motion for reconsideration on the basis his defense counsel held top secret/sensitive compartmented information security clearance. The district court ordered the government to disclose the information to defense counsel, and the government filed a notice of appeal and motion for a temporary stay. The Sixth Circuit granted the stay and considered the appeal on an expedited basis. It found the district court initially applied the correct standard in determining the government had a colorable privilege claim and that the material

53 was not relevant or helpful to Asgari’s defense. However, the district court abused its discretion in considering defense counsel’s security clearance on reconsideration of evidence it had already deemed irrelevant. “Defense counsel’s security clearance becomes relevant if and only if the court determines the material should be disclosed.”15

4. U.S. v. Barron, 940 F.3d 903 (6th Cir. 2019).

In this consolidated appeal, Barron pleaded guilty to conspiracy to distribute cocaine and Pedroza was found guilty by jury of drugs and firearms charges. Barron appealed his sentence, and Pedroza appealed his conviction. The Sixth Circuit held the district court did not clearly err in applying an enhancement under U.S.S.G. §2D1.1(b)(1) while sentencing Barron. The Court agreed with Barron’s argument that sentencing courts cannot rely solely on the foreseeability of a co-defendant’s possession of a firearm to render a defendant ineligible for the safety valve provisions in §§5C1.2 and 2D1.1(b)(17). A defendant cannot be charged with possession of a co-conspirator’s firearm under §5C1.2 merely because it was reasonably foreseeable the co-conspirator would possess a firearm. The district court in this case found Barron aided and abetted his co-conspirator by purchasing ammunition found in the co-conspirator’s bedroom. The Sixth Circuit held the district court erred in finding Barron aided and abetted Lara Salas because there was no evidence in the record from which it could be reasonably inferred that he had purchased the ammunition. It held Barron did not constructively possess the firearm and the district court clearly erred in finding the contrary under U.S.S.G. §5C1.2(a)(2). The Court also held the district court did not err in failing to distinguish between lay and expert testimony provided by a detective during Pedroza’s trial. It affirmed Pedroza’s conviction, vacated Barron’s sentence, and remanded for resentencing with instructions to apply the safety valve and sentence Barron without regard to the 10-year mandatory minimum sentence.

5. U.S. v. Fortner, 943 F.3d 1007 (6th Cir. 2019).

The federal government charged Fortner with attempting to coerce a minor into illegal sexual activity and violating a provision adding 10 years to a defendant’s sentence if he is required to register as a sex offender and commits certain federal offenses against a minor. Fortner pleaded guilty to the first count but moved to dismiss the other charge on the ground his underlying offense did not involve a minor because it was an attempt crime that did not involve real children. The incident in question occurred when Fortner spoke with an undercover FBI agent online and arranged a meeting to engage in sexual activity with the agent’s fictious daughter. The district court denied his motion, and the Sixth Circuit affirmed. The Court held

15 Id. at 191.

54 that a sex offender commits an offense involving a minor when, during a sting operation, he attempts to commit a sex crime with a pretend child. Fortner’s attempt involved a minor because the intended victim of the offense was a child, and he knowingly tried to coerce a minor into illegal sexual activity and took substantial steps toward completing the crime.

6. U.S. v. Maslenjak, 943 F.3d 782 (6th Cir. 2019).

When Maslenjak immigrated to the U.S. in 2000, she lied that she and her family would be persecuted by Bosnian Muslims due to their ethnicity and by the Serbs because her husband evaded conscription into the Serb army. In reality, her husband was a Serbian army officer in a brigade implicated in war crimes. She lied again in her application for naturalization by stating her previous statements to immigration officials were truthful. She was naturalized as an American citizen in 2007. Maslenjak was thereafter charged with unlawful procurement of naturalization or citizenship and misuse of evidence of naturalization and citizenship. The district court instructed at trial that the jury could convict her of procuring her naturalization contrary to law based on a false statement in the naturalization process, even if the statement was not material. Maslenjak challenged the statement on appeal, and the Sixth Circuit affirmed. The Supreme Court reversed, holding lies told in the immigration process must be material.16 The government can satisfy the materiality element by proving one of the following beyond a reasonable doubt: 1) the facts the applicant mis- represented would themselves deprive her of receiving citizenship; or 2) the false statements hid facts that if known would trigger an investigation that likely would have led to discovery of other disqualifying facts. On remand, the Sixth Circuit held that because the government failed to prove beyond a reasonable doubt that a properly instructed jury would have convicted Maslenjak, the district court’s jury instruction error was not harmless. It vacated her conviction and remanded to the district court for a new trial.

7. U.S. v. Foster, 945 F.3d 470 (6th Cir. 2019).

Foster represented himself in his drug conspiracy trial. During witness testimony by the prosecution’s first witness, the repeatedly solicited out-of-court statements from informants about which the witness had no personal knowledge. Foster failed to object to the bulk of the statements. When the district court intervened, the prosecutor argued the statements did not violate the Confrontation Clause, citing U.S. v. Cromer.17 Foster thereafter moved for a mistrial, which the district court granted. He then moved to dismiss the indictment, arguing the prosecution had acted

16 Maslenjak v. U.S., 137 S.Ct. 1918, 1923 (2017).

17 389 F.3d 662 (6th Cir. 2004).

55 deliberately in trying to coax him to request a mistrial. The district court denied his motion, finding the prosecution’s misconduct was not in response to trial adversities or done with an intent to secure a mistrial. The Sixth Circuit affirmed, finding that while the prosecution was careless, there was no evidence of intentional misconduct as part of a scheme to deprive Foster of his double jeopardy rights.

8. U.S. v. Vinton, 946 F.3d 847 (6th Cir. 2020).

Vinton was indicted for attempting to use a facility of interstate commerce to knowingly persuade, induce, entice or coerce a minor to engage in unlawful sexual activity. The district court dismissed the indictment under Fed. R. Crim. P. 12, holding his conduct did not fit the elements of the crime as a matter of law because no reasonable juror could find beyond a reasonable doubt that Vinton had the requisite intent to persuade or entice a minor. Vinton responded to an undercover FBI agent’s post online that he would be interested in meeting to have sex with her and her fictious 12- year-old daughter. He never spoke directly to a minor while making these plans. When Vinton showed up to the chosen meeting place, he was arrested. The district court found he had passively agreed to have sex with the mother and daughter, but sex with the mother was his true objective, and there was insufficient evidence he intended to persuade or entice the child as required by 18 U.S.C. §2422(b). The government argued on appeal that the court erred both procedurally and substantively in granting Vinton’s motion to dismiss. The Sixth Circuit reversed. It declined to reach the issue of whether the district court erred procedurally, finding it erred substantively when it dismissed the indictment. To prove attempt, the government must show the defendant intended to persuade or entice a minor to participate in unlawful sexual conduct and took a substantial step toward doing so. A defendant can aim to achieve a minor’s assent by contacting the minor directly, sending the minor messages through an adult intermediary, or by using the adult intermediary to persuade the minor, all of which is criminalized under the statute. The Court held that when viewing the evidence in the light most favorable to the government, the government could prove Vinton intended to persuade or entice the minor by using her mother’s influence on her to persuade her to have sex with him. The Court reversed the district court’s judgment and remanded the case for trial.

9. Manners v. U.S., 947 F.3d 377 (6th Cir. 2020).

Manners pleaded guilty to assault with a dangerous weapon under 18 U.S.C. §1959(a)(3) and use of a firearm during and in relation to a crime of violence under 18 U.S.C. §924(c). In 2016, he filed a motion to vacate under 28 U.S.C. §2255 in light of Johnson v.

56 U.S..18 He argued his conviction under §924(c) could not be based on the statute’s residual clause because Johnson invalidated a similar residual clause in the Armed Career Criminal Act (ACC) and his predicate offense did not have as an element the use, attempted use, or threatened use of physical force, so it could not fall under §924(c)(3)’s elements clause. The district court denied his motion, finding it was bound by the Sixth Circuit’s holding that Johnson did not invalidate §924(c)(3)’s residual clause.19 The Sixth Circuit affirmed, relying on then-binding in Taylor.20 Manners petitioned the U.S. Supreme Court for a writ of certiorari, which granted the petition and remanded the case for further consideration in light of Sessions v. Dimaya,21 which held that 18 U.S.C. §16’s residual clause is unconstitutionally vague. Following the remand, the Supreme Court also held §924(c)(3)’s residual clause is also unconstitutionally vague in U.S. v. Davis.22 On remand, the Sixth Circuit held that Manners’ conviction under 18 U.S.C. §1959(a)(3) constitutes a crime of violence within the meaning of §924(c)(3)(A), and the district court did not err in denying his motion to vacate his conviction for the latter offense.

10. U.S. v. Libbey-Tipton, 948 F.3d 694 (6th Cir. 2020).

Libbey-Tipton was indicted on three counts of accessing and possessing child pornography. At trial, the district court admitted evidence of his prior conviction of child molestation under Fed. R. Evid. 414 and 403. The jury found him guilty of all counts, and the district court sentenced him to 235 months in prison, 27 months lower than the Guidelines range. Libbey-Tipton appealed, and the Sixth Circuit affirmed the district court’s judgment. It declined to find the district court abused its discretion in admitting the evidence of Libbey-Tipton’s prior act. Because he argued the government could not prove the pornographic images belonged to him, the evidence of his prior act could be considered necessary to show propensity and motive. The prior act was also sufficiently similar to the pornography offense, within the time proximity allowed, and relevant and necessary to the government’s case. The district court also did not abuse its discretion in refusing to grant a greater downward variance during sentencing.

18 135 S.Ct. 2551 (2015).

19 See U.S. v. Taylor, 814 F.3d 340, 379 (6th Cir. 2016), abrogated by U.S. v. Davis, 139 S.Ct. 2319 (2019).

20 Manners v. U.S., 2017 WL 3613308 at *2 (6th Cir. Aug. 22, 2017), vacated, 139 S.Ct. 56 (2018) (mem).

21 138 S.Ct. 1204, 1223 (2018).

22 139 S.Ct. 2319 (2019).

57 11. U.S. v. Paulus, 952 F.3d 717 (6th Cir. 2020).

Paulus, a Kentucky cardiologist, was convicted of one count of healthcare fraud and 10 counts of making false statements relating to healthcare. The convictions stemmed from allegations he was performing unnecessary medical procedures. The district court vacated his convictions, finding there was insufficient evidence he made false statements and had fraudulent intent. The Sixth Circuit reversed its order.23 After remand and before sentencing, the government disclosed for the first time to Paulus a letter outlining an independent review done by the hospital of 1,049 of Paulus’s procedures in which only 75 were flagged as unnecessary. Defense counsel viewed the information as exculpatory because it stated a lower rate of unnecessary procedures than that outlined by the government’s experts at trial. It then came to light that the government had intended to disclose the letter to Paulus much earlier, but the hospital argued it was privileged and inadmissible. The district court held an ex parte hearing in which it held the letter was inadmissible without deciding the privilege issue and that the government was not obligated to disclose it to Paulus. The district court rejected Paulus’ motion for a new trial and sentenced him to five years in prison and $1.5 million in restitution. Paulus appealed to the Sixth Circuit, which vacated his convictions and remanded for a new trial. The Court held the evidence withheld from Paulus based on the district court’s erroneous order violated his Fifth Amendment rights under Brady v. Maryland.24 The government conceded on appeal that the letter had exculpatory value and it failed to disclose the number of procedures reviewed by the hospital. The Court found Paulus had no reason to think the review held exculpatory value and he lacked a readily available means to access its missing information. Paulus was prejudiced by the government withholding the letter because the missing details undermined the Court’s confidence in the verdict. The hospital’s review found a much lower number of unnecessary procedures than the government experts identified. In addition, Paulus’ intent was a close issue at trial, causing the jury to deadlock twice. Lack of intent was also the basis for the district court’s order vacating his convictions initially.

12. U.S. v. Jones, 953 F.3d 433 (6th Cir. 2020).

Police stopped Jones’ vehicle to investigate allegations he committed fourth-degree assault, a Kentucky misdemeanor. During the stop, they discovered a weapon on Jones, who is a convicted felon. Following his indictment for unlawful possession of a firearm, he moved to suppress evidence from the stop, arguing the Fourth Amendment bars investigatory stops prompted by a completed

23 U.S. v. Paulus, 894 F.3d 267 (6th Cir. 2018).

24 373 U.S. 83 (1963).

58 misdemeanor. The district court suppressed the evidence, and the government appealed to the Sixth Circuit, which reversed. The Court declined to adopt a bright line rule. Rather, in each case the focus should be on reasonableness, balancing the interests in public safety and personal liberty. “The inquiry… turns on the nature of the crime, how long ago the suspect committed it, and the ongoing risk of the individual to the public safety.”25 Courts should ask two questions: Did an officer stop a suspect to investigate a completed felony? If so, the court should consider the reasonableness of the officer’s suspicion. If the offense goes by another name, the court must ask whether that particular stop for that particular offense violates the Fourth Amendment. Factors to be considered are outlined in U.S. v. Hensley.26 The stop in this case did not violate the Fourth Amendment. When officers stopped Jones, they had a reasonable suspicion he had just committed assault. It also promoted public safety given that the victim stated Jones had assaulted her before and could easily obtain a gun. Officer also had enough facts to conclude Jones had assaulted the victim before stopping him.

13. U.S. v. Craig, 953 F.3d 898 (6th Cir. 2020).

Craig was involved with a shootout in Ohio and was apprehended wearing a shoulder holster with gunshot residue on his hands. His DNA was found on a gun found in one of the vehicles at the crime scene. During cross-examination in his trial for being a felon in possession of a firearm, the government played a video for the jury depicted a masked man it claimed was Craig rapping and wielding a similar firearm as the one used in the shootout. Craig denied being the person on the video, and the government did not attempt to introduce the video into evidence. The district court did not issue a limiting instruction regarding whether or how to consider it, and the government referred to the video during closing arguments. The jury convicted Craig, and the district court sentenced him to 110 months in prison to be served consecutively with two state court sentences. Craig appealed to the Sixth Circuit, which vacated his conviction and remanded for a new trial. It held the trial court erred in allowing the unauthenticated video to be played to the jury without its admission into evidence. This error was not harmless as the video was extremely prejudicial and damaging to Craig’s testimony. Given its remand for a new trial, the Court did not reach the issue of Craig’s sentence.

14. U.S. v. Fowler, 956 F.3d 431 (6th Cir. 2020).

The Sixth Circuit held a district court commits plain error in assessing $5,000 against a defendant convicted of possession of

25 Id. at 437.

26 469 U.S. 221, 228 (1985).

59 child pornography under 18 U.S.C. §3014 when it completely fails to address indigency and the defendant’s ability to pay. Before imposing the assessment, courts must ensure the defendant is not indigent.

15. U.S. v. Jeffries, 958 F.3d 517 (6th Cir. 2020).

The Sixth Circuit held the penalty enhancement under 21 U.S.C. §841(b)(1)(C) does not require proof of proximate causation. The proper inquiry is whether death resulted from use of the controlled substance, not whether death was a foreseeable result of the defendant’s §841(a)(1) violation. This was an issue of first impression in the Sixth Circuit.

K.

U.S. v. Carman, 933 F.3d 614 (6th Cir. 2019)

A jury convicted Carman of conspiracy to commit mail and wire fraud in January 2016. She agreed to forfeit two Cadillac Escalades at a forfeiture hearing the next day. The government thereafter moved for preliminary order of forfeiture requesting a money judgment against Carman for $35 million. The parties briefed the matter in April 2016. In August 2016, the district court sentenced Carman to 60 months’ imprisonment without ruling on the government’s motion for a money judgment. The district court entered the criminal judgment against Carman the following day, and she filed notice of appeal of the judgment on September 6, 2016. More than four months later, the district court entered a forfeiture order against Carman in the amount of $17.5 million, which she also appealed. While the Court agreed with Carman that the district court violated Fed. R. Crim. P 32.2, it disagreed with her argument that under these facts, the Rule divested the court of jurisdiction to enter the January 2017 forfeiture order. However, the effect of Carman filing a notice she was appealing the court’s judgment, which included both her conviction and sentence, had the same effect. Filing a notice of appeal transfers adjudicatory authority from the district court to the court of appeals and divests the district court of its control over the aspects of the case involved in the appeal. The issue of forfeiture falls within the aspects of the case as to which Carman’s notice of appeal transferred adjudicatory authority to the Sixth Circuit, and the district court lacked authority to enter its forfeiture order four months after Carman filed her notice of appeal. The Court vacated the January 2017 forfeiture order and remanded the case for further proceedings consistent with its opinion.

L. Debtor/Creditor

1. Scott v. First Southern National Bank, 936 F.3d 509 (6th Cir. 2019).

Plaintiffs obtained a commercial line of credit and a loan from First Southern to finance a commercial renovation project. The loan agreement did not contain a provision guaranteeing that First

60 Southern would loan additional funds if needed. First Southern thereafter denied Plaintiffs’ request for additional loan funds based on other debt Plaintiffs had incurred since First Southern approved the initial loan amount. First Southern also declined to extend the credit line’s maturity date pending review of Plaintiffs’ finances. During this time, the bank’s computer system automatically generated delinquency reports that were transmitted to the credit bureaus, damaging Plaintiffs’ credit score. Plaintiffs secured financing from a different institution, which they used to pay off the construction loan and line of credit with First Southern. Despite this, the bank’s computer system continued to report Plaintiffs’ full payment history, including the delinquency. Plaintiffs did not contact the credit bureaus to report the discrepancy because a First Southern employee told him he would take care of the problem. Plaintiffs filed suit against First Southern alleging violations of the Fair Credit Reporting Act and other claims. The district court granted summary judgment to First Southern, and Plaintiffs appealed. The Sixth Circuit affirmed. While the FCRA creates a private right of action for consumers to enforce the requirement that furnishers of information investigate upon receiving notice of a dispute, consumers must file a dispute with a consumer reporting agency to trigger the duty to investigate. Because Plaintiffs failed to file a dispute with a consumer reporting agency, First Southern’s duty to investigate under the FCRA was never triggered. In addition, the district court concluded correctly that the FCRA preempts Plaintiffs’ state common law claims involving First Southern’s reporting of information to consumer reporting agencies. The FCRA also preempts Plaintiffs’ claims of breach of the duty of good faith and fair dealing and tortious interference with contractual relationships because those claims relate to First Southern’s reporting obligations. The Sixth Circuit held the FCRA preempts both state statutory and common law claims. The FCRA does not preempt Plaintiffs’ fraudulent misrepresentation claim, but Plaintiffs forfeited that issue on appeal because they did not discuss the district court’s reasoning for granting summary judgment for First Southern on that claim.

2. Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855 (6th Cir. 2020).

Buchholz received two letters from defendant law firm regarding two debts he owed Synchrony Bank. The letters stated the firm was acting as a debt collector and provided him with information by which he could challenge or pay the debts. He filed suit under the Fair Debt Collection Practices Act, arguing the firm violated the statute by giving the impression an attorney had reviewed his case and determined he owed the debts. The Sixth Circuit affirmed the district court’s dismissal of the claim, holding Buchholz has no injury traceable to the law firm’s challenged conduct and lacks standing to sue. Buchholz’s anxiety amounted to a fear of a future harm, which is not an injury in fact unless the future harm is certainly impending. The threat of future litigation was not certainly

61 impending when Buchholz filed his claim. The law firm did not threaten to sue him, and Buchholz did not allege that he refuses to pay his debts. In addition, his alleged injury is self-inflicted and not traceable to the law firm’s conduct.

3. Cagayat v. United Collection Bureau, Inc., 952 F.3d 749 (6th Cir. 2020).

Cagayat filed suit against United Collection Bureau, arguing two collection letters it sent to her violated the Fair Debt Collection Practices Act, 15 U.S.C. §1692f(8), because the words “Collection Bureau” were visible to the naked eye through the envelopes’ glassine windows. The district court dismissed her action for failure to state a claim, finding the exhibits attached to her complaint contradicted the factual allegations central to her claim. Cagayat appealed to the Sixth Circuit, which held the district court erred in granting UCB’s motion to dismiss. It first held that §1692f(8) applies to curtail language or symbols showing a communication pertains to debt collection that are visible through an envelope’s glassine window. The district court’s determination that the contested language was not clearly visible and could not be read without strain or extra effort was inappropriate under the Rule 12(b)(6) standard. For exhibits to contradict pleadings, they must clearly discredit the allegations central a plaintiff’s claim. “The district court should have viewed these exhibits with the understanding that there is always some disparity in the quality of a copy versus the actual paper.”27 The words “Collection Bureau” were moderately visible in the copies provided by Cagayat. The Court held it is reasonable to conclude discovery will reveal the letters when viewed in normal light clearly display the contested language. The district court also erred in applying the least sophisticated consumer standard in coming to its holding. The fact the words “Collection Bureau” were upside down and backwards does not utterly discredit Cagayat’s claim the language can be clearly read without unusual effort. The Court reversed and remanded for proceedings consistent with its opinion.

4. Twumasi-Ankrah v. Checkr, Inc., 954 F.3d 938 (6th Cir. 2020)

The Court held that to state a claim under the Fair Credit Reporting Act, 15 U.S.C. §1681e(b), a plaintiff may allege that a credit reporting agency reported either “patently incorrect information” or information that was misleading in such a way and to an extent it could have been expected to have an adverse effect on the consumer.

27 Id. at 756.

62 M. Education

1. Kollaritsch v. Michigan State University Board of Trustees, 944 F.3d 613 (6th Cir. 2019).

The Sixth Circuit held that in a Title IX student-on-student sexual harassment case, the plaintiff must plead and ultimately prove that the school had actual knowledge of actionable sexual harassment and the school’s deliberate indifference to it resulted in further actionable, sexual harassment against the victim, causing the Title IX injuries. The plaintiff’s subjective dissatisfaction with the school’s response is immaterial to whether that response caused the Title IX violation. In the instant case, because none of the plaintiffs suffered actionable sexual harassment after the school’s response, they did not suffer pervasive sexual harassment as set out in Davis v. Monroe County Board of Education28 and cannot meet the causal element. The Court also held the individual defendant in this case is entitled to qualified immunity because the complaint failed to allege facts showing the defendant violated plaintiff’s clearly established right to equal protection. It reversed the district court’s order denying defendants’ motion to dismiss the complaint and remanded for entry of judgment dismissing the claim.

2. Doe v. University of Kentucky, 959 F.3d 246 (6th Cir. 2020).

Doe filed suit against the University of Kentucky, alleging it violated Title IX of the Education Amendments of 197229 by responding with deliberate indifference to her accusations of harassment by fellow students. The district court granted summary judgment to the University. The Sixth Circuit affirmed, holding Doe failed to show the university’s response subjected her to further actionable harassment that caused Title IX injuries.

“[A] Title IX cause of action in the student-on-student harassment context comprises both actional sexual harassment and a deliberate indifference intentional tort. A school may only be liable if a plaintiff shows ‘an incident of actionable sexual harassment, the school’s knowledge of it, some further incident of actionable sexual harassment, that the further actional harassment would not have happened but for the [deliberate indifference] of the school’s response, and that the Title IX injury is attributable to the post-actual-knowledge further harassment.’”30

28 526 U.S. 629 (1999).

29 Codified at 20 U.S.C. §1681 et seq.

30 Id. at XX, quoting Kollaritsch v. Michigan State Board of Trustees, 944 F.3d 613, 623-24 (6th Cir. 2019).

63 N.

National Wildlife Federation v. Secretary of the U.S. Department of Transportation, 2020 WL 3026541 (6th Cir. Jun. 5, 2020)

Enbridge Energy submitted two response plans for its oil pipeline over the last five years as required by the Clean Water Act. The administering agency, the Pipeline and Hazardous Materials Safety Administration, evaluated the plans and approved them, determining they met the enumerated CWA criteria. The National Wildlife Federation filed suit, alleging the agency violated the CWA. The district court held the response plans satisfied the CWA but granted summary judgment to the Federation on other grounds, holding the agency had to comply with the Endangered Species Act and the National Environmental Policy Act before it could approve the plans. Reviewing the decision de novo, the Sixth Circuit reversed. The Endangered Species Act’s consultation requirement only applies to discretionary agency actions. The language in the CWA provides that the agency “shall” approve any response plan that meets its enumerated requirements, meaning the agency’s action in approving Enbridge’s response plans was not discretionary. The same analysis applies to the National Environmental Policy Act’s environmental impact statement requirement, which also only applies to discretionary agency actions.

O. ERISA

1. Wilson v. Safelite Group, Inc., 930 F.3d 429 (6th Cir. 2019).

Wilson sued Safelite Group, Inc. for breach of contract and negligent misrepresentation arising from its alleged mis- management of its deferred compensation plan for executive employees. The district court granted Safelite’s motion for partial summary judgment on the basis that Wilson’s state law claims were preempted by ERISA. The Sixth Circuit affirmed. The Court held Safelite’s plan is an employee pension benefit plan covered by 29 U.S.C. §1002(2)(A)(ii) even though it allowed for distributions both before and after termination of employment. “The statutory language does not categorically exclude all plans that contain options to receive in-service distributions or to make other deferral elections.”31 In addition, the plan does not fall under the bonus plan exemption from ERISA coverage because it does not state an intention to provide financial incentives for employee performance or retention and does not explicitly operate as a bonus plan.32

31 Id. at 436.

32 See 29 C.F.R. §2510.3-2(c).

64 2. Wallace v. Oakwood Healthcare, 954 F.3d 879 (6th Cir. 2020).

Plaintiff worked as a nurse at Oakwood Healthcare and participated in its employee welfare benefit plan which provided long term disability (LTD) benefits to eligible employees. Oakwood switched providers for the plan in 2013 from Hartford to Reliance. Plaintiff became ill in late-2012 and was out on medical leave when the company switched providers. Following a short return to work, Plaintiff took leave again in May 2013 and has not returned to work. Reliance denied her claim for LTD benefits, stating a pre-existing condition provision in the plan document barred her claim. The letter outlined she could request review of her claim during the review process. It also stated failure to request review within 180 days of receipt of the letter would constitute failure to exhaust administrative remedies under ERISA, affecting her ability to file a civil suit. Plaintiff also filed a claim with Hartford, which was denied. She received another denial after appealing that decision internally. She did not file a written request for review to Reliance and filed suit under ERISA §502(a)(1)(B)33 against Reliance and Hartford in federal court. All parties other than Reliance were subsequently dismissed from the suit. The district court denied Reliance’s motion to dismiss under Rule 12(b)(6), holding plaintiff did not need to exhaust her administrative remedies because Reliance’s plan document did not require exhaustion. It thereafter granted plaintiff’s motion for judgment on the administrative record, finding Reliance wrongly determined her LTD claim was barred under its policy as she was covered under the policy’s transfer of insurance provision. The district court awarded her LTD benefits and attorney’s fees. Reliance appealed to the Sixth Circuit, which affirmed the district court’s denial of Reliance’s motion to dismiss on the basis of exhaustion. It held because Reliance did not describe any internal claims review process or remedies in its plan document, the plan did not establish a reasonable claims review process pursuant to ERISA regulations. Therefore, plaintiff’s administrative remedies must be deemed exhausted. “[F]or a plan fiduciary to avail itself of this Court’s exhaustion requirement, its underlying plan document must – at a minimum – detail its required internal appeal procedures.”34 The Court vacated the district court’s grant of judgment on the record to Plaintiff and remanded for further proceedings, holding additional factfinding is necessary to determine whether she was eligible for LTD benefits and in what amount.

P. Federal Black Lung

1. Island Creek Coal Co. v. Bryan, 937 F.3d 738 (6th Cir. 2019).

33 29 U.S.C. §1132(a)(1)(B).

34 Id. at 888.

65 Petitioners argued that Lucia v. SEC35 rendered unconstitutional the appointments of the judges who adjudicated their federal black lung benefits disputes. They raised the argument for the first time on motions for reconsideration with the Benefits Review Board, which hears appeals from ALJ decisions. The Board held they made their claims too late, and the Department of Labor argued on appeal that petitioners forfeited the issue in court by failing to properly exhaust it with the agency. The Sixth Circuit denied the petitions for review, reaffirming that parties who seek of Benefit Review Board orders must exhaust those issues with the Board. 20 CFR §802.211(a) requires parties filing petitions for review to identify specific issues to be considered by the Board. By bringing new constitutional claims in their motions for reconsideration, petitioners failed to exhaust those claims because they did not follow the agency’s claims processing rules.

2. Island Creek Coal Co. v. Young, 947 F.3d 399 (6th Cir. 2020).

Young worked in coal mines for over 19 years. He retired from Island Creek in 1999. He filed an application for federal black lung benefits. Because he worked as a coal miner for at least 15 years and was totally disabled by his lung impairment, he was entitled to a statutory presumption that his disability was due to pneumo- coniosis.36 The ALJ found Island Creek failed to rebut the statutory presumption and awarded Young benefits. The Benefits Review Board affirmed, noting if there was any error in the ALJ’s recitation of the standard, the error was harmless. Island Creek filed a petition for review with the Sixth Circuit. The Court held Island Creek forfeited its argument that appointment of the ALJ who awarded Young’s benefits violated the Appointments Clause because it waited to raise the issue in a motion for supplemental briefing to the Benefits Review Board four months after the merits briefing period had closed. It also held the ALJ’s findings were supported by substantial evidence. The ALJ did not err by applying an “in part” standard in determining whether Island Creek rebutted the presumption that Young had legal pneumoconiosis.37 In Arch on the Green, the Sixth Circuit defined “in part” to mean “more than a de minimis contribution.”38 Island Creek could rebut the presumption of legal pneumoconiosis by showing that coal-mine exposure had at most a de minimis impact on Young’s lung disease. The Sixth Circuit approved the ALJ’s method of applying the “in part” standard when determining whether Island Creek successfully rebutted the first prong of the presumption in §718.305(d)(1)(i) and reserving the

35 138 S.Ct. 2044 (2018).

36 See 30 U.S.C. §921(c)(4); 20 C.F.R. §718.305(b)(1), (c)(1).

37 See Arch on the Green, Inc. v. Groves, 761 F.3d 594 (6th Cir. 2014).

38 761 F.3d at 599-601.

66 “rule out” standard for reviewing the second rebuttal prong in §718.305(d)(1)(ii).

Q. Habeas Corpus

1. Bullard v. U.S., 937 F.3d 654 (6th Cir. 2019).

Bullard pleaded guilty to distributing heroin and being a felon in possession of a firearm. He filed a §2255 habeas petition, arguing the district court misclassified him as a career offender because his Arizona conviction for attempting to sell drugs is not a “controlled substance offense.” The Sixth Circuit affirmed the district court’s denial of Bullard’s petition, finding his claim is not cognizable on collateral review.39 The Court also rejected his claim of ineffective assistance of counsel based on his attorney’s failure to object to his status as a career offender. Given the caselaw at the time the district court sentenced Bullard, it was reasonable for his attorney not to object. At that time, U.S. v. Evans40 held that offering to sell a controlled substance constitutes an attempt to distribute a controlled substance, and a conviction under the statute qualifies as a controlled substance offense. In addition, at that time, the Sixth Circuit had yet to address whether a controlled substance offense can include substances that are not criminalized under federal law (in this case benzylfentanyl and thenylfentanyl).

2. Wright v. Spaulding, 939 F.3d 695 (6th Cir. 2019).

Wright pleaded guilty to being a felon in possession of a firearm. He qualified as an armed career criminal for sentencing purposes due to his prior drug offense convictions. He did not appeal his 15-year minimum sentence on direct appeal. He later filed a §2255 habeas petition following the Supreme Court’s decision in Johnson v. U.S.,41 which held the residual clause in the Armed Career Criminal Act was unconstitutionally vague. However, his argument did not implicate Johnson, which related to violent felonies rather than drug offenses, and the Maryland district court denied his motion. Following the Supreme Court’s decision in Mathis v. U.S.,42 he filed a habeas petition in the Northern District of Ohio where he is imprisoned rather than the Maryland district court where he was sentenced because §2255(h) prohibits second or successive motions. The district court dismissed his petition, and Wright appealed to the Sixth Circuit. The Court affirmed, holding federal prisoners cannot bring a claim of actual innocence in a §2241

39 See Snider v. U.S., 908 F.3d 183, 189-91 (6th Cir. 2018).

40 699 F.3d 858, 868 (6th Cir. 2012).

41 135 S.Ct. 2551 (2015).

42 136 S.Ct. 2243 (2016).

67 petition through the savings clause without showing they had no prior reasonable opportunity to bring their argument for relief. In this case, Wright could have argued the Maryland crime he was convicted of in 1989 did not qualify as an ACCA-predicate serious drug offense prior to the holding in Mathis during sentencing, on direct appeal, or in his initial §2255 petition.

3. Byrd v. Skipper, 940 F.3d 248 (6th Cir. 2019).

Byrd filed a §2254 petition for habeas corpus alleging ineffective assistance of counsel based on his defense attorney’s failure to negotiate a plea agreement. He was sentenced to life in prison without the possibility of parole for aiding and abetting felony murder even though the prosecutor was interested in negotiating an agreement for a lesser charge and a lighter sentence. The Sixth Circuit held Byrd’s defense counsel was deficient and that it was reasonably probable that absent this incompetence, Byrd would have negotiated a better outcome. In this case, the principal defendant, Byrd’s then-girlfriend, negotiated a deal in which she pleaded guilty to second-degree murder and felony firearm charges and received 30 to 50 years in prison in exchange for testifying against Byrd at trial. The prosecutor for both cases testified in district court that his office typically waits for defense counsel to request an offer before beginning plea negotiations. In addition, once the principal defendant pleads guilty, the have more incentive to reach agreements with other defendants. He also stated that the state judges rarely reject those agreements. Byrd’s defense attorney never initiated plea negotiations with the prosecutor’s office despite Byrd asking him specifically about the possibility of pleading guilty. He also met with Byrd only twice for 60 minutes prior to trial and never explained to him the sentencing guidelines or aiding and abetting or other legal concepts. Because Byrd was denied his Sixth Amendment right to counsel, the Court reversed the district court and remanded the case for entry of a writ of habeas corpus unless new state proceedings consistent with its opinion are reopened within 180 days of its order and opinion.

4. Atkins v. Crowell, 945 F.3d 476 (6th Cir. 2019).

A Tennessee jury convicted Atkins of murdering his stepfather when he was 16 years old. He received a life sentence that renders him eligible for release after at least 51 years in prison. His conviction and sentence were affirmed on direct appeal. Atkins instituted state post-conviction proceedings following the Supreme Court decision Miller v. Alabama,43 which held a sentence of mandatory life without parole for those under age 18 at the time of their crimes violates the Eighth Amendment. The state court rejected his claim, noting he could be released after 51 years in prison and therefore was not serving a life sentence without

43 567 U.S. 460, 465 (2012).

68 possibility of parole. The district court thereafter denied his petition for habeas relief but issued a certificate of appealability for the Sixth Circuit to consider whether the state court reasonably distinguished Atkins’ case from the case in Miller. The Court affirmed, finding the state court’s holding was neither contrary to nor an unreasonable application of the Miller decision. It granted Atkins’ motion to proceed in forma pauperis but affirmed denial of relief.

5. Cardin v. U.S., 947 F.3d 373 (6th Cir. 2020).

Cardin moved the district court to vacate his sentence for fraud under 28 U.S.C. §2255. He was hospitalized two days before the motion was due, so his sister, who was his attorney in fact, signed it for him. He moved after his release from the hospital to add his own signature to the filing. The district court denied both motions, and Cardin appealed to the Sixth Circuit. The Court held Cardin’s sister had next friend status to file his §2255 motion. All that is required is that the next friend provide an adequate explanation why the real party in interest cannot appear on his own behalf to prosecute the action and that the next friend be dedicated to the best interests of the person on whose behalf he/she seeks to litigate. A consideration of the full record showed those requirements were met in this case. Cardin’s hospitalization was unexpected, and it was plain that his sister was acting in his best interests when she signed the motion for him. The Court reversed the district court’s order and remanded for further proceedings.

6. Hueso v. Barnhart, 948 F.3d 324 (6th Cir. 2020).

The Sixth Circuit affirmed the denial of Hueso’s habeas petition, rejecting his argument that prisoners barred from filing a second §2255 petition may seek habeas relief under §2241 based on new decisions from the circuit courts, not just the Supreme Court. Hueso must identify a new Supreme Court decision to show that §2255’s remedy is inadequate or ineffective and cannot rely on the Ninth and Fourth Circuit’s decisions in Valencia-Mendoza44 and Simmons45 as the basis for his habeas claim. Heuso cannot rely on the one Supreme Court case he cited, Carachuri-Rosendo,46 because that decision was issued before he filed his §2255 motion in 2011 and he could have cited it in support of his sentencing claim in earlier proceedings.

44 U.S. v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019).

45 U.S. v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).

46 Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010).

69 7. Williams v. Burt, 949 F.3d 966 (6th Cir. 2020).

Williams was sentenced to life in prison following his conviction for first-degree premeditated murder and assault with intent to murder. On direct appeal, he argued the trial court violated his Sixth Amendment right to a public trial by closing the courtroom during a portion of his trial due to spectator outbursts. He also argued defense counsel was ineffective for failing to object. The state court applied plain error review, holding defense counsel’s assistance was constitutionally ineffective. It denied relief, however, finding the result would not have been different if counsel was not ineffective due to the strength of the prosecution’s case. Williams thereafter filed a petition for habeas relief under 28 U.S.C. §2254. The district court denied relief, and the Sixth Circuit granted Williams a certificate of appealability for his public trial and ineffective assistance claims. The Court held that a criminal defendant, to satisfy the Strickland standard in the context of a failure to object to a potential public trial violation during the guilt phase, must show prejudice by demonstrating that but for the alleged error, there is no reasonable probability of a different outcome in his case or that the violation was so serious as to render the trial fundamentally unfair. The Court declined to excuse Woods’ procedural default of the public trial issue because he failed to show he was prejudiced by closure of the courtroom. It also refused to review the merits of Woods’ ineffective assistance claim because he cannot satisfy the AEDPA standard of review.

R. Immigration

1. Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019).

The Sixth Circuit held that a notice to appear for a removal proceeding under 8 U.S.C. §§1229(a), 1229b(d)(1) may be served upon a non-citizen through service of more than one written communication and still constitute notice if the multiple installments collectively give the non-citizen all required information. The stop- time rule in §1229b(d)(1) is triggered when a noncitizen has received all of the required categories of information in §1229(a)(1)(A)-(G) whether sent through a single written communication or in multiple written installments. The Court denied Garcia-Romo’s petition for review of a final order of his removal as affirmed by the Board of Immigration Appeals.

2. Jomaa v. U.S., 940 F.3d 291 (6th Cir. 2019).

Rizk and her daughter appealed the revocation of Rizk’s visa petition. USCIS initially granted the petition without taking into account a previous finding that Rizk had entered into a sham marriage making her ineligible for a future visa under 8 U.S.C. §1154(c). USCIS revoked the petition when it discovered the error. The Board of Immigration Appeals affirmed, and Rizk challenged

70 the revocation in the district court, which dismissed the complaint pursuant to Rule 12(b)(6). The Sixth Circuit affirmed. The district court properly found it had subject matter jurisdiction because the USCIS’s decision to revoke the visa petition constituted a nondiscretionary act of error correction. In addition, the decision to revoke Rizk’s visa petition was not arbitrary and capricious under the APA, and Sixth Circuit affirmed the district court’s dismissal of the complaint.

3. Kada v. Burr, 946 F.3d 960 (6th Cir. 2020).

Kada immigrated to the U.S. with his parents as a lawful permanent resident. In 2017, he was convicted of several state crimes. He was placed in removal proceedings in 2018 based on his alleged removability under 8 U.S.C. §1227(a)(2)(C) based on his state firearms convictions. Kada told the immigration judge he would apply for cancellation of removal, withholding of removal, and protection under the Convention Against Torture (CAT). His attorney failed to file his application for relief under CAT or to request an extension of the filing deadline. The immigration judge deemed Kada’s applications for relief abandoned and ordered him removed to Iraq. Kada’s attorney filed a timely motion to reconsider and reopen, alleging his serious health problems prevented him from meeting the deadlines. The government opposed the motion, noting the attorney’s medical records related to time periods before the removal proceedings began and later after he missed the deadline. The attorney failed to respond with any further information or additional explanation. The immigration judge denied Kada’s motion to reopen, finding his attorney failed to establish his incapacity shortly on or before the filing deadline. The BIA denied Kada’s appeal, finding he had abandoned his application under CAT. Kada appealed to the Sixth Circuit. While the appeal was pending, he filed a second motion to reopen before the BIA with new counsel, arguing his prior attorney provided ineffective assistance of counsel by failing to file his CAT application. He was removed to Iraq while this motion was pending. While there, he supplemented his motion to reopen with evidence that men attempted to kidnap him to blackmail his family in the U.S. and that he is forced to stay hidden inside without his medication. The BIA denied Kada’s second motion to reopen, finding that even if his attorney provided ineffective assistance, Kada failed to show he was prejudiced by the attorney’s failure to timely file his CAT application. Kada appealed, and the Sixth Circuit consolidated his petitions for review. The Court held the BIA applied an incorrect standard when it required Kada to prove prejudice by showing his claims necessarily would have succeeded or that he has actually been tortured. Rather, the BIA should have examined whether Kada demonstrated a reasonable probability that, but for his attorney’s ineffective assistance, he would have been entitled to stay in the U.S. It also failed to treat him as similarly situated individuals in other cases. The Court granted Kada’s petition for review based on

71 his ineffective assistance claim, vacated the BIA’s order denying Kada’s second motion to reopen and remanded for further proceedings, and dismissed his second petition for review as moot.

4. Guzman-Vazquez v. Barr, 959 F.3d 253 (6th Cir. 2020).

Guzman-Vazquez, a native and citizen of Mexico, petitioned for review of the BIA’s decision affirming the immigration judge’s denial of his application for withholding of removal. The Sixth Circuit granted his petition, vacated the BIA’s order, and remanded for further proceedings consistent with its opinion. The immigration judge did not err in failing to give notice of the special corroborating evidence that would be considered persuasive to meet Guzman- Vazquez’s burden of proof. However, the court did err in requiring certain corroborative evidence without giving Guzman-Vazquez an opportunity to explain why it was not reasonably available. An immigration court may not require corroborative evidence without giving an applicant an opportunity to explain why it is not available. The Sixth Circuit also held that applicants for withholding of removal under 8 U.S.C. §1231(b)(3) must demonstrate that a protected ground was at least one reason for their persecution. The Court remanded to the BIA to decide the case under the correct standard.

S. Insurance

1. United Specialty Ins. Co. v. Cole’s Place, Inc., 936 F.3d 386 (6th Cir. 2019).

Six people injured during a shooting at Cole’s Place sued the club’s proprietor in state court, arguing the club failed to protect them from foreseeable harm. At the time of the shooting, Cole’s Place had an insurance policy with United Specialty Insurance Co. (USIC). USIC undertook the defense of Cole’s Place in the state actions, reserving its right to seek a judicial determination that it was not obligated to defend or indemnify. USIC sued Cole’s Place in federal district court, invoking the court’s jurisdiction under the Declaratory Judgment Act.47 The complaint sought a declaration that USIC had no obligation to indemnify or defend Cole’s Place in the state lawsuits. The district court entered summary judgment for USIC, holding the exercise of jurisdiction under the Declaratory Judgment Act was proper and that the policy’s assault and battery exclusion applied to the state lawsuits. It also held the punitive damages exclusion was enforceable and entered summary judgment for USIC on all of Cole’s Place’s counterclaims. Cole’s Place appealed, and the Sixth Circuit affirmed. It held the district court did not abuse its discretion in exercising jurisdiction under the Declaratory Judgment Act. The district court also properly determined USIC was entitled to summary judgment because the assault and battery exclusion applies to state lawsuits. The allegations contained in the

47 28 U.S.C. §2201.

72 state court complaints constitute battery under Kentucky law, and Cole’s Place failed to provide any genuinely disputed material facts to call that issue into question. In addition, the underlying claims based on alleged failure to protect constitute claims “arising out of or resulting” from the battery.

2. Miller v. Bruenger, 949 F.3d 986 (6th Cir. 2020).

Miller, a civilian Air Force base employee, maintained a life insurance policy under the Federal Employees’ Group Life Insurance Act (FEGLIA). Under a divorce property settlement agreement, Miller was supposed to assign his FEGLIA benefits to his ex-wife. However, the state court order granting the divorce was never filed with his employer. Under FEGLIA’s distribution provisions, the Air Force paid Miller’s daughter, Courtenay, the life insurance proceeds following his death. His ex-wife Donna filed suit against the estate in Oklahoma court, which was later dismissed on agreement of the parties. Courtenay thereafter filed an action in federal court, seeking a declaratory judgment that she is the rightful owner of the insurance proceeds. The district court dismissed the suit for lack of federal subject matter jurisdiction, and the Sixth Circuit affirmed. Because Donna and Courtenay are both Kentucky residents, they cannot establish jurisdiction under 28 U.S.C. §1332. Jurisdiction under §1331 also does not apply because the case does not present a question of federal law. There is no express or implied cause of action under FEGLIA authorizing Donna’s suit against Courtenay. In addition, Courtenay cannot establish federal question jurisdiction on the basis that any litigation pursued against her by Donna would involve a substantial federal question.

T. Labor & Employment Law

1. Hendrickson USA, LLC v. National Labor Relations Board, 932 F.3d 465 (6th Cir. 2019).

After learning its employees were attempting to unionize, Hendrickson, an industrial plant in Lebanon, Kentucky, distributed a plant-wide letter stating any unionization would result in contract negotiations beginning “from scratch.” In addition, it showed a PowerPoint presentation to all employees outlining its negative view of unions and urging them to vote against unionization. The National Labor Relations Board (NLRB) found Hendrickson’s statements constituted unfair labor practices and ordered it to cease communications in violation of the NLRA. It also ordered Hendrickson to post public notices about employees’ rights under the NLRA. Hendrickson appealed to the Sixth Circuit, and the Board cross-appealed seeking enforcement of its order. The Court granted Hendrickson’s petition for review and denied the Board’s application for enforcement of its order. The Court disagreed with the Board’s finding that Hendrickson’s statement regarding contract

73 negotiations was coercive in violation of NLRA Section 8(a). Language that contract negotiations will begin “from scratch” is lawful if a company makes it clear that it is warning employees “about the natural give and take of the bargaining process.”48 It is coercive when it “indicates that the employer will retaliate against employees by adopting a ‘regressive bargaining posture’ during negotiations… or by ‘unilaterally discontinu[ing] existing benefits prior to negotiations’ so that employees receive only what the union can induce the company to restore.”49 Hendrickson’s letter did not promise that employees would end up with less by voting to unionize or that the company would adopt a regressive bargaining posture in response to unionization. In addition, its statements in the PowerPoint presentation that company culture would change and relationships would suffer did not constitute threats to retaliate against employees for voting to unionize. Rather, the company was lawfully “elaborating upon and summarizing [its] position on the ineffectiveness of third-party representation.”50

2. Dyer v. Ventra Sandusky, LLC, 934 F.3d 472 (6th Cir. 2019).

Ventra Sandusky maintains a no-fault attendance policy whereby employees are assessed points for absences depending on whether they call in to report and whether the employee misses an entire shift or only a portion of it. Progressive discipline is imposed at different points thresholds, and employees are terminated after receiving 11 points. Some absences, including FMLA leave, are excluded from the points system. The company also maintained a points reduction system where 30 days of perfect attendance could reduce point levels. The system did not count FMLA leave as days “worked” toward the 30 day perfect attendance streak, meaning FMLA leave reset the 30 day clock. While working for Ventra Sandusky, Dyer took intermittent FMLA leave for migraine headaches. He was not assessed any points under the system for this leave but was terminated in June 2016 for accumulating 12 points for other absences. He filed suit in federal court under the “interference theory” pursuant to 29 U.S.C. §2615(a)(1), which states it is unlawful for employers to restrain or deny the exercise or attempted exercise of FMLA rights and §2614(a)(1), which provides any eligible employee who takes leave shall be entitled upon return to be restored to the same or equivalent position of employment by the employer. The district court granted summary judgment to Ventra Sandusky, and Dyer appealed to the Sixth Circuit. The sole issue on appeal was whether Ventra Sandusky’s attendance point reduction schedule violated the FMLA by serving as a negative factor in its decision to terminate Dyer. He argued that

48 Id. at 472.

49 Id.

50 Id. at 476.

74 if Ventra Sandusky treated his FMLA leave the same as vacation, bereavement leave, or other excluded types of absences in the reduction schedule, he would have had fewer points on his record and would not have been terminated. The Court reversed, finding that a jury could reasonably find that forcing Dyer to choose between taking FMLA leave and enjoying the bargained-for terms of his employment relationship improperly interfered with his FMLA rights. The points reduction can be viewed as an employment benefit, the accrual of which must be available to an employee upon a return from leave. The Court remanded the case to the district court for further proceedings.

3. Swanigan v. FCA US LLC, 938 F.3d 779 (6th Cir. 2019).

At issue in this case was whether Plaintiffs’ second amended complaint, which alleged officials with Fiat Chrysler Automobiles bribed UAW officials in order to secure a more company-friendly collective bargaining agreement, plausibly alleged a “hybrid” §30151 claim under the Labor-Management Relations Act (LMRA). The district court held it did not and granted defendants’ motions to dismiss. The Sixth Circuit affirmed. In “hybrid” claims, plaintiffs must prove both that the employer breached the collective bargaining agreement and the union breached its duty of fair representation. The district court properly dismissed plaintiffs’ claims for failure to allege FCA breached any provision of the collective bargaining agreement.

4. Morehouse v. Steak N Shake, 938 F.3d 814 (6th Cir. 2019).

Morehouse filed suit against Steak N Shake (SNS) to recover damages based on the company’s failure to send her a COBRA notification after SNS cancelled her health insurance after she was placed on workers’ compensation and began a leave of absence. Because she was no longer receiving her normal salary, SNS began deducting contributions for Morehouse’s health insurance from her workers’ compensation checks. After workers’ compensation ended, SNS informed Morehouse that if she did not pay her insurance premiums, her coverage would be cancelled. SNS cancelled her medical, dental, and vision benefits due to nonpayment of premiums in October 2013 and eventually terminated her employment in February 2014. In its motion for summary judgment, SNS argued that there was no qualifying event leading to a loss of coverage entitling Morehouse to COBRA notice. The district court held a qualifying event occurred as a result of the reduction in Morehouse’s hours on the day following her injury, and she was entitled to a notice of her right to continue coverage under COBRA. SNS appealed, and the Sixth Circuit reversed. A reduction in hours alone is not necessarily a qualifying event; it must lead to a loss in insurance coverage, which means ceasing to be covered

51 29 U.S.C. §185.

75 under the same terms and conditions as in effect immediately before the qualifying event. The Court clarified that altering the payment method alone, as SNS did when it began deducting premiums from Morehouse’s workers’ compensation check, does not inherently change the terms and conditions of coverage and does not produce a loss in coverage. Morehouse also failed to identify any other term or condition of coverage that changed when SNS altered the contribution method. No qualifying event occurred that would trigger a mandatory COBRA notification. The Court reversed the district court’s decision in its entirety and remanded with instructions to grant SNS’s motion for summary judgment.

5. Bisig v. Time Warner Cable, Inc., 940 F.3d 205 (6th Cir. 2019).

Plaintiffs sold Insight cable services to apartment and condo buildings in Louisville. Time Warner announced it was acquiring Insight in 2011. Plaintiffs claim Time Warner induced them to stay in their positions with promises they would keep their positions with better pay. When Time Warner purchased Insight in 2012, it informed plaintiffs they must reapply for their positions and those not rehired as multi-dwelling sales representatives would be hired as sweep representatives with less pay. Plaintiffs eventually quit working for Time Warner and filed suit alleging it had broken its promises of better pay and continued employment. The district court granted summary judgment to Time Warner, and plaintiffs appealed to the Sixth Circuit, which affirmed. It found plaintiffs did not reasonably rely on Time Warner’s alleged promises of continued employment and better pay because they each signed documents informing them of their at-will status on or before the acquisition date. Under Kentucky law, a party may not rely on oral representations that conflict with written disclaimers to the contrary which the complaining party earlier specifically acknowledged in writing. In addition, Kentucky law allows employers to unilaterally modify the terms and conditions of an at-will employment relationship, prospectively, with reasonable notice to the employee. Because plaintiffs cannot establish reasonable reliance, their claims of fraudulent and negligent misrepresentation fail. Their fraudulent omission claim fails for the same reason. Because they had already acknowledged in writing they were at-will employees when Time Warner promised better pay and continued employ- ment, they cannot show the company withheld material facts but created the impression of full disclosure. The Sixth Circuit also clarified that reasonable reliance is a key element of promissory estoppel in Kentucky. For this reason, plaintiffs’ promissory estoppel claims also fail. The Court reversed the monetary sanctions the district court imposed on Time Warner for failing to introduce plaintiffs’ offer letters until two years into litigation and two weeks prior to the close of discovery. It held district courts must review a judge’s determination of harmlessness under Rule 37(c)(1) for an abuse of discretion. The district court erred by reconsidering the magistrate judge’s decision de novo and by

76 reversing that judge’s decision to deny plaintiffs’ request for monetary sanctions.

6. Babb v. Maryville Anesthesiologists, P.C., 942 F.3d 308 (6th Cir. 2019).

Babb, a certified registered nurse anesthetist, suffered from a degenerative retinal condition that made it difficult for her to read medical records. Maryville terminated her employment, alleging the termination was due to two clinical errors she made while administering anesthesia to patients. However, in an email sent to other staff members at the direction of a Maryville physician, a fellow CRNA stated Maryville fired Babb due to her worsening eyesight. Babb filed suit against Maryville after obtaining a right to sue letter from the EEOC, alleging Maryville violated the Americans with Disabilities Act which prohibits discrimination against employees “regarded as” disabled. The district court ruled Babb’s expert testimony was inadmissible and granted summary judgment to Maryville, finding there was no evidence that Maryville did not honestly believe Babb’s clinical errors rendered her unfit to practice or that the real reason for her termination was discrimination based on her perceived visual disability. On review, the Sixth Circuit held the district court erred in excluding the proffered expert testimony in its entirety and stated it would consider the admissible portions of that evidence in deciding the merits of Babb’s claim. The Court held that to state the threshold condition of a “regarded as” ADA claim, plaintiffs only need to show their employer believed they had a “physical or mental impairment” as that term is defined in the federal regulations. The employer may then rebut this showing by providing objective evidence that the impairment is or would be both transitory and minor. The plaintiff must still show that the employer discharged or took other adverse employment action against them because of their actual or perceived physical or mental impairment. This can be done through direct evidence or circumstantial evidence under the McDonnell-Douglas burden-shifting framework. The Sixth Circuit reversed the grant of summary judgment for Maryville, finding there were genuine issues of material fact regarding whether Maryville regarded Babb as disabled and whether its stated reasons for terminating her were a pretext for firing her based on her perceived disability.

7. Morrissey v. Laurel Health Care Co., 946 F.3d 292 (6th Cir. 2019).

Morrissey’s doctor placed her under a 12-hour work restriction for back issues in 2012. Around the same time, the nursing home where she worked informed staff it would not provide accommodations for medical conditions unless they stemmed from a work-related injury. Her employer denied this blanket policy existed. In 2015, Morrissey took FMLA leave for carpal tunnel surgery. When she returned to work, she informed her employer she had no restriction related to the surgery but still had a 12-hour

77 work restriction due to her back. There was no evidence in her personnel file that this restriction was ever lifted. Later that year, the nursing home transitioned Morrissey’s unit to 12-hour shifts and began requiring those on shift to remain at work if the following shift was not fully staffed. The employer determined who was required to stay on a rotating basis. In 2016, Morrissey was told to work a 16-hour shift because another nurse had called off work. She alleged it was not her turn to be mandated, but her supervisor stated she had to stay. Morrissey left before her shift ended and did not return to work. She filed suit against the nursing home under the ADA for discrimination, failure to accommodate, and retaliation. The district court granted summary judgment to the employer, holding Morrissey had not established she was disabled, she did not suffer an adverse employment action, the employer had not failed to accommodate her, and did not retaliate against her. Morrissey appealed, and the Sixth Circuit reversed. It held the district court erred in requiring Morrissey to prove she suffered an adverse employment action to pursue a claim for failure to accommodate. This is not required under the direct evidence test. It also erred on the grounds it used to support its holding that Morrissey is not disabled. She submitted sufficient evidence to show she is substantially limited in her ability to walk, stand, lift, or bend. She also offered sufficient evidence to survive summary judgment that her employer failed to accommodate her and that she was constructively discharged. The Court reversed the district court’s grant of summary judgment to the defendant on all of Morrissey’s claims and remanded the case for further proceedings.

8. Lee v. Ohio Educ. Ass’n, 951 F.3d 386 (6th Cir. 2020).

Lee, a public school teacher, filed suit to obtain a refund of “fair share” fees she was required to pay to the local teachers’ union as a non-member. Two days after she filed suit, the U.S. Supreme Court held such fees violate the First Amendment as a form of compelled speech in Janus v. AFSCME, Council 31.52 The district court granted the union’s motion to dismiss, holding that as a private actor sued under 42 U.S.C. §1983, the union was entitled to rely on its good faith in following existing Ohio law and prior Supreme Court precedent which permitted fair share fees. The Sixth Circuit affirmed. It also affirmed the district court’s dismissal of Lee’s state law conversion claim.

9. Fisher v. Nissan N.A., Inc., 951 F.3d 409 (6th Cir. 2020).

Fisher, who worked on Nissan’s factory floor, went on extended leave for kidney disease and an eventual transplant. He was still recovering when he returned to work and experienced attendance issues. When he received a final warning regarding his attendance, he left work and did not return. He filed suit in federal court, claiming

52 138 S.Ct. 2448, 2459-60 (2018).

78 Nissan failed to accommodate his disability and engage in the interactive process in violation of the ADA. The district court granted summary judgment to Nissan, and Fisher appealed. Finding that Fisher’s claim must be analyzed under the direct evidence framework, the burden is on Fisher to establish he is disabled, otherwise qualified for the position despite his disability without an accommodation from the employer, with an alleged essential job requirement eliminated, or with a proposed reasonable accommodation. The parties did not dispute that Fisher is disabled. The Court found that Fisher’s absences do not in and of themselves render him unqualified for his position. Instead, the focus is on whether those absences could have been avoided by a reasonable accommodation. Fisher identified three potential accommodations that could have helped him transition back to full time work. The Court held that because a reasonable factfinder could find Fisher was qualified for a vacant inspection position he requested and was denied assistance in identifying other positions, Nissan is not entitled to summary judgment on the failure to accommodate claim. Nissan is also not entitled to summary judgment on Fisher’s claim it failed to engage in the interactive process because a reasonable factfinder could conclude Nissan bears the responsibility for its failure to respond to Fisher’s renewed requests for accommodation. The Sixth Circuit affirmed the district court’s grant of summary judgment to Nissan on Fisher’s claim of intentional infliction of emotional distress claim under state law.

10. Torres v. Vitale, 954 F.3d 866 (6th Cir. 2020).

Torres, a waiter, alleged Vitale’s Italian Restaurant required workers to track their time on two time cards, one reflecting the first 40 hours of work, and the other reflecting overtime hours. The employees were paid by check for the first 40 hours and by cash for any overtime. The pay for overtime was at a straight time rate, rather than time and a half. Torres filed suit under RICO.53 The district court dismissed his claim, holding the remedial scheme in the Fair Labor Standards Act (FLSA) precluded the RICO claim. The Sixth Circuit affirmed with regard to Torres’ claims based on lost wages from the alleged wage theft scheme. The FLSA precludes RICO claims to the extent that the damages sought are for unpaid minimum or overtime wages. It reversed as to his claim that Vitale’s is liable under RICO for failure to withhold taxes, holding the FLSA does not preclude RICO claims when a defendant commits a RICO-predicate offense giving rise to damages distinct from lost wages covered under the FLSA. The Court reversed the district court’s grant of Vitale’s motion to dismiss and remanded for a determination if Torres has adequately pleaded a RICO claim with damages distinct from his wage and hour claims.

53 18 U.S.C. §1961 et seq.

79 11. Queen v. City of Bowling Green, 956 F.3d 893 (6th Cir. 2020).

Queen worked for the City of Bowling Green as a firefighter and was subjected to harassment by his co-workers and supervisors because he is an atheist. After his resignation, he filed suit in state court alleging claims under the Kentucky Civil Rights Act (KCRA) for hostile work environment based on religion and gender and constructive discharge and retaliation along with FMLA violations. Defendants moved the suit to federal court and moved for summary judgment based on qualified immunity under Kentucky law. They also claimed they were entitled to an Ellerth/Faragher defense under the KCRA as a matter of law, and as a result, the City could not be vicariously liable for its employees’ actions. The district court granted defendants’ summary judgment on the hostile work environment based on gender claims under the KCRA and FMLA and to Queen’s supervisor Rockrohr on the claim for hostile work environment based on religion under the KCRA. The district court denied summary judgment to defendants on Queen’s constructive discharge and retaliation claims and to the City on Queen’s claim for hostile work environment based on religion under the KCRA and the City’s entitlement to an Ellerth/Faragher defense. Defendants filed an interlocutory appeal in the Sixth Circuit. It affirmed the district court’s holding that the City is not entitled to immunity from the hostile work environment based on religion and retaliation claims under Kentucky’s Claims Against Local Governments Act because they are statutory claims, not tort claims. Those claims may proceed on remand. It also affirmed the district court’s holding that Rockrohr is not entitled to qualified immunity with respect to Queen’s retaliation claim. A reasonable jury could conclude his conduct after receiving Queen’s harassment complaint, which included a suggestion that Queen find employment elsewhere, amounted to a materially adverse employment action.

U. Qualified Immunity

1. Vanderhoef v. Dixon, 938 F.3d 271 (6th Cir. 2019).

Vanderhoef, a teenager, lost control of his car while speeding and crashed into a vehicle driven by Dixon, an off-duty, part-time reserve police officer. Following the crash, Dixon exited his vehicle with his personal handgun drawn and yelled at Vanderhoef and the other two teenagers in his car to get down on the ground. He kept his gun pointed at Vanderhoef’s head during this exchange and held the teenagers at gunpoint for nearly two minutes. After a bystander intervened and called the police, Dixon told the teenagers they could get up and holstered his gun. He never identified himself as an off-duty police officer. Vanderhoef filed suit in federal district court alleging deprivation of his rights under 42 U.S.C. §1983 and assault and false imprisonment under Tennessee state law. At trial, Dixon moved for a directed verdict on qualified immunity grounds, which the district court took under

80 advisement. The jury found for Vanderhoef, and Dixon renewed his claim for qualified immunity in a motion for judgment as a matter of law. The district court granted the motion and dismissed all three of Vanderhoef’s claims. It held Dixon violated Vanderhoef’s constitutional rights but the law was not clearly established to put him on notice that his conduct was unlawful. Vanderhoef appealed, and the Sixth Circuit reversed. It held the facts established at trial adequately established a violation of plaintiff’s constitutional rights to be free from excessive force and unreasonable seizure under the Fourth Amendment. In addition, at the time of the confrontation, Dixon should have been on notice that his conduct was unreasonable under the Fourth Amendment. A plain-clothes officer may not hold an unarmed citizen suspected of a mere traffic violation at gunpoint without additional provocation. The district court’s ruling in granting Dixon’s motion for judgment as a matter of law was in error. The Sixth Circuit remanded for reentry of a judgment consistent with the jury’s verdict.

2. Ermold v. Davis, 936 F.3d 429 (6th Cir. 2019).

Plaintiffs, two same-sex couples, filed suit against county clerk Davis in her official and individual capacities after she refused to issue them licenses to marry. They also sought damages for her violation of their right to marry. Davis moved to dismiss the complaints, claiming sovereign immunity shielded her from suit in her official capacity and qualified immunity shielded her from suit in her individual capacity. The district court found for plaintiffs on the qualified immunity issue and for Davis on the sovereign immunity issue. Both parties appealed to the Sixth Circuit, which affirmed. Because Davis acted on Kentucky’s behalf when issuing and refusing to issue marriage licenses, she is entitled to sovereign immunity in her official capacity. Davis is not entitled to qualified immunity in her individual capacity because plaintiffs had a clearly established right to marry that she should have known required her to issue marriage licenses to them.

3. Reich v. City of Elizabethtown, KY, 945 F.3d 968 (6th Cir. 2019).

On the way to a mental health treatment facility, Joshua Blough jumped out of his fiancée’s car holding a knife and began walking through traffic and an adjoining neighborhood. Police intervened and shot Blough when he refused commands to drop the knife while approaching the officers. Blough’s estate filed suit under federal and state law claiming officers used excessive force by shooting him. The district court granted summary judgment to defendants, holding they were entitled to qualified immunity for their actions. The Sixth Circuit affirmed. An officer’s use of deadly force is objectively reasonable if the officer has probable cause to believe the suspect poses a threat of serious physical harm to the officer or others. The totality of the circumstances in this case gave officers probable cause Blough posed a threat of serious physical harm to them and

81 neighborhood residents. The officers were also entitled to qualified immunity under Kentucky law against plaintiffs’ state law claims. The Court held the district court did not err in declining to consider an affidavit by Blough’s fiancée filed in response to the summary judgment motion because it contradicted her sworn deposition testimony.

4. Schulkers v. Kammer, 955 F.3d 520 (6th Cir. Mar. 30, 2020).

Prior to her giving birth, a sample of Holly Schulker’s urine produced a presumptive positive for opiates. She did not consent to the testing and was not told it would be performed. Following the birth, when questioned by the hospital’s social worker, Holly denied taking drugs and stated she had eaten chips containing poppy seeds and taken prescription cough medicine before entering the hospital. Prior to receiving results from a test of the baby’s umbilical cord, the social worker charted that Holly had a positive drug screen and indicated she had a substance abuse disorder even though all of her previous labs had been negative and she had no history of drug use. She also reported the positive screen to the Kentucky Cabinet for Health and Family Services (CHFS). Two CHFS social workers visited Holly the same day and presented her with a document titled “Prevention Plan” and allegedly told her that if she did not follow the plan, all of the children in her home would be removed. It also required Holly to have supervised contact with all of her children by approved supervisors until notified by CHFS. A subsequent urine test yielded negative results, and doctor informed Holly he thought the initial test was a false positive. The umbilical cord test was also negative for illegal substances. Despite this, CHFS approved discharge of the baby only under supervision of her father and pursuant to the Prevention Plan. After the family returned home, two CHFS social workers interviewed Holly’s other children at their school without a warrant or their parents’ consent. CHFS also denied requests by Holly’s legal counsel to issue a finding of “unsubstantiated” and close the case. The CHFS social workers refused to lift the prevention plan even after being told to do so by a supervisor following Holly’s negative hair follicle test. The prevention plan continued to be in place for the next six weeks. The case was not labeled as “unsubstantiated” and closed until almost two months after the child’s birth. Holly filed suit under 42 U.S.C. §1983, arguing CHFS employees violated her children’s right to be free from unreasonable seizures under the Fourth Amendment and her rights under the Fourteenth Amendment by imposing the prevention plan without any procedural protections even after there was no reasonable suspicion of abuse or neglect. She also alleged defendants’ actions were taken in bad faith and for the purpose of obtaining federal reimbursement funds under Title IV-E.54 The district court denied defendants’ motion for summary judgment based on qualified immunity, and defendants appealed to the Sixth

54 42 U.S.C. §672 et seq.

82 Circuit. The Court held defendants are entitled to qualified immunity on plaintiff’s Fourth Amendment claims because plaintiff did not have a clearly established right to be free from warrantless, in- school interviews by social workers investigating child abuse at the time of events in this case. A reasonable social worker in defendants’ position would not have known plaintiffs had a Fourth Amendment right to be free from in-school interviews in this case. However, the Court held that the alleged conduct in this case was unconstitutional.

“[A]t a minimum, social workers investigating child abuse must have some ‘definite and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger’ before seizing a child from his or her classroom without a warrant and when no other exception to the warrant requirement applies.”55

It held defendants are not entitled to qualified immunity on plaintiff’s Fourteenth Amendment claims. Plaintiff’s right to make decisions regarding the care, custody and control of her children was clearly established at the time of defendants’ conduct. Defendants were on fair notice that it would be unlawful to deprive her of her liberty interest in the companionship of her children without plausible suspicion of child abuse. Plaintiff demonstrated triable issues of fact regarding whether she knowingly and voluntarily entered into the prevention plan and whether each defendant’s conduct violated her substantive and procedural due process rights. The Sixth Circuit remanded the case for further proceedings on the Fourteenth Amendment substantive and procedural due process claims.

5. Hicks v. Scott, 958 F.3d 421 (6th Cir. 2020).

Hicks was killed by Cincinnati police after they entered his second- floor apartment through an unlocked door. The administrator of his estate filed suit against the officers under 42 U.S.C. §1983 for unlawful entry, excessive force, and deliberate indifference to a serious medical need and state law claims for wrongful death and battery. The district court entered summary judgment for defendants based on federal and state qualified immunity. On appeal, the Sixth Circuit reversed in part, holding the district court erred by granting qualified immunity to Scott, Moore, and Schneider on the unlawful entry claim. The district court erred in finding Hicks did not have an objectively reasonable expectation of privacy in the foyer, stairwell, and second-floor landing of his duplex’s rear unit. The record contained evidence that his apartment comprised the entire second floor of the building, and no portion of his apartment was accessible to the public or shared with the first-floor apartment. The Sixth Circuit reversed the district court, holding defendants

55 Id. at 534, quoting Doe v. Heck, 327 F.3d 492, 515 (7th Cir. 2003).

83 violated Hicks’ right to be free from unreasonable searches. There was also genuine issue of material fact as to whether the defendants should have known they had entered a private residence. Evidence showed the exterior door the officers used to enter the apartment opened into the interior of Hicks’ apartment and not a common hallway. The exterior door was also closed, had two locks, contained a privacy curtain, and was fortified by metal bars. The Sixth Circuit affirmed the district court’s grant of qualified immunity to Scott on plaintiff’s excessive force claim, holding Scott’s use of deadly force was an objectively reasonable response to having a rifle pointed at her face from five feet away. It also affirmed the district court’s grant of qualified immunity to the officers on plaintiff’s deliberate indifference claim. The Court remanded plaintiff’s municipal liability and wrongful death claims for reconsideration consistent with its opinion.

6. Wright v. City of Euclid, 2020 WL 3278698 (6th Cir. Jun. 18, 2020).

Wright filed a §1983 claim for unconstitutional excessive force, false arrest, malicious prosecution, and municipal liability after police arrested him during a drug investigation. Officers in plain clothes approached his vehicle while he was parked in a driveway after saying hello to a friend. Wright, thinking he was being robbed, at first tried to back up the vehicle to get away. When he realized the men were police, he stopped the car and put up his hands. Wright, who had just had abdominal surgery, had trouble complying with officers’ demands to exit the car due to the staples in his stomach and a colostomy bag. The officers pepper-sprayed and tasered Wright before forcing him to the ground. The officers conceded they did not have probable cause to arrest Wright until after they believed he was resisting and they had not seen him engage in any illegal activity prior to his arrest apart from an alleged failure to use his turn signal. The officers designated his arrest as stemming from a drug investigation even though he had no drugs on him when arrested, which resulted in increased searches prior to his release from custody. All charges were dropped seven months later. The Sixth Circuit reversed the district court’s grant of summary judgment to both officers based on qualified immunity on Wright’s excessive force, false arrest, extended-detention, and malicious prosecution claims. It also reversed the district court’s grant of summary judgment to the city on the issue of municipal liability under §1983 and on Wright’s Monell claim based on failure to train or supervise. The Court noted that the city’s defensive tactics training for officers included links to a Chris Rock video containing multiple clips of officers beating African-American suspects and a PowerPoint presentation containing a cartoon displaying an officer in riot gear beating a prone and unarmed civilian with a club.

84 V. RLUIPA

Fox v. Washington, 949 F.3d 270 (6th Cir. 2020)

Plaintiffs, prisoners in Michigan, filed suit under the Religious Land Use and Institutionalized Persons Act of 200056, arguing the Michigan Department of Corrections’ denial of their request to recognize their Christian Identity religion denied them of their right to group worship and baptism. The district court held the Department’s decision did not substantially burden plaintiffs’ exercise of their religion under the second prong of the three-step analysis for evaluating RLUIPA claims. The Sixth Circuit held the district court improperly considered the Department’s interest in safety and security when it determined the Department had not substantially burdened plaintiffs’ exercise of religion. In addition, the plaintiffs provided evidence they cannot worship with other groups in the prison according to their sincerely held beliefs. “Forcing plaintiffs to choose between attending services on the ‘wrong’ days with individuals whose beliefs they find ‘obnoxious’ and attending no group worship service at all places ‘substantial pressure on [them] to modify [their] behavior and to violate [their] beliefs.”57 The Sixth Circuit remanded the case to the district court to consider step three of the RLUIPA analysis in the first instance, where the Department must prove that imposition of the substantial burden was in furtherance of a compelling governmental interest and that it used the least restrictive means of furthering that interest.

W. Sentencing

1. U.S. v. Gillispie, 929 F.3d 788 (6th Cir. 2019).

Defendant was indicted on one count of distributing fentanyl to a person who suffered a stroke and entered a coma after taking the drug. Defendant pleaded guilty to the crime, and the district court increased his offense level by six points based on U.S.S.G. §5K2.2, which allows for sentencing departures when significant physical injury results from the crime. The increase in offense level increased Defendant’s Guidelines range from 51 to 63 months, and the district court sentenced him to 51 months in prison. Appealing his sentence, Defendant argued the district court erred by failing to consider the victim’s choice to engage in using street drugs. The Sixth Circuit upheld Defendant’s sentence, noting that under the Guidelines, it is the defendant’s intent or knowing risk rather than the victim’s that is relevant. The evidence showed Defendant sold the victim fentanyl after telling him it was heroin, and the district court did not abuse its discretion in determining Defendant knowingly risked significant physical injury to the victim.

56 42 U.S.C. §2000cc et seq.

57 Id. at 280.

85 2. U.S. v. Hennessee, 932 F.3d 437 (6th Cir. 2019)

The Sixth Circuit held that a sentencing court may consider both elemental and non-elemental facts contained in Shepherd- approved documents to determine if prior felonies were committed on different occasions for purposes of the Armed Career Criminal Act (ACCA). In this case, the district court refused to consider the facts as outlined during Hennessee’s plea colloquy, limiting its analysis to only elemental facts in Shepard58 documents. It concluded the government failed to prove Hennessee committed his two Tennessee offenses on different occasions and declined to apply the ACCA enhancement to his sentence for his conviction under 18 U.S.C. §922(g)(1). There is no limitation on a sentencing court’s consideration of non-elemental facts like times, locations, and victims contained within Shepherd documents. Based on the facts contained in Hennessee’s Shepherd-approved documents from his Tennessee convictions, the Sixth Circuit held the offenses were committed on different occasions, and Hennessee is subject to the ACCA sentencing enhancement. The Court vacated his sentence and remanded to the district court for resentencing with instructions to apply the ACCA enhancement.

3. U.S. v. Boucher, 937 F.3d 702 (6th Cir. 2019).

Boucher pleaded guilty to assaulting a member of Congress in violation of 18 U.S.C. §351(e) after an incident in which he attacked his neighbor, Senator Rand Paul. The district court sentenced him to 30 days in prison, 100 hours of community service, one year of supervised release, and a $10,000 fine. The Guidelines range for the offense was 21 to 27 months in prison. In deciding the sentence, the district court observed that the incident was part of an ongoing dispute between neighbors and Boucher had an excellent personal background with no criminal history. The government appealed, arguing the sentence was substantively unreasonable. The Sixth Circuit vacated Boucher’s sentence and remanded for re- sentencing. The Court found the district court failed to provide a sufficiently compelling reason for the dramatic downward variance in this case. It noted that it is improper for district courts to consider a defendant’s likely state court sentence as a factor in determining a federal sentence.

4. U.S. v. Ligon, 937 F.3d 714 (6th Cir. 2019).

Ligon used a friend’s identification to purchase a gun and pleaded guilty to making a false statement in acquisition of a firearm. During

58 Shepherd v. U.S., 544 U.S. 13 (2005), held that sentencing courts may only review Shepherd- approved documents including the charging document, written plea agreement, transcript of plea colloquy, jury instructions, judgment of conviction, or other record of comparable findings of fact adopted by the defendant when entering a guilty plea to determine if his or her prior crimes satisfy the ACCA. See U.S. v. King, 853 F.3d 269 (2017).

86 plea negotiation, the government agreed to argue for a sentence in the range stated in the plea agreement. However, at the sentencing hearing, the government argued for a sentence within the Guidelines range contemplated by the probation office, which applied the sentencing enhancement in U.S.S.G. §2K2.1(b)(6)(B). The district court found the enhancement applied and sentenced her to 35 months in prison. Ligon appealed, arguing the government breached the plea agreement and the district court erred in applying the enhancement. The Sixth Circuit held the government breached the plea agreement by arguing for a higher sentence than contemplated by the plea agreement. “If the government breaches a plea agreement, a defendant is entitled to relief regardless of whether the district court was ultimately influenced by the breach and regardless of whether the breach was inadvertent.”59 The Court vacated Ligon’s sentence and remanded for resentencing before a different district judge.

5. U.S. v. Owen, 940 F.3d 308 (6th Cir. 2019).

Owen pleaded guilty to attempt to manufacture methamphetamine and discharging a firearm in furtherance of a drug offense after police pulled him over and found items related to the manufacture of methamphetamine in a bag he had been transporting in his car. One of the passengers at the time of his arrest was a seven-year- old child. The presentence report increased his offense level under U.S.S.G. §2D1.1(b)(14)(D) on the grounds his methamphetamine manufacturing offense created a substantial risk of harm to the life of a minor. Taking into account the 120-month mandatory minimum sentence for discharging a firearm, Owen’s sentencing range was 250 to 282 months in prison. The district court applied the sentencing enhancement, finding that while the quantity of chemicals was low, storing the explosive chemicals loosely in a moving vehicle was an inherently dangerous act raising the possibility of extreme injury to his minor passenger. The district court sentenced Owen to 250 months in prison. The Sixth Circuit affirmed. The district court’s factual findings were not clearly erroneous, and the court properly applied Guidelines §2D1.1(b)(14)(D). Acknowledging this was a close case, the Court noted that while an explosion in the vehicle was not inevitable, if it had happened, it would have caused grave harm. A preponderance of evidence supported application of the §2D1.1(b)(14)(D) enhancement.

6. U.S. v. Beamus, 943 F.3d 789 (6th Cir. 2019).

A jury convicted Beamus of conspiracy to possess 6.8 grams of crack cocaine with intent to distribute and related firearms offenses. Because of his criminal history, the career offender guideline U.S.S.G. §4B1.1 applied, making his sentencing range 360 months

59 Id. at 718-19.

87 to life. In addition, because the government filed an information under 21 U.S.C. §851, his criminal history came into play when calculating his statutory sentencing range, making his sentence under 21 U.S.C. §841 120 months to life. The district court sentenced him to 420 months, with 360 months for the conspiracy to possess crack cocaine conviction and an additional 60 months served consecutively for a related firearms offense. Since that time, the Sentencing Commission lowered the guidelines range for crack cocaine offenses, and the Fair Sentencing Act modified the statutory range for crack cocaine convictions. In addition, the First Step Act of 2018 allowed courts to apply §2(a) of the Fair Sentencing Act retroactively. Beamus requested resentencing under the First Step Act, and the district court denied his request without reaching the merits. It held because the Guidelines classify Beamus as a career offender, he is ineligible for a sentence reduction under the Act. Beamus appealed to the Sixth Circuit, and the government conceded error. The Court held that Beamus is eligible for resentencing under the Act because he was convicted of an offense for which the Act modified the statutory penalty, and he has not received a previous reduction under the Act or lost on such a motion on the merits. However, the First Step Act leaves it to the district court’s discretion on whether Beamus is entitled to resentencing. The Court remanded to the district court to address his motion on the merits.

7. U.S. v. Demma, 948 F.3d 722 (6th Cir. 2020).

Demma pleaded guilty to possessing child pornography. The presentence report recommended a sentence of 78 months in prison. After hearing testimony from Demma’s parents and treating psychologists, the district court rejected the recommended Guidelines sentence and sentenced him to only one day for time already served. It also required Demma to undergo 10 years of supervised release and pay $45,000 in restitution to the victims. The government appealed, arguing the one-day sentence was substantively unreasonable under 18 U.S.C. §3553(a). The Sixth Circuit vacated Demma’s sentence and remanded for resentencing, holding the district court weighed some factors under §3553(a) too heavily and gave insufficient weight to others in determining his sentence. The Court also rejected Demma’s argument that the district court adequately explained its disagreement with the Guidelines on policy grounds and that its variance was justified on that basis.

8. U.S. v. Sands, 948 F.3d 709 (6th Cir. 2020).

U.S.S.G. §2K2.1(b)(4)(B) outlines a four-level sentence enhancement for possessing a firearm with an altered or obliterated serial number. In this case, the Sixth Circuit clarified the standard for the Guideline’s application, holding a serial number is “altered or obliterated” when it is materially changed in a way that makes

88 accurate information less accessible.60 A serial number that has been defaced but is still visible to the naked eye is not altered or obliterated under §2K2.1(b)(4)(B). The Court vacated Sands’ sentence and remanded for resentencing.

9. U.S. v. Hollon, 948 F.3d 753 (6th Cir. 2020).

The Sixth Circuit held that engaging in a child exploitation enterprise is a “covered sex crime” for purposes of the U.S.S.G. §4B1.5(b) enhancement. It affirmed the district court’s judgment sentencing Hollon to 270 months in prison and a 15-year term of supervised release.

10. U.S. v. Woods, 949 F.3d 934 (6th Cir. 2020).

Woods pleaded guilty to numerous drug crimes in 2001. In 2008, the district court reduced his sentence from 181 months to 120 months with a five-year period of supervised release. While on release in 2015, he tested positive for cocaine and marijuana and pleaded guilty to new state felony charges. The federal district court revoked his supervised release and imposed a 37-month sentence. Woods filed a pro se motion to reduce his sentence pursuant to the First Step Act of 2018. The Act allows courts to apply §2(a) of the Fair Sentencing Act retroactively. The district court denied his motion but ordered the probation officer to file a memorandum of recalculation. The probation officer found Woods was not entitled to a sentence reduction. The district court denied a sentence reduction, and Woods appealed to the Sixth Circuit, which affirmed. The Court found Woods is eligible for resentencing under the First Step Act because his current 37-month sentence relates to his original offense under 21 U.S.C. §841(a)(1), a First Step Act covered offense. However, Woods was not entitled to resentencing, and the district court did not err in denying him a sentence reduction. The district court took into account that he had already overserved his original sentence but found that the felony crimes Woods committed on supervised release and his ongoing pattern of drug involvement and weapon possession indicated the original sentence was insufficient. The district court also did not put too much emphasis on Woods’s state-court convictions.

11. U.S. v. Hamm, 952 F.3d 728 (6th Cir. 2020).

Hamm and his roommate, Myers, purchased fentanyl in Ohio from Shields. Myers sold three packets to a man who later died. Following her arrest, she smuggled the drugs into jail, where three of her cellmates also overdosed but survived. Myers thereafter committed suicide. A jury convicted Hamm and Shields of conspiracy to distribute controlled substances and distributing carfentanil. It applied a statutory sentencing enhancement for

60 See U.S. v. Carter, 421 F.3d 909, 916 (9th Cir. 2005).

89 distribution resulting in death or serious bodily injury under 21 U.S.C. §841(b)(1)(C), resulting in a mandatory minimum sentence of 20 years for Hamm and a mandatory life sentence for Shields, who had a prior felony drug conviction. Defendants appealed to the Sixth Circuit, which affirmed their convictions but vacated their sentences based on a misstatement of law in the jury instructions regarding the sentencing enhancement. Under U.S. v. Swiney,61 the death or injury enhancement only applies to defendants who were part of the distribution chain to the overdose victim. The jury instructions in this case omitted this limitation. The Sixth Circuit remanded for a new trial solely on the application of the death or injury enhancement to defendants’ convictions.

12. U.S. v. Armes, 953 F.3d 875 (6th Cir. 2020).

Armes pleaded guilty to five counts of producing, two counts of distributing, and one count of possessing child pornography. He previously pleaded guilty to two counts of third-degree rape under Kentucky state law in 2005. The district court found this conviction qualified Armes for the sentencing enhancement in 18 U.S.C. §2251(e) and §2252A(b)(1)-(2). The Guidelines recommended the maximum sentence of 350 years. The government asked for 75 years, and the district court sentenced him to 50 years. Armes appealed his sentence to the Sixth Circuit arguing his Kentucky rape convictions do not trigger the sentencing enhancement and his 50-year sentence is substantively unreasonable. The Sixth Circuit affirmed. It first held that courts may determine the elements of a prior conviction based on a presentence report’s undisputed characterization of relevant Shephard62 material. Courts may use a presentence report only when the relevant part of the report is undisputed, it characterizes an underlying state court record, and the underlying record is itself acceptable Shephard material. The presentence report may only be used to determine the elements of the prior conviction. In this case, Armes’ presentence report allowed the court to determine he was indicted for and pleaded guilty to having sex with someone under age 16 when he was 21 or older, a crime that categorically qualifies for the sentencing enhancement. The Court noted that each version of Kentucky third-degree rape that existed in 2005 qualifies for the sentencing enhancement. It also rejected Armes’ claim his sentence was substantively unreasonable.

13. U.S. v. Foreman, 958 F.3d 506 (6th Cir. 2020).

Foreman moved the district court for a sentence reduction pursuant to the First Step Act in 2018. The district court granted his motion in part, holding he was not entitled to a plenary resentencing under

61 203 F.3d 397, 406 (6th Cir. 2000).

62 Shepard v. U.S., 544 U.S. 13 (2005).

90 the Act and declining to revisit his career offender status or hold an in-person hearing. The district court reduced his sentence to 232 months, 172 months on each drug offense to run concurrently and the mandatory consecutive 60 months on the firearms offense. It left all other terms of the original sentence intact, including Foreman’s five years of supervised release. Foreman appealed, and the Sixth Circuit affirmed. Defendants eligible for relief under §404 of the First Step Act are not entitled to a plenary re- sentencing.63 The Court also held that an allegation of unreasonableness in a First Step Act proceeding constitutes a cognizable “violation of law” that is reviewable under 18 U.S.C. §3742(a). In this case, the district court properly considered what Foreman’s Guidelines range would have been if the Act had been in effect when he was sentenced and appropriately varied downward from that range. The district court did not err when it refused to reduce Foreman’s term of supervised release from five years to four. It was not required to reduce his term of supervised release because only the minimum term was affected by the First Step Act. The five-year term was still within the applicable statutory range, and the district court retains discretion to deny an otherwise eligible defendant any relief under the Act.

14. U.S. v. Boulding, 2020 WL 2832110 (6th Cir. Jun. 1, 2020).

This appeal involved two issues of first impression in the Sixth Circuit: 1) does eligibility for resentencing under the First Step Act turn on the statute of conviction rather than a defendant’s specific conduct; and 2) whether the process a district court must afford an eligible defendant includes an opportunity to present objections. The Court held that eligibility for resentencing under the Act is a categorical inquiry governed by the statute of conviction. In addition, because eligible defendants are entitled to accurate amended guideline calculations and renewed consideration of the §3553(a) factors, district courts must give those seeking to raise objections an opportunity to do so.

15. U.S. v. Hill, 2020 WL 3456697 (6th Cir. Jun. 25, 2020).

The Sixth Circuit held the robbery guideline in U.S.S.G. §2B3.1(b)(4)(A) (2018), which enhances the base offense level by four if a victim was abducted to facilitate commission of the offense, generally applies if the robber abducts his victim to a location that is different from the place being robbed. In the instant case, Hill and the other robbers only moved the victims from the cellphone store’s floor to a back room, where they bound their wrists and ankles with zip ties. Instead, the district court should have applied a two-level enhancement under §2B3.1(b)(4)(B), which applies when robbers have physically restrained their victims.

63 See U.S. v. Alexander, 951 F.3d 706 (6th Cir. 2019) (per curium order).

91 X. Social Security

1. Emard v. Commissioner of Social Security, 953 F.3d 844 (6th Cir. 2020).

Emard filed for Title II benefits in 2012 following a motorcycle accident in 2010, claiming a disability on-set date of October 1, 2012 and a date last insured of September 30, 2015. After his application was initially denied, he requested his claim be heard by an ALJ. Analyzing the claim under the five steps outlined in 20 C.F.R. §404.1520(a)(4), the ALJ determined Emard had not engaged in substantial gainful activity during his insured period. On step two, she found his degenerative disc disease, asthma, obstructed sleep apnea, and anxiety and depression were severe impairments, but his other ailments were only mild impairments. On step three, she found none of Emard’s impairments met the criteria of any listed impairment. She also found he had the residual functional capacity to perform sedentary work as defined in 20 C.F.R. §404.1567(a) with limitations. On step four, she found he could not perform past relevant work, and on step five, found he could perform jobs that existed in significant numbers in the national economy. As such, she found Emard was not disabled. The district court affirmed the ALJ’s denial of disability benefits, and Emard appealed to the Sixth Circuit, which also affirmed. It held the ALJ did not err in discounting a doctor’s opinion from 2017 because the opinion was offered after Emard’s last date insured and did not relate back to the insured period. The ALJ also complied with the requirement that she view Emard’s impairments in combination rather than individually and consider his ability to work on a sustained basis.

2. Babcock v. Commissioner of Social Security, 959 F.3d 210 (6th Cir. 2020).

The Sixth Circuit affirmed the district court’s holding that a federal civil-service pension based on work as a National Guard dual-status technician does not qualify as “a payment based wholly on service as a member of a uniformed service” under the Social Security Act.

III. UNITED STATES SUPREME COURT CASES

A. Appellate Procedure

U.S. v. Sineneng-Smith, 140 S.Ct. 1575 (2020)

Respondent was convicted of two counts of violating 8 U.S.C. §1324(a)(1)(A)(iv) and (B)(i), which make it a federal felony to encourage or induce aliens to enter or reside in the U.S. knowing or in reckless disregard of the fact that their entry or residence is or will be in violation of the law with an enhanced penalty if it is done for commercial advantage or private financial gain. On appeal, respondent argued the provisions do not

92 cover her conduct and that they violate the Petition and Free Speech Clauses in the First Amendment as applied. Rather than adjudicating the case as presented by the parties, the Ninth Circuit named three amici and invited them to brief a question never raised by the parties: whether the statute is overbroad under the First Amendment. The Ninth Circuit then held that the statute is unconstitutionally overbroad. The Supreme Court granted certiorari, vacated the Ninth Circuit’s decision and remanded for reconsideration. It held the Ninth Circuit’s drastic departure from the principle of party presentation constituted an abuse of discretion.

B. Arbitration

GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S.Ct. 1637 (2020)

The Court held the Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not conflict with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories.

C. Bankruptcy Law

Ritzen Group, Inc. v. Jackson Masonry, LLC, 140 S.Ct. 582 (2020)

The Court held a bankruptcy court’s order unreservedly denying relief from the automatic stay constitutes a final, immediately appealable order under 28 U.S.C. §158(a).

D. Civil Rights

1. Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020).

Three consolidated cases each involved an employer that allegedly fired a long-term employee for being homosexual or transgender. Each employee filed suit alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held Title VII does not prohibit employers from firing employees for being gay and dismissed Mr. Bostock’s suit as a matter of law. The Second and Sixth Circuits allowed the claims of Mr. Zarda and Ms. Stephens to proceed. The Supreme Court reversed the Eleventh Circuit, holding an employer who fires an individual merely for being gay or transgender violates Title VII. An employer violates Title VII when it intentionally fires an individual employee based in part on sex. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently based on sex, an employer who intentionally penalizes an employee for being homosexual or transgender violates Title VII.

93 2. Comcast Corp. v. National Association of African-American-Owned Media, 140 S.Ct. 1009 (2020).

Entertainment Studios Network (ESN) wanted its television programs carried by Comcast, which refused citing lack of programming demand and bandwidth constraints. ESN filed suit, alleging Comcast violated 42 U.S.C. §1981, which guarantees all persons the right to make and enforce contracts as is enjoyed by white citizens. The district court dismissed the action, stating ESN failed to show that, but for racial animus, Comcast would have contracted with ESN. The Ninth Circuit reversed, holding ESN only needed to plead facts that showed race played “some role” in Comcast’s decision making process, and that ESN pleaded a viable claim. The Supreme Court granted certiorari and reversed, holding a §1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury, and that burden remains constant over the life of the lawsuit. The Court remanded to the Ninth Circuit to evaluate ESN’s complaint under the proper standard.

E. Constitutional Law

1. Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, 140 S.Ct. 1649 (2020).

The Court held the Constitution’s Appointments Clause does not restrict the appointment or selection of members of Puerto Rico’s Financial Oversight and Management Board, who are appointed by the president without the Senate’s advice and consent. The Financial Oversight and Management Board was created by the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) enacted by Congress in 2016 as a response to Puerto Rico’s fiscal crisis.

2. Hernandez v. Mesa, 140 S.Ct. 735 (2020).

A U.S. border patrol agent shot and killed a 15-year-old Mexican national in a border dispute incident in El Paso, Texas. The agent was standing on U.S. soil when he shot and killed the teenager, who was on Mexican soil after running back across the border after entering the U.S. illegally. Petitioners filed suit for damages in federal court under Bivens v. Six Unknown Fed. Narcotics Agents64 alleging the agent violated the teen’s Fourth and Fifteenth Amendment rights. The federal district court dismissed their claims, and the Fifth Circuit Court of Appeals affirmed. After the Supreme Court vacated its decision and remanded for further consideration in light of Ziglar v. Abbasi,65 the Fifth Circuit again affirmed. The

64 403 U.S. 388 (1971).

65 137 S.Ct. 1843 (2017).

94 Supreme Court affirmed this time, holding Bivens does not extend to a claim based on a cross-border shooting.

3. New York State Rifle & Pistol Association, Inc. v. City of New York, New York, 140 S.Ct. 1525 (2020) (per curiam).

Petitioners challenged a New York City rule regarding the transport of firearms, arguing it violated the Second Amendment. They sought declaratory and injunctive relief against its enforcement insofar as it prevented them from transporting firearms to a second home or shooting range outside of the city. The federal district court and Second Circuit Court of Appeals rejected their claim, and the Supreme Court granted certiorari. After certiorari was granted, New York amended the rule, making petitioners’ claims for declaratory and injunctive relief moot. On remand, the Second Circuit and district court may consider whether petitioners may still add a claim for damages with respect to the old law.

4. Seila Law, LLC v. Consumer Financial Protection Bureau, 2020 WL 3492641 (2020).

The Court held the Consumer Financial Protection Bureau’s leadership by a single Director, appointed by the President with the advice and consent of the Senate, who is removable only for inefficiency, neglect or malfeasance violates the separation of powers. The Court noted that while the independent, single Director structure is enough to render the agency unconstitutional, the Director’s five-year term and receipt of funds outside the appropriations process heightens concern the agency will slip from the Executive’s and people’s control. The Director’s removal protection is severable from the other provisions of the Frank-Dodd Act that established the CFPB and define its authority. The agency may continue to operate, but its Director must be removable by the President at will.

5. June Medical Services LLC v. Russo, 2020 WL 3492640 (2020).

The Court held that Louisiana’s Act 620, which required any doctor who performs abortions to hold active admitting privileges at a local hospital, is unconstitutional. Breyer, Ginsburg, Sotomayor and Kagan concluded that enforcing the law would drastically reduce the number and geographic distribution of abortion providers, making it impossible for many women to obtain safe, legal abortions and imposing substantial burdens on those who could. Chief Justice Roberts concurred in the judgement, agreeing that abortion providers in the case have standing to assert the constitutional rights of their patients and that Louisiana’s law imposes as severe a burden on access to abortion as that imposed

95 by a Texas law invalidated four years ago in Whole Women’s Health v. Hellerstedt66 and cannot stand under principles of stare decisis.

6. United States Agency for International Development v. Alliance for Open Society International, Inc., 2020 WL 3492638 (2020).

In the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, Congress limited funding of American and foreign nongovernmental organizations to those with a policy explicitly opposing prostitution and sex trafficking. 22 U.S.C. §7631(f). In 2013, that requirement was held to be an unconstitutional restraint on free speech as applied to American organizations.67 In the instant case, the Court held the policy requirement is not unconstitutional as applied to plaintiffs’ foreign affiliates because they possess no First Amendment rights.

7. Espinoza v. Montana Department of Revenue, 2020 WL 3518364 (2020).

The Montana Legislature created a program to grant tax credits to those who donate to organizations that award scholarships for private school tuition. The Montana Constitution bars government aid to any school controlled in whole or part by a church, sect or denomination, and the state Department of Revenue promulgated “Rule 1” which prohibited families from using the scholarships at religious schools. The Court held application of Rule 1’s no-aid provision discriminated against religious schools and families whose children attend or hope to attend them in violation of the Free Exercise Clause.

8. Barr v. American Association of Political Consultants, Inc., 2020 WL 3633780 (2020).

The Telephone Act of 1991 prohibits almost all robocalls to cell phones. 47 U.S.C. §227(b)(1)(A)(iii). In 2015, Congress amended the restriction to allow a governmental exception for robocalls made solely to collect a debt owed to or guaranteed by the U.S. The Association and three other organizations filed a declaratory judgment action claiming §227(b)(1)(A)(iii) violates the First Amendment. The district court found the restriction was content-based but survived strict scrutiny because of the government’s compelling interest in debt collection. The Fourth Circuit vacated the judgment, holding the law did not withstand strict scrutiny. It invalidated the government debt exception and severed it from the robocall restriction. The Supreme Court granted certiorari and affirmed. Justice Kavanaugh, joined by

66 136 S.Ct. 2292 (2016).

67 Agency for International Development v. Alliance for Open Society International, Inc., 570 U.S. 205 (2013).

96 Chief Justice Roberts and Justices Thomas and Alito, found the government debt exception violates the First Amendment. Justice Kavanaugh, joined by the Chief Justice and Justice Alito concluded the exception is severable from the underlying 1991 robocall restriction. Justice Sotomayor found the government debt exception fails under intermediate scrutiny and is severable from the rest of the Act. Justices Breyer, Ginsburg and Kagan would have upheld the exception, but given the contrary majority view, agreed it is severable from the rest of the Act. Justice Gorsuch found the Telephone Consumer Protection Act’s rule against cellphone robocalls is a content-based restriction that fails strict scrutiny and cannot be constitutionally enforced.

9. Our Lady of Guadalupe School v. Morrissey-Berru, 2020 WL 3808420 (2020).

The Court held the “ministerial exception” in the First Amendment’s religion clauses prohibits adjudication of employment- discrimination claims brought by Catholic school teachers in the underlying cases. See Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012.)

10. Trump v. Vance, 2020 WL 3848062 (2020).

The Court held that Article II and the Constitution’s Supremacy Clause do not categorically preclude or require a heightened standard for the issuance of a state criminal subpoena to a sitting president.

11. Trump v. Mazars USA, LLP, 2020 WL 3848061 (2020).

The Court held that while congressional subpoenas for a president’s information may be enforceable, the lower courts in the instant case did not take adequate account of the significant separation of powers concerns implicated by subpoenas from the House of Representatives seeking President Trump’s financial records. The Court remanded the case back to the lower courts.

F. Copyright

1. Allen v. Cooper, 140 S.Ct. 994 (2020).

Allen recorded videos of a shipwreck recovery located off the coast of North Carolina. When the state published some of his videos and photos online, Allen sued for copyright infringement. North Carolina moved to dismiss the suit on state sovereign immunity grounds. Allen argued the Copyright Remedy Clarification Act of 1990 (CRCA) removed the states’ sovereign immunity in copyright infringement cases. The district court agreed, but the Fourth Circuit reversed. The Supreme Court granted certiorari and affirmed,

97 holding Congress lacked authority to abrogate the states’ sovereign immunity from copyright infringement suits in the CRCA.

2. Georgia v. Public Resource.Org Inc., 140 S.Ct. 1498 (2020).

The Court held that under the government edicts doctrine, the annotations that appear below the statutory text in the Official Code of Georgia Annotated are ineligible for copyright protection.

G. Criminal Law

1. Ramos v. Louisiana, 140 S.Ct. 1390 (2020).

Ramos was convicted of a serious crime in Louisiana state court by a 10-2 jury verdict. Louisiana and Oregon are the only states that do not require unanimous jury for serious crimes. Ramos was sentenced to life without parole. He appealed his conviction by a nonunanimous jury as an unconstitutional denial of his Sixth Amendment right to a jury trial. The Supreme Court reversed the judgment of the Court of Appeal of Louisiana, Fourth Circuit, holding the Sixth Amendment right to a jury trial, as incorporated against the states under the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious crime.

2. Kahler v. Kansas, 140 S.Ct. 1021 (2020).

As part of its insanity defense, Kansas uses the cognitive incapacity test to examine whether a defendant was able to understand what he was doing when he committed the crime in question. A defendant may raise mental illness to show he lacked the culpable mental state required as an element of the offense charged. Kansas does not recognize a moral-incapacity defense. Kahler was charged with capital murder after killing four family members. Before trial, he argued Kansas’s insanity defense violates due process because it allows the state to convict a defendant whose mental illness prevented him from distinguishing right from wrong. The state court disagreed, and a jury convicted him. While Kahler was free to argue during the penalty phase that his mental illness should mitigate his sentence, the jury imposed the death penalty. The Kansas Supreme Court rejected his due process argument on appeal, and the Supreme Court affirmed. It held due process does not require Kansas to adopt an insanity test that turns on a defendant’s ability to recognize that his crime was morally wrong.

3. Kansas v. Glover, 140 S.Ct. 1183 (2020).

A Kansas deputy ran a license plate check on a truck, discovering it belonged to Glover, whose driver’s license had been revoked. The deputy pulled the truck over based on the assumption Glover was driving. Glover, who was driving, was charged with driving as a habitual violator. He moved to suppress the evidence from the stop,

98 arguing the deputy lacked reasonable suspicion. The district court granted the motion, but the court of appeals reversed. The Kansas Supreme Court reversed, holding the deputy violated the Fourth Amendment by stopping Glover without reasonable suspicion of criminal activity. The Supreme Court granted certiorari and reversed. It held when an officer lacks information negating an inference that the owner is driving a vehicle, an investigative traffic stop made after running the vehicle’s license plate and learning the registered owner’s driver’s license has been revoked is reasonable under the Fourth Amendment.

4. Holguin-Hernandez v. U.S., 140 S.Ct. 762 (2020).

Under Fed. R. Crim. P. 51(b), a defendant who wants to preserve a claim of error for appellate review must inform the trial judge of the action the party wants the court to take or the party’s objection to the court’s action and the grounds for the objection. The Court held that petitioner’s argument in district court for a specific sentence (nothing or less than 12 months) preserved his claim on appeal that the sentence imposed was unreasonably long.

5. McKinney v. Arizona, 140 S.Ct. 702 (2020).

Petitioner was convicted in Arizona on two counts of murder. The trial judge found aggravating circumstances for both murders and sentenced petitioner to death. On habeas review, the Ninth Circuit found the Arizona courts violated Eddings v. Oklahoma,68 by failing to properly consider as relevant mitigating evidence petitioner’s posttraumatic stress disorder. On remand to the Arizona Supreme Court, petitioner argued he was entitled to a jury resentencing, but the Arizona Supreme Court reweighed the mitigating and aggravating circumstances as permitted by Clemons v. Mississippi69 and upheld both death sentences. The U.S. Supreme Court affirmed, holding a Clemons reweighing is a permissible remedy for an Eddings error, and when that error is found on collateral review, a state appellate court may conduct a Clemons reweighing on collateral review.

6. Shular v. U.S., 140 S.Ct. 779 (2020).

The Armed Career Criminal Act mandates a 15-year minimum sentence for defendants convicted of being a felon in possession of a firearm who has at least three convictions for “serious drug offenses.” A state offense qualifies as a “serious drug offense” only if it involves manufacturing, distributing or possessing with intent to

68 455 U.S. 104 (1982).

69 494 U.S. 738 (1990).

99 manufacture or distribute a controlled substance.70 The Court held that §924(e)(2)(A)(ii)’s “serious drug offense” definition requires only that the state offense involve the conduct specified in the statute. It does not require that the state offense match certain generic offenses.

7. McGirt v. Oklahoma, 2020 WL 3848063 (2020).

The Court held that for purposes of the Major Crimes Act, land in Oklahoma reserved for the Creek Nation since the 19th century remains a Native American territory. The Major Crimes Act states that within Native American territories, any Native American who commits certain offenses is subject to the exclusive jurisdiction of the U.S. 18 U.S.C. §1153(a).

H. DACA

Department of Homeland Security v. Regents of the University of California, 140 S.Ct. 1891 (2020)

The Court held the Department of Homeland Security’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious under the Administrative Procedures Act. Although eliminating benefits eligibility for participants under the program while maintaining the program’s protection from deportation was within the Acting Secretary’s discretion, she treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance from deportation without explanation.

I. Debt Collection

Rotkiske v. Klemm, 140 S.Ct. 355 (2019)

The Court held that absent application of an equitable doctrine, the one- year statute of limitations for Fair Debt Collection Practices Act actions begins to run when the alleged FDCPA violation occurs, not when the violation is discovered. See 15 U.S.C. §1692k(d).

J. Elections

1. Republican National Committee v. Democratic National Committee, 140 S.Ct. 1205 (2020).

The Court held the district court’s order granting a preliminary injunction is stayed to the extent it requires Wisconsin to count absentee ballots postmarked after April 7, 2020, the date of the state’s election.

70 18 U.S.C. §924(e)(2)(A)(ii).

100 2. Chiafalo v. Washington, 2020 WL 3633779 (2020).

The Court unanimously held that a state may enforce an elector’s pledge to support their party’s nominee – and the state voters’ choice – for President.

3. Colorado Department of State v. Baca, 2020 WL 3633778 (2020).

The Court reversed the judgment of the Tenth Circuit Court of Appeals in a per curium opinion for reasons stated in Chiafalo v. Washington.

K. Employment Law

Babb v. Wilkie, 140 S.Ct. 1168 (2020)

Under 29 U.S.C. §633a(a), federal-sector personnel actions affecting individuals age 40 and older must be made free from any discrimination based on age. The Court held the statute’s plain language demands personnel actions be untainted by any consideration of age. To obtain reinstatement, damages or other relief related to the end result of an employment decision, plaintiff must show a personnel action would have been different if age had not been taken into account, but if age discrimination played a lesser part in the decision, other remedies may be appropriate. Plaintiffs who show that age was a but-for cause of differential treatment in an employment decision, but not a but-for cause of the decision itself, can still seek injunctive or other forward-looking relief.

L. Environmental Law

1. County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S.Ct. 1462 (2020).

The Clean Water Act prohibits any addition of any pollutant from any point source to navigable waters without an appropriate permit from the EPA. The Court held the Act requires a permit when there is a direct discharge from a point source into navigable waters or when there is a functional equivalent of a direct discharge.

2. Atlantic Richfield Co. v. Christian, 140 S.Ct. 1335 (2020).

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) directs the EPA to compile and annually revise a prioritized list of contaminated sites for cleanup and makes responsible parties liable for the cost. The EPA has worked with Atlantic Richfield for 35 years to implement a cleanup plan for a remediation expected to last through 2025. A group of landowners sued Atlantic Richfield in Montana state court for common law nuisance, trespass, and strict liability seeking restoration damages. The trial court granted summary judgment to plaintiffs on the issue of whether CERCLA precludes their restoration damages claim and

101 allowed the action to continue. After granting a writ of supervisory control, the Montana Supreme Court affirmed, holding the landowners were not potentially responsible parties (PRPs) prohibited from taking remedial action without EPA approval under the Act. The Supreme Court granted certiorari and reversed, holding the Montana Supreme Court erred by holding the landowners are not PRPs under the Act and did not need EPA approval to take remedial action. Interpreting “potentially responsible parties” to include owners of polluted property reflects the Act’s objective to create a comprehensive response to hazardous waste pollution.

M. ERISA

1. Intel Corp. Investment Policy Committee v. Sulyma, 140 S.Ct. 768 (2020).

ERISA requires plaintiffs with “actual knowledge” of an alleged fiduciary breach to file suit within three years of gaining that knowledge. The Court held a plaintiff does not have “actual knowledge” under 29 U.S.C. §1113(2) of the information contained in disclosures the he receives but does not read or actually recall reading. To meet the statute’s “actual knowledge” requirement, the plaintiff must have in fact become aware of the information.

2. Thole v. U.S. Bank, N.A., 140 S.Ct. 1615 (2020).

Plaintiffs are retired participants in U.S. Bank’s defined-benefit retirement plan, which guarantees a fixed payment each month regardless of the plan’s value or its fiduciaries’ investment decisions. They filed a class action against U.S. Bank under ERISA, arguing defendants violated ERISA’s duties of loyalty and prudence by poorly investing the plan’s assets. The district court dismissed the case, and the Eighth Circuit affirmed on the ground plaintiffs lack statutory standing. The Supreme Court affirmed, holding because plaintiffs have no stake in the lawsuit, they lack Article III standing. Whether they win or lose, they will receive the same monthly benefits they are already entitled to receive.

N. Habeas Corpus

Banister v. Davis, 140 S.Ct. 1698 (2020)

The Court held a Fed. R. Civ. P. 59(e) motion to alter or amend a habeas court’s judgment is not a second or successive habeas petition under 28 U.S.C. §2244(b).

102 O. Hague Convention on the Civil Aspects of International Child Abduction

Monasky v. Taglieri, 140 S.Ct. 719 (2020)

The Hague Convention on the Civil Aspects of International Child Abduction, implemented in the U.S. by the International Child Abduction Remedies Act, states a child wrongfully removed from her country of “habitual residence” ordinarily must be returned to that country. In this case, the Court held a child’s habitual residence depends on the totality of the circumstances specific to the case, not on categorical requirements such as an actual agreement between the parents. A first-instance habitual residence determination is subject to deferential appellate review for clear error.

P. Healthcare

1. Maine Community Health Options v. U.S., 140 S.Ct. 1308 (2020).

The Patient Protection and Affordable Health Care Act’s now- expired “Risk Corridors” program set out a formula to limit insurers’ profits and losses for the first three years they operated online exchanges under the Act. Eligible profitable plans were to pay the Secretary of the Department of Health and Human Services while the Secretary was to pay eligible unprofitable plans. The Act did not appropriate funds for the yearly payments or limit the amount the government must pay. Each year, the government owed more money to unprofitable insurers than profitable insurers owed to the government, resulting in a $12 billion deficit. At the end of each year, the appropriations bills for the Centers for Medicare and Medicaid Services (CMS) included a rider preventing CMS from using the funds for Risk Corridors payments. Petitioners, four insurance companies claiming losses under the program, filed suit against the federal government for damages in the Court of Federal Claims. Invoking the Tucker Act, they argued §134271 of the Health Care Act obligated the government to pay the full amount of their losses as calculated by the statutory formula. They sought a money judgment for the unpaid funds. Only one petitioner prevailed in the trial courts, and the Federal Circuit held for the government in each appeal. It held §1342 initially created a government obligation to pay, but the subsequent appropriations riders impliedly repealed or suspended the obligation. The Supreme Court granted certiorari and reversed, holding the Risk Corridors statute created a government obligation to pay insurers the full amount set out in the statutory formula. Petitioners properly relied on the Tucker Act to sue for damages in the Court of Federal Claims.

71 42 U.S.C. §18062.

103 2. Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 2020 WL 3808424 (2020).

The Court held the Departments of Health and Human Services, Labor and Treasury had authority under the Affordable Care Act to promulgate rules exempting employers with religious or moral objections from providing contraceptive coverage to their employees.

Q. Immigration

1. Kansas v. Garcia, 140 S.Ct. 791 (2020).

Three unauthorized aliens were convicted in Kansas for fraudulently using another person’s Social Security number on W-4 and K-4 forms they submitted to their employer. They had also used the same numbers on their I-9 forms. The Kansas Court of Appeals affirmed the convictions, but the Kansas Supreme Court reversed, holding 8 U.S.C. §1324a(b)(5) expressly prohibits a state from using any information contained on an I-9 as the basis for a state law identity theft prosecution of an alien who uses another’s Social Security number on an I-9 form. The Supreme Court reversed, holding the Kansas statutes under which respondents were convicted are not expressly preempted by the Immigration Reform and Control Act of 1986 (IRCA).

2. Barton v. Barr, 140 S.Ct. 1442 (2020).

The Court held that for purposes of cancellation-of-removal eligibility, an 8 U.S.C. §1182(a)(2) offense committed during the initial seven years of residence does not need to be one of the offenses of removal.

3. Guerrero-Lasprilla v. Barr, 140 S.Ct. 1062 (2020).

The Immigration and Nationality Act allows for judicial review of a final government order directing an alien’s removal. 8 U.S.C. §1252(a). Section 1252(a)(2)(C) limits the scope of review where the removal rests on the fact the alien has committed certain crimes. The Limited Review Provision, §1252(a)(2)(D), states in such cases courts may only consider “constitutional claims or questions of law.” Petitioners committed drug crimes and were ordered removed. Neither filed a motion to reopen removal proceedings within 90 days of the date of entry of the final administrative removal order as required by statute. However, both asked the Board of Immigration Appeals to reopen their removal proceedings, arguing the 90-day time limit should be equitably tolled per the Fifth Circuit decision Lugo-Resendez v. Lynch.72 The Board denied their requests, holding they failed to demonstrate the

72 831 F.3d 337 (5th Cir. 2016).

104 requisite due diligence. The Fifth Circuit denied their requests for review, holding that given the Limited Review Provision, it lacked jurisdiction to review petitioners’ factual due diligence claims. The Supreme Court granted certiorari, vacated and remanded. Because the provision’s phrase “questions of law” includes the application of a legal standard to undisputed or established facts, the Fifth Circuit erred in holding it had no jurisdiction to consider petitioners’ claims of due diligence for equitable tolling purposes.

4. Nasrallah v. Barr, 140 S.Ct. 1683 (2020).

The Court held 8 U.S.C. §1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to an order denying relief under the international Convention Against Torture.

5. Department of Homeland Security v. Thuraissigiam, 140 S.Ct. 1959 (2020).

The Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA), 8 U.S.C. §1225(a)(1), provides for the expedited removal of certain applicants seeking admission to the U.S. An applicant may avoid expedited removal by demonstrating to an asylum officer a credible fear or persecution, defined as a significant possibility the applicant could establish eligibility for asylum. An applicant who makes this showing is entitled to full consideration of an asylum claim in a standard removal hearing. The asylum officer’s rejection of a credible-fear claim is reviewed by a supervisor and may be appealed to an immigration judge. IIRIRA limits the review a federal court may conduct on a petition for a writ of habeas corpus. §1252(e)(2). Courts may not review the determination that an applicant lacks a credible fear of persecution. §1252(a)(2)(A)(iii). In the instant case, an asylum officer rejected respondent’s credible- fear claim, which was approved by a supervising officer and affirmed by the immigration judge. Respondent then filed a habeas petition asserting for the first time a fear of persecution based on his ethnicity and political views and requesting a new opportunity to apply for asylum. The district court dismissed the opinion, but the Ninth Circuit reversed, holding that §1252(e)(2) violates the Suspension Clause and the Due Process Clause. The Supreme Court granted certiorari and reversed, holding §1252(e)(2) violates neither the Suspension Clause nor the Due Process Clause. Because respondent does not seek release from custody but an additional opportunity to obtain asylum, his claims fall outside the scope of the writ as it existed when the Constitution was adopted. In addition, for aliens seeking initial entry the decisions of executive or administrative officers acting within powers expressly conferred by Congress are due process of law.

105 R. Land Use

United States Forest Service v. Cowpasture River Preservation Association, 140 S.Ct. 1837 (2020)

Atlantic Coast Pipeline wanted to construct a natural gas pipeline from West Virginia to North Carolina that would traverse land within the George Washington National Forest. It obtained a special use permit from the National Forest Service obtaining a right of way for a segment of pipe 600 feet below a portion of the Appalachian National Scenic Trail, which crosses the National Forest. Respondents filed a petition for review in the Fourth Circuit, arguing issuance of the permit violated the Mineral Leasing Act. Atlantic intervened. The Fourth Circuit vacated the permit, holding the Leasing Act did not empower the Forest Service to grant the right-of-way because the Trail became part of the National Park System when the Secretary of the Interior delegated its authority over the Trail’s administration to the National Park Service, and the Leasing Act prohibits pipeline rights-of-way in the National Park System. The Supreme Court reversed and remanded. Because the Department of the Interior’s decision to assign responsibility over the Appalachian Trail to the National Park Service did not transform the land over which the Trail passes into land within the National Park System, the Forest Service had the authority to issue the special use permit.

S. Patents

1. Peter v. Nantkwest, Inc., 140 S.Ct. 365 (2019).

Under the Patent Act, applicants may challenge an adverse decision by the Patent Trademark Office (PTO) by appealing directly to the Federal Circuit under 35 U.S.C. §141 or filing a new civil action against the PTO Director in the U.S. District Court for the Eastern District of Virginia under §145. Under the second category, the applicant must pay all expenses of the proceedings. Nantkwest filed a §145 action after its application was denied. The district court granted summary judgment to the PTO, and the Federal Circuit affirmed. The PTO moved for reimbursement of expenses, including the pro rata salaries of its attorneys and paralegals. The district court denied the motion, holding the statutory language referencing expenses was not sufficient to overcome the “American Rule” presumption that parties pay their own attorney’s fees. The en banc Federal Circuit affirmed, and the Supreme Court granted certiorari. The Court also affirmed, holding the PTO cannot recover the salaries of its legal personnel under §145.

2. Thryv, Inc. v. Click-to-Call Technologies, LP, 140 S.Ct. 1367 (2020).

Under inter partes review, a patent challenger may ask the U.S. Patent and Trademark Office to reconsider the validity of earlier granted patent claims. The agency must agree to institute review. See 35 U.S.C. §314. If the request comes more than a year after

106 suit against the requesting party for patent infringement, inter partes review may not be instituted. 35 U.S.C. §315(b). The agency’s determination whether to institute inter partes review is final and nonappealable. §314(d). In the instant case, the Supreme Court held that §314(d) precludes judicial review of the agency’s application of §315(b)’s time prescription.

T. Prison Litigation Reform Act

Lomax v. Ortiz-Marquez, 140 S.Ct. 1721 (2020)

The Prison Litigation Reform Act has a “three-strikes” rule which prevents a prisoner from bringing a suit in forma pauperis if he has three or more prior suits dismissed on the ground they were frivolous, malicious or failed to state a claim upon which relief may be granted. 28 U.S.C. §1915(g). The Court held §1915(g)’s three-strikes provision refers to any dismissal for failure to state a claim, whether with prejudice or without.

U. Securities

Liu v. Securities and Exchange Commission, 140 S.Ct. 1936 (2020)

The Court held that in a Securities and Exchange Commission enforcement action, a disgorgement award that does not exceed the wrongdoer’s net profits and is awarded for victims is equitable relief permissible under 15 U.S.C. §78u(d)(5).

V. Taxation

Rodriguez v. FDIC, 140 S.Ct. 713 (2020)

The IRS allows an affiliated group of corporations to file a consolidated federal return and issues any refund as a single payment to the group’s designated agent. The tax regulations say little about how the payment should be distributed among the group. Some courts have crafted what is called the Bob Richards73 rule, which initially provided that in the absence of an agreement, a refund belongs to the group member responsible for the losses that led to it. The rule has since evolved in some jurisdictions into a rule that is always followed unless an agreement unambiguously specifies a different result. The Supreme Court held the Bob Richards rule is not a legitimate exercise of federal common lawmaking. It remanded the case to the Tenth Circuit Court of Appeals for consideration without application of the Bob Richards rule.

73 In re Bob Richards Chrysler-Plymouth Corp., 473 F.2d 262 (9th Cir. 1973).

107 W. Terrorism

Opati v. Republic of Sudan, 140 S.Ct. 1601 (2020)

The Court held plaintiffs in an action against a foreign state for personal injury or death caused by acts of terrorism under 28 U.S.C. §1605A(c) may seek punitive damages for preenactment conduct.

X. Trademark

1. Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, LLC, 140 S.Ct. 1589 (2020).

Lucky Brand and Marcel both use the word “Lucky” as part of their marks on jeans and other apparel. They have been involved in three rounds of litigation for over 20 years. In this case, the Court held that because Marcel’s 2011 action challenged different conduct and raised different claims from a 2005 action, Marcel cannot preclude Lucky Brand from raising new defenses. Because the two suits involved different marks and conduct occurring at different times, they did not share a “common nucleus of operative facts.”

2. Romag Fasteners, Inc. v. Fossil Group, Inc., 140 S.Ct. 1492 (2020).

The Court held a plaintiff in a trademark infringement suit is not required to show that a defendant willfully infringed the plaintiff’s trademark as a pre-condition to a profits award.

3. United States Patent and Trademark Office v. Booking.com B.V., 2020 WL 3518365 (2020).

Booking.com, an online travel reservation website, sought federal registration of marks including “Booking.com.” The USPTO refused registration, finding “Booking.com” is a generic name for online hotel-reservation services. The district court held that “Booking.com,” unlike the term “booking” alone, is not generic, and the Fourth Circuit affirmed. The Court granted certiorari and also affirmed, holding a term styled “generic.com” is a generic name for a class of goods or services only if the term has that meaning to consumers. Because “Booking.com” is not a generic name to consumers, it is not generic.

108 PUBLISHED OPINIONS KENTUCKY COURT OF APPEALS June 1, 2019 - May 31, 2020

I. ADMINISTRATIVE LAW

A. Alvey v. Davis, No. 2018-CA-000418, 583 S.W.3d 20 (Ky. App. 2019)

Opinion by Judge Lambert; Judge L. Thompson concurred; Judge Dixon concurred in result only. Appellant, a secretary/bookkeeper, was terminated from her employment at an elementary school for cause. On her first appeal to the circuit court, the matter was remanded to the school board’s hearing officer for more specific findings. The board once again upheld the termination, and the circuit court affirmed. The employee appealed, arguing that there was not substantial evidence to support the board’s findings, that she was denied due process, and that the hearing officer was unqualified and biased. The Court of Appeals affirmed, holding that: (1) the evidence was sufficient to support the employee’s termination; (2) the Board’s procedure provided the employee with the necessary due process requirements (namely, notice, a hearing, and judicial review); and (3) there was no evidence in the record to support the employee’s allegations that the hearing officer was biased or unqualified.

B. Spears v. Board of Trustees of LFUCG Policemen's and Firefighters' Retirement Fund, No. 2017-CA-001193, 583 S.W.3d 37 (Ky. App. 2018)

Opinion by Chief Judge Clayton; Judges Kramer and Nickell concurred. Appellant, a former police officer, challenged an opinion and order affirming the denial of his petition for disability retirement benefits by the Board of Trustees (“Board”) of the Policemen’s and Firefighters’ Retirement Fund of the Lexington-Fayette Urban County Government. The Court of Appeals affirmed, holding that the Board’s denial of disability benefits was fully in accordance with the provisions of KRS 67A.360 to 67A.690. Appellant resigned from the police force on June 30, 2014 – where his disability application was pending – rather than face a disciplinary hearing before the city council. On August 13, 2014, the Board denied the application pursuant to KRS 67A.500(1) because of appellant’s voluntary withdrawal from employment for reasons unrelated to his disability. The Court held that the Board’s decision was consistent with the plain terms of the statute and, therefore, was not arbitrary. The Court also rejected appellant’s argument that the Board acted improperly when its staff encouraged him to submit a letter of resignation before the resolution of his application for disability benefits. The record did not reflect that appellant had raised the argument below, so it was unpreserved for appellate review.

109 II. APPEALS

A. Commonwealth v. Robertson, No. 2018-CA-000662, 578 S.W.3d 368 (Ky. App. 2019)

Opinion and Order dismissing by Judge Jones; Judges Dixon and Lambert concurred. The Commonwealth sought review of an order granting appellee’s motion to suppress. The order was entered on March 13, 2018. On March 20th, the Commonwealth filed a “motion to reconsider order to suppress” with the circuit court. In its motion, the Commonwealth asked the circuit court to “alter, amend or vacate its order entered on March 13, 2018.” The motion for reconsideration was denied on March 30th, and the Commonwealth filed its notice of appeal on April 27th – 46 days after entry of the order granting the motion to suppress. After reviewing the Commonwealth’s notice of appeal, the Court of Appeals issued an order directing the parties to show cause why the appeal should not be dismissed for failure to timely appeal. In so doing, the Court directed the parties to Parker v. Commonwealth, 440 S.W.3d 381 (Ky. 2014), which sets forth that a CR 59.05 motion does not operate to toll the time for filing a notice of appeal when the underlying order is interlocutory. In response, the Commonwealth argued that the Court should treat its motion for reconsideration not as a motion to alter, amend or vacate, but rather as a motion for additional findings of fact under CR 52.02. The filing of such a motion would have tolled the time for the Commonwealth to file its notice of appeal. However, the Court declined to treat the Commonwealth’s motion in this fashion. Nowhere in the Commonwealth’s pleading did it ever request additional findings; rather, the Commonwealth only asked the circuit court to apply different case law and reach a different result. Additionally, there was no need for additional fact-finding, as the circuit court’s order already contained numerous findings of fact and conclusions of law. Consequently, the Commonwealth’s notice of appeal was not timely filed, and the appeal required dismissal.

B. Howard v. Froman, No. 2017-CA-000192, 2020 WL 2097343 (Ky. App. May 1, 2020)

Opinion and order by Judge Taylor; Judges Goodwine and K. Thompson concurred. Howard brought this cross-appeal from an order interpreting certain provisions of a last regarding an $18,000 bequest. The Court of Appeals dismissed for failure to name indispensable parties – specifically, three individuals who also had an interest in the bequest.

C. Keco v. Ayala, No. 2018-CA-001078, 592 S.W.3d 753 (Ky. App. 2019)

Opinion by Judge Spalding; Chief Judge Clayton and Judge Dixon concurred. A contractor brought an action against a property owner, alleging breach of contract and unjust enrichment for the property owner’s failure to pay the contractor for work performed, to which the property owner counter-claimed for indemnity, breach of contract, mis- representation, and unjust enrichment. Following a jury trial, the contractor

110 was awarded the sum of $125,373 plus pre-judgment interest. On appeal, the property owner argued that the jury was erroneously permitted to consider unjust enrichment and that the circuit court improperly awarded pre-judgment interest on unliquidated damages. The Court of Appeals affirmed. The Court held that appellant’s failure to contemporaneously object to the circuit court allowing the jury to decide an issue of equity, unjust enrichment, foreclosed his ability to raise that issue successfully on appeal. Furthermore, appellant had waived his objection to the grant of pre- judgment interest in the matter because objections were not made in the circuit court to the award of interest. The Court held that neither the judgment and award upon the jury verdict nor the award of pre-judgment interest was manifestly unjust so as to allow the Court to vacate the awards despite the lack of objections made to the circuit court.

D. M.M. v. Allen County Attorney’s Office, No. 2019-CA-000401, 590 S.W.3d 836 (Ky. App. 2019)

Opinion and order dismissing by Judge Jones; Judges Combs and L. Thompson concurred. The subject appeals involved four children ordered to be temporarily removed from the home by the family court. The Cabinet for Health and Family Services became involved after receiving reports of domestic violence and suspected drug use by the adults in the household. The family court found that there was sufficient and credible evidence of domestic violence and environmental neglect. The Court of Appeals declined to reach the merits because appellant named only the county attorney – and not the Cabinet – in the notices of appeal. The Court noted that the Cabinet is the “plaintiff” when it files a dependency action, and that the Court has previously dismissed dependency, neglect, and abuse appeals in which the Cabinet was erroneously omitted as a party. The Court entered an order requiring appellant to show cause why the appeals should not be dismissed for failure to name an indispensable party, and the deadline passed with no response from appellant. Therefore, the Court ordered that the appeals be dismissed for failure to name an indispensable party.

E. Recbar, LLC v. Drake, No. 2019-CA-000528, 579 S.W.3d 198 (Ky. App. 2019)

Opinion and Order dismissing by Judge Nickell; Judges Acree and Kramer concurred. Appellant filed an appeal from a denial of a motion for summary judgment. The motion was filed pursuant to KRS 413.241, Kentucky’s Dram Shop Act, on the basis that the statute does not permit “first-party” claims against dram shops. Appellee moved to dismiss the appeal on the grounds that it was interlocutory. In response, appellant argued that a defense under KRS 413.241 is similar to “claims of governmental immunity or workers’ compensation immunity,” two circumstances in which it is recognized that an interlocutory appeal may be had. The Court of Appeals disagreed and dismissed the appeal, holding that KRS 413.241 does not guarantee dram shop owners absolute immunity from suit but, rather, provides a liability defense. Because of this, an interlocutory appeal was not authorized, and dismissal was merited.

111 F. T.S. v. Commonwealth, No. 2019-CA-000578, 2020 WL 2306584 (Ky. App. May 8, 2020)

Opinion and order denying reinstatement by Judge L. Thompson; Chief Judge Clayton concurred; Judge K. Thompson concurred in result only and filed a separate opinion. Appellant sought reinstatement of two dependency, neglect, and abuse (DNA) appeals that were dismissed due to a failure to name an indispensable party. The notices of appeal named the “Commonwealth of Kentucky” – not the “Cabinet for Health and Family Services” – as the appellee even though the Cabinet filed the underlying DNA actions. The Court of Appeals denied the motion, noting that the Cabinet was an indispensable party pursuant to Commonwealth, Cabinet for Health and Family Services v. Byer, 173 S.W.3d 247, 249 (Ky. App. 2005), and that the Cabinet was not named in either the body or the captions of the notices as required to bring them within the Court’s jurisdiction. City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky. 1990). The Court further held that appellant had presented no authority or argument for extending belated or reinstated appeal procedures to civil cases. In his concurring opinion, Judge K. Thompson asked for a definite statement of the law either by this Court or our Supreme Court on whether naming the Commonwealth of Kentucky in the notice of appeal is sufficient to include the Cabinet as a party in a DNA or termination of parental rights case. He opined that naming the Commonwealth is the functional equivalent of naming the Cabinet because the Cabinet is merely the agency through which the Commonwealth acts. Here, it was obvious that appellant appealed from orders finding she abused or neglected her grandchildren and, therefore, there could be no rational argument that the Cabinet did not have notice of the appeals. Moreover, there was “no rational purpose” for requiring that the words “Cabinet for Health and Family Services” follow “Commonwealth of Kentucky” in the notices of appeal.

III. ARBITRATION

A. Frankfort Medical Investors, LLC v. Thomas by and Through Thomas, No. 2018-CA-000056, 577 S.W.3d 484 (Ky. App. 2019)

Opinion by Judge Lambert; Judges Dixon and Kramer concurred. John Thomas, Sr. was admitted at The Lantern in January 2017. At that time, Thomas, through his son/power of attorney, signed an arbitration agreement (among other documents signed upon his admission). Thomas filed suit against the facility in April 2017, claiming injuries resulting from the facility’s negligence during his stay; the complaint also sought redress for loss of consortium as well as punitive damages and recoupment of attorneys’ fees and costs. The facility moved to dismiss the suit or, in the alternative, to stay the suit pending arbitration proceedings. The circuit court denied both motions after concluding that the arbitration agreement as drafted was unenforceable against Thomas. The facility appealed. The Court of Appeals affirmed, holding that: (1) the agreement’s choice-of-law provision (which provided that arbitration should take place in Tennessee and that Tennessee law should apply) conflicted with KRS 417.200, which

112 requires that arbitration take place in Kentucky; (2) the failure to name John Thomas, Sr. in the arbitration agreement made the document un- enforceable against him; and (3) the agreement was by its own terms impossible to perform because its named exclusive arbitrator was, by a 2009 consent , barred from conducting arbitration proceedings.

B. GGNSC Frankfort, LLC v. Richardson, No. 2013-CA-000245, 581 S.W.3d 590 (Ky. App. 2019)

Opinion by Judge K. Thompson; Judges Acree and Combs concurred. The Court of Appeals affirmed in part, reversed in part, and remanded an order denying GGNSC’s motion to compel arbitration and to dismiss or stay pending litigation after reconsidering its prior decision as directed by the Supreme Court of Kentucky. Fannie Lyon was admitted to a GGNSC long- term care facility. Upon her admission, the admission papers were signed by her attorney-in-fact, who signed a voluntary alternative dispute resolution agreement agreeing that all claims would be submitted to arbitration. Following Fannie’s death, the administrator of her estate filed an action alleging negligence in her care and treatment at the facility, as well as a wrongful death claim. The Court of Appeals held that the wrongful death action was not precluded by the arbitration agreement; however, the personal injury and statutory claims that belonged to Fannie must be submitted to arbitration. Citing to the U.S. Supreme Court’s decision in Kindred Nursing Centers Limited Partnership v. Clark, 137 S.Ct. 1421 (2017) and Kindred Nursing Centers Limited Partnership v. Wellner, 533 S.W.3d 189 (Ky. 2017), the Court held that the power-of-attorney was sufficiently broad to confer upon the attorney-in-fact the power to enter into an arbitration agreement. The Court concluded that the language allowing the attorney-in-fact to “generally do and perform for me all that I may do if acting in my own person” – set forth in bold print and in a separate paragraph – conferred the power to enter into a pre-dispute arbitration agreement.

C. Golden Gate National Senior Care, LLC v. Dolan, No. 2017-CA-001357, 579 S.W.3d 874 (Ky. App. 2019)

Opinion by Judge K. Thompson; Judges Acree and Nickell concurred. The Court of Appeals affirmed an order denying appellants’ motion to compel arbitration and to dismiss or stay pending litigation. David Dolan was admitted to a Golden Gate long-term care facility. The admission papers were signed by his attorney-in-fact, who also signed an alternative dispute resolution (ADR) agreement agreeing that all claims would be submitted to arbitration. The facility made clear at the time of admission that signing an ADR agreement was not a prerequisite to admission and was voluntary. Dolan subsequently filed a lawsuit alleging negligence in his care and treatment at the facility. The Court held that Dolan’s power of attorney was insufficiently broad to confer upon the attorney-in-fact the power to enter into an arbitration agreement. The Court noted that by the express terms of the power of attorney, the powers were limited to doing whatever was “requisite, necessary and proper to be done.” Since the ADR agreement

113 was optional, it did not meet this requirement and, therefore, was not binding on Dolan.

D. Legacy Consulting Group, LLC v. Gutzman, No. 2018-CA-001580, 2020 WL 2781708 (Ky. App. May 29, 2020)

Opinion by Judge Lambert; Judges Goodwine and K. Thompson concurred. This was an interlocutory appeal from an order denying a motion to compel arbitration in an action by an estate related to the sale of an annuity product to the decedent. The question in this case was whether the product purchased was an insurance product, which would be subject to the McCarran-Ferguson Act and therefore not subject to the arbitration clause the application contained, or whether it was a security product. KRS 417.050 exempts an arbitration clause from applying to insurance contracts. The Court of Appeals agreed with the estate that the product was a fixed annuity, and therefore an insurance product, based upon the 2015 income option election form, which provided that the decedent would receive monthly payments in the same amount from the “Fixed Account” portfolio. Therefore, the Court affirmed the circuit court’s order denying the motion to compel arbitration.

IV. CHILD CUSTODY AND RESIDENCY

A. Barnett v. White, No. 2018-CA-000958, 584 S.W.3d 755 (Ky. App. 2019)

Opinion by Judge K. Thompson; Judges Combs and Nickell concurred. As a matter of first impression, the Court of Appeals affirmed a custody decree in which Father was denied equal timesharing with Child after the amended version of KRS 403.270(2) went into effect. This provision adds a rebuttable presumption in favor of joint custody and equal parenting time. The Court emphasized that under both versions of the statute, the trial court is given a wide amount of latitude in deciding the best interest of the child as to custody and timesharing, stating: “While the new version of KRS 403.270(2) puts a finger on the scale in favor of joint custody and equal timesharing by requiring only a preponderance of evidence to overcome, such a preference is a slight burden and the trial court continues to possess broad discretion in determining the best interest of the child as to who should have custody and where the child shall live.” Because the parents’ inability to get along here would have been a valid basis for granting sole custody, it was also an appropriate consideration supporting the trial court’s decision to deviate from equal parenting time.

B. Childress v. Hart, No. 2019-CA-000113, 592 S.W.3d 314 (Ky. App. 2019)

Opinion by Judge Goodwine; Chief Judge Clayton and Judge Dixon concurred. Appellant challenged a family court order requiring her to relocate the parties’ daughter to Hardin County and to re-enroll her at her previous elementary school there. On appeal, appellant argued that the family court erred by failing to issue specific, written findings of fact regarding whether relocation was in the child’s best interest. The Court of Appeals: (1) vacated the order for a failure to make any specific findings,

114 as required by CR 52.01, regarding whether relocation was in the child’s best interest; and (2) remanded the case to the family court for specific findings of fact and separate conclusions of law.

C. French v. French, No. 2018-CA-000878, 581 S.W.3d 45 (Ky. App. 2019)

Opinion by Judge Acree; Judges Goodwine and Kramer concurred. After several years of joint custody and peaceful and equal timesharing, Father pursued custody modification for an award of sole custody or, in the alternative, increased timesharing. Mother responded in kind. The family court denied both parties’ motions for sole custody but granted Mother’s motion for more timesharing. Father appealed, curiously arguing that the absence of sufficient changes in circumstances did not justify a modification of custody. However, because the family court did not modify custody, the Court of Appeals affirmed. The Court also concluded that the family court’s modification of timesharing was not an abuse of discretion. Notably, the Court’s opinion began with a review of the multiple ways in which appellant had failed to comply with CR 76.12. Before imposing the sanction of reviewing the case for manifest injustice only, the Court noted that Kentucky appellate opinions have expressed no concern that acceptance of legal professionals’ mere substantial compliance with appellate rules: (1) will negatively impact public respect for a judiciary that allows lawyers to violate its rules rather than to simply criticize them; (2) will negatively impact the quality of appellate advocacy; and (3) will erode the bar’s respect for process and procedure.

D. Garvin v. Krieger, No. 2015-CA-001819, 2020 WL 1224161 (Ky. App. Mar. 13, 2020)

Opinion by Judge Jones; Judge Acree concurred by separate opinion with which Judge Jones joined; Judge Taylor dissented without separate opinion. This case was on remand from the Supreme Court of Kentucky via an opinion rendered in Krieger v. Garvin, 584 S.W.3d 727 (Ky. 2019). The Court of Appeals had concluded that an unmarried couple (a maternal grandfather and his girlfriend) could not qualify as a child’s de facto custodian or custodians under KRS 403.270(1). The Supreme Court reversed and held that the statutory language of KRS 403.270 is broad enough to simultaneously confer upon unmarried cohabitants the status of de facto custodian or custodians. On remand, the Court of Appeals was tasked with addressing whether the couple had demonstrated by clear and convincing evidence that they otherwise qualified as de facto custodians. The Court of Appeals concluded that the six-month period set forth in KRS 403.270(1)(a) had not been satisfied, and that the couple had not demonstrated that they were being solely relied upon for support. After Ashley Garvin gave birth to a daughter, the Cabinet for Health and Family Services instituted DNA proceedings, and the family court granted temporary custody to the couple. A few months later, the maternal grandmother filed a petition seeking custody or grandparent visitation. Ashley responded and requested grandmother be granted custody over the unmarried couple. However, the family court found the couple qualified as de facto custodians. The Court of Appeals held that Ashley had tolled the

115 running of the six-month period by asserting her right to custody less than five months into the action. The Court also held that the family court had erroneously allowed aggregation of separate time periods to satisfy the residency requirement, in violation of Kentucky jurisprudence and Meinders v. Middleton, 572 S.W.3d 52 (Ky. 2019). Here, the family court demarcated the end of a tolling period as the date the family court denied a custody motion, which is a non-final and interlocutory order. Because the family court’s orders denying Ashley’s separate motions for custody were non-final interlocutory orders, there never was an end to the tolling. Therefore, the Court of Appeals reversed the order of the family court. In his concurring opinion, Judge Acree implored the Supreme Court to reconsider its decision in Krieger, believing it vulnerable to several criticisms: (1) it is inconsistent with the rationale applied in Meinders; (2) it violates the Supreme Court’s jurisprudence for interpreting statutes; (3) it builds upon an erroneous reference in an unpublished Court of Appeals case; (4) it ascribes to cohabitation an equivalency to marriage in this context; and (5) granting a nonparent the rights of a parent based on a child’s best interests easily can be shown to constitute undue state interference with the actual parent’s constitutional right to raise her child, a child whose custody she is actively pursuing.

E. Hoskins v. Elliott, 2018-CA-000428, 591 S.W.3d 858 (Ky App. 2019)

Opinion by Judge Acree; Judges Combs and Maze concurred. After the circuit court awarded appellee/non-parent custodial rights to appellant’s/Father’s child, Father appealed. Father argued the circuit court erroneously: (1) used KRS 403.270’s timeframe requirements in determining the de facto custodian status of appellee; and (2) ordered him supervised visitation without a finding consistent with KRS 403.320(3). The Court of Appeals found all of Father’s arguments persuasive. The Court interpreted KRS 403.270(1)(a) as meaning that a parent cannot circumvent another parent’s rights by “placing” a child in the care of someone else. The Court rejected appellee’s definition of “placement” as a biological parent leaving the child in the care of another individual. Instead, the Court held that only the Cabinet can “place” a child when there is an active dependency, neglect, or abuse action. Given this holding, the Court determined that the appropriate timeframe for determining de facto custodian status in this case was one year. Also, the Court held that the circuit court’s findings of fact and conclusions of law lacked an appropriate finding under KRS 403.320(3) to warrant limiting Father to supervised visitation. Thus, the Court reversed and remanded the circuit court’s decision.

F. Lage v. Esterle, No. 2018-CA-000465, 591 S.W.3d 416 (Ky. App. 2019)

Opinion by Judge Taylor; Judges Lambert and Maze concurred. Appellants challenged orders denying their motions to be declared de facto custodians of two minor children. The Court of Appeals vacated and remanded. The children were placed in the care of appellant Amy Lage, a maternity home program volunteer, while their mother delivered and recovered from childbirth. By agreement of the parties, the children began living with Amy

116 and her husband; this arrangement continued beyond the time originally agreed to. Nearly two years later, appellants filed petitions to adopt the children and motions for emergency custody; the ultimate result of these proceedings was that the children were returned to their mother after spending almost two years with appellants. Appellants subsequently filed the subject actions in which they sought to be declared de facto custodians. At the custody hearing, the mother did not testify (and her counsel did not appear); instead the circuit court utilized and took judicial notice of her testimony from the temporary removal hearing conducted in the adoption and emergency custody actions. The court then based its findings of fact upon said testimony. In vacating, the Court of Appeals held that it was inappropriate to use the mother’s testimony in this manner, noting that “the evidence introduced in one court or proceeding cannot be used in another proceeding by judicial notice to prove a similar proposition in that case.” The Court held that the testimony from the earlier hearing did not pass the indisputability test of KRE 201 and that, by the circuit court taking notice of the testimony, appellants were unable to cross-examine the mother regarding the de facto custodian issue. The Court further held that the circuit court erred by precluding appellants from being considered as the primary financial providers for the children solely because the children received health insurance as a public benefit.

G. Qaisi v. Alaeddin, No. 2017-CA-000333, 580 S.W.3d 891 (Ky. App. 2019)

Opinion by Judge Taylor; Chief Judge Clayton and Judge Maze concurred. Appellant challenged an order declining to register documents from courts in Dubai, United Arab Emirates (UAE) in a custody action. The Court of Appeals affirmed. Citing KRS 403.806, the Court held that while the subject documents reflected some sort of a child custody determination, appellant had failed to show that the determination had been made in substantial conformity with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), as required under KRS 403.806(2). Specifically, appellant offered no evidence whatsoever as to how the Dubai courts reached their custody determination – including whether the best interests of the children were considered. This failure was fatal to her petition and supported the family court’s ruling that the Dubai documents did not conform with the jurisdictional requirements for Kentucky law in regards to child custody and thus were not entitled to be registered under the UCCJEA.

H. S.T. v. Cabinet for Health and Family Services, No. 2018-CA-001840, 585 S.W.3d 769 (Ky. App. 2019)

Opinion by Judge Nickell; Judges Goodwine and Spalding concurred. The Cabinet filed juvenile petitions seeking the removal of two half-siblings from their parental home. No relative placement was suggested by either parent. Ultimately, Mother named a couple (“the J’s”) she had met through a ministry and considered to be family friends. Father named no one. After a temporary removal hearing, the family court awarded temporary custody to the J’s. Nearly one year after the filing of the juvenile petitions, S.T. and J.T. (“the T’s”) sought to invoke KRS 620.110, which allows “any person aggrieved by the issuance of a temporary removal order” to petition for

117 immediate entitlement to custody and to receive an expeditious hearing. S.T. was Father’s aunt and great-aunt of one of the children. While laying no claim to the other sibling, the T’s urged that the girls be placed together. Relying on C.K. v. Cabinet for Health and Family Services, 529 S.W.3d 786 (Ky. App. 2017), the family court found that the T’s lacked standing because neither was the “natural parent of either child.” The Court of Appeals deemed this an erroneous reading of C.K., which focused entirely on a parent invoking KRS 620.110 because it was ruling on a petition filed by an unwed father. The Court held that C.K. did not rewrite KRS 620.110 to exclude non-parents and to allow only “any parent aggrieved” to petition for immediate custody. However, the Court further held that while the family court erroneously applied KRS 620.110, reversal was not mandated because of errors made by the T’s. Their brief included no statement of preservation; they failed to designate in the record a recording, transcript, or narrative statement of the hearing on the petition to intervene, making it impossible to determine whether the arguments alleged on appeal were raised below; and, claiming they were denied a full hearing, they offered no avowal of testimony that they wanted to offer. The greatest obstacle for the T’s was lack of any proof that they were “aggrieved” by the family court’s removal of the children and placement with the J’s. While “aggrieved” is not statutorily defined, the Court held that it must mean more than mere disagreement with the family court’s ruling and that some connection to the child must be demonstrated.

I. Santise v. Santise, No. 2019-CA-000192, 596 S.W.3d 611 (Ky. App. 2020)

Opinion by Judge Maze; Judge Goodwine concurred; Judge Kramer dissented and filed a separate opinion. Father appealed an order of the Jefferson Family Court refusing to relinquish its exclusive continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Pursuant to a settlement agreement incorporated into the parties’ 2011 decree of dissolution, the parties were awarded joint custody of their two children and Father was designated primary residential custodian. The agreement permitted Father to move with the children to New Jersey, where they have continuously resided since shortly after the initial custody award. In his motion to relinquish jurisdiction, Father argued that the children’s connections with New Jersey far outweighed their increasingly attenuated connection to Kentucky and asserted that New Jersey had already indicated that it would accept jurisdiction under the UCCJEA if invited. After discussing each of the KRS 403.834 factors, the family court concluded that given the totality of the circumstances, the enforcement nature of the proceedings before it, the court’s familiarity with the family, and Father’s ability to participate in the proceedings with minimal inconvenience, Kentucky remained the most convenient forum for the custody action. By a 2-1 vote, the Court of Appeals upheld the decision of the family court, perceiving no abuse of discretion in its refusal to cede jurisdiction based upon the length of time the case had been pending before it and its familiarity with the family dynamics and issues. The dissent concluded that because the family court order did not finally dispose of a claim, it was a purely interlocutory order requiring dismissal of the appeal. The majority addressed the finality issue, determining that, in view of the

118 fact that New Jersey had entered an order assuming jurisdiction and had in fact disposed of matters in issue between the parties, it was inimical to both the letter and the spirit of the UCCJEA to deny appellate review of a claim that the statute had not been properly applied, especially where that denial would result in duplication of litigation in two states.

J. Turner v. Hodge, No. 2019-CA-000229, 590 S.W.3d 294 (Ky. App. 2019)

Opinion by Judge Lambert; Judges Goodwine and K. Thompson concurred. Appellant challenged an order denying her motion to be designated as a de facto custodian of a child she had believed to be her biological grandchild. The Court of Appeals affirmed, holding that the status of a de facto custodianship must be addressed anew whenever the status is asserted and that an interruption can destroy the status. Here, the mother reestablished care between 2008 and 2015 after appellant had arguably been the child’s de facto custodian from her birth in 2006 through 2008. The biological father began paying child support since at least late 2015, when his paternity was established, and a joint, split custody order between the mother and the father was entered in September 2017. The evidence also established that the child spent time at residences other than appellant’s and that multiple individuals provided for the child’s financial support.

K. Warawa v. Warawa, No. 2018-CA-000963, 587 S.W.3d 631 (Ky. App. 2019)

Opinion by Judge K. Thompson; Judges Dixon and Kramer concurred. The Court of Appeals reversed and remanded a family court order adopting the recommendations, findings, and conclusions of a parenting coordinator. The Court held that the family court improperly delegated its judicial authority to the parenting coordinator. Although the Court noted that parenting coordinators may be used in high-conflict domestic relations cases to assist the family court, the family court could not delegate decision-making authority as to issues of the children’s education, medical providers, and contempt motions against a party to the parenting coordinator. The Court pointed out that the family court has the sole statutory authority to make decisions in the children’s best interest. In this case, issues concerning the children’s education, dental provider, and contempt motions had been referred to a parenting coordinator who made recommendations. The husband objected to the issues being referred to the parenting coordinator and filed objections to the recommendations. The husband’s request for a hearing was denied and the family court adopted the recommendations. The Court remanded with instructions that a hearing be conducted.

119 V. CHILD SUPPORT

A. Brannock v. Brannock, No. 2018-CA-001202, 598 S.W.3d 91 (Ky. App. 2019)

Opinion by Judge L. Thompson; Chief Judge Clayton and Judge Nickell concurred. The Court of Appeals affirmed a judgment finding that William Brannock did not owe child support arrears to Amity Brannock. When the parties divorced, they entered into a separation agreement which provided that William would pay Amity $1,000 per month in child support. Shortly after entering into the agreement, the parties reconciled and began living together. William did not pay Amity child support during this time. He alleged that he and Amity orally agreed that in lieu of child support, he would pay the mortgage on the family home and she would cover household and child-related expenses. When the parties separated six years later, Amity sought six years’ worth of past child support. The circuit court found – and the Court of Appeals agreed – that the parties had orally agreed to modify the child support agreement and that William did not owe a child support arrearage. In so concluding, the Court rejected Amity’s argument that the circuit court erred when it failed to enforce the terms of the parties’ separation agreement, which required all modifications to be in writing and signed by the parties. The Court held that it could not fully review the issue because the circuit court did not specifically rule as to what effect the modification clause had on the child support arrearage matter. The Court also noted that although Amity filed a CR 52.02 motion seeking additional findings of fact, she did not request additional findings as to this issue. Without such a request, the Court could not reverse. The Court further noted that even assuming the circuit court ruled there was an oral modification later committed to writing (via text messages and email), the Court could not fully review the issue because the text messages and email were not included in the record on appeal. The Court also agreed with the circuit court that Amity was equitably estopped from seeking child support arrearages because she allowed William to believe that he was satisfying his child support obligation by paying the mortgage for six years instead of giving money directly to her.

B. Nelson v. Ecklar, No. 2018-CA-000429, 588 S.W.3d 872 (Ky. App. 2019)

Opinion by Judge Dixon; Judges Kramer and Taylor concurred. The Court of Appeals affirmed an order modifying appellant’s child support obligation. The parties previously had entered into an agreement that made appellant responsible for “all reasonable expenses” for the child and specifically listed those expenses. Appellee later moved for a modification of child support, citing appellant’s alleged failure to comply with the prior agreement and an increase in his income as grounds for modification. After a hearing, the family court found a material change of circumstances that warranted an increase in appellant’s child support obligation. In support of the increase, the family court used the amount appellant testified he spent each month to comply with the parties’ prior agreement, which was more than 15 percent less than his obligation under the child support guidelines. On appeal, the Court held that child support can be modified pursuant to KRS

120 403.213 even when the parties have previously agreed to an amount lower than that required under the child support guidelines. The Court further concluded that where the parties have an equal timesharing arrangement but do not have equal or near-equal incomes, the base monthly child support obligation should be allocated to each parent in proportion to the party’s respective percentage of the combined monthly income. The Court affirmed the family court’s granting a credit toward appellant’s monthly obligation to address the parties’ equal timesharing arrangement. Finally, the Court held that the family court properly abided by the parties’ settlement agreement with regard to provision of the child’s health insurance where the agreement did not contemplate the possibility of the child being covered by a plan belonging to anyone other than the parties.

VI. CIVIL PROCEDURE

A. Cook v. Radtke, No. 2018-CA-000954, 598 S.W.3d 593 (Ky. App. 2020)

Opinion by Judge Taylor; Judges Combs and Goodwine concurred. Appellants challenged an opinion and order awarding $467,911.82 in damages for default upon sundry promissory notes. The Court of Appeals reversed and remanded, holding that the circuit court erred by determining at trial that appellants were liable to certain appellees for default where their claims were not timely raised by the complaint as amended or during discovery pursuant to CR 8.01. The Court further held that the circuit court erred in allowing those appellees to amend the pleadings post-trial to assert the subject claims pursuant to CR 15.02. Under the facts presented, appellants were denied proper notice of the claims and the ability to adequately prepare a defense, including the opportunity to assert counterclaims.

B. H.E.B., LLC v. Jackson Walker, L.L.P., No. 2018-CA-001175, 587 S.W.3d 333 (Ky. App. 2019)

Opinion by Judge Nickell; Chief Judge Clayton and Judge Maze concurred. Scott Haire started various companies – including VHGI, Inc. – a Delaware corporation. Haire stepped down from a leadership role in all entities and pled guilty to securities fraud in a federal sting. Before entering his plea, Haire revealed his anticipated indictment to a mentor/major investor during a meeting in Louisville. Richard Dahlson attended the Louisville meeting at Haire’s request. Jackson Walker (JW) is a Texas law firm. Dahlson is a partner in the JW firm and practices nearly exclusively in Texas. When the value of VHGI stock diminished, HEB – and other VHGI shareholders, some of whom are Kentucky residents – alleged that JW and Dahlson committed legal malpractice by helping others (who were also shareholders) dilute the value of VHGI stock. Civil suit was filed in Fayette Circuit Court alleging various , including legal malpractice. The suit was dismissed against JW and Dahlson for lack of minimum contacts satisfying Kentucky’s long-arm statute. The Court of Appeals affirmed. JW’s only contact with Kentucky was the less-than-a-day Dahlson spent in the state for a reason not alleged in the complaint. The shareholders erroneously alleged that Kentucky had jurisdiction under KRS

121 454.210(2)(a)(1), (2) and (4), none of which applied because neither JW nor Dahlson had sufficient minimum contacts with the Commonwealth. Neither had an office or presence in Kentucky, and neither sought to conduct business in Kentucky. None of JW’s 363 attorneys is licensed to practice in Kentucky. JW had 14 clients with ties to Kentucky but only on interests outside the state and none generating substantial revenue in Kentucky. The Court further noted that Dahlson lives in Texas, never owned property in Kentucky, never held a Kentucky license, never had a Kentucky bank account, and was never employed in Kentucky. Moreover, he never solicited business from Kentucky companies nor represented a Kentucky company.

VII. CLASS ACTIONS

Summit Medical Group, Inc. v. Coleman, No. 2018-CA-001238, 599 S.W.3d 445 (Ky. App. 2019)

Opinion by Judge Lambert; Judges Goodwine and Maze concurred. Appellant challenged an order certifying appellee’s medical billing claim as a class action and appointing counsel under CR 23. The Court of Appeals vacated and remanded, holding that although appellee met her burden under CR 23.01’s commonality and typicality requirements (numerosity was not challenged), she failed to meet the adequacy burden regarding appointment of counsel. The Court noted that appellant had not been afforded the opportunity to challenge counsel’s credentials; moreover, appointed counsel had withdrawn and a challenge to the proposed substitute counsel was never afforded. Accordingly, the certification order was vacated with instructions to revisit the requirements of CR 23.01 before applying analysis under CR 23.02.

VIII. CONSTITUTIONAL LAW

A. Department of Corrections v. Mitchem, No. 2018-CA-000654, 586 S.W.3d 256 (Ky. App. 2019)

Opinion by Judge Lambert; Judges Maze and Taylor concurred. Appellee was convicted of second-degree escape, in violation of KRS 520.030 and sentenced to one year’s imprisonment. Upon his release, appellee was informed that he would be subjected to a year’s post-conviction supervision (PIS) pursuant to KRS 532.400(1)(b), a fact of which he had not been made aware up until that point. Appellee violated the terms of his PIS and was returned to custody; he was subsequently given a serve-out date of a full year’s incarceration. Appellee filed an action for declaratory and injunctive relief in the Franklin Circuit Court, challenging the constitutionality of KRS 532.400(1)(b) and seeking immediate release. The circuit court agreed that the statute was unconstitutional as violative of due-process and separation- of-powers protections. Appellee was ordered released, and the Department of Corrections appealed. The Court of Appeals affirmed, holding that the circuit court properly granted summary judgment to appellee. The Court noted that the statute provided for no notice, no hearing, and no right to counsel at a critical stage in the proceedings. It was also unconstitutionally vague and allowed “the DOC, an executive agency,

122 to encroach on powers expressly enumerated to the judicial branch by issuing a criminal sentence resulting in incarceration without judicial review.”

B. Jeffries v. Justice and Public Safety Cabinet, No. 2018-CA-001322, 2019 WL 3979121 (Ky. App. Aug. 23, 2019) DR Pending

Opinion by Judge Lambert; Judges Goodwine and Maze concurred. Appellant was convicted in 1997 of rape and attempted first-degree rape as a youthful offender. He filed this action challenging his need to register under the Kentucky Sex Offender Registration Act (SORA), KRS 17.500 et seq. He claimed that SORA’s retroactive application to him violated the Kentucky and United States because it was an ex post facto law, was cruel and unusual punishment, and the registration was not rationally related to a legitimate governmental interest. The Court of Appeals affirmed the circuit court’s judgment dismissing the petition, relying on Buck v. Commonwealth, 308 S.W.3d 661 (Ky. 2010), which held that prior amendments to SORA did not make the statute punitive in nature and therefore did not violate the ex post facto clauses because it was remedial in nature and had a rational connection to a non-punitive goal to protect public safety. The Court rejected appellant’s arguments that juveniles were exempt from registration or that SORA was intended to be punitive. It also rejected his arguments that KRS 17.545(2) and KRS 17.546(3) are unconstitutional. These statutes prohibit a sex offender from being on school or daycare grounds or from taking photographs of other children without permission. The Court held that these restrictions were minimally taxing and served a non-punitive purpose of protecting children. The statutes also contained exemptions if the sex offender obtained permission.

IX. CONTEMPT

Nienaber v. Commonwealth ex rel. Mercer, No. 2018-CA-001815, 594 S.W.3d 232 (Ky. App. 2020)

Opinion by Judge Goodwine; Judges Taylor and K. Thompson concurred. The Court of Appeals reversed and remanded an order of contempt based upon a finding that appellant failed to timely pay $191.10 per month toward her child support and $25.00 per month toward her arrearage owed to the Commonwealth. After finding appellant in contempt, the family court ordered her to pay a purge amount of $500.00 or serve 90 days in jail, conditionally discharged for two years. At the time of the contempt hearing, appellant was unemployed, had no income, and, as a condition of her parole in another case, was required to start an inpatient treatment program as soon as a bed became available. Notably, the family court found that appellant would be unable to pay the purge before the court’s deadline because she would be in inpatient substance abuse treatment for the next six months. In reversing the order of contempt, the Court of Appeals noted that the family court clearly found that appellant was unable to pay the purge amount. Thus, the family court abused its discretion in setting the purge amount as the court found it was impossible for appellant to pay it. The Court remanded for the family court to determine an attainable purge amount, if any, and to issue findings to

123 support that determination. If there was no attainable purge amount, jail time could not be imposed. The Court also held that the family court did not abuse its discretion in failing to consider a non-monetary purge or in imposing a period of conditional discharge.

X. CONTRACTS

A. Aries Entertainment, LLC v. Puerto Rican Association for Hispanic Affairs, Inc., No. 2018-CA-001104, 591 S.W.3d 850 (Ky. App. 2019)

Opinion by Judge Nickell; Chief Judge Clayton and Judge Maze concurred. Aries, a talent agent based in Harlan, Kentucky, represented four celebrities hired to appear at a weekend scholarship fundraiser in Florida. Aries drafted four personal appearance contracts and emailed them to the Association, a Florida 501(c)(3) non-profit corporation sponsoring the event. Each contract contained a choice of forum clause specifying that Harlan Circuit Court would resolve all disputes using Kentucky law. Knowing each contract contained a choice of forum clause, Association signed all contracts without hesitation. When a dispute arose, Aries filed suit in Kentucky for breach of contract and tortious interference with contract. Association moved to dismiss due to a lack of jurisdiction, arguing that it would be a “terrible hardship” to require it to defend suit in Kentucky, a fact it must have known prior to signing the contracts. The circuit court declined to enforce the choice of forum clause, finding that it would be “unreasonable” to do so because the fundraiser was a “single transaction” not rising “to the level of ‘transacting business in this Commonwealth’” and “Kentucky has only a minimal interest in this action.” In dismissing the action without prejudice, the circuit court said enforcing the clause would be “unreasonable,” but did not explain why. The Court of Appeals reversed and remanded for an evidentiary hearing and findings. The Court determined that the circuit court erroneously applied portions of Kentucky’s long-arm statute when the parties had freely consented to the choice of forum clause. The Opinion notes that Kentucky has a strong public interest in ensuring parties abide by bargains and that the circuit court’s role is not to save a party from what it perceives to be a bad bargain. It also clarifies that the test for determining whether to enforce a choice of forum clause is whether doing so is “unfair or unreasonable – not merely inconvenient – and reiterates that inconvenience is a factor to consider, but it must be so serious as to deprive the complainant of his opportunity for a day in court.

B. EQT Production Company v. Big Sandy Company, L.P., No. 2017-CA- 001178, 590 S.W.3d 275 (Ky. App. 2019)

Opinion by Judge Lambert; Chief Judge Clayton and Judge Dixon concurred. These appeals and cross-appeals arose from several rulings related to contract rights set forth in two executed nearly a century ago addressing coal, oil, and gas interests on property located in Pike County, Kentucky. Both parties sought declaratory relief related to the terms of the deeds, including which party would have to pay to relocate pipelines and the meaning of the phrase, “coal workings, extended or projected.” EQT added a claim for unjust enrichment for royalty payments

124 mistakenly paid to Big Sandy for several years; the issue on review there was the date the statute of limitations began to run on that claim. The Court of Appeals affirmed the circuit court’s rulings enforcing the terms of the deeds. The Court rejected EQT’s argument that it could not have reasonably discovered its mistaken royalty payments and held that the circuit court properly ruled that the statute of limitations cut off any claims that arose prior to five years from the date EQT filed its amended counterclaim. The Court also found no merit in Big Sandy’s argument that the deeds should have been reformed to change the payment terms that it now claimed were unconscionable in order to reflect modern prices and volume. These terms were set forth in the deeds, and the Court found no abuse of discretion in the circuit court’s decision to keep the original terms of the deeds intact.

XI. CONVERSION

C&H Manufacturing, LLC v. Harlan County Industrial Development Authority, Inc., No. 2018-CA-001222, 2020 WL 1224155 (Ky. App. Mar. 13, 2020)

Opinion by Judge Jones; Judges Combs and L. Thompson concurred. C&H, a manufacturer of metal parts, defaulted on its loan to Cumberland Valley Area Development District. C&H began negotiating the sale of its facility and equipment to Hurberries, a commercial competitor of C&H. C&H abandoned its lease of the property, and Harlan County Industrial Development Authority, Inc. (HCIDA) assumed control and continued negotiations with Hurberries as successor-in- interest. Eventually, C&H initiated this claim against HCIDA and Hurberries alleging conversion of manufacturing equipment in an attempt to recoup rental payments. C&H claimed HCIDA, the lessor, converted the equipment by leasing the facility and the equipment contained therein to Hurberries. At no point did C&H make a demand for the return of the equipment. C&H initiated the action against Hurberries and HCIDA on several claims of conversion. The circuit court entered summary judgment for Hurberries and HCIDA finding C&H had abandoned the equipment on the premises leased by Hurberries from HCIDA. The Court of Appeals affirmed, noting that the doctrine of abandonment precludes any claim for conversion and recognizing the presumption of abandonment when a commercial tenant turns over its lease to another commercial tenant in the same business and leaves behind equipment or personal property. The Court agreed with the circuit court that C&H had abandoned its equipment, invalidating its conversion claims. There was nothing about C&H’s behavior to suggest that it did not intend to abandon its equipment. The Court also noted that a lessor such as HCIDA does not assert an ownership interest in property left behind at a leased premises when reletting the premises. HCIDA had neither possession nor the right to interfere with Hurberries’ possession of C&H’s abandoned equipment, and to hold otherwise would prevent lessors from leasing facilities in fear of ensuing litigation.

125 XII. CORRECTIONS

A. Greene v. White, No. 2018-CA-000592, 584 S.W.3d 299 (Ky. App. 2019)

Opinion by Judge K. Thompson; Judges Dixon and Jones concurred. Appellant challenged an order dismissing his petition seeking a declaration of rights for failure to state a claim on which relief could be granted. The circuit court determined that appellant failed to exhaust his administrative remedies in challenging a finding of guilt in a prison disciplinary matter, which resulted in a restriction of his visitation privileges with his wife and adult daughter. The Court of Appeals agreed with appellant that the circuit court erred in dismissing for failure to exhaust administrative remedies. However, it still concluded that dismissal was appropriate. The Court held that appellant had no right to receive procedural due process before visitation with his wife and adult daughter could be restricted on grounds that they had conspired with him to introduce dangerous contraband into the facility. Denying access to specific visitors is well within the terms of confinement ordinarily contemplated by a prison sentence. Despite the use of mandatory language in Kentucky’s Corrections Policies and Procedures (CPP), exclusion of specific visitors is not an atypical and significant hardship compared to the ordinary incidents of prison life, and prison officials are granted wide discretion in excluding visitors both temporarily and permanently. Therefore, the CPP does not provide an inmate with a right to due process before specific visitors can be excluded. Visitors may be excluded without proof that the inmate they came to visit did anything wrong.

B. Hopkins v. Smith, No. 2018-CA-001237, 592 S.W.3d 319 (Ky. App. 2019)

Opinion by Judge Taylor; Chief Judge Clayton and Judge Acree concurred. The Court of Appeals affirmed the dismissal of appellant’s petition for a declaration of rights regarding the Department of Corrections’ policies and procedures (CPP) governing inmates’ finances. Appellant specifically challenged CPP 15.7, which prohibits an inmate from sending money outside the institution and limits an inmate from having access to more than $1,000 in their institutional account. The Court held that CPP 15.7 did not act to “confiscate” appellant’s funds. Instead, it temporarily restricted his access to some of his funds and there is a difference between the inmate’s ownership rights in the property and the inmate’s right to possess the property while in prison. The Court further held that CPP 15.7 did not present an atypical and significant hardship on prisoners and that the rule was rationally related to institutional security.

C. Woods v. Commonwealth, No. 2019-CA-001042, 599 S.W.3d 894 (Ky. App. 2020)

Opinion dismissing by Judge Goodwine; Judges Jones and Kramer concurred. Appellant challenged an order denying his motion for jail time credit pursuant to KRS 532.120(9). Because appellant failed to name either the warden or the Department of Corrections as an indispensable party, the Court of Appeals dismissed the appeal pursuant to Watkins v. Fannin,

126 278 S.W.3d 637 (Ky. App. 2009). In reaching this decision, the Court concluded that the decisions of the Supreme Court of Kentucky in Lassiter v. American Exp. Travel Related Services Co., Inc., 308 S.W.3d 714 (Ky. 2010) and the Court of Appeals in Thrasher v. Commonwealth, 386 S.W.3d 132 (Ky. App. 2012) did not compel a different result. The Court noted that unlike Thrasher, the appellant here did not name the warden or the Department of Corrections in the underlying circuit court action. He did not name either in his notice of appeal, nor did he serve either with notice, making it difficult to determine which department or cabinet was affected by the appeal. The Court further noted that Lassiter named the Department of Treasury and Thrasher served legal counsel for the Department of Corrections with notice. Finally, the Court concluded that Lassiter does not create a rule that naming the Commonwealth only is acceptable as a substitute for naming on appeal all of the numerous state agencies which are the actual indispensable parties without some notification to the specific agency.

XIII. COURTS

Armstrong v. Estate of Elmore, No. 2019-CA-001084, 2020 WL 2502205 (Ky. App. May 15, 2020) Rehearing Pending

Opinion by Special Judge Buckingham; Judges Combs and Jones concurred. This case arose out of an automobile accident in 2014 in which two individuals died. The case was previously the subject of an opinion by the Supreme Court of Kentucky wherein issues concerning the ownership of a vehicle were determined. Travelers Indemnity Company v. Armstrong, 565 S.W.3d 550 (Ky. 2018). After appellant filed wrongful death claims in the Warren Circuit Court, the main issues quickly became who was the statutory owner of the vehicle at fault and whose insurance was potentially responsible for damages resulting from the accident. The Supreme Court concluded in Travelers that “Elmore [the driver of the vehicle] was the statutory ‘owner’ of the vehicle, even though title was still in Martin [Cadillac’s] name.” Martin Cadillac was the licensed motor vehicle dealer that originally owned the vehicle. Martin subsequently sold the vehicle to DeWalt Auto Sales through an auction, and DeWalt took possession of it. DeWalt then sold the vehicle to Elmore for cash. On remand from the Supreme Court, appellant attempted to argue that DeWalt owned the vehicle; however, the circuit court determined that the law-of-the-case doctrine barred re-litigation of the issue because the Supreme Court had determined that Elmore was the statutory owner of the vehicle. The Court of Appeals agreed that the law-of-the-case doctrine applied and affirmed. The Court noted that the Supreme Court’s belief that Elmore was the statutory owner of the vehicle was not essential to its determination in Travelers; it was essential to the Supreme Court’s ruling to determine only that Martin Cadillac was not the owner. Nevertheless, because the Supreme Court made that determination, the Court of Appeals concluded that it was bound by it.

127 XIV. CRIMINAL LAW

A. Bedford v. Commonwealth, No. 2018-CA-001194, 2020 WL 499732 (Ky. App. Jan. 31, 2020) DR Denied

Opinion by Special Judge Buckingham; Chief Judge Clayton and Judge L. Thompson concurred. Appellant challenged a judgment wherein he was sentenced to a term of 10 years’ imprisonment for complicity to robbery in the first degree and to 12 months for assault in the fourth degree following a jury trial. The Court of Appeals affirmed. The Court first held that the circuit court did not abuse its discretion in requiring the jury to finish the trial on its last day rather than allowing the jury to return the following day for its deliberations. The final day of the three-day trial began at approximately 8:30 a.m., and the presentation of evidence was finished shortly after 4:00 p.m. Due to an extensive delay in preparing the jury instructions, the trial was delayed until 10:30 p.m. when the court finally instructed the jury on the law of the case. The jury remained in the building during this entire time. Following the reading of the instructions and the closing arguments of the attorneys, at 12:55 a.m. the jury retired to deliberate. Counsel for appellant requested the court to allow the jury to go home for the evening, but the court declined to do so. The jury returned its verdicts shortly after 3:00 a.m. The Court of Appeals noted that appellant’s counsel never expressly objected to the circuit court’s decision not to adjourn for the evening. The Court further noted that the jury had been advised that the trial would last three days, and at least one juror had flight plans for the following day. The jury was consulted, and no objection was made. Thus, the circuit court inferred, and properly so, that the jury wished to continue with the trial until completion. The Court also held that the circuit court did not err in refusing to allow appellant’s counsel to cross-examine a witness concerning the witness’s pretrial diversion status. The witness was apparently not a suspect and was not charged in connection with the subject robbery. The crime he allegedly committed occurred a year or so after this incident and was totally unrelated. Further, there was nothing to indicate that the witness had received any leniency in that case for his testimony in this case nor was there any indication that the witness had violated his diversion or was otherwise in danger of having it revoked. In short, there was nothing to indicate that the witness’s testimony was influenced or that he had a bias favoring the Commonwealth merely because he was on pretrial diversion in another case.

B. Benton v. Commonwealth, No. 2018-CA-001800, 598 S.W.3d 102 (Ky. App. 2020)

Opinion by Judge Maze; Judges Acree and Combs concurred. Appellant entered a conditional Alford plea to charges of first-degree trafficking in a controlled substance, possession of a firearm by a convicted felon, and being a PFO II. He reserved the right to appeal the denial of his motion to suppress evidence obtained by the police during a traffic stop. The motion to suppress was based on events occurring in February 2017, when a Lexington police officer observed a vehicle leave a city park after dark. The vehicle’s lights were initially off, but the lights were turned on as it left

128 the park. The officer ran the vehicle’s registration plates and discovered that the owner had an active warrant. The officer also received a report that the vehicle was connected to a theft. Upon stopping the vehicle, the officer approached the driver. The officer testified that he smelled marijuana coming from the vehicle. The driver, appellant, initially gave an incorrect Social Security number. However, he then provided his correct information and the officer determined that he was not the subject of the warrant. But when the officer’s backup arrived, the officer asked appellant and the passenger to exit the vehicle. Appellant became agitated at this request. A search of the vehicle revealed a digital scale and a loaded handgun. Following his arrest, a pat-down search of appellant uncovered a substantial amount of heroin packaged for sale. Appellant argued that the officer had no probable cause to believe that a traffic violation had occurred and no reasonable, articulable suspicion that criminal activity was afoot. He also asserted that the Commonwealth was required to produce the warrant which was the basis for the traffic stop. The Court of Appeals disagreed, concluding that the credible report of an active warrant for the vehicle’s owner provided a reasonable, articulable suspicion for the stop. Furthermore, the circuit court was in the best position to evaluate the credibility of the officer’s testimony about the warrant and the other circumstances surrounding the stop. In light of the totality of the circumstances, the Court agreed that the officer had a reasonable suspicion to stop appellant’s vehicle. Thus, the circuit court properly denied appellant’s motion to suppress evidence obtained during the subsequent searches.

C. Bolin v. Commonwealth, No. 2018-CA-000477, 592 S.W.3d 305 (Ky. App. 2019)

Opinion by Judge Jones; Judges Combs and L. Thompson concurred. Following entry of a conditional guilty plea, appellant argued that the circuit court improperly denied his motion to suppress evidence seized from the vehicle he was driving at the time he was stopped by law enforcement. The Court of Appeals affirmed. Appellant was driving a vehicle owned by the passenger, who remained present during the entire encounter with the state trooper. The Commonwealth argued that, as a non-owner, appellant had no reasonable expectation of privacy in the vehicle. After a discussion of the guiding case law, the Court held that whether the non-owner driver of a vehicle has a reasonable expectation of privacy with respect to the vehicle’s compartments and interior hinges on whether the owner has relinquished both possession of and control over the vehicle to the non- owner such that the non-owner driver has formed a subjective expectation of privacy that society is prepared to accept as reasonable. The Court noted that this is a fact-intensive inquiry, and the defendant bears the burden of proof as exemplified by U.S. v. Lochan, 674 F.2d 960 (1st Cir. 1982). Here, appellant did not possess the required privacy interest in the vehicle’s interior to contest the search; therefore, the Court affirmed denial of his motion to suppress.

129 D. Carrender v. Commonwealth, No. 2018-CA-001142, 2020 WL 855689 (Ky. App. Feb. 21, 2020) DR Pending

Opinion by Judge Lambert; Judges Maze and K. Thompson concurred. Appellant was charged with driving under the influence (DUI), first offense, and reckless driving after he was stopped at a Kentucky State Police roadblock in Wayne County, Kentucky. After appellant’s motion to suppress evidence was denied, he entered a conditional guilty plea to DUI, and the charge of reckless driving was dismissed. He was sentenced to two days’ incarceration (with credit for time served) and ordered to enter an alcohol treatment program. Appellant’s conviction was affirmed on direct appeal to the circuit court, and he sought and was granted discretionary review. The Court of Appeals affirmed, holding that the “general law enforcement” purpose of the roadblock was bolstered by KSP’s stated emphasis on enforcement of traffic laws, with special importance placed upon “occupant protection (seatbelt adherence), sobriety, insurance and registration violations.” Therefore, it was in compliance with Commonwealth v. Cox, 491 S.W.3d 167 (Ky. 2015). Secondly, the Court held that the district court considered all factors enunciated in Commonwealth v. Buchanon, 122 S.W.3d 565 (Ky. 2003), and Cox, supra, before denying appellant’s motion to suppress. Thus, the circuit court was correct in affirming the district court’s denial of the motion.

E. Commonwealth v. Garrett, No. 2017-CA-001144, 585 S.W.3d 780 (Ky. App. 2019)

Opinion by Judge Acree; Judge Dixon concurred; Judge Spalding concurred in result only. After the circuit court entered an order suppressing evidence seized by law enforcement from a vehicle pursuant to a warrantless search, the Commonwealth appealed. The Court of Appeals affirmed, holding: the initial interaction between the police and appellee was not a stop justified by observing a traffic or other violation but merely a consensual encounter; when the officer walked away from appellee in possession of his license, appellee was seized for Fourth Amendment purposes; because there was no reasonable articulable suspicion that appellee was engaged, or about to engage, in criminal activity, the seizure was unlawful; prolonging appellee’s detention for 20 minutes because of an administrative glitch in the civil warrant determination process was unreasonable and unjustified; physically pulling appellee’s passenger from the vehicle 30 minutes after the initiation of the encounter solely because her movement became “erratic” without further articulation of the officers’ suspicion was an unlawful seizure; the warrantless search of the vehicle lacked probable cause and, therefore, violated appellee’s Fourth Amendment rights; the contraband seized as a result of the unlawful search was “fruit of the poisonous tree”; and each of the three factors of the “attenuation doctrine” favored suppression because (1) the evidence was seized only minutes after these Fourth Amendment violations occurred, (2) there were no intervening circumstances to dissipate the taint of the violations, and (3) the violations were sufficiently flagrant that suppression was justified to deter the repetition of the unlawful police conduct.

130 F. Commonwealth v. Graham, No. 2017-CA-001831, 586 S.W.3d 754 (Ky. App. 2019)

Opinion by Judge Maze; Judges Goodwine and Lambert concurred. In the Commonwealth’s appeal from the circuit court’s grant of a new trial to the appellee pursuant to CR 60.02, the Court of Appeals affirmed. Appellee was found guilty in 2008 for the rape and murder of his girlfriend in Todd County, Kentucky, in 1980. Several years after appellee’s conviction, two previously unknown witnesses came forward who had observed Roy Wayne Dean leaving the area of the victim’s trailer on the night of the murder. Dean is a suspected serial killer who is currently incarcerated for two unrelated murders he committed of other women in Todd County in 1984. The Commonwealth presented four main arguments on appeal. First, the circuit court should not have considered this CR 60.02 motion because it was successive. Second, the circuit court abused its discretion when it concluded that appellee had exercised due diligence in locating the new witnesses. Third, the circuit court erroneously determined that a new trial with testimony from the newly discovered witnesses would probably result in a different outcome. Fourth, the circuit court erred because the facts involved in this case were fundamentally different from those of other cases which have warranted relief under CR 60.02. The Court of Appeals disagreed with the Commonwealth and held that the circuit court did not abuse its discretion in granting appellee’s CR 60.02 motion. First, the Commonwealth failed to argue to the circuit court about whether the motion was successive, thus waiving the potential error on appeal. Second, the circuit court did not abuse its discretion in finding that appellee exercised due diligence; the witnesses did not previously come forward, and the witnesses were previously completely unknown to police and defense investigators. Third, the circuit court’s evaluation of the effect of the witnesses’ testimonies was not clearly erroneous, as it was supported by substantial evidence. Fourth, the circuit court correctly found that appellee was not required to prove “actual innocence” for CR 60.02 relief, as argued by the Commonwealth, but only that the result of a new trial would probably be different.

G. Commonwealth v. Harbin, No. 2019-CA-000305, 2019 WL 5655903 (Ky. App. Nov. 1, 2019) DR Pending

Opinion by Judge L. Thompson; Judge Combs concurred; Judge Jones concurred and filed a separate opinion. The Court of Appeals reversed and remanded an order which found that Leslye Harbin received ineffective assistance of counsel during his criminal trial for murder. The circuit court found that trial counsel should not have allowed his client to speak with the police shortly after the murder, erroneously stated that Harbin would testify during his opening argument and should not have advised Harbin to take a plea deal. The court went on to say that while each of these issues, individually, did not amount to ineffective assistance of counsel, they cumulatively rose to that level. The Court of Appeals held that there was no ineffective assistance of counsel. The Court determined that when trial counsel allowed Harbin to talk to the police, no adversarial proceedings had begun against Harbin; therefore, the Sixth Amendment right to counsel

131 had not attached and this action could not be used as a claim for ineffective assistance of counsel. The Court also held that even if the Sixth Amendment did apply to pre-arrest or pre-indictment actions, in this case counsel allowing his client to speak to the police was reasonable trial strategy. The Court also concluded that counsel’s mentioning that Harbin would testify during trial did not amount to deficient performance. When counsel made the statement, he believed Harbin would testify. It was not until the trial was underway that Harbin decided not to testify. The Court also held that counsel’s advice to accept the plea agreement was not in error because Harbin had been found guilty of murder by a jury and the plea agreement gave him the minimum sentence. Finally, the Court held that the cumulative error doctrine did not apply because trial counsel committed no actionable errors. Judge Jones’s concurring opinion expanded upon the analysis of the opening statement issue.

H. Commonwealth v. Morgan, No. 2018-CA-000719, 583 S.W.3d 432 (Ky. App. 2019)

Opinion by Chief Judge Clayton; Judges Maze and Nickell concurred. This matter was before the Court of Appeals upon discretionary review of an order reversing and remanding a district court order denying appellee’s motion to suppress the results of his breathalyzer test. Appellee argued that the arresting officer failed to comply with the provisions of KRS 189A.105(4), which requires that a person who submits to a requested alcohol and substance test be given a second warning concerning his or her right to have an independent blood test performed. In this case, the police officer failed to give the second warning. As to the issue of suppressing evidence when no constitutional rights have been violated, the Court noted that Commonwealth v. Bedway, 466 S.W.3d 468 (Ky. 2015) holds that suppression may be warranted upon the violation of a statutory right if there is prejudice to the defendant or if there is evidence of deliberate disregard of the statute. Here, the arresting officer did not testify that he forgot to give the warning. Further, the officer marked “no” on the informed consent form to the specific question of whether appellee sought an independent blood test. Therefore, the Court of Appeals agreed with the circuit court that the officer had deliberately disregarded the statutory mandate and that suppression of the breath test evidence was proper.

I. Compise v. Commonwealth, No. 2018-CA-000452, 597 S.W.3d 175 (Ky. App. 2020)

Opinion by Judge K. Thompson; Judge L. Thompson concurred; Judge Taylor concurred in result only. Appellant challenged orders voiding her pretrial diversion and placing her on probation with a sanction. The Court of Appeals vacated and remanded, holding that the circuit court failed to make the required findings under KRS 439.3106 and relied in part upon an inadequate order of restitution. That order directed appellant to pay restitution of $22,998.76 to the victim for stolen property; however, no terms were provided as to how restitution was to be paid. The Court concluded that the order failed to comply with the mandates of KRS 532.033 and that findings should have been made regarding appellant’s financial situation,

132 her ability to pay restitution, and what, if any, monthly payments she could afford. Given that the order of restitution was deficient, this was clear error and the circuit court must enter a corrected order on remand. When it does so, the circuit court must consider appellant’s ability to pay restitution given her current financial situation.

J. Constant v. Commonwealth, No. 2018-CA-001457, 2020 WL 1966537 (Ky. App. Apr. 24, 2020)

Opinion by Judge Jones; Judges Goodwine and Kramer concurred. Two Lexington police officers were dispatched to an apartment to execute a pickup order for a minor. The minor was locked in her bedroom. When the minor emerged from her bedroom, the officers discovered appellant, a 30- year-old man, also locked in the bedroom with her. Appellant provided the officers with false identifying information. While the officers were preparing for the minor’s arrest, appellant was detained inside the apartment. During this time, he paced and shouted inside the apartment before suddenly bolting from it. A pursuit ensued, which resulted in an indictment for two counts of assault in the third degree, fleeing or evading in the first degree, possession of a controlled substance in the first degree, resisting arrest, giving an officer a false name, and being a persistent felony offender. Appellant filed a motion to suppress for unlawful detention and seizure. The circuit court denied the motion to suppress, and appellant entered a conditional guilty plea. On appeal, appellant argued that his initial detention was unlawful and so any evidence supporting the charges related to his initial detention, before any subsequent independent crimes, should be suppressed. The circuit court did not determine whether the initial detention was lawful. The Court of Appeals adopted the Sixth Circuit’s interpretation of the Fourth Amendment, which provides law enforcement the limited authority to briefly detain all individuals at the scene of an arrest, even innocent bystanders. Thus, the officers were justified in briefly detaining appellant to gather more information. Law enforcement officers are allowed to detain individuals at the scene of an arrest for bystander and officer safety. The Court of Appeals extended this logic to arrest warrants as police are entitled to ensure their own safety, as well as the safety of the individuals they are placing under arrest.

K. Crabtree v. Commonwealth, No. 2016-CA-001865, 584 S.W.3d 291 (Ky. App. 2019)

Opinion by Judge Lambert; Judges Maze and Taylor concurred. Appellant was convicted of first-degree burglary and sentenced to 20 years’ imprisonment. His conviction was affirmed on direct appeal, and he subsequently sought RCr 11.42 relief, arguing that his trial and appellate counsel were ineffective. The circuit court denied the motion after holding an evidentiary hearing. On appeal, appellant argued that trial counsel and appellate counsel failed to object to and argue on appeal, respectively, the issue of certain representations made by the prosecutor during the penalty phase of trial. The Court of Appeals affirmed, holding that appellant had failed to demonstrate that he was prejudiced to such a degree that the

133 outcome would have been different at either the trial or appellate level had the issue been raised.

L. Dale v. Commonwealth, No. 2018-CA-000563, 2019 WL 4229737 (Ky. App. Sept. 6, 2019) DR Pending

Opinion by Judge Goodwine; Judge Nickell concurred; Judge Spalding dissented and filed a separate opinion. Appellant challenged an opinion and order of the Jefferson Circuit Court affirming the Jefferson District Court’s order of restitution. Appellant was cited for failure to maintain required insurance following a car accident that resulted in the death of another motorist. Appellant pleaded guilty, and the district court later ordered him to pay restitution in the amount of $100,000 for the value of the motorcycle damaged in the accident and the decedent’s lost wages. The circuit court affirmed the district court’s order, finding that appellant agreed to pay restitution as part of his plea agreement. The Court of Appeals reversed the circuit court’s opinion and order with instructions to vacate the district court’s order of restitution. In so doing, the Court held that: (1) appellant did not agree to pay restitution; he merely agreed to a restitution hearing; (2) appellant’s right to due process was violated because the Commonwealth did not provide advance notice of the amount and nature of restitution sought and failed to meet its burden of proving the validity of its claim for restitution; and (3) KRS 304.99-060 does not provide for the imposition of restitution and the Commonwealth did not prove that the restitution sought directly resulted from appellant’s failure to maintain required insurance. In dissent, Judge Spalding indicated that he would reverse the order and remand for a new restitution hearing, opining that while the district court should have upheld appellant’s right to due process, appellant’s failure to maintain insurance could have resulted in a direct loss to the victim.

M. Doebler v. Commonwealth, No. 2019-CA-000130, 2019 WL 5655283 (Ky. App. Nov. 1, 2019) DR Pending

Opinion by Judge Jones; Chief Judge Clayton and Judge Lambert concurred. Appellant pled guilty to possession of drug paraphernalia. Following a forfeiture hearing, the circuit court directed appellant to forfeit cash found in her purse when she was arrested. The Court of Appeals reversed. During the forfeiture hearing, at which appellant was directed (erroneously) to proceed first, appellant asserted (and the circuit court ultimately found) that she had obtained the money at issue from her late father’s estate the afternoon before its seizure by police. Appellant admitted to possessing a syringe but denied other drug activity. In lieu of putting on evidence, the Commonwealth instead relied on the presumption of close proximity and argued that appellant failed to rebut the presumption by clear and convincing evidence. Despite the lack of evidence, the circuit court concluded that the nature of appellant’s conviction and the money’s proximity to illegal drugs justified its forfeiture. In reversing, the Court of Appeals noted that proper procedure requires the Commonwealth bear the initial burden of presenting first at a forfeiture hearing. This burden is a slight one, but it rests with the Commonwealth, not the defendant, and

134 requires following the procedure laid out in Osborne v. Commonwealth, 839 S.W.2d 281 (Ky. 1992). As part of this burden, the Commonwealth must put on at least some competent evidence justifying forfeiture. Here, the Commonwealth did not present any evidence but instead relied on proximity alone. This was insufficient. Because of the lack of evidence, reversal was merited.

N. Farmer v. Commonwealth, No. 2017-CA-000226, 2020 WL 2503492 (Ky. App. May 15, 2020)

Opinion by Judge Lambert; Judges Maze and K. Thompson concurred. Appellant was convicted of second-degree assault. On appeal, appellant argued, and the Commonwealth conceded, that there was insufficient proof to support the conviction. The Court of Appeals agreed and reversed the conviction. Appellant was prosecuted for assault under KRS 508.020(1)(b); to be convicted, the Commonwealth had to prove that the victim had sustained a physical injury through the use of a deadly weapon or dangerous instrument. The Commonwealth asserted at trial that appellant’s fist was a dangerous instrument. However, in order for a fist to be considered a dangerous instrument, it must directly cause a serious physical injury pursuant to KRS 500.080(3). That a fist is capable of doing so is not enough. The Commonwealth did not introduce any evidence or medical proof to establish that the victim had sustained a serious physical injury and argued that she had only sustained a physical injury. Because there was not sufficient evidence to support the charge, appellant was entitled to a directed verdict of acquittal. In addition, the circuit court did not properly instruct the jury on this charge based upon an incorrect interpretation of KRS 500.080(3). Finally, the Court held that appellant was not subject to retrial on this charge based upon double jeopardy.

O. Fisher v. Commonwealth, No. 2019-CA-001353, 599 S.W.3d 890 (Ky. App. 2020)

Opinion by Judge Kramer; Judge Combs concurred; Judge K. Thompson concurred in result only. Appellant pled guilty to three counts of trafficking marijuana, eight ounces or less, first offense (KRS 218A.1421(2)(a)). Over five years later, he petitioned the circuit court to have his convictions expunged pursuant to KRS 431.078. In a well-reasoned order, the circuit court denied his petition after determining his offenses were ineligible for expungement. The Court of Appeals affirmed, explaining that the language of KRS 431.078(4)(d) is unambiguous and precludes expungement of any offense that is subject to enhancement, where the time limit for enhancement has not expired. Because an offense in violation of KRS 218A.1421(2)(a) is indeed subject to enhancement for a second or subsequent offense, and because KRS 218A.010(48) does not limit the time for which such a prior offense can be used to enhance the punishment for a later offense, a conviction for KRS 218A.1421(2)(a) accordingly cannot be expunged. The Court also noted that to the extent appellant had asserted a due process right to an expungement, he was incorrect. Expungement is not a right but a statutory privilege which the General

135 Assembly has no obligation to provide at all and which it may therefore provide subject to conditions that our Courts are not at liberty to ignore.

P. Fogle v. Commonwealth, No. 2018-CA-001407, 2020 WL 855495 (Ky. App. Feb. 21, 2020)

Opinion by Judge Jones; Judges Kramer and Taylor concurred. After a car chase in Kentucky, Ohio law enforcement authorities arrested appellant for driving under the influence. Following the arrest, he pleaded guilty. He was subsequently indicted in Kentucky for first-degree fleeing or evading police. Before his trial, the Commonwealth filed a notice of intent to introduce KRE 404(b) testimony of appellant’s condition at the time of his arrest. Appellant filed a motion in limine to exclude any and all evidence by the Commonwealth aimed at establishing that he was “driving under the influence of alcohol or any other substance or combination of substances in violation of KRS 189A.010,” which is necessary to prove fleeing and evading in the first-degree under KRS 520.095(1)(a)2. Appellant argued that because the Commonwealth did not charge and convict him of having violated KRS 189A.010 it was legally impossible for the Commonwealth to establish at trial that he was guilty of KRS 520.095(1)(a)2. The circuit court denied appellant’s motion, reasoning that KRS 520.095(1)(a)2 only required the Commonwealth to prove a “violation” of KRS 189A.010 as opposed to obtaining an actual conviction thereof. The issue on appeal was whether the “violation” terminology requires an actual DUI conviction for purposes of KRS 520.095(1)(a)2. Looking to the plain language of the statute and the definitions of “violation” and “conviction,” the Court of Appeals affirmed, holding that the violation is the act itself, which is distinct from the prosecution of having committed the act. If the General Assembly intended for a conviction or formal prosecution to be necessary, it could have used more precise terms. KRS 520.095(1)(a)2. requires factual proof that the defendant was in violation of KRS 189A.010 while fleeing or evading police; it does not require the Commonwealth to actually convict the defendant under KRS 189A.010.

Q. Hiles v. Commonwealth, 2018-CA-000471, 595 S.W.3d 482 (Ky. App. 2019)

Opinion by Judge Goodwine; Judges Combs and Taylor concurred. Appellant challenged her conviction for criminal facilitation to incest and being a second-degree persistent felony offender. She argued: (1) that the Commonwealth failed to meet its burden of proving beyond a reasonable doubt that she knew and aided in the crime committed; (2) that the Commonwealth introduced irrelevant and unduly prejudicial evidence; and (3) that the circuit court erroneously instructed the jury on the law of facilitation. The Court of Appeals affirmed, first holding that from the evidence it was reasonable to conclude that appellant knew her husband was committing, or intended to commit, incest with appellant’s daughter, and that she had provided the means or opportunity to do so. Appellant participated in and was aware of ongoing investigations into sexual misconduct between her husband and daughter; she took photographs of her daughter and husband sleeping together, sent the photographs to her

136 friend, and instructed her friend to send them to a social worker; and after appellant sent the photographs to her friend, she still allowed her husband and daughter to sleep under the same roof and left them alone together on more than one occasion. As to appellant’s second argument, the Court held that evidence that appellant had a black eye and blamed her daughter for it, when upon further investigation it was discovered that appellant’s husband in fact hit her, was relevant to show appellant’s state of mind for covering for her husband and to show that she was more concerned about her relationship with her husband than with her daughter. The Court further held that testimony relating to appellant being intimate with her husband just before he confessed to committing incest with her daughter was relevant to show either that appellant had no knowledge of her husband’s actions or that she cared more for her husband than her daughter, and that she would cover for her husband at her daughter’s expense. Finally, the Court held that the jury instruction on facilitation was not erroneous because the facilitation statute does not require reference to a specific act of conduct.

R. Hilton v. Commonwealth, 2018-CA-001858, 2020 WL 594080 (Ky. App. Feb. 7, 2020) DR Denied

Opinion by Judge Dixon; Judges Acree and Jones concurred. Appellant challenged an order denying his RCr 11.42 post-conviction motions. Appellant had been convicted of murder, first-degree assault, second- degree assault, operating a motor vehicle under the influence of alcohol which impairs driving ability, and being a persistent felony offender in the first degree following a fatal motor vehicle accident. The Court of Appeals affirmed, rejecting appellant’s unsupported arguments that his trial and appellate counsel were ineffective for failing to timely disclose a defense expert. Appellant argued that the circuit court erred in denying his motion because: (1) trial counsel allowed the expert filing deadline to pass, resulting in the exclusion of critical evidence and depriving appellant of his right to a fair trial; and (2) appellate counsel failed to raise the issue of the exclusion of the defense expert’s testimony, depriving appellant of his right to the effective assistance of appellate counsel. The Court noted that the defense expert did not take exception to the treating physician’s opinion as to the victim’s cause of death, nor did her testimony provide appellant with a legal defense to the murder charge; therefore, the exclusion of that evidence did not prejudice him. The fact that his expert was critical of treatment provided by medical personnel rendering aid to the victim following the collision did not exonerate appellant if her death was either foreseen or foreseeable by him as a reasonably probable result of his own unlawful act of operating a motor vehicle under the influence of alcohol. KRS 501.060(3)(b) clarifies that it is immaterial that the treatment provided by medical personnel following the collision possibly increased the probability of the inevitable consequence of the victim’s death. The witness did not testify within a certain degree of medical probability that actions of medical personnel would or could have changed the inevitable outcome of the victim’s death. The treating physician’s testimony made it clear that the actions of prior medical personnel rendering aid to the victim were immaterial as there was no way to stop the bleeding sufficiently to save her

137 life. Thus, any error of the circuit court in excluding the expert’s testimony was harmless and not prejudicial to appellant. Without prejudice, appellant was unable to demonstrate that trial or appellate counsel was ineffective under the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984).

S. Jones v. Commonwealth, No. 2019-CA-000172, 2019 WL 5089922 (Ky. App. Oct. 11, 2019) DR Pending

Opinion by Judge Kramer; Judges Goodwine and Jones concurred. In 1998, appellant pled guilty in Jefferson Circuit Court to one felony count of theft by failure to make the required disposition of property. As a result, he spent several months incarcerated and five years on supervised probation. In August 2018, over 20 years after his guilty plea, Jones filed an application with the circuit court to have his record expunged, pursuant to KRS 431.073. However, he did not tender any filing fee with this petition but instead requested an adjudication of “poor person” status to be excused from paying the requisite expungement fees pursuant to KRS 453.190. The circuit court ultimately denied Jones’s request, explaining that it viewed “the cost of this elective service as one that the legislature did not intend to be waived, and as one that is not necessarily incurred in the prosecution or defense of a legal claim, as contemplated by KRS 453.190.” The Court of Appeals affirmed, explaining that expungement is not a constitutional right, but a legislative privilege, and that the circuit court’s discretion to expunge appellant’s record was accordingly governed solely by the plain terms of the expungement statute, KRS 431.073. Where, as here, the legislature has the authority to prescribe by whom and under what conditions an action may be maintained, the operative statute must be strictly observed to give the court jurisdiction. The court is not at liberty to apply a statute that generally waives costs for a “poor person” per KRS 453.190 when doing so would conflict with a statutory precondition for maintaining the action.

T. Kirksey v. Commonwealth, No. 2017-CA-000398, 592 S.W.3d 324 (Ky. App. 2019)

Opinion by Judge Lambert; Judges Maze and L. Thompson concurred. Appellant pled guilty to manufacturing methamphetamine, first offense. Nearly four years later, after his probation was revoked, appellant filed a motion to vacate, set aside, or correct his conviction pursuant to CR 59.01(g) and CR 60.02(a)-(b). The motion was denied, and this appeal followed. On appeal, appellant attempted to raise an ineffective assistance of counsel claim. However, the Court of Appeals declined to consider the claim because he did not raise it before the circuit court; moreover, he had failed to file an RCr 11.42 motion within the three-year post-judgment time limit for filing such under RCr 11.42(10). The Court affirmed as to appellant’s other claims, noting that his motion specified CR 60.02(a) and (b) as grounds for relief, meaning he was required to bring his motion “not more than one year” after judgment was entered against him on December 20, 2012. Here, appellant filed his CR 60.02 motion on July 20, 2016, nearly four years post-judgment. Thus, the circuit court did not err in denying the motion. As for the denial of appellant’s CR 59.01(g) motion, the Court held

138 that appellant failed to establish that he could not have produced evidence of a witness’s dishonesty through an exercise of reasonable diligence. Further, the timeframe for filing a CR 59.01(g) motion is 10 days after entry of judgment under CR 59.02, and nearly four years had passed between appellant’s conviction and when his CR 59.01(g) motion was filed.

U. Logsdon v. Commonwealth, 2019-CA-000848, 2020 WL 855486 (Ky. App. Feb. 21, 2020)

Opinion by Judge L. Thompson; Chief Judge Clayton and Judge K. Thompson concurred. The Court of Appeals reversed appellant’s conviction for possession of a controlled substance and possession of drug paraphernalia. The Court examined KRS 218A.133(2), which exempts from prosecution for possession of a controlled substance or drug paraphernalia persons who have requested medical assistance, or one on whose behalf it has been requested. Here, a man named “Kyle” called 911 and indicated that appellant was having a drug overdose. Kyle refused to stay with appellant and left the scene. When medical personnel and police arrived, they found appellant with drugs and paraphernalia. The circuit court determined that KRS 218A.133(2) requires the person who called for medical assistance to remain with the overdosing person in order for the exemption to apply. In reversing, the Court of Appeals held that the plain language of the statute did not require Kyle to remain with appellant. The Court also acknowledged that this holding was contrary to the holding in Allen v. Commonwealth, No. 2017-CA-000389-MR, 2018 WL 4523207 (Ky. App. Sept. 21, 2018), which held the opposite.

V. Marcum v. Commonwealth, 2018-CA-000039, 583 S.W.3d 24 (Ky. App. 2019)

Opinion by Chief Judge Clayton; Judges Jones and L. Thompson concurred. In a direct appeal from appellant’s conviction on charges of possession of methamphetamine, possession of drug paraphernalia, terroristic threatening, and receiving stolen property, the Court of Appeals reversed and remanded for a new trial. Appellant presented five arguments on appeal, the first of which asserted that the circuit court failed to ensure a knowing, intelligent, and voluntary waiver of his right to counsel pursuant to Faretta v. California, 422 U.S. 806 (1975). The Court of Appeals agreed and held that the circuit court’s Faretta colloquy failed to present specific information sufficient for appellant to be made fully aware of the dangers of self-representation. Because a Faretta violation constitutes structural error, the Court was required to reverse and remand for a new trial.

W. Martin v. Commonwealth, 2017-CA-001269, 586 S.W.3d 252 (Ky. App. 2019)

Opinion by Judge Lambert; Chief Judge Clayton and Judge Combs concurred. Appellant challenged an order granting the Commonwealth’s motion, filed pursuant to KRS 218A.410(1)(j) and 218A.415, to forfeit appellant’s property – namely his truck, an enclosed utility trailer, and the tools contained within the trailer – as a result of his convictions for theft,

139 drug-related offenses, and possession of a handgun. The Court of Appeals affirmed in part and reversed and remanded in part, holding that appellant had sufficiently demonstrated that the circuit court had failed to make written factual findings pertaining to the traceability of the forfeited tools to drug-related activity.

X. Matthews v. Commonwealth, No. 2018-CA-000849, 2019 WL 3977830 (Ky. App. Aug. 23, 2019) DR Pending

Opinion by Judge Nickell; Judges Kramer and L. Thompson concurred. Appellant was convicted of complicity to first-degree robbery and sentenced to 12 years’ imprisonment. On appeal, he claimed that the circuit court twice abused its discretion, first by denying his pretrial request to be tried separately from co-defendant Anthony Ball and then by denying a requested mistrial after Ball suggested that police violated the law, prompting another jury admonition from the bench. The Court of Appeals found no reversible error and affirmed. As to the first argument, the Court held that joinder of the two defendants for trial was appropriate pursuant to RCr 6.20 and that appellant was not prejudiced by joinder under RCr 8.31. The Court further held that even assuming error had occurred, any such error was harmless. Though Ball acted as hybrid counsel during trial and at one point read aloud a line from his own police interview (which had been redacted), the defendants’ roles in the hold-up were captured on both in- store and neighborhood video; moreover, both individuals confessed their involvement to police and their participation was beyond doubt. The Court further noted that the circuit court exerted and retained control over Ball in his role as hybrid counsel and that appellant was not prejudiced by Ball’s actions in that capacity. The Court also held that Ball’s filing of pro se motions and decision to ask to serve as hybrid counsel, without more, did not constitute grounds to sever the defendants’ . Appellant’s mistrial claim was based on admonitions the circuit court gave in the wake of Ball attempting to show that his confession was coerced. In rejecting this argument, the Court noted that mistrials should be granted sparingly and concluded that the circuit court’s limiting admonition properly restricted the jury’s use of testimony.

Y. Mayfield v. Commonwealth, No. 2018-CA-001722, 590 S.W.3d 300 (Ky. App. 2019)

Opinion by Judge Goodwine; Judges Spalding and L. Thompson concurred. Appellant challenged an order denying his motion to suppress evidence found during a search of his car and person. He moved the Court of Appeals to convene en banc to overturn Dunn v. Commonwealth, 199 S.W.3d 775 (Ky. App. 2006), which extended the “plain smell” doctrine to searches of a car’s occupants, rather than only the car itself. The Court affirmed the circuit court’s decision and denied appellant’s request to convene en banc, holding: (1) Dunn correctly extended the “plain smell” doctrine to searches of a person subject to a traffic stop, rather than solely the search of the car; and (2) the automobile exception to the warrant requirement extends to the operator of the vehicle when the “plain smell”

140 of marijuana results in the existence of probable cause, which justifies a search independently of an arrest.

Z. Milam v. Commonwealth, No. 2018-CA-001892, 593 S.W.3d 68 (Ky. App. 2020)

Opinion by Judge Lambert; Judges Goodwine and K. Thompson concurred. In a direct appeal from the circuit court’s decision to void pretrial diversion and sentence appellant to a five-year term of imprisonment, the Court of Appeals vacated the judgment and remanded with instructions to dismiss the underlying charge as diverted. Appellant argued that the circuit court improperly extended his diversion period. The Commonwealth conceded error on this point, admitting that its motion before the circuit court was not a motion to void diversion but was, instead, a motion to extend diversion, which does not operate to toll the diversion period. The Court of Appeals agreed. Here, appellant’s five-year diversion period expired the day the circuit court held a hearing on the Commonwealth’s motion to extend the diversion period. There was no pending motion to void diversion. Under Ballard v. Commonwealth, 320 S.W.3d 69 (Ky. 2010) and Tucker v. Commonwealth, 295 S.W.3d 455 (Ky. App. 2009), the Commonwealth’s motion to extend diversion was insufficient to preserve the circuit court’s authority to subsequently void appellant’s diversion. Consequently, the judgment voiding had to be vacated and the underlying charge dismissed as diverted in accordance with KRS 533.258(1).

AA. New v. Commonwealth, No. 2018-CA-001363, 598 S.W.3d 88 (Ky. App. 2019)

Opinion by Judge Nickell; Judges Goodwine and Spalding concurred. In a probation revocation appeal, the Court held that KRS 439.3106 does not require a trial court to impose sanctions short of revocation, nor must the trial court explain the rationale for its findings. The Court clarified that the focus in Helms v. Commonwealth, 475 S.W.3d 637 (Ky. App. 2015) was whether revocation based on a zero-tolerance provision was proper. Thus, the statement in Helms that “perfunctorily reciting the statutory language in KRS 439.3106 is not enough” does not mean that a court must provide detailed findings. Instead, as per precedent, under KRS 439.3106 the trial court is only required to find, based on the evidence of record, that a defendant: (1) “constitutes a significant risk to prior victims of the supervised individual or the community at large”; and (2) “cannot be appropriately managed in the community.” Here, appellant’s repeated drug usage and his submission of falsified paperwork to drug court was sufficient to support revocation.

AB. Olmeda v. Commonwealth, No. 2019-CA-000497, 2020 WL 1646822 (Ky. App. Apr. 3, 2020)

Opinion by Judge Lambert; Special Judge Buckingham and Judge Combs concurred. In a direct appeal from the circuit court’s decision to deny appellant’s suppression motion and to sentence him to a two-year term of imprisonment after his jury trial, the Court of Appeals affirmed. Appellant

141 argued that the circuit court improperly denied his suppression motion, contending the police unlawfully extended the traffic stop until a K-9 unit could arrive and conduct a sniff search in violation of Rodriguez v. U.S., 575 U.S. 348 (2015); accord Davis v. Commonwealth, 484 S.W.3d 288 (Ky. 2016). The Court of Appeals disagreed, holding the length of the stop was not extended by police but by the fact of appellant’s suspended license. In so doing, the Court cited in support U.S. v. Vargas, 848 F.3d 971 (11th Cir. 2017) and U.S. v. Gurule, 935 F.3d 878 (10th Cir. 2019), which held police do not violate Rodriguez by preventing unlicensed individuals from driving a vehicle.

AC. Passmore v. Commonwealth, No. 2018-CA-000134, 580 S.W.3d 558 (Ky. App. 2019)

Opinion by Judge Kramer; Judges Nickell and L. Thompson concurred. After appellee Jesse Passmore was arrested and charged with multiple offenses, the district court fixed his bail in the amount of $25,000 and added two nonfinancial conditions, directing him “not to violate any local, state, or federal laws” and to “not be in possession of any firearm or deadly weapon.” The circuit court later assumed jurisdiction after a grand jury indicted Jesse on all counts. Jesse was arraigned, whereupon the circuit court entered an order regarding the terms of Jesse’s bail. The order provided that “[b]ail shall remain at $25,000 full cash,” and also included the following sentence: “The Defendant shall comply with the following non-financial condition(s) of release: ______.” Appellant Cassandra Passmore posted a cash bond in the requisite amount of $25,000, and Jesse was released on bond. Months later, Jesse was arrested again and taken into custody. Cassandra moved the circuit court to exonerate the $25,000 bond that she had posted on Jesse’s behalf after Jesse was held in custody. Subsequently, the Commonwealth filed a motion asking for a determination that Jesse had forfeited his $25,000 bond because he had “willfully violated the terms of his release by picking up a new felony arrest and possessing a firearm.” The circuit court agreed with the Commonwealth, holding that the district court’s nonfinancial conditions of Jesse’s bail “carried over”; that Cassandra should have been aware of those conditions because they were noted in the district court’s record; and that a nonfinancial condition to the effect of “no new violations of the law” was, foreseeably, a condition and basis of forfeiture implicit in every bail bond. The Court of Appeals reversed, concluding that the district court’s two nonfinancial conditions were not conditions of the bail set by the circuit court. Nowhere in its record did the circuit court attach any conditions upon Jesse’s bail or specify that it was continuing any of the conditions set by the district court. Once jurisdiction over Jesse’s bail passed from the district court to the circuit court, the circuit court was required to fix bail. When the circuit court did so, the district court’s prior bail order expired. Thus, any requirements that attended the district court’s order did not automatically “carry over,” but instead became moot and unenforceable. Nonfinancial conditions such as the ones at issue must – whether by virtue of a checked box, filled-in blank, or otherwise – be explicitly stated in an effective court order and ensuing bond agreement.

142 AD. Reed v. Commonwealth, No. 2018-CA-001574, 2020 WL 594084 (Ky. App. Feb. 7, 2020) DR Pending

Opinion by Chief Judge Clayton; Judges Goodwine and L. Thompson concurred. Police were able to track and arrest appellant, a robbery suspect, by “pinging” his cell phone. This process involved contacting his cell phone carrier, who used cell site location information (CSLI) to pinpoint and follow the location of his phone in real time. Appellant later sought to suppress evidence recovered in the ensuing stop, arguing that the use of real-time CSLI constituted a search for purposes of the Fourth Amendment and required the police to obtain a warrant. The Court of Appeals agreed, relying in part on the reasoning in Carpenter v. U.S., 138 S.Ct. 2206 (2018), which held that a warrant is required to obtain historic CSLI data. Because a cell phone, which in the words of the U.S. Supreme Court has become almost a feature of human anatomy, enables the police to track individuals with great precision into areas where they would have a reasonable expectation of privacy, the acquisition of real-time CSLI constitutes a search for purposes of the Fourth Amendment. The Court of Appeals rejected the Commonwealth’s argument that the actions of the police were protected by the “good faith” exception to the warrant requirement because there was no clearly-established, binding precedent in Kentucky regarding the acquisition of real-time CSLI upon which the police could rely.

AE. Roark v. Commonwealth, No. 2017-CA-001665, 2020 WL 594129 (Ky. App. Feb. 7, 2020) DR Pending

Opinion by Judge K. Thompson; Chief Judge Clayton and Judge Combs concurred. Appellant was one of multiple people charged with manufacturing methamphetamine because they were all present in the trailer where the manufacturing was taking place. One of the co-defendants pled guilty to all indicted charges and, during the entry of his plea, he repeatedly testified that he had acted alone. At appellant’s trial, although there was testimony about the manufacture of methamphetamine and the presence of drugs, paraphernalia, and the hidden location of a “one-step” lab, this testimony did not tie appellant to these things beyond his mere presence in the trailer. Appellant attempted to introduce into evidence a certified recording of the co-defendant’s plea hearing, specifically his statement that he had acted alone, as it supported appellant’s alternate perpetrator theory. The circuit court denied the motion, determining that it was not established that the co-defendant was truly unavailable as there was no court order compelling him to be in court as a witness and no evidence that a subpoena was served upon him. The court also rejected the other grounds for admission, explaining that while there was no issue that the DVD of the plea hearing was a valid record, it did not fit neatly into KRE 803(6) or (8). Appellant was ultimately found guilty of manufacturing methamphetamine, possession of a controlled substance, tampering with physical evidence, and possession of drug paraphernalia. The Court of Appeals reversed and remanded, holding that the hearsay rules for using prior testimony of an unavailable witness, when such is the only evidence besides the defendant’s testimony to support the defendant’s defense, must be interpreted in light of the Due Process Clause to allow use by a

143 defendant when an effort was made to obtain the witness’s attendance. The Court concluded that the circuit court erred in finding that appellant could not establish that the co-defendant was unavailable without establishing that there was a court order compelling him to appear as a witness. The Court noted that KRE 804(a)(5) contains no such requirement and that while there was no written proof in the record that a subpoena was served on the co-defendant, defense counsel represented several times that he had subpoenaed the co-defendant and did not understand why he was not present in court unless he wished to assert a privilege. The Court further held that the prior testimony from the co-defendant’s plea hearing could not be excluded on the basis that the prosecution did not have a reason to cross-examine the co-defendant; the prosecution is charged with seeing that justice is done, and it should have appropriately questioned the co-defendant to discover who committed the crimes charged considering that several defendants were charged with the exact same crimes because no one admitted responsibility. KRE 804(b)(1).

AF. Sanders v. Commonwealth, No. 2019-CA-000445, 2020 WL 594078 (Ky. App. Feb. 7, 2020)

Opinion by Judge Jones; Judges Kramer and Taylor concurred. Appellant appealed from an order denying his motion for jail-time credit. After appellant was arrested, he signed a pretrial services supervised release order imposing various conditions of release, including “home incarceration with exception of work.” The form did not check the boxes for curfew, call- in to pretrial services, or electronic monitoring. Appellant was never monitored by an electronic device while he awaited trial. Prior to sentencing, appellant filed a motion for jail-time credit for the period he was confined to his home prior to trial based on his confinement and the fact that his supervised release form described his confinement as “home incarceration.” The circuit court denied appellant’s motion for credit on the basis that he was not electronically monitored during his pretrial release. The Court of Appeals affirmed the circuit court’s failure to order jail-time credit because that court lacked the authority to do so. KRS 532.120(3) used to give trial courts the authority to credit sentences in their judgments. However, following amendments to the statute in 2011, that authority now rests with the Department of Corrections. Pursuant to Caraway v. Commonwealth, 459 S.W.3d 849 (Ky. 2015), the role of the trial court with respect to the statute is appellate in nature. The defendant must first pursue administrative remedies with Corrections before the matter may be addressed by a court. Here, the circuit court was not authorized or required to make a determination of credit for time served in custody before sentencing. While not reviewing the merits of appellant’s appeal, the Court also pointed out that “home incarceration” is a precise term that requires use of an electronic monitoring device. Without the use of such a device, a trial court should not describe the pretrial release as “home confinement” or “home restriction.”

144 AG. Starks v. Commonwealth, No. 2019-CA-000518, 2020 WL 740282 (Ky. App. Feb. 14, 2020) DR Pending

Opinion by Judge Kramer; Judge Dixon and Special Judge Buckingham concurred. Appellant was convicted of five felony counts, including two counts of escape, on June 6, 2016. His sentence was probated for five years. Following a hearing in February 2019, the circuit court revoked his probation and ordered his sentence to run consecutively to felony convictions from Indiana due to the escape convictions. He appealed both the probation revocation and the order running his sentence consecutively to the Indiana convictions. The Court of Appeals affirmed the circuit court’s decision to revoke appellant’s probation but vacated the portion of the order running his sentence consecutively to the Indiana convictions. The plain language of KRS 532.110(3) mandates that a sentence imposed for escape must run consecutively to any other sentence a defendant is required to serve. Appellant’s sentence was imposed in June 2016, not when his probation was revoked in February 2019. At the time appellant’s sentence was imposed, the Indiana convictions that were the subject of the appeal did not exist.

AH. Taylor v. Commonwealth, No. 2018-CA-000617, 588 S.W.3d 463 (Ky. App. 2019)

Opinion by Judge Maze; Judges Acree and Combs concurred. Quandarious and Jevontaye Taylor were jointly tried and convicted on charges of first-degree robbery. Because Jevontaye’s sentence was enhanced by his status as a PFO II, his appeal went directly to the Supreme Court of Kentucky, which affirmed the sentence but reversed the restitution order due to the circuit court’s failure to conduct a restitution hearing. In Quandarious’s appeal, the Court of Appeals held that he was not entitled to a directed verdict because any inconsistencies in witness testimony merely go to weight and credibility and not sufficiency of the evidence. But on the restitution order, the Court adopted the Supreme Court’s reasoning that the failure to conduct a restitution hearing amounted to palpable error. Specifically, the Court held that when the issue of restitution under KRS 532.032 has not been resolved by agreement, constitutional due process requires an adversarial hearing including: reasonable notice in advance of the amount and nature of the restitution claimed; a hearing before an impartial judge with assistance of counsel; a reasonable opportunity to present evidence to rebut the claim or amount of restitution; and the burden on the Commonwealth to establish the validity of the claim and amount of restitution owed. In the absence of any evidence of record to support the amount of restitution ordered by the circuit court, the Court of Appeals remanded the matter for a hearing to determine restitution.

AI. Vincent v. Commonwealth, No. 2017-CA-001123, 584 S.W.3d 762 (Ky. App. 2019)

Opinion by Judge Maze; Judges Acree and Combs concurred. In an appeal from the denial of appellant’s RCr 11.42 motion, the Court of Appeals affirmed, holding that appellant received constitutionally effective

145 representation by his two trial attorneys. Appellant was tried and convicted on three counts of first-degree sodomy involving a child under the age of 12. He was thereafter sentenced to a term of 20 years’ imprisonment, and the Supreme Court of Kentucky affirmed the conviction on direct appeal. Appellant then filed a timely motion to vacate sentence under RCr 11.42, alleging that: (1) trial counsel were ineffective in failing to have him evaluated for an intellectual disability and in failing to move for suppression of his incriminating statements to police on that basis; and (2) trial counsel were ineffective in failing to call experts on false confession and intellectual disability at trial. With regard to appellant’s first issue, the Court agreed with the circuit court that a motion to suppress on the basis of intellectual disability would not have succeeded and would merely have resulted in divulging trial strategy to the Commonwealth. Moreover, the record reflected that appellant’s will was not overborne to the point at which his admissions to police were coerced. With regard to appellant’s second issue, the Court held that appellant’s trial attorneys were not ineffective for failing to call expert witnesses at trial. The attorneys testified how their trial strategy relied upon presenting a surprise defense based on appellant’s intellectual disability through lay witnesses; expert testimony would have necessitated pretrial disclosure to the Commonwealth. Because it is not the function of an appellate court to usurp or second guess counsel’s trial strategy, the Court could not conclude that trial counsel was ineffective on this issue.

AJ. Walker v. Commonwealth, No. 2018-CA-000944, 588 S.W.3d 453 (Ky. App. 2019)

Opinion by Judge Lambert; Judges Maze and Taylor concurred. Appellant challenged orders revoking his probation and sentencing him to 20 years in prison for burglary and theft charges. The Court of Appeals vacated and remanded, holding that the circuit court failed to comply with the mandatory criteria set forth in KRS 439.3106(1) and therefore the orders revoking appellant’s probation were an abuse of discretion. The Court noted that the Commonwealth did not present any evidence and that the circuit court failed to make the necessary findings that appellant constituted a significant risk to prior victims or the community at large and that he could not be appropriately managed in the community. The Court rejected the Commonwealth’s argument that appellant failed to preserve this issue for review, citing to Burnett v. Commonwealth, 538 S.W.3d 322 (Ky. App. 2017), in which the Court held that the failure to make the mandatory statutory findings constituted palpable error.

AK. Young v. Commonwealth, No. 2018-CA-001415, 2020 WL 2601597 (Ky. App. May 22, 2020)

Opinion by Judge Lambert; Judges Maze and L. Thompson concurred. Appellant was convicted of second-degree assault and being a persistent felony offender. On appeal, he argued that the circuit court erred in denying his motion to continue, in denying his motion to strike a juror for cause, in denying his request for a missing evidence instruction, and in allowing the videotaped testimony of the late complaining witness. The Court of Appeals

146 affirmed, holding that, as to all issues except the juror issue, appellant failed to meet his burden of proving that the circuit court abused its discretion. The juror issue was held to be not preserved for appellate review.

XV. DISCOVERY

Reynolds Consumer Products, LLC v. Commissioner of Department of Workplace Standards, No. 2018-CA-000821, 592 S.W.3d 758 (Ky. App. 2020)

Opinion by Judge Acree; Judges Lambert and L. Thompson concurred. When the appellee state agency, investigating an industrial accident in Kentucky, subpoenaed appellant’s report prepared in anticipation of litigation over a separate accident in Virginia, appellant claimed work-product privilege. Declining to recognize the privilege, the circuit court ordered compliance with the subpoenas. The Court of Appeals first rejected appellant’s argument that the state agency lacked subpoena power. The harder question was whether the work-product privilege applied. Appellee argued that the privilege only prevented discovery in the Virginia litigation in anticipation of which the work product was prepared. The Court disagreed. Drawing implications from O’Connell v. Cowan, 332 S.W.3d 34 (Ky. 2010), the Court noted the non-case-specific, over-arching purpose of the privilege, stated by the Supreme Court of Kentucky as follows: “The work-product doctrine is designed to protect an adversary system of justice, and is rooted in the United States Supreme Court’s decision in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947)].” The Court then adopted from O’Connell the principles that: (1) work-product protection applies to materials prepared for any litigation, and (2) the protection survives the termination of the litigation for which it was prepared. After noting that our courts had already rejected appellant’s final argument urging adoption of the self-critical analysis privilege, the Court reversed and remanded. The circuit court was given instructions and guidance to apply existing jurisprudence to determine which specific documents were prepared in anticipation of litigation anywhere, and then to determine whether such privileged documents might nevertheless be discoverable on the ground that appellee is unable to obtain its substantial equivalent without undue hardship.

XVI. DOMESTIC VIOLENCE/PROTECTIVE ORDERS

A. Hall v. Smith, No. 2019-CA-000772, 599 S.W.3d 451 (Ky. App. 2020)

Opinion by Judge Caldwell; Chief Judge Clayton and Judge Combs concurred. Appellant challenged the denial of her petition for a domestic violence order she sought against her former spouse. She alleged that the circuit court erred in not granting the DVO, by failing to enter adequate findings after so determining, and by not holding a proper hearing. The Court of Appeals vacated and remanded for further findings. While the Court agreed that there was insufficient evidence to support entry of a DVO, the Court noted that the circuit court had failed to make any findings in writing, including even checking the appropriate box in AOC Form 275.3 (Kentucky’s standardized form for orders in DVO actions) indicating that insufficient proof had been provided. The Court held that while specific written findings of insufficient evidence may not be necessary, there must at least be a written finding stating that the evidence was insufficient.

147 Therefore, the case was remanded for entry of a written finding to support the denial of the petition.

B. Lee v. King, No. 2019-CA-001174, 2020 WL 1970579 (Ky. App. Apr. 24, 2020) DR Pending

Opinion by Judge Lambert; Special Judge Buckingham and Judge Combs concurred. Appellant challenged a domestic violence order. The Court of Appeals affirmed. The Court first rejected appellant’s argument that the family court lost jurisdiction pursuant to KRS 403.735(2)(a) when it rescheduled the EPO hearing one day past the 14-day period, holding that appellant had waived the issue of particular-case jurisdiction by not raising the issue earlier in the proceeding and because he was present when the hearing was rescheduled. The Court also rejected his arguments that the family court judge should have recused and that there was insufficient evidence to support entry of the DVO. The Court specifically relied on other federal and state cases describing the cycle of violence in domestic violence situations. Appellant’s original assault on appellee and the pattern of harassing conduct he used in his attempt to control and manipulate appellee supported entry of the DVO.

C. Petrie v. Brackett, No. 2019-CA-000467, 590 S.W.3d 830 (Ky. App. 2019)

Opinion by Judge Goodwine; Judges Lambert and K. Thompson concurred. Appellant challenged a domestic violence order (DVO) entered against him by the family court in favor of his 16-year-old son. The Court of Appeals reversed and remanded. The DVO stemmed from an altercation between the two about which the son testified that he pushed appellant three times before striking him in the chest. Appellant then physically restrained him to wait for law enforcement to arrive. The family court made no statutory findings. Rather, it detailed the family’s long history in family court, including the mother’s allegations of abuse against her own mother, but nothing regarding appellant or the son. The Court of Appeals determined that the family court palpably erred by issuing the DVO. KRS 403.740(1) required the family court to make a finding of physical injury, past or present physical threats of abuse, or fear of imminent harm, which it failed to do here. The family court’s summation of the family history, which did not include appellant or the son, was insufficient under the law to issue a DVO.

D. Tipan v. Tipan, No. 2018-CA-001504, 582 S.W.3d 70 (Ky. App. 2019)

Opinion by Judge Nickell; Judges Kramer and L. Thompson concurred. Daughter filed a domestic violence petition seeking protection from Father for herself and her minor siblings. Daughter and her siblings had fled their home country of Ecuador with their mother in 2016 to escape alleged abuse by Father. Mother moved to Texas and was actively seeking asylum. Father came to Kentucky in 2018 and began harassing, threatening, and stalking Daughter and her siblings, precipitating the filing of the petition. Father moved for dismissal, requested an expedited hearing date, and attempted to register a foreign order regarding a custody agreement related

148 to the minor children. At the hearing on the petition, the circuit court stopped proof before Daughter, the first witness sworn, completed testifying. The court expressed its beliefs that it had jurisdictional issues, that custody issues would be more appropriately dealt with in Mother’s asylum action, that immigration issues should be handled in a different forum, and that even if domestic violence had occurred, a DVO would not protect Daughter from what would occur in Ecuador. Over Daughter’s objection, the circuit court dismissed the petition, noting on the docket sheet: “Ct. does not believe DV proceeding is appropriate way to proceed.” Daughter appealed. The Court of Appeals reversed and remanded upon concluding that the circuit court did not afford the parties a “full evidentiary hearing” as required by Wright v. Wright, 181 S.W.3d 49 (Ky, App. 2005). The Court held that the circuit court erred in prohibiting counsel from completing proof before announcing its decision. Finally, the Court noted that the circuit court did not fulfill its duty to enter written findings of fact and conclusions of law revealing the rationale for its decision, which are mandatory in DVO proceedings.

E. Williford v. Williford, No. 2018-CA-001249, 583 S.W.3d 424 (Ky. App. 2019)

Opinion by Judge Acree; Judge L. Thompson concurred; Judge Nickell dissented and filed a separate opinion. In this appeal from the entry of a domestic violence order (DVO), appellant argued that she was not afforded a full evidentiary hearing and that substantial evidence did not support a finding either that domestic violence and abuse had occurred or that it may occur again. By a 2-1 vote, the Court of Appeals affirmed, holding that a full evidentiary hearing was conducted and that the evidence was sufficient to support the challenged findings. Judge Nickell dissented because the family court failed to make additional findings beyond checking the boxes on the applicable AOC Form 275.3 and would have reversed and remanded for additional findings. In dicta, the majority addressed the dissent, noting that appellant did not raise that argument and citing Pettingill v. Pettingill, 480 S.W.3d 920 (Ky. 2015) as requiring nothing more of a trial court than completion of that form.

XVII. EDUCATION

Doe v. Logan, No. 2019-CA-000183, 2020 WL 398796 (Ky. App. Jan. 24, 2020) DR Pending

Opinion by Judge Goodwine; Chief Judge Clayton and Judge Dixon concurred. Appellants, former public middle school students, filed suit against certain public middle school employees alleging that the employees violated school policies by failing to report sexual abuse of the students as juveniles by a former special- education paraeducator. On appeal, the students challenged an order granting summary judgment in favor of the employees. The circuit court found: (1) the employees were entitled to qualified official immunity; (2) the students had no private right of action under Kentucky’s Constitution; and (3) the claims of former student Richard II were time-barred. The students argued that the circuit court erred in finding the employees were entitled to qualified official immunity because: (1) the Fayette County Board of Education maintains specific policies regarding

149 the prevention and reporting of sexual harassment/discrimination; (2) such policies remove any element of discretion in ascertaining whether harassment/ discrimination occurred; and (3) the employees witnessed firsthand behavior that required them to report abuse and they failed to do so. The students further argued that allowing public school employees to be protected by immunity against suit for sexual assault, while private school employees must face litigation, violated the Equal Protection Clause of the Kentucky Constitution, and that Richard II’s claims were not time-barred. The Court of Appeals affirmed the circuit court’s findings that: (1) the employees were entitled to qualified official immunity because their actions or inactions were discretionary in nature; they acted within the scope of their authority; and they acted in good faith; (2) that the students had no private right of action for their state constitutional claims pursuant to St. Luke Hospital, Inc. v. Straub, 354 S.W.3d 529 (Ky. 2011); and (3) that Richard II’s claims were time- barred pursuant to KRS 413.140(1)(a).

XVIII. EMINENT DOMAIN

Allard v. Big Rivers Electric Corporation, No. 2019-CA-000486, 2020 WL 2503487 (Ky. App. May 15, 2020)

Opinion by Judge Lambert; Judges Maze and L. Thompson concurred. This was an interlocutory appeal in a condemnation action from an order permitting Big Rivers to take possession of property owned by Allard for the construction of transmission lines. Big Rivers had purchased an easement from Allard, and it sought to modify the route of the easement so that the construction would not go through a cemetery on another property owner’s land. Allard did not agree to this because the new route would cause the loss of a 300-year-old oak tree, and he suggested another alternate route. Big Rivers petitioned the circuit court to condemn the property included in its version of the modified route, which the circuit court granted in the interlocutory judgment. On appeal, the Court of Appeals rejected Allard’s argument that he was entitled to an evidentiary hearing on the motion for an intermediate interlocutory judgment in addition to the hearing that was held. The Court also held that Big Rivers had not acted arbitrarily in petitioning the circuit court to condemn the modified easement; that Big Rivers, as the condemning body, has broad discretion in exercising its eminent domain authority; that it was not within Allard’s power to dictate the route the transmission line should take; and that Big Rivers had negotiated with Allard in good faith.

XIX. EMPLOYMENT

A. Croghan v. Norton Healthcare, Inc., No. 2018-CA-001351, 2020 WL 742031 (Ky. App. Feb. 14, 2020) DR Pending

Opinion by Judge Maze; Judge Combs concurred; Judge Acree concurred in result only and filed a separate opinion. Appellant challenged a summary judgment dismissing its employment-discrimination claims against Norton Healthcare, Inc. and individual defendants. The circuit court found that the Estate’s claims brought under the Kentucky Civil Rights Act (KCRA) were time-barred based on a contractual six-month limitation period for bringing claims arising from the employment. While the appeal was pending, the legislature amended KRS 336.700 to contain language that would bar

150 enforcement of the contractual provision. The Court of Appeals concluded that the amendment was applicable to this action and agreed with appellant that a six-month period was not a sufficient time to conduct a reasonable investigation and to file a KCRA action in good faith. Therefore, the Court held that the provision was not enforceable with respect to appellant’s KCRA claims and that the circuit court erred by dismissing the complaint as untimely. Hence, the Court reversed and remanded for additional proceedings on the merits of the claims. In his concurring opinion, Judge Acree opined that the majority opinion should have focused solely on KRS 336.700’s applicability to the case.

B. Hunziker v. AAPPTec, LLC, No. 2019-CA-000412, 2020 WL 1966533 (Ky. App. Apr. 24, 2020)

Opinion by Judge L. Thompson; Chief Judge Clayton and Judge K. Thompson concurred. The Court of Appeals reversed the trial court’s directed verdict in favor of Hossain Saneii, Ph.D. In this Kentucky Wages and Hour Act lawsuit brought by appellant, the circuit court found that Saneii was not an employer as defined in KRS 337.010(1)(d) and could not be held liable. KRS 337.010(1)(d) defines employer as “any person, either individual, corporation, partnership, agency, or firm who employs an employee and includes any person, either individual, corporation, partnership, agency, or firm acting directly or indirectly in the interest of an employer in relation to an employee[.]” The Court of Appeals held that Saneii could be considered an employer pursuant to the definition because he was a person acting in the interest of an employer – in this case, appellee AAPPTec, LLC. Saneii was the president of AAPPTec, LLC and was the person who hired appellant. The Court held that the circuit court did not consider this aspect of the employer statute and reversed and remanded for it to do so.

C. Kentucky Authority for Educational Television v. Estate of Wise, No. 2018- CA-000793, 2020 WL 594127 (Ky. App. Feb. 7, 2020) Rehearing Denied

Opinion by Chief Judge Clayton; Judges Goodwine and L. Thompson concurred. In response to state budget cuts, the Kentucky Authority for Educational Television (KET) terminated the employment of several non- classified employees, including appellee, who thereafter filed an appeal with the Kentucky Personnel Board. The Board ruled in appellee’s favor on his claim of age discrimination. KET appealed to the Franklin Circuit Court, arguing that the Personnel Board lacked jurisdiction over the case and claiming that it had sole authority over the dismissal of non-classified employees like appellee under KRS 18A.115(1)(f). The circuit court affirmed the Board’s order, holding that the Board had jurisdiction and that its decision was supported by substantial evidence. The Court of Appeals affirmed the circuit court, relying on KRS 18A.095(14)(a), which provides that any executive branch employee who believes he has been discriminated against may appeal to the Board, and KRS 344.025, which provides that no provision of KRS Chapter 18A may be construed to prevent state employees, classified or non-classified, from bringing discrimination claims before the Board. The Court noted that unlike

151 university employees or the Kentucky State Police, KET employees are not provided by statute with a dedicated personnel board. The Court also held that sufficient direct and circumstantial evidence, in the form of the testimony of KET supervisors and co-workers, supported the finding of age discrimination.

D. Vogt Power International, Inc. v. Labor Department of Workplace Standards, No. 2018-CA-001321, 588 S.W.3d 169 (Ky. App. 2019)

Opinion by Judge Kramer; Judges Dixon and K. Thompson concurred. Stephen Kapsalis was the type of “employee” classified as a “bona fide executive” as set forth in KRS 337.010(2)(a)2; to that end, he served as the President and CEO of Vogt Power International, Inc., from July 2009 until April 12, 2013. Months after his resignation, Kapsalis filed a complaint with the Kentucky Labor Cabinet alleging that Vogt had violated KRS 337.055 by failing to pay him $8,788.62 in wages, an amount representing 58 hours of his accrued annual leave claimed on his timesheets. After investigating Kapsalis’s complaint, the Cabinet concluded Vogt had indeed violated KRS 337.055 by failing to pay Kapsalis for the accrued leave. Accordingly, the Cabinet directed Vogt to pay a civil penalty of $250 and to pay Kapsalis $8,788.62 in restitution. The Secretary of the Labor Cabinet ultimately affirmed the penalty and amount of restitution and, following a petition for judicial review, the Franklin Circuit Court likewise affirmed. In part of its appeal, Vogt argued no substantial evidence supported that it owed Kapsalis $8,788.62 in unpaid wages, or that it otherwise violated or should have been penalized for violating KRS 377.055. Disagreeing, the Court of Appeals noted that Vogt had no policy beyond the requirement of submitting a timesheet that required Kapsalis to prove the number of hours he worked while out of the office. Vogt also contended that Kapsalis’s status as a “bona fide executive” employee precluded the Cabinet from ordering Vogt to pay a civil penalty or to make restitution to Kapsalis; from prospectively enforcing such an order; or from citing it for violating KRS 337.055. The Court again disagreed, explaining that Kapsalis’s complaint to the Labor Cabinet had invoked the Secretary’s authority to assess civil penalties for any violation of KRS 337.055, a statute in no way relevant to Kapsalis’s status as a “bona fide executive.” Indeed, nothing exempts “bona fide executives” from the purview of KRS 337.055. Also, the source of the Secretary’s authority to assess civil penalties for violations of KRS 337.055 is plainly stated in KRS 337.990(3), which authorizes the Secretary or his authorized representative to: (1) assess a civil penalty between $100 and $1,000; and (2) demand “full payment to the employee” (e.g., restitution) by reason of any violation of KRS 337.055. Here, the Commissioner – on behalf of the Secretary – acted well within that authority by assessing Vogt a $250 fine and an amount of restitution consistent with the evidence of record.

152 XX. ESTATES

Boone v. Hoskins, No. 2018-CA-000850, 2020 WL 1070967 (Ky. App. Mar. 6, 2020) DR Pending

Opinion by Judge Maze; Chief Judge Clayton and Judge Lambert concurred. Appellant Boone challenged a summary judgment upholding the validity of her mother’s will and codicil against Boone’s claims of incapacity and undue influence. In 2012, the 81-year-old testatrix asked an attorney who was her neighbor to assist her in drafting a new will to replace her 1981 will, which had divided her estate equally among her four children. The new will, which she executed at the attorney’s office, differed from the earlier will in that: substantial personalty was to be distributed in accordance with a handwritten memorandum; her residence was to be bequeathed to two of her granddaughters; appellee Alyce Hoskins was to be appointed executrix; and it included a no-contest clause. Approximately a year later, the testatrix executed a codicil which replaced the clause concerning the handwritten memorandum by incorporating a list of specific bequests. Although Boone was omitted from the recipients of the specific bequests, she remained a residual beneficiary under the will. After the testatrix’s death, Boone challenged the validity of the will, arguing that her mother lacked testamentary capacity and that the will and codicil were the product of Alyce’s undue influence over their mother. Citing the strong presumption that the testatrix possessed testamentary capacity at the times she executed the will and codicil, the circuit court summarily dismissed Boone’s complaint, concluding that she had failed to satisfy her burden of proving her claims of incapacity and/or undue influence at those times. The Court of Appeals affirmed, reiterating the strong presumption that a testator possesses the minimal degree of mental capacity requisite to make a will, which can be rebutted only by the strongest showing of incapacity. The Court also emphasized that only incapacity at the time of execution of the will is relevant. Holding that Boone had failed to offer evidence of any of the required “badges” of undue influence required to defeat the summary judgment motion, the Court concluded that there was no evidence that the will and codicil were unnatural in their provisions; that Boone was not entirely cut out of her mother’s estate, she simply did not receive the personalty which she believed her mother had previously promised her; and that it was perfectly normal for a person to change his or her mind concerning the distribution of an estate. Finally, the Court held that it could not be seriously argued that Boone’s litigation concerning the will and codicil did not violate the in terrorem clauses in those instruments.

XXI. EVIDENCE

Skarupa v. Owensboro Health Healthpark, No. 2018-CA-000771, 583 S.W.3d 33 (Ky. App. 2019)

Opinion by Judge Maze; Judges Goodwine and Lambert concurred. Appellant filed a negligence action against appellees Owensboro Health and Thomas B. Smith, alleging that Smith negligently performed a massage causing her to suffer a stroke. In the course of discovery, appellant’s experts testified by deposition and their depositions were later used at trial. Prior to trial, Owensboro Health allowed its experts to review the depositions to dispute the conclusions reached by appellant’s experts. At trial, appellant argued that this violated the separation-of-witnesses rule

153 that had been invoked in the pre-trial order. Consequently, she maintained that Owensboro Health’s experts should have been excluded and, in the absence of contrary testimony, that she was entitled to a directed verdict on the issue of liability. The circuit court denied the motions. The matter proceeded to the jury, who found in favor of Owensboro Health and Smith. On appeal, appellant argued that Owensboro Health had violated KRE 615 by allowing its experts to review her experts’ deposition testimony. The purpose of the rule is to ensure that witnesses do not alter their own testimony based on what they hear from other witnesses. Appellant argued that allowing one party’s expert to review the deposition testimony of the other party’s expert effectively defeats the purpose of the rule, allowing an expert to directly address and comment on the other witness’s testimony. The Court of Appeals disagreed and affirmed. While Kentucky has never ruled on the issue, the Court noted that federal cases consistently hold that Fed. R. Evid. 615 does not apply between deposition and trial. The Court of Appeals agreed with this reasoning and held that when a party seeks to prevent disclosure of his or her expert’s pre-trial deposition, the appropriate remedy is to seek a protective order under CR 26.03. The Court further held that KRE 615 only requires sequestration of witnesses prospectively from the point in time that the rule is invoked. Owensboro Health’s experts had already reviewed the depositions at issue at the time the motion was made for separation of witnesses. Consequently, the Court found no violation of KRE 615 and concluded that the circuit court did not abuse its discretion by denying the motion to exclude Owensboro Health’s experts.

XXII. FAMILY LAW

A. Commonwealth v. H.K., No. 2019-CA-000775, 595 S.W.3d 498 (Ky. App. 2019)

Opinion by Judge K. Thompson; Judge Lambert concurred; Judge Nickell dissented and filed a separate opinion. The Commonwealth appealed from a summary dismissal of a dependency, neglect, and abuse (DNA) petition filed due to excessive absenteeism from school by a kindergartener on the basis that the facts presented did not meet the statutory requirements for abuse or neglect. By a 2-1 vote, the Court of Appeals affirmed, holding that there can be no educational neglect of a five-year-old for excessive absenteeism pursuant to KRS 600.020(1)(a)8 because school attendance for a child of that age is optional rather than mandatory pursuant to KRS 158.030(2). In dissent, Judge Nickell noted that while he agreed with the majority that school enrollment for a five-year-old is discretionary, the majority’s position ignored the plain statutory language of KRS 159.010(1)(a), which requires that parents of “any child who has entered the primary school program … shall send the child to a regular public day school for the full term that the public school of the district in which the child resides is in session.” Judge Nickell opined that since Mother chose to enroll her five-year-old child in school, she was required to comply with the clear legislative mandate to ensure her child was present on each day school was in session.

154 B. Ehret v. Ehret, No. 2018-CA-001576, 2020 WL 1898438 (Ky. App. Apr. 17, 2020)

Opinion by Judge Lambert; Judges Maze and K. Thompson concurred. Wife appealed from an order in a dissolution action ruling that a qualified domestic relations order (QDRO) did not allow for Wife’s equalization payment to be subject to gains or losses. The Court of Appeals affirmed, holding that the parties agreed to not only the valuation of the asset and the date of its valuation, but most importantly a sum certain on Wife’s specific share in that asset. There was no evidence to the contrary. The fact that the parties’ documents were silent regarding gains and losses of the asset supported, rather than contradicted, the circuit court’s finding that the parties intended for the asset to be divided in 2012 and at the specific sum contained in those documents. The circuit court did not abuse its discretion.

C. Hartlage v. Hartlage, No. 2019-CA-001003, 2020 WL 1897403 (Ky. App. Apr. 17, 2020)

Opinion by Judge Taylor; Judges Goodwine and K. Thompson concurred. The Court of Appeals reversed and remanded an order granting expanded grandparent visitation to appellees, Daniel Wade Hartlage, Sr. and Tina Lynn Hartlage. Appellant’s husband, the father of the child in question, passed away from cancer in 2016 before the subject proceedings. The parties entered into an agreed order in 2018 granting Tina and Daniel limited, supervised visitation with the child. This visitation was agreed to by appellant. Tina and Daniel then sought to expand visitation, over the objection of appellant. The circuit court granted the request and expanded the grandparents’ supervised visitation notwithstanding the court’s findings that they did not establish what type of relationship they had with the child before their son passed away and that during most of 2017, they had little or no contact with the child. Effectively, the only relationship they had with the child was the limited, supervised visitation agreed to by appellant as set out in the agreed order. The Court of Appeals held that Tina and Daniel had failed to establish a preexisting and viable relationship with the child sufficient to trigger the presumption under KRS 405.021(1)(b), i.e., “[i]f the parent of the child who is the son or daughter of the grandparent is deceased, there shall be a rebuttable presumption that visitation with the grandparent is in the best interest of the child if the grandparent can prove a pre-existing significant and viable relationship with the child.” The Court further noted that the circuit court failed to consider any of the factors set forth in Walker v. Blair, 382 S.W.3d 862 (Ky. 2012) and Morton v. Tipton, 569 S.W.3d 388 (Ky. 2019) and did not determine whether there was clear and convincing proof to establish that it was in the child’s best interests to expand visitation despite appellant’s opposition.

D. Herbener v. Herbener, No. 2017-CA-001642, 587 S.W.3d 343 (Ky. App. 2019)

Opinion by Judge Lambert; Judges Goodwine and Maze concurred. This appeal in a dissolution action related to the division of property and

155 retirement benefits, an award of attorney’s fees, and a contempt finding. The parties had entered into a prenuptial agreement in the days prior to the marriage, which addressed treatment of the parties’ separate property. The Court of Appeals held that the transfer of the husband’s separate real estate into an LLC after the marriage did not transform that property into marital property, and that the circuit court did not abuse its discretion in awarding attorney’s fees to the husband based upon a provision in the prenuptial agreement addressing the result when a party lost a challenge to the other party’s separate property. The Court also rejected the wife’s argument related to her retirement benefits because the marital/non-marital split was the subject of an agreed stipulation.

E. Roper v. Roper, No. 2018-CA-000979, 594 S.W.3d 211 (Ky. App. 2019)

Opinion by Judge Jones; Chief Judge Clayton and Judge L. Thompson concurred. Appellant Craig Roper challenged the circuit court’s findings of fact, conclusions of law, and decree dissolving his marriage with appellee Erin Roper. He also challenged a supplemental decree that decided issues of child support, spousal maintenance, and marital property. In particular, Craig argued that the circuit court lacked subject matter jurisdiction over child support and timesharing since the parties and their children were all residing in Texas at the time the supplemental decree was entered. With respect to jurisdiction, the Court of Appeals held that the circuit court’s supplemental decree addressing child support, entered following a previous temporary support order, was considered a modification order under the Uniform Interstate Family Support Act (UIFSA). Therefore, the circuit court had continuing exclusive jurisdiction to modify the temporary support order under KRS 407.5205(1)(b). However, as to custody/time- sharing, the Court reversed the circuit court’s sua sponte order modifying such where, at the time of modification, the parties did not live in Kentucky and had lived in Texas for over a year. The Court held that the circuit court lacked jurisdiction to modify custody or parenting time pursuant to KRS 403.824(1). The Court affirmed as to the circuit court’s division of marital property but vacated its spousal maintenance award and remanded for consideration of Craig’s ability to pay the ordered maintenance while meeting his own reasonable and necessary expenses. The Court noted that the circuit court did not consider additional income from Erin’s IRA in its analysis, and that because it failed to consider all of Erin’s financial resources and erroneously concluded, based on its own findings, that Craig had the ability to support himself, further consideration was merited.

F. S.B. v. Cabinet for Health and Family Services, No. 2019-CA-000746, 2020 WL 1898378 (Ky. App. Apr. 17, 2020) Rehearing Pending

Opinion by Judge Goodwine; Judges Dixon and Taylor concurred. Grandparents and Father separately appealed a family court order denying Grandparents’ motion to be considered for placement of their grandchild, M.M. The parties contended that the family court erred by: (1) failing to place M.M. in their custody after an Interstate Compact on the Placement of Children (ICPC) approved home study; (2) failing to comply with KRS 620.090 and 922 KAR 1:140; and (3) failing to apply the best interest

156 standard. The Court of Appeals affirmed. Grandparents first argued that an ICPC approved home is absolute grounds to house a child. However, the Court held that being an approved household is far from an absolute. The ICPC merely gives the “sending agency’s state” more viable options for placement. Nowhere in the statute does the ICPC mandate the family court, or the Cabinet, to send a child to an ICPC approved home. As to the second argument, the Court reiterated that while the Cabinet must consider relative placement over other options, it is not required to choose relative placement over other options. The evidence here supported the decision not to place M.M. with Grandparents. Finally, the Court concluded that the family court properly considered the factors in KRS 620.023 in determining the child’s best interest.

G. T.C. v. M.E., 2019-CA-000431, 2020 WL 2092019 (Ky. App. May 1, 2020)

Opinion by Judge Acree; Judges Caldwell and Lambert concurred. On discretionary review, the Court of Appeals reversed a district court order finding abuse. Father (T.C.) and Mother (M.E.) divorced but were awarded joint custody of their young Son with Mother as the primary residential parent. While Son was visiting Father, he injured his arm as the two were playing just before the return trip to Mother. Father examined Son’s arm and saw no obvious trauma but calmed him and gave him Children’s Tylenol. When Father and Son met up with Mother, Father informed her of the injury and asked her if they should take Son to the emergency room. Mother declined and said she would give Son ibuprofen and arrange a doctor visit the next day. A week later, Mother petitioned the Whitley District Court for an emergency protective order (EPO) claiming Son’s injury was caused by Father’s physical abuse. The court denied the EPO but referred the petition to the Cabinet for Health and Family Services. The court also used the order denying Mother’s petition to initiate a separate dependency, neglect, and abuse (DNA) action, contrary to KRS 620.070(1) which allows only interested parties to initiate such actions. Two weeks later, the court conducted a temporary removal hearing; Father had yet to be served with any pleading or order in any case and did not appear. Mother’s counsel falsely represented that, “we filed a motion to halt visitation,” in the divorce case in circuit court. The court entered an order that Mother cooperate with the Cabinet, including that she not allow any contact between Son and Father. Father was never served with that order and attempted to contact Son over the Christmas holidays. Mother filed a second petition for an EPO falsely alleging the Cabinet had investigated and concluded Father had broken and dislocated Son’s arm. A different division of the district court granted the EPO, serving the order on Father, and ordered the case to be heard in the other division where the DNA case was pending. The two cases were to be heard together three months later during the removal hearing. At that hearing the Cabinet reported it had found no substantiation for abuse by Father. When the Cabinet told the district court it was not opening a case, the court violated separation of powers and usurped the Cabinet’s executive function by ordering the Cabinet to open a case and to case plan with the parties. The court awarded sole custody to Mother and ordered a battery of requirements from drug testing to anger management to be met by Father and Mother. No evidence had been presented at any

157 hearing to this point and Father, acting pro se, asked the basis for the order; the court said, “the EPO is the basis,” and ended the hearing. An adjudication hearing was scheduled for a month later. Father was represented by counsel. Without any proof being offered by Mother or the Cabinet, the court said, “I’m finding abuse. Any questions anybody?” At this point, Father’s counsel asked that Father be put under oath to testify as to how Son was injured. This testimony is the only evidence in the record and it failed to support anything other than an innocent accident that happened while Father and Son were playing. Nevertheless, the court did not change its finding of abuse. For reasons that should be obvious from this summary, the Court of Appeals reversed the order. Primarily, the basis of the Court’s decision is that no evidence, substantial or otherwise, supported a finding of abuse.

H. Tager v. Tager, No. 2018-CA-001661, 588 S.W.3d 183 (Ky. App. 2019)

Opinion by Judge Maze; Judges Acree and Combs concurred. Appellant challenged orders equally dividing the marital portion of his retirement plan and entering a QDRO directing the plan administrator to divide the benefits based upon the value as of the date of the parties’ dissolution decree (May 6, 2004). On appeal, he argued that the marital portion of the plan should be valued based upon the much later order providing for an equal division of the marital portion of his retirement plan (November 29, 2017). The Court of Appeals affirmed, holding that although the facts of this case were unusual, appellant failed to show that he was unfairly prejudiced by the circuit court’s use of the dissolution date to value his retirement plan. The Court noted that the circuit court did not enter an order formally dividing appellant’s retirement for more than 11 years after it adopted the report of the Domestic Relations Commissioner. Neither party brought the oversight to the circuit court’s attention in a timely manner. However, the parties clearly stipulated that the marital portion of the retirement plan was subject to division as of the date of the decree. Since appellant had not yet retired at the time the court adopted the DRC’s report, the circuit court could use the delayed division method to allocate the benefits from the military retirement plan. In reaching this conclusion, the Court rejected appellant’s argument that appellee should be estopped from asserting a claim to the benefits.

XXIII. FEES AND COSTS

VP Louisville, LLC v. NBH Bank, N.A., No. 2017-CA-000055, 578 S.W.3d 753 (Ky. App. 2019)

Opinion by Judge K. Thompson; Judges Taylor and L. Thompson concurred. The law firm of Hinshaw & Culbertson, LLC (H&C) was hired by Smiling Hospitality, the court-appointed receiver in a foreclosure action. The firm billed $206,203.52 in attorneys’ fees. VP Louisville objected to the fees and an evidentiary hearing was held. In an April 2016 order, the circuit court ruled that pursuant to the receiver order, Smiling Hospitality could hire and pay counsel. However, the court further concluded that some of the fees were unnecessary and that H&C’s hourly rate must be reduced. The circuit court also ruled that the time and expenses billed for

158 defending attorneys’ fees were not to be compensated. H&C subsequently reduced its fees by $84,272 and deducted amounts billed that the circuit court found were unnecessary and fees billed for defending attorneys’ fees. Smiling Hospitality submitted a letter from H&C explaining its compliance with the circuit court’s order along with its motion seeking final discharge and guidance on disbursement of the remaining funds. VP Louisville objected to the approval of fees and argued that it was due $144,668.03 from Smiling Hospitality. In December 2016, the circuit court issued an order discharging Smiling Hospitality and authorizing it to pay H&C. On appeal, VP Louisville argued that the circuit court’s December 2016 order was not in accord with the rates and deductions established by the April 2016 order. It further contended that the circuit court was required to state the evidence relied upon in approving the submitted fees. The Court of Appeals affirmed, holding that a circuit court is to be afforded deference when interpreting its own order and that there was nothing inconsistent in the court’s orders here. At no time did the circuit court enter a judgment against Smiling Hospitality and, as to the attorneys’ fees, the court set forth the specific rates to be charged and, wisely, did not allow H&C attorneys’ fees for defending attorneys’ fees. The Court further concluded that the circuit court was not required to make additional findings of fact when it reviewed the fees charged.

XXIV. HEALTH

Cabinet for Health and Family Services v. Loving Care, Inc., No. 2018-CA-000199, 590 S.W.3d 824 (Ky. App. 2019)

Opinion by Judge K. Thompson; Judges Combs and Nickell concurred. This case arose after the Cabinet for Health and Family Services sought to be reimbursed Medicaid payments paid to Loving Care, Inc. The question presented was whether Loving Care properly preserved its arguments concerning whether there was an “overpayment” (as defined in the applicable federal regulation) to entitle the Cabinet to seek reimbursement and whether it preserved the argument that it had substantially complied with the applicable regulation so that reimbursement was improper. The hearing officer found that the issues were not properly preserved at the Dispute Resolution Meeting (DRM) as required by 907 KAR 1:671 Section 9(13) and the Cabinet affirmed the recoupment decision. The Franklin Circuit Court reversed and remanded for a hearing. It also ruled that the Cabinet had the burden of proof. The Court of Appeals affirmed. It held that “directly” as used in 907 KAR 1:671 Section 9(13) did not mean “exactly,” and that Loving Care had sufficiently raised both issues in its request for a DRM and at the DRM. The Court also held that the Cabinet had the burden to show that it was entitled to recoupment.

XXV. IMMUNITY

A. Commonwealth v. Russell, No. 2018-CA-000200, 578 S.W.3d 747 (Ky. App. 2019)

Opinion by Judge Spalding; Judges Acree and Lambert concurred. Russell, a state inmate and participant in a Department of Corrections work release program, lost the lower part of his left leg while working for the Department of Military Affairs when a tree he was helping to cut fell on him. The Board of Claims determined that the act of felling a tree was a

159 discretionary act and that at the time of the accident, Russell was under the exclusive control of Military Affairs; therefore, sovereign immunity applied and Russell had no cause of action. On appeal, the Franklin Circuit Court held that the Board erred (1) in finding KRS 441.125(2)(b) inapplicable to Russell’s claim; (2) in concluding that the Department of Corrections was entitled to immunity under KRS 49.070 because the act of felling a tree is discretionary; and (3) in concluding that at the time of his injury, Russell was under the exclusive control of Military Affairs. The Court of Appeals affirmed. Applying the analysis set forth in Haney v. Monsky, 311 S.W.3d 235 (Ky. 2010), the Court first held that the dominant nature of the act of felling a tree must be construed to be ministerial. The Court then held that the Board of Claims erred as a matter of law in concluding that at the time of the accident Russell was under the exclusive control of Military Affairs and that the only duty the Department of Corrections owed Russell was under its agreement with Military Affairs. The Court noted that while the circuit court incorrectly concluded that KRS 441.125(2)(b) applied here, the circuit court correctly observed that the Department of Corrections owes a general duty to its prisoners on work release to exercise ordinary care for their protection. This general duty extends even to periods when the prisoners may be under the supervision of another department and arises from the “special relationship” penal institutions have with prisoners in their custody. Because Russell was in state custody at the time of the accident and the allegedly negligent conduct was committed by a state actor or actors, the Department of Corrections was required to exercise ordinary care for his protection.

B. Franklin-Simpson County Board of Zoning Adjustment v. Drakes Creek Holding Co., LLC, No. 2017CA001655, 2020 WL 2297004 (Ky. App. May 8, 2020)

Opinion by Judge Acree; Judges Dixon and Maze concurred. The Franklin- Simpson County Board of Zoning Adjustment (the Board) appealed an order denying summary judgment and denying a grant of governmental immunity in favor of Drakes Creek Holding Co., LLC. The Court of Appeals reversed and remanded with instructions to dismiss Drakes Creek’s detrimental reliance and tortious interference claims against the Board. The Court concluded that the Board was an agent of Simpson County and was performing an integral state function; therefore, it was entitled to governmental immunity. The Court further held that governmental immunity was no bar to Drakes Creek’s claim of inverse or reverse condemnation. However, the Court concluded that Drakes Creek could not establish a “taking” under the facts presented. Therefore, dismissal of that claim was appropriate.

C. Saunier v. Lexington Center Corporation, No. 2018-CA-001290, 2020 WL 2781709 (Ky. App. Apr. 17, 2020)

Opinion by Judge Lambert; Judge Dixon concurred in result only; Judge Jones concurred in part and filed a separate opinion. This was an appeal from a personal injury action in which appellant Mark Saunier claimed to have been injured when he tripped over an electrical cable protector and

160 fell at Rupp Arena while attending a University of Kentucky basketball game. The Court of Appeals affirmed. First, the Court held that the circuit court properly held that UK was immune from suit. The concurring opinion discussed whether the agency (UK) was performing an essential governmental function, as opposed to a proprietary function, citing to Schwindel v. Meade County, 113 S.W.3d 159 (Ky. 2003), and the Supreme Court’s discussion of a public school interscholastic softball tournament and whether that converted a board of education’s function from governmental to proprietary. Second, the Court rejected appellants’ evidentiary arguments, including the decisions to permit the lease between the Lexington Center Corporation and UK to be admitted, to permit witnesses to testify about their interpretation of the lease, and to not define “institutional control” but permit the lay witnesses to do so. The Court also held that appellants’ argument relating to including a duty or apportionment instruction as to the UK fire marshals on duty at the time of the fall was moot because the jury never reached that instruction. Finally, the Court found no error in the summary judgment dismissing appellants’ business and economic loss claim based upon the jury’s defense verdict and because a letter of intent to purchase Saunier’s company was not a contract for sale but was merely a proposal.

D. Wallace v. Martin, No. 2018-CA-001260, 2020 WL 2781710 (Ky. App. May 29, 2020)

Opinion by Judge Dixon; Chief Judge Clayton and Judge Goodwine concurred. Appellant, who was fired from his job as a school bus driver following a disciplinary incident with a child but was subsequently acquitted of a fourth-degree assault charge resulting from the incident, sued Officer Ben Martin and the school superintendent for malicious prosecution, abuse of process, and defamation. Martin was responsible for the criminal complaint against appellant. The circuit court granted Martin’s motion for summary judgment on grounds of qualified immunity, and this appeal followed. The Court of Appeals reversed, rejecting the finding of immunity. The Court noted that qualified immunity is not a blanket shield for all tort claims, but only generally protects negligent acts. It then held that Martin was not entitled to qualified immunity as to appellant’s claim of malicious prosecution pursuant to Martin v. O’Daniel, 507 S.W.3d 1 (Ky. 2016). In Martin, the Supreme Court reasoned that one who acts with malice is not entitled to immunity, for if one has no malice, one needs no immunity, since proof of malice is a necessary element to prevail on a claim of malicious prosecution. In an issue of first impression, the Court of Appeals then determined the same reasoning in Martin equally applies to claims of defamation per se. To be entitled to qualified immunity, one must act in good faith. Since liability for defamation per se turns on the necessity of proof of malice, acting with malice and acting in good faith are mutually exclusive. Thus, if Martin acted in good faith, he could not have defamed appellant and there would be no need for immunity. Consequently, the circuit court erred in granting summary judgment to Martin on appellant’s defamation claim based on qualified immunity.

161 XXVI. INSURANCE

A. Davis v. Progressive Direct Insurance Company, No. 2019-CA-000850, 597 S.W.3d 652 (Ky. App. 2020)

Opinion by Judge Kramer; Judge Dixon and Special Judge Buckingham concurred. In a direct appeal from the circuit court’s grant of summary judgment to appellee, the Court of Appeals affirmed. While riding her motorcycle in Barren County, Kentucky, appellant collided with a horse- drawn buggy. She thereafter sought uninsured motorist coverage under her policy with appellee. Appellant presented two arguments on appeal: (1) the circuit court erroneously concluded that a horse-drawn buggy did not qualify as a “motor vehicle” under the Motor Vehicle Reparations Act (MVRA), KRS 304.39-010 et seq.; and (2) the circuit court erroneously concluded that the horse-drawn buggy did not qualify as a “motor vehicle” as defined by the language of her insurance policy with appellee. The Court of Appeals upheld the grant of summary judgment. First, the MVRA defines a “motor vehicle” as one which is “propelled by other than muscular power.” KRS 304.39-020(7). Second, a horse-drawn buggy does not qualify as a motor vehicle for purposes of uninsured motorist coverage, consistent with the previous Court of Appeals’ opinion in Rosenbaum v. Safeco Ins. Co. of America, 432 S.W.2d 45 (Ky. 1968), and in conformity with the principle that terms used in insurance contracts should be afforded their ordinary and usual meaning.

B. Joiner v. Kentucky Farm Bureau Mutual Insurance Company, No. 2017- CA-000473, 582 S.W.3d 74 (Ky. App. 2019)

Opinion by Judge Acree; Judges Kramer and Taylor concurred. The Court of Appeals affirmed the circuit court’s dismissal of appellant’s claim that appellee violated the Kentucky Motor Vehicle Reparations Act by failing to pay basic reparations benefits (BRB). The Court held that KRS 304.39- 230(1) establishes the limitations period for filing suit when no BRB have been paid. It also held that the same statute operates as a statute of repose when the reparations obligee is a third-party insured such as a pedestrian. Furthermore, for such reparations claimants, proof of net loss must be submitted to the reparations obligor within the same limitations period established by KRS 304.39-230(1). Appellant’s submission of a billing statement showing a “zero” balance did not constitute the predicate proof of loss that would have created the insurer’s obligation under KRS 304.39- 040 or that would have entitled appellant to reparations under KRS 304.39- 030. The Court also held that when the medical expenses of a tort claimant are paid by the Kentucky Medical Assistance Program, the tort claimant shall be deemed to have made to the Cabinet for Health and Family Services an assignment of his rights to third-party payments to the extent of the medical assistance paid on his behalf.

162 C. Kentucky Farm Bureau Mutual Insurance Company v. Brewer, No. 2018- CA-000736, 596 S.W.3d 620 (Ky. App. 2020)

Opinion by Judge K. Thompson; Judges Jones and Kramer concurred. Kentucky Farm Bureau Mutual Insurance Company appealed from an order denying its motion for declaratory judgment. The circuit court ruled that Kentucky Farm Bureau was estopped from denying insurance coverage on a claim by appellee against William Walters. The Court of Appeals reversed and remanded, concluding that the circuit court erred. Kentucky Farm Bureau defended Walters after giving him timely notice that it was defending under a reservation of rights. The Court held that the circuit court erroneously concluded that the mere passage of time between the reservation of rights and the filing of a declaratory judgment action was sufficient to preclude Kentucky Farm Bureau from asserting a no-coverage defense. The circuit court did not address whether Kentucky Farm Bureau had misrepresented to Walters that it was no longer defending under a reservation of rights or whether Walters had been prejudiced by Kentucky Farm Bureau’s failure to earlier assert a no-coverage defense. Thus, the case required remand for further findings.

D. Marshall v. Kentucky Farm Bureau Mutual Insurance Company, No. 2019- CA-001059, 2020 WL 2601372 (Ky. App. May 22, 2020)

Opinion by Special Judge Buckingham; Judges Combs and Jones concurred. Appellant’s husband was killed in an ATV accident. She filed a wrongful death suit seeking damages against the driver of the ATV. At the time of the accident, the driver was insured under a homeowner’s insurance policy issued by Kentucky Farm Bureau that covered his residence. The Farm Bureau policy specifically excluded coverage for the use of “motorized land conveyances,” which included ATVs. However, one of the exceptions to the exclusion from coverage was for a vehicle or conveyance not subject to motor vehicle registration which is “used to service an insured’s residence[.]” The circuit court concluded that homeowner’s coverage did not apply to the ATV, and the Court of Appeals affirmed. The Court first held that the word “service” as used in the exception was not ambiguous. It then agreed with the circuit court’s conclusion that the ATV was never used to service the driver’s residence. The driver testified that he never used the vehicle, either before or after the accident, to perform yard work or other tasks for his residence. He testified that he used it to give rides to children around the neighborhood, to hunt, and in connection with his landscaping business on one occasion. In light of this evidence, summary judgment in favor of Farm Bureau was appropriate.

E. McAlpin v. American General Life Insurance Company, No. 2019-CA- 000053, 2020 WL 1646824 (Ky. App. Apr. 3, 2020)

Opinion by Judge Kramer; Judges Combs and K. Thompson concurred. Appellant challenged the summary dismissal of various tort claims he had asserted, all of which were rooted in his view that one of the appellees in this matter, his insurance agent, had breached a professional obligation

163 owed to him when, on February 14, 2008, the agent offered to sell him the life insurance he requested but did not offer to sell him accidental death insurance. Upon review, the Court of Appeals explained that under given circumstances, an insurance agent may expressly or implicitly assume a “duty to advise” an individual regarding insurance matters, but that the scope of such an assumed duty is an essential consideration for purposes of tort liability. Affirming the circuit court’s summary dismissal, the Court explained that if the insurance agent owed appellant any duty to advise regarding insurance matters, nothing of record supported that such a duty was ever breached. For example, appellant faulted the appellees for failing to offer him a $1 million accidental death policy but, at all relevant times, the appellees undisputedly did not sell $1 million accidental death policies to anyone, nor had appellant requested accidental death insurance. Appellant also faulted the insurance agent for not mentioning “the possibility of accidental death coverage.” However, the accidental death coverage the agent could have offered would not have presented a solution to the needs or problems appellant had brought forward. Undisputedly, the accidental death insurance the agent could have offered at the time would have assumed fewer risks and provided at most only half the coverage amount of the life insurance appellant sought.

F. Messer v. Universal Underwriters Insurance Company, No. 2017-CA- 000293, 598 S.W.3d 578 (Ky. App. 2019)

Opinion by Judge Acree; Judges Lambert and Spalding concurred. The Court of Appeals affirmed the circuit court’s grant of summary judgment dismissing appellant’s bad faith claim brought pursuant to the Kentucky Unfair Claims Settlement Practices Act, KRS 304.12-230. The bad faith claim was abated while the parties litigated the underlying tort action, an auto accident involving appellant and the employee of appellee’s insured. The police report indicated that appellant caused the accident. Appellee’s insured said that its employee was driving its vehicle without permission, and non-permissive use was excluded from coverage under the policy of insurance. Consequently, appellee denied the claim because it had no contractual obligation under the policy and further disputed the claim because the insured’s employee’s liability was not beyond dispute. Appellee made nuisance value offers to appellant until a jury resolved the permission use fact question and appellant was found to have a contractual obligation to cover the accident. However, appellee continued to dispute the claim because liability was not beyond dispute and damages were in doubt. During the five months after the coverage question was resolved, the parties’ negotiations led to settlement of the underlying claim for the limits of the liability policy. When litigation of the bad faith claim resumed, appellee moved the circuit court for summary judgment, which was granted. The Court of Appeals affirmed because there was no obligation to pay the claim until the coverage issue was resolved, the insured’s employee’s liability was never beyond dispute, and appellee’s conduct could not, as a matter of law, be outrageous or otherwise constitute bad faith.

164 G. Nichols v. Zurich American Insurance Company, No. 2019-CA-000071, 2020 WL 2781705 (Ky. App. May 29, 2020)

Opinion by Judge Dixon; Chief Judge Clayton and Judge Taylor concurred. Appellant challenged orders granting summary judgment in favor of Zurich American Insurance Company on appellant’s insurance bad faith claims. The Court of Appeals affirmed. Appellant argued he lacked certain critical evidence in responding to Zurich’s motion for summary judgment. He sought Zurich’s post-litigation claim file and communications. The circuit court compelled production of post-litigation conduct and communications concerning settlement offers and negotiations. Appellant claimed the court’s refusal to compel all post-litigation conduct and communications was contrary to Knotts v. Zurich Ins. Co., 197 S.W.3d 512 (Ky. 2006). However, Knotts held an insurer’s post-filing claims conduct is generally inadmissible. This does not entirely prohibit trial courts from allowing discovery or admission of such evidence but, instead, requires courts to weigh its relevance against the prejudice to the insurer. Appellant also sought Zurich’s underwriting file. However, his assertion that the underwriting file could have been used to establish elements of his bad faith claim ignored the evidence in the record. Zurich had a reasonable basis in law or fact for denying appellant’s claim based on policy language. Since nothing in the underwriting file negated the reasonable basis for Zurich denying appellant’s underinsured motorist claim, the circuit court did not err in finding production of the underwriting file irrelevant. Appellant also moved the circuit court to exclude the introduction of evidence of the case’s litigation history at trial, contending it was unfair to disallow discovery of Zurich’s post-litigation conduct and communications and then allow Zurich to introduce such evidence at trial. The Court of Appeals noted that Knotts directs courts to be concerned about prejudice to insurers. The litigation history of this case was equally known to these parties; therefore, the circuit court did not err in denying the motion. Finally, the Court held that the circuit court did not err in granting summary judgment on appellant’s claim for interest and attorney’s fees.

H. Thomas v. Perkins, No. 2017-CA-001875, 2020 WL 34592 (Ky. App. Jan. 3, 2020) DR Pending

Opinion by Judge L. Thompson; Judges Combs and Jones concurred. The Court of Appeals affirmed a circuit court’s finding that both Jerry Perkins and his wife, Bessie Perkins, were involved in child care services at their home. Therefore, a homeowner’s liability policy issued by State Farm Fire & Casualty Company did not apply to injuries sustained by children being cared for at the home due to a “child care services exclusion” term in the insurance policy.

I. Warsow v. State Farm Mutual Automobile Insurance Company, No. 2018- CA-001424, 595 S.W.3d 493 (Ky. App. 2019)

Opinion by Judge Spalding; Judges Goodwine and Maze concurred. This appeal was brought in a declaration of rights action to resolve the question of whether a coverage limitation provision in an insurance contract was void

165 for public policy. Specifically, appellants argued that a single $50,000 per accident limit was void against public policy when two individuals on the insurance policy committed separate torts to bring about the subject injury. Individually, each insured would have had $50,000 in liability coverage and appellants argued that limiting that to one recovery of $50,000 violated public policy. The Court of Appeals held that the provision was not void for public policy because in this matter there was only one vehicle involved driven by one of the policy’s insureds while the other policy insured’s negligence involved the loading of cargo on a trailer that the motor vehicle was pulling. Therefore, the policy limit of $50,000 for a single incident was not void for public policy reasons.

XXVII. JUDGMENT

A. Estate of Reeder v. Ashland Police Department, No. 2018-CA-000322, 588 S.W.3d 160 (Ky. App. 2019)

Opinion by Judge Goodwine; Judge Combs concurred; Judge Taylor concurred in result and filed a separate opinion. The estate of the roommate of a defendant convicted of drug trafficking and possession brought an action against the Ashland Police Department seeking recoupment of money forfeited by the defendant following his conviction. The estate filed a motion to intervene in the defendant’s criminal case, requesting to be made a party and asserting its interest in $120,050 of the seized funds. During the defendant’s sentencing, the trial judge stated that the motion to intervene was not well-taken and – incorrectly – that the estate should file a separate civil action; the motion to intervene was later denied by order. The estate was never served with copies of the forfeiture orders subsequently entered. The estate filed a civil complaint, per the instructions of the judge in the criminal case, alleging that the court had jurisdiction to adjudicate the forfeiture issue. The police department responded by filing a motion for summary judgment on grounds that KRS 218A.460 vests exclusive jurisdiction to determine forfeiture issues in the court in which the forfeiture proceeding has been requested, i.e., the court in the criminal case. The police department also noted that the funds in question were properly forfeited per the orders entered in the criminal case, and that those orders were never appealed by the estate. Realizing the quandary it faced, the estate filed a motion for an extension of time to file an appeal in the criminal case. This motion was denied, and the estate’s subsequent appeal to this Court in the criminal case was dismissed. Meanwhile, the court in the civil case granted summary judgment to the police department, ruling that the action was not maintainable and that jurisdiction for the contest of the forfeited property rested in the criminal case, which was now final. Therefore, the estate’s claim was barred by res judicata. The Court of Appeals affirmed, holding: (1) the estate’s avenue for a proper remedy would have been to appeal the order in the circuit court denying its motion to intervene, not file a separate civil action regarding the same issue; (2) the estate had no standing to file a separate civil action; and (3) the court in the criminal case did not err in denying the estate’s motion for additional time to file a notice of appeal because no grounds for such existed under CR 6.02, CR 73.02, or CR 77.04. In his concurring

166 opinion, Judge Taylor took the circuit court to task for multiple issues in the case and noted that a sound basis existed for CR 60.02 relief.

B. Wood Estate v. Young, No. 2018-CA-000716, 590 S.W.3d 265 (Ky. App. 2019)

Opinion by Judge L. Thompson; Judges Combs and Jones concurred. The Court of Appeals affirmed an order setting the amounts that appellant and another tax lien holder were entitled to recover after the judicial sale of a parcel of real property. Appellant argued that the order was improperly entered by the clerk because it did not contain the judge’s handwritten or electronic signature as required by CR 58. The order had a signature block setting out the printed name “Timothy R Coleman,” with the notation “Digitally signed by Timothy R Coleman, 38th Judicial Circuit,” Judge Coleman’s email address, and the statement: “[R]eason: I have reviewed this document” along with the date and time. Underneath the signature line were the notations “TIMOTHY R. COLEMAN, JUDGE” and “HANCOCK CIRCUIT COURT.” The Court held that this was sufficient to meet the requirements of CR 58 because that rule is general and inclusive rather than limiting and restrictive. The Court noted that the drafters of CR 58 could have required a particular type of signature, but they did not. The signature in question effectively represented the name and authority of the signatory, the court from which that authority derived, the reason for the signature, as well as its date and time.

XXVIII. JURISDICTION

A. Murphy v. Frontier Professional Baseball, Inc., No. 2019-CA-000073, 2020 WL 2092020 (Ky. App. May 1, 2020)

Opinion by Chief Judge Clayton; Judges Caldwell and Combs concurred. A Kentucky law firm and several of its partners (the Firm) brought suit in Boone Circuit Court against (1) a former client who they represented in federal district court in Indiana and (2) the defendants in that federal action. The former client settled the Indiana litigation without the participation of the Kentucky firm and threatened to bring malpractice claims against the Firm. The Firm raised numerous claims in the Kentucky litigation, including failure to pay legal fees, tortious interference, and conspiracy between their client and the defendants in the Indiana litigation, and sought a declaration of rights regarding the assignment of the former client’s malpractice claims against the Firm to the defendants in the federal action. The circuit court dismissed the action, in part on the basis that exercising personal jurisdiction over the former federal defendants did not comport with federal due process standards under Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374 (6th Cir. 1968). Although the circuit court found it had personal jurisdiction over these parties pursuant to KRS 454.210(1) and (2), Kentucky’s long-arm statute, because they transacted business and contracted to supply services in Kentucky, the exercise of jurisdiction was nonetheless improper because the underlying cause of action arose from the litigation in federal court in Indiana. The circuit court further found that neither the activities of these parties, nor the

167 consequences of those activities, had a substantial enough connection with Kentucky to make jurisdiction reasonable. The Court of Appeals agreed, holding that the Firm had not shown an adequate causal nexus between these parties’ contacts with Kentucky and the Firm’s causes of action, which all related to the Indiana litigation. The circuit court also dismissed the Firm’s claims against its former client, in part because the former client had already filed a malpractice claim against the Firm in commercial court in Indiana. The Court of Appeals affirmed the dismissal because pursuing these claims against the former client separately in two different courts would not further judicial efficiency or attain consistency of results.

B. Stewart v. Kentuckiana Medical Center, LLC, No. 2017-CA-001960, 2019 WL 2399492 (Ky. App. Jun. 7, 2019) DR Denied

Opinion by Judge Maze; Judges Acree and Combs concurred. Appellant challenged an order of the Jefferson Circuit Court dismissing her medical malpractice and related claims against Kentuckiana Medical Center (KMC), Dr. Anis G. Chalhoub, Dr. John D. Rumisek, and their practice groups. In 2014, appellant, an Indiana resident, went to the emergency room at KMC in Clarksville, Indiana. The consulting cardiologist, Dr. Chalhoub, diagnosed her with bradycardia and sick sinus syndrome and, based on this diagnosis, Dr. Rumisek installed a pacemaker and performed several follow-up procedures at KMC. After each of the surgeries, appellant followed-up with the physicians at their Louisville offices. In 2016, appellant’s new cardiologist advised her that she never had sick sinus syndrome and that the pacemaker was not medically necessary. Based on this information, appellant filed her medical malpractice suit. The defendants moved to dismiss, arguing that appellant’s action was barred by her failure to comply with the medical review panel requirements of the Indiana Medical Malpractice Act, IC §34-18-8-4. KMC separately argued that Kentucky could not exercise personal jurisdiction over it. The circuit court agreed on both points and granted the motions to dismiss without prejudice. The Court of Appeals affirmed. The Court first agreed that Kentucky could not exercise personal jurisdiction over KMC. Appellant was an Indiana resident, her alleged injury took place entirely in Indiana, and KMC was a foreign corporation that did business exclusively in Indiana. Thus, under KRS 454.210(2)(a), there was no basis for Kentucky to exercise personal jurisdiction over it. The Court then held that while appellant’s malpractice claims against Dr. Chalhoub and Dr. Rumisek were subject to Indiana law, they were not barred for lack of subject-matter jurisdiction or particular-case jurisdiction because the medical panel review requirements of the Indiana Medical Malpractice Act only applied to actions filed in an Indiana court. Nevertheless, the Court concluded that the circuit court properly dismissed the claims against Dr. Chalhoub and Dr. Rumisek due to appellant’s attempt to engage in forum shopping. The circuit court had personal jurisdiction over some, but not all, of the defendants, and appellant’s claims had only a minimal connection with Kentucky. Moreover, all the claims could be brought in an Indiana court once appellant complied with the medical review panel requirements. Under these circumstances, the Court held that the doctrine of forum non conveniens warranted a stay or dismissal of the complaint without prejudice

168 with leave to file in Indiana. Therefore, the Court of Appeals affirmed the circuit court on this basis.

XXIX. JUVENILES

A. C.C. v. Mehling, No. 2019-CA-000312, 2020 WL 1966535 (Ky. App. Apr. 24, 2020) N/A Filed in S. Ct.

Opinion and order denying by Judge Kramer; Judges Acree and Lambert concurred. C.C., by counsel, petitioned the Court of Appeals for a writ of mandamus to order the respondent judge to dismiss the status offense charge of habitual runaway due to a lack of jurisdiction. The Commonwealth filed a response to the petition for writ of mandamus and stated that the charge was dismissed on March 6, 2019, and that the case was moot. Although moot, the Court deemed it appropriate to address the complained-of error because C.C. was a minor, and it was possible for the same issue to arise again. Therefore, the Court held that the capable-of- repetition-yet-evading-review exception applied. Commonwealth, Dep’t of Corrections v. Engle, 302 S.W.3d 60 (Ky. 2010); C.S. v. Commonwealth, 559 S.W.3d 857 (Ky. App. 2018). The Court nonetheless denied the writ. C.C. argued that he was entitled to mandatory diversion, which would have diverted his case from the family court. He argued that KRS 610.030 and KRS 630.050, as well as the Juvenile Court Rules of Procedure and Practice (JCRPP), mandated diversion or referral to the family accountability, intervention, and response team (FAIR team) prior to filing a status offense petition. The Court disagreed, holding that this argument failed because it ignored provisions of the Unified Juvenile Code and the JCRPP which pertain specifically to habitual runaway status offenses. KRS 610.012, pertaining specifically to suspected habitual runaways, is more specific and, therefore, controlled. Under KRS 610.012(6) the offer of diversion or referral to the FAIR team was not required prior to instituting a status offense case in the family court. At the detention hearing held on January 23, 2019, the court ordered that C.C. be released to his father. At that point, a status offense was required to be initiated pursuant to KRS 610.012(6).

B. Doe v. Ramey, No. 2018-CA-001154, 2020 WL 1898418 (Ky. App. Apr. 17, 2020) DR Pending

Opinion by Judge K. Thompson; Chief Judge Clayton and Judge Maze concurred. Appellant, a minor, appealed from the Jefferson Circuit Court’s opinion and order affirming the Jefferson District Court’s grant of an interpersonal protective order (IPO) against him in favor of T.L.C.’s mother and protecting T.L.C., another minor. The Court of Appeals accepted discretionary review and reversed the circuit court’s opinion and order, holding that the district court lacked subject matter jurisdiction to issue an IPO where a juvenile was the respondent. The Court noted that pursuant to KRS 456.030(6)(a), “[j]urisdiction over petitions filed under this chapter [IPOs] shall be concurrent between the District Court and Circuit Court.” Accordingly, because jurisdiction over IPO cases is not vested exclusively in the circuit court, where the respondent is a minor, an IPO hearing must

169 take place before the juvenile session of the district court as it has exclusive jurisdiction “in all cases relating to minors in which jurisdiction is not vested by law in some other court[,]” KRS 24A.130, and “in proceedings concerning any child living or found within the county[,]” KRS 610.010(1). Based on this language, appellant was entitled to have this matter heard by the juvenile court with the concurrent confidentiality of such court, with law enforcement and school personnel still receiving appropriate information. Thus, the circuit court erred by failing to reverse the district court’s decision for lack of subject matter jurisdiction.

XXX. LANDLORD/TENANT

A. Cinque v. Lexington Village, LLC, No. 2018-CA-001707, 2020 WL 1646829 (Ky. App. Apr. 3, 2020) DR Pending

Opinion by Special Judge Buckingham; Judges Combs and Lambert concurred. Lexington Village, LLC, filed a civil action against seven college students seeking a judgment for breach of a residential lease agreement. Lexington Village obtained a default judgment against one of the students, Shea Cinque, but the other six students prevailed on their summary judgment motion against Lexington Village, resulting in dismissal of the claims against them. The Court of Appeals reversed the order denying Cinque’s motion to set aside the default judgment and affirmed the summary judgment entered in favor of the other students. The Court first held that the circuit court abused its discretion in refusing to set aside the default judgment because Cinque never received actual notice of the legal action against her and, when she did learn of the default judgment, she promptly moved the court to set it aside so that the case could be decided on its merits. Further, there was no indication that Cinque had any culpability in the lack of service on her. The Court also noted that Cinque had a meritorious defense or defenses as shown by the circuit court’s entry of summary judgment in favor of the other students. Finally, Lexington Village would suffer no prejudice in the setting aside of the default judgment against Cinque, as the same facts continued to be subject to litigation along with Cinque’s co-defendants. As to the entry of summary judgment in favor of the students, the Court held that October 2016 emails from Lexington Village to the students provided clear written notice that the lease would not be renewed unless they signed a new lease. While the lease itself stated that it would be automatically renewed unless written notice of the intention to terminate was given at least 120 days before the expiration of the term, the email communications clearly stated, in writing, that “The deadline for renewal is 10/24/2016.” When the students did not sign the new lease by that date, it was clear Lexington Village was no longer giving them the opportunity to renew. Therefore, as Lexington Village had stated its intention not to renew, the students were not in violation of the lease.

B. Cole v. Vincent by Seabolt, No. 2019-CA-000218, 588 S.W.3d 180 (Ky. App. 2019)

Opinion by Judge Goodwine; Judge Taylor concurred; Judge Spalding dissented and filed a separate opinion. Hazel P. Cole appealed an opinion

170 and order of the Edmonson Circuit Court affirming the Edmonson District Court’s judgment finding her guilty of forcible detainer. Emma Jean Vincent, Cole’s mother, maintained a life estate in property Cole owned through a remainder. Vincent filed the underlying forcible entry and detainer action because Cole kept cattle on the property without Vincent’s consent. The district court adjudged Cole guilty of forcible detainer, finding Vincent retained the right to possession of the property, Cole received notice to vacate, and Cole failed to do so. The circuit court affirmed the district court’s judgment, finding that a remainderman does not have a possessory interest in the property during the pendency of a life estate. The Court of Appeals determined that because the parties did not have a landlord-tenant relationship, the district court lacked subject matter jurisdiction over the case. The Court noted that longstanding precedent indicates such a relationship is necessary to maintain an action for forcible detainer or entry. The Court further noted that KRS Chapter 383 is titled “Landlord and Tenant,” which is indicative of legislative intent for the statutes therein to apply only to parties with a landlord-tenant relationship. Thus, the Court reversed and remanded with instructions to vacate the judgment of the district court. In dissent, Judge Spalding indicated that he would affirm the circuit court’s order and hold that a landlord-tenant relationship is not required to maintain a forcible entry action based on the plain language of KRS 383.200(2)(a).

C. Phillips v. M & M Corbin Properties, LLC, No. 2018-CA-001496, 593 S.W.3d 525 (Ky. App. 2020)

Opinion by Judge Lambert; Judges Caldwell and Combs concurred. The Court of Appeals accepted discretionary review to address the applicability of a local rule related to notice of motions in forcible detainer actions and whether a non-attorney property manager is permitted to represent an LLC. First, the Court held that the case was not moot (although the tenant no longer lived on the premises) based upon the application of the public interest exception to the mootness doctrine. The questions raised were of a public nature, there was a need for additional guidance, and the questions were likely to recur in future cases. Second, the Court held that the local rule providing for five days’ notice for filing motions was inapplicable in forcible detainer proceedings because these are special statutory proceedings that require only three days’ notice of the time and place of the trial. Third, the Court held that the property manager was not permitted to file the forcible detainer complaint or appear for the LLC because she was not a licensed attorney and was therefore engaged in the unauthorized practice of law in doing so. This made the petition void and subject to dismissal. The matter was remanded to the district court for dismissal of the petition.

171 XXXI. LIBEL AND SLANDER

Estepp v. Johnson County Newspapers, Inc., No. 2017-CA-001651, 578 S.W.3d 740 (Ky. App. 2019)

Opinion by Judge K. Thompson; Judges Acree and Dixon concurred. The Court of Appeals affirmed the grant of summary judgment on a claim of defamation brought against a newspaper for articles stating that an electrical cooperative president was “removed from” and “relieved of” his employment. The Court held that a mere statement of discharge from employment, regardless of the exact words used, is not per se defamatory. It is only when the publication also contains an insinuation that the dismissal was for misconduct that it becomes potentially defamatory. However, when the “gist and sting” lies in the reason charged for the dismissal – and that underlying basis is, in fact, true – there can be no per se defamation. Therefore, where it was true that the president stole a petition, an implication that he subsequently was terminated for cause could not be defamatory. Summary judgment was also properly granted to the newspaper on the president’s claim for intentional infliction of emotional distress or outrage as the newspaper could properly interview a board member about the manner of the president’s departure from his employment after a public controversy and was not bound by any agreement that the president had with the cooperative about who could comment on his departure.

XXXII. NEGLIGENCE

A. Coppage Construction Company, Inc. v. Sanitation District No. 1, No. 2018- CA-000419, 2019 WL 6795706 (Ky. App. Dec. 13, 2019) DR Pending

Opinion by Judge Spalding; Judges Combs and K. Thompson concurred. The Court of Appeals affirmed in part and reversed in part the circuit court’s grant of summary judgment in favor of Sanitation District No. 1. against the claims of Coppage Construction Company, Inc. The construction company was a subcontractor on a project of sewer improvement for Sanitation District No. 1. The Court held that the negligence per se doctrine, as codified by KRS 446.070, did not provide a private right of action to Coppage for alleged violations of KRS 220.290, which requires the posting of performance bonds on sanitation projects, or KRS 220.135(7)(a), which provides that a sanitation district is responsible for the construction and improvement of sewer and drainage facilities which it owns. The Court further held that summary judgment was appropriate on Coppage’s claims that the Sanitation District could be responsible for damages to it for negligence in hiring the general contractor, that it failed to properly supervise or manage the general contractor, and that the general contractor was merely an agent of the Sanitation District. The Court did reverse and remand the circuit court’s grant of summary judgment pursuant to KRS 362.225, partnership by estoppel, because Coppage’s allegations that the Sanitation District made representations that it was partnering with the general contractor created a material issue of fact as to whether Coppage relied upon same to its loss. The Court held that Coppage made a cognizable claim as a matter of law and summary judgment was therefore improper on that issue.

172 B. Critser v. Critser, No. 2018-CA-001668, 591 S.W.3d 846 (Ky. App. 2019)

Opinion by Judge Jones; Judges Combs and L. Thompson concurred. Appellant Michael Critser was injured when a vehicle, driven by his wife Judy, hit a patch of ice, skidded, and stopped suddenly, causing a collision with another vehicle. Michael filed a negligence action against Judy in circuit court. The circuit court granted summary judgment in favor of Judy, finding it undisputed that she was obeying all traffic laws at the time of the accident and that the icy patch was a sudden emergency that she could not have avoided. In affirming, the Court of Appeals discussed the history of the sudden emergency doctrine in Kentucky, and its viability notwithstanding Kentucky’s adoption of comparative negligence. The sudden emergency doctrine absolves one acting in the face of an emergency from liability, even where the actions may have been unwise. The doctrine does not apply in situations where the driver operates a vehicle in a negligent manner making it more likely that the car would slip. In this case, both parties testified that Judy was driving slowly, cautiously, and attentively. Since Michael failed to offer any evidence that Judy was driving negligently when she hit the patch of ice and spun out of control, summary judgment in her favor was appropriate.

C. Holder v. Paragon Homes, Inc., No. 2019-CA-000908, 2020 WL 1646818 (Ky. App. Apr. 3, 2020)

Opinion by Judge Lambert; Special Judge Buckingham and Judge Combs concurred. On direct appeal, the Court of Appeals affirmed the circuit court’s decision to grant summary judgment in favor of appellee, a general contractor. Appellant, an independent contractor, argued two theories of negligence, negligence per se for violation of KRS 338.031(1) and premises liability, after falling at a job site and injuring his arm. Ultimately, the circuit court determined appellee did not owe a duty to appellant under either theory. The Court of Appeals agreed, holding that because appellant was an independent contractor whose services were not retained by appellee, he lacked the relationship necessary under KRS 338.031(1) to impose a duty of care under a negligence per se theory. Further, appellant’s status as an independent contractor again prevented recovery under a premises liability theory because the defect which caused his injury was apparent, and he should have recognized the danger or risk of harm.

D. Pringle v. South, 2019-CA-000029, 2020 WL 2296997 (Ky. App. May 8, 2020)

Opinion by Judge Caldwell; Judges Acree and Kramer concurred. Appellants challenged the dismissal of Brenda Pringle’s medical malpractice claim and her husband’s loss of consortium claim for their failure to identify an expert witness who could establish the applicable standard of care. The Court of Appeals affirmed. Appellants attempted to rely on testimony from a doctor who was a contractor-consultant for the Kentucky Board of Medical Licensure and who reviewed allegations Brenda brought against appellee before that agency. Appellants did not hire the doctor, nor does he appear from the record to have been engaged

173 to provide expert testimony. The Board filed a motion to quash the subpoena served on the doctor. The Board argued that the doctor agreed to act, as part of its function, as the regulator of the medical profession, that he was compensated for his time spent on Brenda’s complaint to the Board at a reduced fee, and that allowing such contractors to be lassoed into associated court actions would have a chilling effect on the willingness of physicians to provide this service. The circuit court agreed and granted the motion to quash. Appellants did not appeal this decision. The court subsequently granted summary judgment to appellee. In affirming, the Court of Appeals held that a party to a medical negligence action cannot compel involuntary expert testimony from a physician or other medical professional whose expert opinion, if any, is the product of his or her work for the Board of Medical Licensure pursuant to KRS 311.591 and 201 KAR 9:240 Section 5(5)(a) and (b).

XXXIII. OPEN RECORDS

A. Department of Kentucky State Police v. Courier Journal, No. 2019-CA- 000493, 2020 WL 1897406 (Ky. App. Apr. 17, 2020)

Opinion by Chief Judge Clayton; Judges Caldwell and Combs concurred. The Courier-Journal appealed the denial of its request for the entire Uniform Citation File database (KyOPS) of the Kentucky State Police (KSP). KSP argued that producing KyOPS, which contains over eight million entries with approximately 1,800 new entries added daily, constituted an unreasonable burden under KRS 61.872(6) of the Open Records Act because private materials which are statutorily exempt from disclosure, such as Social Security numbers, driver’s license numbers, and information relating to juveniles, would have to be individually and manually redacted from the records, a massive task. Alternatively, the exempt materials could be categorically redacted by electronic means at a cost of $15,000. The Court of Appeals agreed with the Attorney General and the Franklin Circuit Court that KSP had a statutory duty to keep exempted and non-exempted materials subject to disclosure separate under KRS 61.878(4) and that the creation of an electronically-redacted record did not constitute a “new record.” As to the apprehension expressed by the KSP and amicus curiae the Energy and Environment Cabinet regarding the expense to public agencies of designing or upgrading databases to separate exempt and non-exempt materials, the Court held that these valid concerns are more appropriately directed to the General Assembly.

B. Department of Kentucky State Police v. Trageser, No. 2017-CA-000750, 2020 WL 1491404 (Ky. App. Mar. 27, 2020)

Opinion by Judge Acree; Judges Kramer and Taylor concurred. The Court of Appeals affirmed the Franklin Circuit Court’s judgment affirming the Attorney General’s opinion that certain records of the Kentucky State Police must be disclosed in response to a Kentucky Open Records Act (KORA) request. The Court first noted that KORA encourages free and open examination of public records and strictly construes all exceptions. The Court agreed with KSP that investigative or preliminary documents are

174 excepted from the disclosure requirements of KORA, but also held that such documents lose that status and must be produced once they are expressly incorporated into the agency’s final action. The Court also held that KRS 61.878(1)(a) does not allow the wholesale withholding of a document or documents merely because they contain some personal data. That statute authorizes redaction of such information. Because of the ability to assure the protection of personal information by redaction, the Court rejected KSP’s argument that requiring disclosure of documents containing personal information will have a chilling effect on investigations by causing fear of civilian cooperation.

C. Harilson v. Lexington H-L Services, Inc., No. 2018-CA-001857, 2019 WL 6222913 (Ky. App. Nov. 22, 2019) DR Pending

Opinion by Judge L. Thompson; Judges Kramer and Maze concurred. The Court of Appeals affirmed the circuit court’s ruling that legislative immunity does not protect against open records requests made to the Legislative Research Commission (LRC). The Court held that the General Assembly waived any legislative immunity as it pertains to open records requests made to the LRC by enacting KRS 7.119(3), which allows for judicial review of adverse decisions made by the LRC regarding open records requests.

D. Louisville/Jefferson County Metro Government v. Courier-Journal, Inc., No. 2018-CA-001560, 2019 WL 3756332 (Ky. App. Aug. 9, 2019) DR Pending

Opinion by Judge Maze; Judges Goodwine and Lambert concurred. The Courier-Journal filed an open records request seeking production of Louisville Metro’s bid proposal to Amazon.com’s HQ2 project. Louisville Metro provided a redacted version but withheld the portions relating to its offers of financial incentives and prospective site locations. The circuit court held that the full proposal was subject to production under the Open Records Act. The Court of Appeals affirmed. The Court first held that the proposal was not exempt under KRS 61.878(1)(d) because Amazon had extensively publicized its interest in relocating. The Court then addressed Louisville Metro’s argument that the proposal was preliminary and exempt under KRS 61.878(1)(i) and (j). In a number of opinions, the Attorney General’s office had concluded that rejected bid proposals that do not result in a completed negotiation with an approved agreement never reach the level of a “final” agreement. In the absence of a “final” action, the Attorney General’s longstanding interpretation was that unaccepted offers, proposals, or supporting correspondence remain preliminary and not subject to disclosure. The Court of Appeals disagreed with this interpretation, concluding that “final” action occurs when the ultimate issue is definitively resolved, either by action or by a decision not to take action. Once Amazon excluded Louisville Metro from its list of finalists, the proposal was no longer subject to change and lost its status as preliminary. Therefore, the Court affirmed the circuit court’s order requiring production of the unredacted proposal.

175 XXXIV. PEREMPTORY CHALLENGES

Louisville Metro Government v. Ward, No. 2018-CA-001276, 2020 WL 1814599 (Ky. App. Apr. 10, 2020)

Opinion by Judge Jones; Judges Lambert and L. Thompson concurred. Ward, an African-American female, worked for Louisville Metro as an administrative assistant, and eventually as an administrative specialist. She filed suit against Louisville Metro after she was separated from her employment following a contentious counseling meeting with her supervisor. Ward sought damages for a violation of her due process rights, pay-related racial discrimination, and retaliation. During trial, Ward challenged two of Louisville Metro’s peremptory jury strikes as being racially motivated in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Both jurors were African-American and were two of only three African-American jurors remaining after preliminary strikes. The circuit court sustained one of the two Batson challenges and placed that juror back on the panel. A 15-member panel, which included the subject juror, heard the case. Prior to selecting the final 12 deliberating jurors, a discussion arose regarding what to do about the Batson juror. Ultimately, the circuit court told the parties that the subject juror would automatically be part of the deliberating jury and directed the deputy clerk to remove that juror’s name from the drawdown pool. The Court of Appeals affirmed the circuit court’s decision to sustain the Batson challenge insomuch as there was some evidence that the proffered reasons for the strike were pretextual and that the strike was racially motivated. However, it further held that the court committed reversible error when it insulated the subject juror from the drawdown process. While Batson is designed to ensure that jurors are not unfairly discriminated against, in this case, the circuit court’s remedy went too far; instead of allowing the subject juror to be treated equally in terms of ability to serve, the remedy removed the element of fairness that a random draw affords. Because of this error, a new trial was required.

XXXV. PROPERTY

A. Fee v. Cheatham, No. 2018-CA-000796, 2019 WL 2712604 (Ky. App. Jun. 28, 2019) Not reported in S.W. Rptr.

Opinion by Judge Kramer; Chief Judge Clayton and Judge Combs concurred. Charles and Mary Fee appealed from an order finding that they did not have an easement by prescription or an easement by estoppel to a roadway on the property of Richard and Gail Cheatham. The Fees purchased a tract of land in Laurel County in 1992. At the time of purchase, ingress and egress to the Fees’ property were by use of a roadway from Highway 552 and terminating at or near the Fee property line. In 1993, the Cheathams purchased a piece of property bordering the Fee property. The roadway in question sits on the property owned by the Cheathams. In July 2016, the Cheathams erected a gate on the roadway, which blocked ingress and egress from the Fees’ property via Highway 552. The Fees filed this lawsuit thereafter. Following a bench trial, the circuit court found that the Fees did not have an easement by estoppel or an easement by prescription. Reversing in part, the Court of Appeals held that the circuit court erred when it found that the Fees did not have an easement by

176 prescription. The Fees satisfied the necessary elements to acquire an easement by prescription between 1992 and 2016. However, the Court discerned no error in the circuit court’s finding that the Fees had not acquired an easement by estoppel and therefore affirmed that portion of the judgment.

B. Miller v. Skiles, No. 2018-CA-000935, 591 S.W.3d 426 (Ky. App. 2019)

Opinion by Judge Spalding; Judges Acree and L. Thompson concurred Appellant challenged the summary disposition of a dispute involving an easement to a garage. The Court of Appeals affirmed, agreeing with the circuit court’s conclusion that the easement had been extinguished by joinder of the dominant and servient estates prior to appellant’s acquisition of his property, as well as its conclusion that the extinguished easement was not revived by its mere mention in subsequent conveyances of the estates at issue. The Court further held that appellant’s failure to list the issue of reversing the circuit court’s judgment regarding adverse possession or prescriptive easement in his prehearing statement precluded review of those issues.

C. U.S. Bank National Association as Trustee v. Courtyards University of Kentucky, LLC, 2018CA001019, 594 S.W.3d 205 (Ky. App. 2019)

Opinion by Chief Judge Clayton; Judges Jones and Lambert concurred. Appellant Bank initiated foreclosure proceedings on property but did not receive notice of the Master Commissioner’s sale due to a clerical error at its law firm. The Bank sought to vacate the sale, arguing that it was unfairly surprised and that the sales price was grossly inadequate. The circuit court refused to vacate the sale and the Court of Appeals affirmed, agreeing with the circuit court’s finding that the sales price, which met the two-thirds threshold under KRS 426.530(1), was not grossly inadequate nor did the facts of the case suggest fraud or unfairness in the proceedings. Any confusion about the date of sale, which was properly advertised and conducted by the Master Commissioner, was attributable solely to the Bank and its attorneys.

XXXVI. PUBLIC OFFICIALS

Louisville/Jefferson County Metro Government v. Ackerson, No. 2018-CA-001067, 2020 WL 1966538 (Ky. App. Apr. 24, 2020)

Opinion by Judge Maze; Judges Caldwell and Dixon concurred. Appellees Brent Ackerson and David Yates are sitting Metro Council members who also engage in the private practice of law. Two Metro employees retained Ackerson and Yates to represent them in their civil claims against third-party defendants following a work- related automobile accident. Metro had previously paid workers’ compensation benefits to the employees. While the third-party defendants were insolvent, the defendant’s insurer offered to pay the proceeds of a $1,000,000 liability policy into court in exchange for a release of their clients. On behalf of their clients, Ackerson and Yates agreed and the money was paid into court. Metro intervened in the action, asserting that it was entitled to subrogation of its workers’ compensation

177 interests. Metro also argued that Ackerson and Yates should be disqualified due to their conflicts of interest as Council members. However, Metro continued to negotiate with Ackerson and Yates, obtaining a full settlement of several unrelated claims. Furthermore, Metro stipulated that its subrogation claim and any conflicts of interest were contingent upon the value of the employees’ pain and suffering claims. That matter was submitted to an arbitrator, who found that the employees’ pain and suffering claims exceeded the amount of the settlement. Upon return to circuit court, Metro again moved to disqualify Ackerson and Yates, arguing that they were disqualified under KRS 61.220 and for their conflicts of interest under the Rules of Professional Conduct. As a result, Metro argued that Ackerson and Yates must forfeit any attorney fees or liens in the settlement proceeds. The circuit court disagreed, finding that KRS 61.220 did not apply and that Metro had waived any conflicts of interest. On appeal, the Court of Appeals first held that an attorney’s representation of a client is not an “interest[] in a claim against a county” within the meaning of KRS 61.220(1). Consequently, the contracts of representation were not void under the statute. Rather, the Court held that any conflict of interest must be evaluated under the standards for disqualification set forth in SCR 3.130 (Rule 1.7(a)). While the Court agreed that Metro had a potential subrogation interest, disqualification requires proof of an actual conflict, not merely a potential one. In the current case, the Court expressed doubt whether Metro would have been able to assert a subrogation claim against the settlement proceeds. The Court further noted that Metro might have been able to obtain an independent apportionment of damages, thus triggering an active conflict of interest. However, the Court agreed with the circuit court that Metro waived this right by negotiating with Ackerson and Yates and by agreeing to submit the matter to arbitration without its participation. The Court concluded that Ackerson and Yates were entitled to rely on Metro’s oral and written representations, which effectively waived its subrogation rights and, by extension, any conflict of interest. Consequently, the Court held that the circuit court properly denied Metro’s motion to disqualify Ackerson and Yates as counsel, and they remain entitled to assert their liens against the proceeds.

XXXVII.STANDING

Cotton v. National Collegiate Athletic Association, No. 2018-CA-001665, 587 S.W.3d 356 (Ky. App. 2019)

Opinion by Judge Nickell; Judges Goodwine and Spalding concurred. Cotton and The University of Louisville Protection and Advocacy Coalition (ULPAC) filed suit against the National Collegiate Athletic Association (NCAA) and the University of Louisville alleging damages stemming from the NCAA’s treatment of the U of L men’s basketball program in the wake of numerous violations of NCAA regulations related to recruiting and improper benefits. The NCAA’s disciplinary action against U of L resulted in the vacation of 123 wins and tournament appearances from 2011 to 2015, including its 2012 and 2013 trips to the Final Four and 2013 National Championship. Cotton and ULPAC asserted numerous claims for relief sounding in “tort, equity, breach of contract, trust, unjust enrichment and equitable and promissory estoppel.” The circuit court granted appellees’ motions to dismiss for failure to state a claim upon which relief could be granted pursuant to CR 12.02(f). The circuit court concluded that Cotton and ULPAC did not have third-party standing to pursue the action as they had no “injury in fact” or concrete interest in

178 the outcome of the issue in dispute. Disappointment, no matter how sincere or strong, was insufficient to show a legally cognizable interest and no justiciable controversy existed. Cotton and ULPAC appealed. The Court of Appeals affirmed. The Court first noted severe deficiencies in Cotton and ULPAC’s brief and its lack of compliance with the Civil Rules. The Court took the opportunity to once again point out the necessity of following the rules and the rationale for compliance. Based on failures of the brief, the Court disregarded any offending portions and reviewed only the single issue of whether a legally cognizable injury presenting a justiciable controversy existed. The Court found no showing of an “injury in fact” necessary to obtain standing. Cotton and ULPAC merely attempted to enforce rights belonging solely to U of L and which U of L had itself chosen not to pursue. Cotton and ULPAC were ultimately held not to have standing to challenge the NCAA’s imposition of sanctions against U of L.

XXXVIII.STATUTE/RULE INTERPRETATION

A. Saber Management-Kentucky, LLC v. Commonwealth ex rel. Beshear, No. 2018-CA-000999, 591 S.W.3d 412 (Ky. App. 2019)

Opinion by Chief Judge Clayton; Judges Maze and Nickell concurred. Saber Management-Kentucky, LLC (“Saber”) appealed from an order granting summary judgment in favor of the Commonwealth on the parties’ Joint Petition for Declaration of Rights and Agreed Case concerning the sale of preneed, i.e., prior to death, burial vaults in Kentucky. Saber argued on appeal that burial vaults should be included in the definition of “cemetery merchandise” contained in KRS 367.932(17) under the language “other similar personal property commonly sold by or used in cemeteries,” which would bring burial vaults under the auspices of a “preneed cemetery merchandise contract” under KRS 367.932(18). The Court of Appeals disagreed with Saber and affirmed, holding that the products listed in KRS 367.932(17) as “cemetery merchandise” were items that embellish or decorate a gravesite, unlike a burial vault, which could not be considered a “similar” item of adornment. Rather, a burial vault’s only use is not for decoration but “in connection with the final disposition of a dead human body” and falls within the plain meaning of KRS 367.932(3)’s definition of a “preneed burial contract.” Further, the Court held that to read the statutory language otherwise would create a conflict between the two statutes.

B. Transportation Cabinet v. Robards, No. 2018-CA-000778, 584 S.W.3d 295 (Ky. App. 2019)

Opinion by Judge K. Thompson; Judges Goodwine and Kramer concurred. The Transportation Cabinet appealed from an order denying its petition to enforce a final order of the Secretary of the Cabinet, which required appellee to remove an advertising device located within 660 feet of Interstate 65. In 2013, the Cabinet learned that appellee had placed a semi- trailer on his property within 660 feet of I-65 with a vinyl sign tied to it advertising for a quilt outlet. Appellee was paid a monthly fee for displaying the advertisement. The Cabinet determined that appellee was maintaining an advertising device contrary to the Kentucky Billboard Act, KRS 177.830 et seq., and ordered that the vinyl sign be removed. Appellee did not appeal

179 but also did not remove the sign. After the Cabinet filed the subject action, appellee removed the sign. However, the removal of the sign revealed a painted-on sign beneath it advertising for the same entity. The Cabinet amended its complaint, alleging that the pained-on sign was the equivalent of the vinyl sign and requesting that the circuit court order its removal. However, the circuit court ruled that because appellee used the semi-trailer to store agricultural equipment and hay, it was not an advertising device and, therefore, the Billboard Act did not apply. The Court of Appeals reversed and remanded to the circuit court for an order directing that the advertisement be removed. The Court held that there was no exception to the Billboard Act for advertisements on agricultural equipment where the advertisement is within 660 feet of an interstate, it is clearly visible to travelers, the purpose is to gain the attention of travelers, and a monthly fee is received for maintaining the advertisement. The Court further held that replacing one advertisement with another did not comply with the Cabinet’s order.

XXXIX. SUMMARY JUDGMENT

Turner v. C & R Asphalt, LLC, No. 2017-CA-001153, 579 S.W.3d 194 (Ky. App. 2019)

Opinion by Judge Lambert; Judges Acree and Spalding concurred. Appellant was hired as a remodeler for a home project in Lexington. He advised the homeowner that he was incapable of performing the work on the driveway, so the homeowner authorized appellant to contract with an asphalt company to do the paving. After work was completed, the homeowner refused to pay the asphalt company, which then proceeded to file a lien on the property and a lawsuit against the homeowner and other parties, including appellant. Appellant, the homeowner, and the asphalt company filed motions for summary judgment. The circuit court granted the asphalt company’s motion for summary judgment against appellant (finding that he was personally liable) for the contract price, plus awarded interest, costs, and attorneys’ fees. The other motions were denied. The Court of Appeals vacated and remanded, holding that summary judgment against appellant was not appropriate because the asphalt company failed to show that he could not prevail under any circumstances. The Court further held that the facts of the remaining claims were inextricably intertwined with the summary judgment granted to the asphalt company and that the resolution of the remaining claims should not be hindered by the premature finding that appellant was personally liable.

XL. TAXATION

Ridge v. Finance and Administration Cabinet, Department of Revenue, No. 2018- CA-001517, 2019 WL 3850790 (Ky. App. Aug. 16, 2019) DR Pending

Opinion by Judge Spalding; Judges Goodwine and L. Thompson concurred. At issue was whether severance payments made from a Kentucky employer to a Tennessee resident were subject to Kentucky income tax even though the taxpayer was no longer working in Kentucky when he received the payments. The Court of Appeals held that the severance payments were taxable as income

180 pursuant to KRS 141.020(4) during the year received and that Kentucky can constitutionally tax severance payments made to an out-of-state resident.

XLI. TERMINATION OF PARENTAL RIGHTS

A. P.S. v. Cabinet for Health and Family Services, No. 2019-CA-000627, 596 S.W.3d 110 (Ky. App. 2020)

Opinion by Chief Judge Clayton; Judges K. Thompson and L. Thompson concurred. After receiving a referral that appellant’s baby (“Child”) tested positive at birth for a substance used to treat opioid dependency, the Cabinet for Health and Family Services filed a petition for emergency custody of Child. While the circuit court issued a summons to appellant in the underlying juvenile case, the sheriff’s office was unable to locate appellant and the summons ultimately expired. During the pendency of the juvenile case, appellant never appeared at any hearings related to the child, although her attorney was present. Moreover, appellant never completed the items contained in her case plan and failed to consistently attend Cabinet-supervised visitation with Child. Additionally, from birth, Child had been placed in a foster family that was meeting all of Child’s needs. The Cabinet ultimately filed a petition for termination of parental rights, with which appellant was served. Appellant was not physically present at the termination hearing, as she feared being arrested on an active bench warrant. While the circuit court denied appellant’s request for a continuance of the termination hearing, appellant was provided the opportunity to testify via telephone and to otherwise participate fully in the proceedings. The circuit court ultimately terminated appellant’s parental rights to Child. On appeal, appellant argued that: (1) she was not properly served in the underlying juvenile case; (2) due process required that the circuit court grant her motion to continue the termination hearing; (3) the Cabinet did not provide “reasonable efforts” to reunite appellant and Child under KRS 620.020(13); (4) a reasonable expectation of improvement in appellant’s care of Child existed under KRS 625.090(2)(e) and (g); and (5) because Child could be placed with other available family members, the termination of appellant’s parental rights was unnecessary. The Court of Appeals affirmed. First, the Court concluded that, while appellant may not have been properly served in the underlying juvenile action, she was correctly served in the termination action. Moreover, the allegations of abuse and neglect were fully litigated at the termination hearing, the circuit court’s order was based on facts and conclusions drawn from the evidence at the termination hearing, and appellant was represented by counsel at every hearing in the underlying juvenile case, as well as at the termination hearing. Second, the Court held that the circuit court’s decision not to continue the termination hearing and to have appellant testify telephonically did not infringe on appellant’s due process rights, as appellant had a meaningful opportunity to participate in the proceedings, to confer with counsel, and to confront the evidence against her. Third, the Court held that the Cabinet had provided appellant with numerous services, which constituted “reasonable efforts” under Kentucky law, and the Cabinet was not required to assist appellant in resolving her arrest warrant. Finally, the Court held that, while the Cabinet is required to consider any

181 known and qualified relatives for placement, they are not mandated by statute to choose a relative for placement over other options in contravention of a child’s best interests.

B. S.J. v. Cabinet for Health and Family Services, No. 2019-CA-000555, 2020 WL 499727 (Ky. App. Jan. 31, 2020) DR Pending

Opinion by Judge Maze; Judges Acree and Combs concurred. Appellant appealed orders terminating her parental rights to her three children. The children were placed in the custody of the Cabinet for Health and Family Services after being discovered unattended in a hotel room in Paducah. Appellant did not return to Kentucky to attend a temporary removal hearing and was incarcerated in Missouri for violating her parole three weeks later. The Cabinet moved to terminate appellant’s parental rights while she was still incarcerated. The circuit court granted the request, finding that appellant abandoned her children through her “voluntary participation in a criminal lifestyle.” The Court of Appeals reversed the orders terminating appellant’s parental rights, holding that appellant’s history of minor property crimes did not constitute a criminal lifestyle permitting the termination of her parental rights. The Court further held that while there was sufficient evidence to support the circuit court’s finding that appellant abandoned her children, for a time, by leaving them with an inappropriate caregiver, the uncontroverted evidence was that she left the children with the caregiver sometime in April 2017 and they were discovered unattended on May 5, 2017. While grounds for temporary removal, this act could not, on its own, provide sufficient evidence that appellant abandoned her children “for a period of not less than ninety (90) days[.]” KRS 625.090(2)(a). Moreover, because there was no evidence appellant failed to provide food, clothing, or shelter for her children when she was not incarcerated, there was insufficient evidence to find those statutory grounds for termination.

C. T.R.W. v. Cabinet for Health and Family Services, No. 2018-CA-001157, 599 S.W.3d 455 (Ky. App. 2019)

Opinion by Judge L. Thompson; Judges Taylor and K. Thompson concurred. Mother challenged the termination of her parental rights. The Court of Appeals affirmed. Of note, the Court held that there was substantial evidence in the record to support the family court’s neglect findings, including the fact that the child was born with amphetamines in her system, Mother’s continuous abuse of drugs, Mother’s failure to pay child support, and Mother’s inability to complete her case plan. The Court also held that the evidence supported the family court’s finding that there was no reasonable expectation of improvement by Mother. At the time of the termination of parental rights trial, the child had been out of Mother’s care for almost three years. During that time, Mother was unable to complete her protective parenting class despite attempting six times. In addition, Mother was involved in two abusive relationships and kept falling back into her drug using habits during this time. She also did not provide child support or other necessities to the child. The Court also noted that Mother did not testify at trial in order to give her opinion on the changes she had made in her life and her expectations for the future. The Court

182 further held that the family court did not err when it admitted into evidence files from the dependency, neglect, and abuse (DNA) proceedings of the child and her three siblings or court records regarding a domestic violence action filed by Mother against Father.

XLII. TORTS

A. Hensley v. Traxx Management Company, No. 2018-CA-000928, 2020 WL 2297001 (Ky. App. May 8, 2020) Rehearing Pending

Opinion by Judge Combs; Judges Kramer and K. Thompson concurred. Laura Frances Hensley, the Administratrix of the Estate of James Elijah Hensley, appealed from pre-trial orders that dismissed the Estate’s wrongful death action against Thoroughbred Energy, LLC, and Shell Oil Company. The Estate also appealed from a judgment entered in favor of Traxx Management Company following a second trial. James Hensley robbed a gas station/convenience store in Rockcastle County. As he fled the station, he threatened that he would kill the clerk and his family if the clerk called the police. After the robbery, Hensley headed to a getaway car. The clerk testified that he became upset at Hensley’s threat to kill his family and decided to pursue him. Standing outside the station, at the edge of the property, the clerk fired his pistol several times in Hensley’s direction. One of the shots struck Hensley in the back, killing him. In affirming in part, the Court of Appeals held that the circuit court did not err by granting summary judgment to Thoroughbred Energy on the basis that it was not the clerk’s employer and did not control his actions. Under the undisputed facts of this case, neither Shell Oil nor Thoroughbred Energy exercised control over the clerk’s actions following the robbery. Once Hensley fled, the clerk left his post at the store and pursued him in the interests of the clerk’s own safety and that of his family. This independent act was his alone. There was also no evidence to support the claim that Thoroughbred Energy was liable under any theory related to the condition of the premises. The Court also rejected the Estate’s argument that the circuit court erroneously granted Shell Oil’s motion to dismiss the Estate’s action against it, without prejudice, based upon improper venue (the action was filed in Fayette County). Shell Oil presented an affidavit to indicate that it had no office, place of business, chief officer, or agent in Fayette County. It also presented documentary evidence to indicate that the station was not its place of business. The Estate offered nothing to establish that venue was proper in Fayette County, and it opposed transfer of the action to Rockcastle County, so dismissal was appropriate. Finally, the Court held that Traxx (which employed the clerk) was entitled to judgment notwithstanding the jury verdict rendered in the first trial in 2015. The act complained of here occurred within the context of an independent course of conduct that was not intended by the clerk to serve any purpose of his employer whatsoever. The clerk pursued, shot, and killed Hensley only after Hensley made a direct threat against the clerk and his family as he fled the scene following the robbery. Under these circumstances, Traxx had no ability to prevent the clerk from acting as he did. The clerk was not acting within the scope of his employment and, consequently, as a matter of law, Traxx could not have been found to be vicariously liable for his actions.

183 B. Johnson v. Basil as Next Friend of Johnson, No. 2017-CA-000986, 584 S.W.3d 777 (Ky. App. 2019)

Opinion by Judge Taylor; Judges Maze and Nickell concurred. Appellants Donna Johnson and Robert Johnson, Jr., co-administrators for the Estate of Steven Paul Johnson, challenged an order directing motor vehicle insurance proceeds to be distributed in toto to Victoria Basil, as guardian and next friend of two minor children, for their claims of loss of parental consortium. After Steven was struck and killed by an automobile, Basil, the mother of his children, filed suit against the driver and the Johnsons’ underinsured motorist carrier for loss of parental consortium. The Johnsons, Steven’s parents, subsequently filed a separate suit to assert a wrongful death claim. Viewing the available motor vehicle insurance proceeds as insufficient to fully compensate the parties’ claims, Basil argued that the insurance proceeds should be allocated to the loss of parental consortium claims to the exclusion of the wrongful death claim. Basil further pointed out that funeral expenses, administrative costs, and recovery costs are not deducted from the insurance proceeds in a loss of parental consortium claim. The circuit court ultimately agreed with Basil and ordered the insurance proceeds to be distributed in toto as compensation for the loss of parental consortium claims. The Court of Appeals concluded that this was error and reversed. The Court held that the claims of loss of consortium were derivative of the wrongful death claim insofar as both derived from the same injury, the wrongful death of Steven. While there were multiple parties and claims, the minor children were the only beneficiaries. Under these unique circumstances, the Court concluded that the claims of loss of consortium were merely an item of damage recoverable for the wrongful death of Steven. Consequently, all recoverable damages had to be distributed in accord with the requirements of KRS 411.130. Therefore, the Court reversed and remanded for the circuit court to disburse the insurance proceeds to the minor children after payment of funeral expenses, costs of administration, and costs of recovery per KRS 411.130.

C. Littrell v. Bosse, No. 2018-CA-001137, 581 S.W.3d 584 (Ky. App. 2019)

Opinion by Judge Spalding; Judges Dixon and Taylor concurred. Appellant, a former police officer and instructor at Georgetown College, challenged the summary disposition of his claims of contractual interference, outrage, witness intimidation, harassment, and official misconduct against Georgetown Police Chief Michael Bosse and the City of Georgetown. The Court of Appeals affirmed. The claims stemmed from a conversation in which appellant and Chief Bosse discussed appellant’s Facebook posts concerning pending litigation between the police department and an officer who worked with appellant when he was with the department. Appellant contended that Chief Bosse attempted to get him to lie during his upcoming testimony in that litigation and that he refused to do so. Appellant’s attorney subsequently sent Chief Bosse a letter about their conversation and warned him about interfering with his job at the college. However, either because he had already done so, or because he was undeterred by the letter, Chief Bosse contacted counsel for the college with information about

184 the Facebook posts that eventually reached a provost. The college took no action against appellant, assuring him that the college would protect his First Amendment rights so long as he abided by the college handbook and even renewing his contract, but he resigned from his teaching position the following year. In affirming, the Court of Appeals first held that the circuit court did not err in refusing to apply the Restatement (Second) of Torts §766A to appellant’s claim that Chief Bosse had intentionally interfered with his contractual relations with the college. The Court noted that Kentucky had yet to adopt that section of the Restatement. Moreover, even if Chief Bosse had attempted to interfere with appellant’s contractual relationship with the college, the fact remained that he was unsuccessful because the college renewed appellant’s contract. Harm without injury is not a tort. The Court also rejected appellant’s arguments relating to his intentional infliction of emotional distress claim, holding that summary judgment was appropriate because his claim was not supported by expert medical or scientific proof. Finally, the Court rejected appellant’s arguments relating to his claims that Chief Bosse had violated KRS 524.040, 525.080, and 522.030(1)(a).

D. Shaw v. Handy, No. 2018-CA-001280, 588 S.W.3d 459 (Ky. App. 2019)

Opinion by Judge Lambert; Judge Maze concurred; Judge Goodwine concurred in result only. This appeal was taken from a CR 12.02(f) order dismissing Shaw’s action against Handy for personal injury to Shaw when Handy was serving an eviction notice to her. The circuit court granted Handy’s motion to dismiss, finding that Shaw’s complaint failed to comply with the one-year statute of limitations set forth in KRS 413.140(1)(a). The Court of Appeals affirmed, holding that: (1) the five-year statute of limitations (KRS 413.120(6)) did not apply because one set of facts established the traditional torts alleged; therefore, intentional or negligent infliction of emotional distress could not be recovered separately (citing Childers v. Geile, 367 S.W.3d 576 (Ky. 2012)); and (2) Shaw’s argument concerning the constitutionality of the one-year statute of limitations was not properly before the Court (citing KRS 418.075 and Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008)).

E. Stanziano v. Cooley, No. 2017-CA-001430, 598 S.W.3d 82 (Ky. App. 2019)

Opinion by Judge Nickell; Judges Combs and K. Thompson concurred. A former mental patient of Eastern State Hospital shot and killed attorney Mark Stanziano approximately six weeks after being discharged. Stanziano’s widow and estate sued Eastern State and mental health professionals who had treated the patient on claims of wrongful death and medical malpractice. The circuit court determined that the physicians were shielded from liability by the provisions of KRS 202A.400 and further concluded that Stanziano had failed to carry her burden of proof to proceed against Eastern State. A claim of sovereign immunity by Eastern State was denied as moot. On appeal, Stanziano asserted that the circuit court erred in concluding that the physicians were entitled to summary judgment under KRS 202A.400 absent a showing that they had treated the patient in good faith and within acceptable professional guidelines (as required by KRS

185 202A.301) and further erred in concluding that the personal immunity granted by KRS 202A.400 extended to cover Eastern State. On cross- appeal, Eastern State asserted that it was entitled to sovereign immunity. The Court of Appeals affirmed as to the direct appeal and concluded that the cross-appeal was moot. The Court concluded that because the patient had not communicated to anyone at Eastern State an actual threat to inflict harm on Mark Stanziano, the statutory duty to warn under KRS 202A.400 was not triggered. Moreover, Stanziano failed to establish the applicability of any common law duty and failed to produce evidence that the physicians had breached the standard of care. Thus, summary judgment in their favor was appropriate. The Court next rejected Stanziano’s assertion that the circuit court erroneously applied the provisions of KRS 202A.400 to a non- covered entity. The circuit court made no mention of the statute in granting summary judgment to Eastern State and instead relied on the doctrine of respondeat superior. As its servants had not been negligent, no liability could be imputed to Eastern State.

XLIII. TRIALS

Keeney v. Billy Trent Construction, LLC, No. 2018-CA-000891, 2019 WL 3756336 (Ky. App. Aug. 9, 2019) DR Pending

Opinion by Judge Spalding; Judges Dixon and Taylor concurred. Appellants brought an action against a contractor stemming from a construction and building dispute. The contractor filed a counterclaim. Counsel for the contractor moved for a directed verdict after counsel for appellants delivered his opening statement at trial, and the circuit court sustained the motion. On appeal, appellants challenged this decision, as well as the circuit court’s decision not to vacate a subsequent agreement to resolve the contractor’s counterclaim because it was entered into “under duress.” The Court of Appeals reversed the directed verdict, holding that CR 43.02(a) does not require the plaintiff to state evidence in their opening statement on each and every element of their claim. A party is only required to refrain from making any statements that would be fatal to their claim. However, the Court affirmed as to the circuit court’s decision not to vacate the counterclaim settlement agreement, holding that absent proof of violence or threat that would produce a just fear of great injury to the person, there could be no duress. Since such threats were not alleged, the circuit court was affirmed as to this issue.

XLIV. WORKERS' COMPENSATION

A. Crittenden County Fiscal Court v. Hodge, No. 2018-CA-000815, 591 S.W.3d 424 (Ky. App. 2019)

Opinion by Judge K. Thompson; Judges Combs and Lambert concurred. The Court of Appeals reversed and remanded an award of permanent disability benefits for an unlimited duration pursuant to Holcim v. Swinford, 581 S.W.3d 37 (Ky. 2019). That decision holds that the time limits set out in the 2018 amendments to KRS 342.730(4), which limit the duration of benefits to workers who were injured after they reached the age of 70 years or older to four years, are to be applied retroactively. Thus, the new version of KRS 342.730(4) limited appellee’s benefits after he was injured to four

186 years of duration because he was over 70 years of age at the time of the disabling accident. Consequently, it was error for his award of benefits to be of unlimited duration.

B. Dixie Fuel Company, LLC v. Wynn, No. 2018-CA-000984, 2020 WL 499736 (Ky. App. Jan. 31, 2020) DR Pending

Opinion by Judge Lambert; Chief Judge Clayton and Judge Jones concurred. Appellant filed an interlocutory appeal pursuant to Breathitt County Board of Education v. Prater, 292 S.W.3d 883 (Ky. 2009), seeking review of an order denying its motion for summary judgment. In the motion, appellant sought up-the-ladder immunity from a personal injury claim filed by appellee Jacob Wynn pursuant to the exclusive remedy provision set out in KRS 342.690(1) of Kentucky’s Workers’ Compensation Act. The Court of Appeals reversed, holding that the circuit court erred in denying the motion. The Court agreed with appellant that it only had to establish that it met the statutory definition of contractor under KRS 342.610(2)(a) to be entitled to immunity, not that it also had to establish that the work was regular or recurrent pursuant to subsection (2)(b), because of the use of the word “or” between the two subsections. The Court also held that this interpretation of the statute did not violate public policy or Wynn’s equal protection rights.

C. Lone Mountain Processing v. Turner, No. 2018-CA-001011, 593 S.W.3d 72 (Ky. App. 2020)

Opinion by Judge Maze; Judges Acree and Combs concurred. Appellee filed a claim against Lone Mountain (his most-recent employer) seeking benefits for coal workers’ pneumoconiosis. The Administrative Law Judge found, and the employer agreed, that appellee established the presence of complicated coal workers’ pneumoconiosis. In awarding benefits, the ALJ found that the tier-down provisions in the pre-1996 version of KRS 342.730(4) were applicable to appellee’s award. On appeal, the Workers’ Compensation Board affirmed, pointing to the then-recent opinion in Parker v. Webster County Coal, LLC (Dotiki Mine), 529 S.W.3d 759 (Ky. 2017). While the petition for review was pending, the General Assembly enacted amendments to KRS 342.730(4) which provided that income benefits would terminate when the employee reached the age of 70 or four years after the date of last exposure, whichever last occurred. The amendment further provided for retroactive application to all claims that had not been fully adjudicated or were in the appellate process as of the effective date of July 14, 2018. The Supreme Court of Kentucky concluded that the amendments clearly provided for retroactive application. Holcim v. Swinford, 581 S.W.3d 37 (Ky. 2019). Likewise, the Court of Appeals held that the 2018 amendments satisfied the conditions for retroactive application. Consequently, the Court reversed and remanded the matter to the ALJ for entry of an award applying the 2018 version of KRS 342.730(4).

187 D. Pine Branch Mining, LLC v. Hensley, No. 2018-CA-000433, 590 S.W.3d 268 (Ky. App. 2019)

Opinion by Judge Dixon; Judges Combs and Taylor concurred. Pine Branch Mining sought review of an opinion of the Workers’ Compensation Board affirming in part, reversing in part, and remanding an Administrative Law Judge’s award of permanent total disability benefits to Lonnie Hensley. The Court of Appeals affirmed the Board’s decision in part, vacated in part, and remanded the matter to the ALJ for further proceedings. The Court held that substantial evidence supported the ALJ’s finding of a work-related cumulative trauma injury to Hensley’s low back, her finding of permanent total disability, and her determination of Hensley’s disability onset date. Most notably, the Court addressed the newly-amended version of KRS 342.730(4) and whether it applied retroactively to Hensley’s claim. In House Bill 2, the General Assembly expressly declared the amendment to KRS 342.730(4) applied retroactively to all claims where the injury occurred after December 12, 1996; the claim here was in the appellate process as of July 14, 2018. Thus, the Court concluded that the claim satisfied both conditions for retroactive application of the newly-amended version of KRS 342.730(4). Here, the ALJ erroneously applied the unconstitutional version of KRS 342.730(4) to Hensley’s award. The Board correctly reversed that part of the ALJ’s decision but erred by remanding the claim for entry of an award pursuant to the 1994 version of the statute. Accordingly, the Court vacated that portion of the Board’s opinion and remanded this matter to the ALJ for entry of an award applying the 2018 version of KRS 342.730(4).

XLV. ZONING

Hengehold v. City of Florence, No. 2018-CA-000991, 596 S.W.3d 599 (Ky. App. 2020)

Opinion by Judge Maze; Judges Acree and Combs concurred. The City of Florence issued a notice of violation against the Hengeholds, asserting that their keeping of chickens violated the applicable zoning regulations. Following a hearing, the City’s Code Enforcement Board upheld the notice of violation. The Hengeholds challenged that decision by way of an original action in district court pursuant to KRS 65.8831(1). Following a de novo review of the record, the district court upheld the notice of violation, and the circuit court affirmed that holding on appeal. The Court of Appeals accepted the Hengeholds’ petition for discretionary review and the City’s cross-petition. The Court first held that the Code Enforcement Board was not an indispensable party at the action’s inception. Unlike most administrative appeals, an action challenging a code enforcement board is treated as an original action, not a statutory appeal. Furthermore, the statute does not list the Board as a party who must be named to the action. The Court then reversed the lower courts’ holdings upholding the notice of violation. Examining the specific language of the Boone County Zoning Regulations, specifically the principally permitted uses in the Hengeholds’ district as compared to those of other districts, the Court concluded that commercial farms for poultry production were not permitted in the Hengeholds’ district. However, the permitted uses did not clearly prohibit the Hengeholds’ mere possession of chickens for non-commercial purposes. Moreover, the “accessory uses” language of the regulations permitted

188 the “keeping of pets and animals” within the Hengeholds’ district. The Court held that this language was broad enough to cover the Hengeholds’ activities. The City also argued that its later amendment to the regulations, which permitted “chicken coops” in other districts but not in the Hengeholds’ district, should be read as excluding both the chickens and the structures used by the chickens. However, since the Hengeholds kept the chickens prior to the amendment, the Court held that they would be entitled to a non-conforming use even if such a reading were warranted. The Court also disagreed with the City’s assertion that any structure used by chickens should be automatically considered as a “coop” and noted that, even if the structures were considered coops, the Hengeholds would be entitled to retain them if they were in existence prior to the amendment of the regulation.

189 KENTUCKY SUPREME COURT PUBLISHED OPINIONS AUGUST 2019 - APRIL 2020

I. ADMINISTRATIVE LAW

Lexington-Fayette Urban County Human Rights Commission v. Hands-On Originals, 2017-SC-000278-DG, 592 S.W.3d 291 (Ky. 2019)

Opinion of the Court by Justice VanMeter. Minton, C.J.; Buckingham, Hughes, Keller, VanMeter and Wright, JJ., sitting. Minton, C.J.; Hughes, Keller, VanMeter and Wright, JJ., concur. Buckingham, J., concurs by separate opinion. Lambert, J., not sitting. The Supreme Court granted discretionary review of the Court of Appeals’ decision affirming the Fayette Circuit Court’s dismissal of the lawsuit brought by the Gay and Lesbian Services Organization (“GLSO”) against Hands On Originals. The GLSO had alleged that Hands On Originals had violated Lexington Fayette Urban County Government ordinance, Section 2-33, which prohibits a public accommodation from discriminating against individuals based on their sexual orientation or gender identity. The Court of Appeals ruled that dismissal was warranted since it perceived no violation of Section 2-33 by Hands On’s engaging in viewpoint or message censorship as a private business. The Supreme Court agreed that dismissal was proper, but for a different reason. The highest court held that the GLSO, the original party to bring this action before the Lexington Fayette Urban County Human Rights Commission, lacked statutory standing to assert a claim against Hands On Originals under Section 2-33 and KRS 344.120 as the plain text of Section 2-33 provides that only an individual – being a single human – can bring a discrimination claim under Section 2-33. The GLSO, an organization and not an individual, therefore lacked the requisite statutory standing to bring the claim. Without a proper complainant, no determination could be made as to whether the ordinance was violated.

II. AGE DISCRIMINATION

Norton Healthcare, Inc. v. Disselkamp, 2018-SC-000274-DG, 2019-SC-000102- DG, 2020 WL 2832134 (Ky. May 28, 2020)

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

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ruled that in an age discrimination case based on circumstantial evidence, the trial court, not the jury, is to make the factual finding that the plaintiff satisfied its burden of proving each element of the McDonnell Douglas paradigm, including whether the plaintiff was replaced by a substantially younger employee, before the age discrimination claim is submitted to the jury to make the ultimate determination as to whether unlawful discrimination occurred. Based on the previous finding of reversible error, the Appellee’s argument that the trial court erred in refusing to allow Plaintiff to recall a key witness is rendered moot. As to Appellee’s arguments regarding errors contained in the retaliation jury instruction, the Court held that the jury instruction on Appellee’s retaliation claim did not misstate the law by including the name of Appellant’s human resource manager among the list of potential retaliators, as the use of the word “or” between the three potential retaliators listed allowed the jury to find in Appellee’s favor by finding that only one of individuals unlawfully retaliated against the plaintiff. The Court, however, declined to consider Appellee’s argument that the retaliation jury instruction misstated the law by providing that the jury would find in favor of the Appellee if it found that Appellee engaged in a protected activity by complaining to Appellant about “harassment and gender discrimination” because Appellee failed to preserve this argument for appellate review, as Appellee’s proposed instruction was not so different as to “fairly and adequately present the party's position as to an allegation of instructional error,” as required under CR 51(3). Finally, the Court held that the trial court did not abuse its discretion in denying Appellee’s request for a missing evidence instruction because Appellee either failed to show that the evidence was material to her case or failed to show that the evidence even existed.

III. ATTORNEY DISCIPLINE

A. Kentucky Bar Association v. Ayers, 2010-SC-000064-KB, 579 S.W.3d 856 (Ky. 2019)

William Ayers was suspended pursuant to SCR 3.166(1) on January 28, 2010, following his conviction on five felony counts of failure to file a tax return. On August 22, 2018, the Sixth Circuit reversed Ayers’s 2010 felony convictions and on March 19, 2019, the United States Supreme Court denied the Commonwealth’s petition for certiorari, making the Sixth Circuit’s opinion final. Ayers then petitioned the Court to reinstate him. In his petition, however, Ayers failed to mention two (2) thirty-day suspensions that occurred during his SCR 3.166 suspension. On May 20, 2010, Ayers was suspended for thirty days “from the date of [the] order” for failing to refund an unearned fee. Though he returned the unearned fee to the client, he had not paid the $1,385.45 in disciplinary proceeding costs as required by the order. On March 24, 2011, Ayers received another thirty-day suspension for practicing law without a license during his SCR 3.166 suspension. The order stated that suspension was “to run consecutively from any other discipline.” Ayers had not paid the disciplinary proceedings costs of $313.98. The Court determined that, because of Ayers’s failure to pay costs for his May 2010 suspension, his March 2011 suspension had not begun to run. Because Ayers had never paid the costs of his May 2010 thirty-day suspension, and as a result, his March 2011 suspension had not yet begun to run, he effectively turned his thirty-day suspension into one that had lasted longer than nine years. Accordingly, Ayers’s only avenue

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for reinstatement was through SCR 3.510(4)—the rule dealing with reinstating an attorney after five or more years of suspension. The Court held that the SCR 3.166 suspension was dissolved but did not automatically reinstate Ayers. The Court directed Ayers to pay the costs from his May 2010 suspension order, with interest, and to file an application for reinstatement pursuant to SCR 3.510(4). The Court further held that, once the costs under the May 2010 Order had been paid with interest, the March 2011 thirty-day suspension would begin to run and would expire on its own terms on the filing of an affidavit of compliance with the terms of the suspension, including payment of the costs assessed in the March 2011 Order with interest.

B. Howell v. Kentucky Bar Association, 2019-SC-000089-KB, 583 S.W.3d 413 (Ky. 2019)

Opinion and Order of the Court. All sitting; all concur. Howell moved the Supreme Court to enter a negotiated sanction resolving her pending disciplinary proceeding by imposing a 30-day suspension. Howell’s disciplinary history included three private admonitions for failing to act with reasonable diligence and promptness in representing several clients. Additionally, the Supreme Court rendered an opinion in March 2019 finding Howell guilty of violating numerous Supreme Court Rules and suspending her from the practice of law for 181 days. In the present case, the Inquiry Commission issued a five-count charge against Howell alleging violations of SCR 3.130(1.3); (1.5)(a); (1.15)(e); (1.5)(f); and (1.16)(d). Howell admitted she violated these rules and requested, with the agreement of the Office of Bar Counsel, for a negotiated sanction that would result in her suspension from the practice of law for 30 days, effective March 14, 2019, the date her 181-day suspension began. After reviewing the record and several similar cases, the Court agreed to the negotiated sanction and ordered Howell suspended for 30 days, retroactive to March 14, 2019.

C. Bradley v. Kentucky Bar Association, 2019-SC-000287-KB, 583 S.W.3d 416 (Ky. 2019)

Opinion and Order of the Court. All sitting; all concur. Bradley was admitted to the practice of law in Kentucky in 1994. She was also admitted to the practice of law in Ohio in 1993 and Georgia in 1998. In 2000, Bradley filed a motion to withdraw from membership in the KBA pursuant to SCR 3.480(1). Because she was an active member in good standing, that motion was granted. Bradley continued to practice law in Georgia until 2006 and remains an active member of the Ohio Bar in good standing. She filed this action to seek restoration to the practice of law in Kentucky. Upon consideration of the findings of the Character and Fitness Committee’s investigation and proof that Bradley had complied with all other requirements of restoration, the Supreme Court granted her application and restored Bradley to the practice of law in Kentucky.

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D. Kentucky Bar Association v. Moore, 2019-SC-000305-KB, 583 S.W.3d 418 (Ky. 2019)

Opinion and Order of the Court. All sitting; all concur. In May 2019, the Supreme Court of Ohio permanently disbarred Rodger William Moore from the practice of law, prompting the KBA to seek reciprocal discipline under SCR 3.435(4). The Ohio decision was based upon Moore’s conduct in agreeing to represent a client for free and then demanding the client sign a promissory note, using a “bait and switch” tactic, and knowingly making false allegations in a breach of contract claim against the client. Kentucky Supreme Court ordered Moore to show cause why reciprocal discipline should not be imposed, but he failed to respond. Accordingly, the Court ordered Moore permanently disbarred from the practice of law in the Commonwealth, consistent with the order of the Supreme Court of Ohio.

E. Inquiry Commission v. Belcher, 2019-SC-000382-KB, 584 S.W.3d 289 (Ky. 2019)

Opinion and Order of the Court. All sitting; all concur. The Inquiry Commission alleged violations of SCR 3.165(1)(b) (probable cause exists to believe that an attorney's conduct poses a substantial threat of harm to his clients or to the public); and SCR 3.165(d) (probable cause exists to believe the attorney does not have the physical or mental fitness to continue to practice law). The assertions stemmed from raised concerns due to alleged misappropriation of client funds. The Court agreed with the Commission’s findings and entered an order temporarily suspending Belcher under SCR 3.165(1).

F. Shields v. Kentucky Bar Association, 2019-SC-000421-KB, 583 S.W.3d 421 (Ky. 2019)

Opinion and Order of the Court. All sitting; all concur. Shields moved the Supreme Court to enter a negotiated sanction imposing a 30-day suspension from the practice of law, to be probated for one-year subject to conditions. The KBA did not object. The charges against Shields arose out of his representation of a client in a criminal matter. Shields admitted his actions constituted violations of SCR 3.130(1.16)(b) and (1.16)(d). After reviewing the facts, the Court agreed that the proper discipline was a 30- day suspension from the practice of law, probated for one year with conditions.

G. Kentucky Bar Association v. Teater, 2019-SC-000412-KB, 585 S.W.3d 759 (Ky. 2019)

Opinion and Order of the Court. All sitting; all concur. Teater was retained to represent a client in a deportation matter in the U.S. Immigration Court in Memphis. Teater failed to prepare her client or witnesses for the hearing and later failed to communicate with her client or inform him of the results of the hearing. The client filed a bar complaint but Teater failed to respond or participate in any of the disciplinary hearings. The Inquiry Commission ultimately issued five charges against Teater including violations of SCR

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3.130(1.1); SCR 3.130(1.3); SCR 3.130(1.4)(a)(3); SCR 3.130(1.4)(1)(4); and SCR 3.130(8.1)(b). Teater again failed to respond to the charges and the matter was submitted to the Board of Governors as a default case under SCR 3.210. The Board unanimously recommended that Teater be found guilty of all charges and that she be suspended from the practice of law for 30 days, to run consecutively with her current suspension for CLE deficiency; that she be referred to the Kentucky Lawyer Assistance Program; and that she be required to attend and successfully complete Bar Counsel’s Ethics and Professionalism Enhancement Program. After considering the current charges and Teater’s disciplinary history – including two private admonitions and her current suspension for CLE deficiency – the Supreme Court adopted the Board’s recommended discipline in full and sanctioned Teater accordingly.

H. Wickersham v. Kentucky Bar Association, 2019-SC-000540-KB, 585 S.W.3d 766 (Ky. 2019)

Opinion and Order of the Court. All sitting; all concur. Attorney Mark Kindred Wickersham and the KBA agreed to a negotiated sanction under SCR 3.480(2) to impose a suspension of Wickersham for violations of SCR 3.130(8.4)(b) (“It is professional misconduct for a lawyer to: . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects[.]”). In 2017, Wickersham was indicted by a Madison County Grand Jury for three counts of first-degree wanton endangerment, alcohol intoxication in a public place, and DUI. The criminal case was resolved by a guilty-plea agreement in Madison Circuit Court, providing for pretrial diversion for a period of three years. Thereafter, an Inquiry Commission Complaint was filed and Wickersham and the KBA reached a negotiated sanction providing for suspension of Wickersham’s license to practice law in Kentucky for a period of three years, or until he has satisfied in full the terms and conditions of his pretrial diversion in the criminal proceedings, whichever event occurs first. The KBA stated no objection to the proposed discipline. The Court approved the negotiated sanction in light of Fink v. Ky. Bar Ass’n, 568 S.W.3d 354 (Ky. 2019), Kentucky Bar Association v. Embry, 152 S.W.3d 869 (Ky. 2005), and Wade v. Ky. Bar Ass’n, 498 S.W.3d 783 (Ky. 2016). The Court also found that significant mitigating circumstances offered by Wickersham and the KBA, including Wickersham’s health and financial hardships suffered during the years leading up to the criminal action, and Wickersham’s demonstrated commitment to treatment and sobriety, supported the proposed discipline.

I. Brown v. Kentucky Bar Association, 2019-SC-000593-KB, 585 S.W.3d 763 (Ky. 2019)

Opinion and Order of the Court. All sitting; all concur. Brown sought restoration of his license to practice law after a non-disciplinary suspension for non-payment of dues. In mid-2015, Brown left the practice of law in Kentucky and moved to Florida. He did not, however, withdraw from the KBA and was subsequently suspended in 2017 for non-payment of dues. In 2018, Brown timely filed an application for restoration under SCR 3.500(1), including the required payment for the filing fee, back dues, late

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fee and costs and the necessary CLE certification. Due to concerns with Brown’s application, the Board of Governors referred the matter to the Character and Fitness Committee pursuant to SCR 3.500(2)(d). After considering Brown’s application and his previous discipline, which included two private admonitions, the Committee ultimately determined that Brown met the standards required for restoration and recommended approval. Upon receiving the Committee’s recommendation, the Board again considered Brown’s application and unanimously concluded that he met the standards required for restoration. The Supreme Court reviewed the recommendations of the Committee and the Board and agreed that Brown should be restored to the practice of law, with the condition that he pay current membership dues and the costs related to this proceeding.

J. Hickman v. Kentucky Bar Association, 2019-SC-000594-KB, 599 S.W.3d 866 (Ky. 2020)

Opinion and Order of the Court. All sitting; all concur. Hickman was suspended from the practice of law in February 2003 for nonpayment of bar dues. In July 2017, she filed an application for restoration to the practice of law under SCR 3.500(3). During her suspension, Hickman remained a member in good standing with the Ohio bar and practiced as in-house counsel for various corporations, including in Georgia, which does not require in-state licensure of in-house counsel. Because her suspension lasted more than five years, Hickman’s restoration application was referred to the Kentucky Office of Bar Admissions’ Character and Fitness Committee. Following a thorough investigation, the Committee recommended that Hickman be restored to the practice of law, provided that she sit for and pass the essay portion of the Kentucky Bar Examination, as required by SCR 3.500(3)(e). The Board of Governors of the Kentucky Bar Association unanimously voted in favor of Hickman’s restoration. The Court agreed with the recommendation and granted Hickman’s application for restoration with examination.

K. Kentucky Bar Association v. Teater, 2019-SC-000598-KB, 2020 WL 1289746 (Ky. Feb. 20, 2020)

Opinion and Order of the Court. All sitting; all concur. The Supreme Court of Tennessee prohibited Teater from practicing law in the state of Tennessee, a prohibition tantamount to disbarment. Thereafter, the Kentucky Bar Association filed a petition asking that the Supreme Court of Kentucky impose reciprocal discipline under SCR 3.435. The Court ordered Teater to show cause why discipline should not be imposed but she failed to respond. Because Teater failed to provide any response or evidence showing a lack of jurisdiction or fraud in the Tennessee proceedings or any reason the Court should impose a lesser discipline upon her, the Court permanently disbarred Teater from the practice of law, as consistent with the order of the Supreme Court of Tennessee.

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L. Kentucky Bar Association v. Rowland, 2019-SC-000614-KB, 599 S.W.3d 875 (Ky. 2020)

Opinion and Order of the Court. All sitting; all concur. The Kentucky Bar Association moved the Supreme Court to indefinitely suspend Rowland from the practice of law after he failed to respond to an Inquiry Commission charge or any attempts at contact from the KBA. Letters mailed to Rowland’s bar roster address from Bar Counsel were returned undelivered and attempts to contact him at his business and home phone numbers were unsuccessful. Similarly, Rowland did not respond to letters or email messages from the Trial Commissioner and did not appear or participate in a telephonic pretrial hearing. Given his failure to participate in the disciplinary process, the KBA asked the Court to indefinitely suspend Rowland under SCR 3.380(2). Having reviewed the KBA’s motion, the Court agreed with the requested sanction and ordered Rowland suspended indefinitely.

M. Kentucky Bar Association v. Mory, 2019-SC-00636-KB, 599 S.W.3d 873 (Ky. 2020)

Opinion and Order of the Court. All sitting; all concur. The Kentucky Bar Association moved the Supreme Court to enter an order directing Mory to show cause why he should not be subject to reciprocal discipline after being publicly censured by the Supreme Court of Tennessee. Mory’s sanction arose from his unauthorized practice of law after his Tennessee law license was administratively suspended for noncompliance with CLE requirements. The Court granted the KBA’s request under SCR 3.435(2)(b), but Mory failed to file a timely response. Accordingly, under SCR 3.435(4), the Court ordered that Mory be publicly reprimanded.

N. An Unnamed Attorney v. Kentucky Bar Association, 2019-SC-000639-KB, 599 S.W.3d 829 (Ky. 2020)

Opinion and Order of the Court. All sitting. Minton, C.J.; Hughes, Lambert, Nickell, VanMeter, and Wright, JJ., concur. Keller, J., concurs in result only by separate opinion. Movant, an Unnamed Attorney, moved the Court under SCR 3.480(2) to accept his negotiated sanction with the Kentucky Bar Association of a private reprimand with conditions for violations of SCR 3.130(1.9)(a) and SCR 3.130(1.16)(d). The violations arose from Unnamed Attorney’s representation of several family members involved in a guardianship matter. The negotiated sanction consisted of a private reprimand with a condition that Unnamed Attorney attend and complete the Ethics and Professionalism Enhancement Program at its next offering and pay all costs associated with this disciplinary proceeding. After reviewing the relevant case law and the American Bar Association Standards for Imposing Lawyer Sanctions, the Court agreed that the proposed sanction was appropriate and ordered that Unnamed Attorney be privately reprimanded.

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O. Bolin v. Kentucky Bar Association, 2019-SC-000644-KB, 599 S.W.3d 839 (Ky. 2020)

Opinion and Order of the Court. All sitting; all concur. Bolin moved the Court to accept his resignation from the Kentucky Bar Association under terms of permanent disbarment. The KBA did not object to Bolin’s motion. In August 2019, Bolin pled guilty to two counts of theft by failure to make required disposition of property. The theft charges arose from his representation of clients and subsequent failure to distribute funds in two separate probate matters. Based on Bolin’s guilty plea and the allegations in the disciplinary files, the Court granted Bolin’s motion to resign and ordered that he be permanently disbarred in the Commonwealth.

P. Hall v. Kentucky Bar Association, 2019-SC-000658-KB, 599 S.W.3d 877 (Ky. 2020)

Opinion and Order of the Court. All sitting; all concur. Hall moved the Court under SCR 3.480(2) to impose a sanction of a 181-day suspension from the practice of law to resolve his pending charges. The KBA did not object to the motion. Hall’s disciplinary violations spanned five consolidated KBA files. He admitted to violating two counts of SCR 3.130(1.3), five counts of SCR 3.130(1.4)(a), two counts of SCR 3.130(1.15)(b), four counts of SCR 3.130(1.16)(d), four counts of SCR 3.130(8.1)(b), and one count of SCR 3.130(8.4)(c). Hall did not have any prior disciplinary history and the majority of his current disciplinary issues occurred during late 2017 and 2018, during which time Hall claimed to have been suffering from severe anxiety and depression. Upon review of the record, the Court agreed that the negotiated sanction was appropriate. Accordingly, the Court suspended Hall from the practice of law in the Commonwealth for a period of 181 days.

Q. Grinnell v. Kentucky Bar Association, 2019-SC-000677-KB, 2020 WL 1302322 (Ky. Feb. 20, 2020)

Opinion and Order of the Court. All sitting; all concur. Grinnell moved the Court under SCR 3.480(2) to impose a negotiated sanction of a one-year suspension from the practice of law, with 180 days to serve and 185 days probated for two years with conditions. The KBA did not object to the motion. Grinnell’s alleged violations spanned 14 consolidated KBA disciplinary files and 55 counts. Upon review of the charges, the Court concluded that they demonstrated Grinnell’s pattern of neglect and disregard for the interests of his clients. The Court also noted Grinnell’s five previous private reprimands. In mitigation of his pending charges, Grinnell stated that he suffers from anxiety and depression and agreed, as part of the negotiated sanction, to seek professional help with KYLAP. In light of Grinnell’s numerous violations and the economic harm to his clients – $26,440 in unrefunded fees – the Court concluded that the negotiated sanction proposed in this case was inadequate. Accordingly, Grinnell’s motion was denied, and the matter was remanded to the KBA for further disciplinary proceedings under SCR 3.480(2).

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R. Roberts v. Kentucky Bar Association, 2019-SC-000706-KB, 599 S.W.3d 870 (Ky. 2020)

Opinion and Order of the Court. All sitting; all concur. The Inquiry Commission issued a two-count charge against Roberts. He admitted to violating SCR 3.130(1.5)(b) by failing to adequately communicate the scope of representation and fee arrangement to his client and moved the Supreme Court to impose the sanction of a public reprimand with conditions under SCR 3.480(2). The KBA did not object and cited to prior caselaw to demonstrate that a public reprimand is an appropriate sanction. Upon review of Roberts’s motion and the relevant cases, the Supreme Court agreed that a public reprimand with conditions was appropriate and sanctioned Roberts accordingly.

S. Webb v. Kentucky Bar Association, 2019-SC-000708-KB, 599 S.W.3d 833 (Ky. 2020)

Opinion and Order of the Court. All sitting; all concur. Webb moved for consensual discipline under SCR 3.480(2) based on a negotiated sanction agreement with the Kentucky Bar Association. Webb requested an order imposing a sanction of public reprimand based on his admitted failure to discharge his duty of diligence in representing a client. The KBA filed a response stating it had no objection. Because Webb and the KBA agreed on the sanction and case law supported the proposed resolution in this matter, the Court held that a public reprimand was the appropriate discipline for Webb’s conduct and granted his motion.

T. Smith v. Kentucky Bar Association, 2019-SC-000713-KB, 599 S.W.3d 868 (Ky. 2020)

Opinion and Order of the Court. All sitting; all concur. Smith was suspended from the practice of law for failing to pay bar dues and failing to meet his CLE requirements. He failed to promptly inform the courts in which he had pending cases of his suspension and appeared as counsel in more than a dozen cases in early 2019 while suspended. The KBA charged Smith with three counts of misconduct, all of which he admitted to violating. Smith moved the Supreme Court under SCR 3.480(2) to enter a negotiated sanction imposing a public reprimand, subject to conditions, and the KBA did not object. Upon reviewing the facts of this case and the relevant case law, the Court granted Smith’s motion and adopted the negotiated sanction of a public reprimand, with conditions.

U. Character and Fitness Committee of the Kentucky Office of Bar Admissions v. Sowell, 2019-SC-000413-OA, 599 S.W.3d 439 (Ky. 2020)

Opinion and Order of the Court. Hughes, Keller, Lambert, Nickell, VanMeter, and Wright, JJ., sitting. All concur. Minton, C.J., not sitting. Under SCR 2.042(1), applicants for admission to the Bar may be subject to a written agreement with the Character and Fitness Committee imposing conditions on the applicant’s license to practice. Upon violation of the terms and conditions of the agreement, the Committee has two options: extend

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the terms and impose additional conditions or recommend to this Court revocation of the member’s conditional license. In this case, Sowell and the Committee entered into multiple agreements governing his conditional admission to practice and his substance abuse issues. Each agreement required Sowell to abstain from alcohol and the use of unprescribed controlled substances, and to be monitored by the Kentucky Lawyer Assistance Program (KYLAP). After the Director of KYLAP reported Sowell’s non-compliance to the Office of Bar Admissions, he was notified that the Character and Fitness Committee would hold a “show cause” hearing for Sowell to explain why the Committee should not recommend to the Supreme Court suspension of his license to practice law for noncompliance. Sowell appeared with counsel but the Committee ultimately filed a recommendation of licensure revocation with the Court. The Court acknowledged that relatively few cases have discussed the application of SCR 2.042(1) to a bar applicant who, as a condition of admission, is placed under a consent agreement such as Sowell. But relying on Character & Fitness Comm. Office of Bar Admissions v. Jones, 62 S.W.3d 28 (Ky. 2001), the Court noted that consent agreements should be construed like all contracts. Accordingly, because Sowell admitted violating the terms of the agreement, the Court accepted the recommendation of the Committee and ordered the revocation of Sowell’s license to practice law.

V. Kentucky Bar Association v. Martin, 2019-SC-000657-KB, 599 S.W.3d 438 (Ky. 2020)

Opinion and Order of the Court. All sitting; all concur. The Kentucky Bar Association petitioned the Supreme Court to indefinitely suspend Martin from the practice of law pursuant to SCR 3.380(2) for violating SCR 3.164 by failing to answer an Inquiry Commission charge. The charge related to Martin’s representation of a client in a probate matters and included violations of SCR 3.130(1.1) for failure to provide competent representation, SCR 3.130(1.3) for lack of diligence and SCR 3.130(8.1)(b) for failure to respond to a lawful demand for information from a disciplinary authority. The record reflected that Martin was served with the charge in September 2019 but failed to respond. Accordingly, under SCR 3.380(2), the Supreme Court indefinitely suspended Martin from the practice of law.

W. Kentucky Bar Association v. Mac Iain, 2019-SC-000643-KB, 599 S.W.3d 882 (Ky. 2020)

Opinion and Order of the Court. All sitting; all concur. Disciplinary action was initiated against Mac Iain after his guilty plea to the misdemeanor charge of endangering the welfare of a minor child. By Supreme Court order dated June 19, 2019, Mac Iain was indefinitely suspended from the practice of law in Kentucky under SCR 3.380(2). Mac Iain failed to respond to the disciplinary charges against him, prompting the Board of Governors to move the Court to impose discipline under SCR 3.210. Specifically, the Board recommended that Mac Iain be suspended for 181 days, that he be referred to the Kentucky Lawyer Assistance Program (KYLAP), and that he be required to pay the costs in this action. Having reviewed the record, the

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Court agreed that the Board reached the appropriate conclusions as to Mac Iain’s guilt. Mac Iain did not file a notice to review the Board’s decision, and the Court did not elect to review the Board’s decision under SCR 3.370(8). Accordingly, the decision of the Board was adopted under SCR 3.370(9).

X. Kentucky Bar Association v. Wells, 2020-SC-000012-KB, 599 S.W.3d 435 (Ky. 2020)

Opinion and Order of the Court. All sitting; all concur. The Inquiry Commission filed a motion asking the Supreme Court to temporarily suspend Wells from the practice of law pursuant to SCR 3.165(1)(c) and (d). In 2016, Wells received a ticket in Ohio for operating a motor vehicle while impaired. Wells was in possession of drugs during the traffic stop and received both felony and misdemeanor drug charges. She entered a guilty plea to the charges in 2017 and was granted an intervention in lieu of conviction (ILC). Under the terms of her ILC, Wells was to undergo a two- year period of rehabilitation. Wells did not successfully complete the program and the court revoked her ILC. She was found guilty of four counts of aggravated possession of drugs, a fifth-degree felony in Ohio. Based on the nature of Wells’ conviction, the Court held under SCR 3.165(1)(d) that there was probable cause to believe Well is “addicted to intoxicants or drugs” and “does not have the physical or mental fitness to continue to practice law.” Accordingly, the Court granted the Inquiry Commission’s motion and temporarily suspended Wells from the practice of law.

Y. Kommor v. Kentucky Bar Association, 2020-SC-000035-KB, 599 S.W.3d 886 (Ky. 2020)

Opinion and Order of the Court. All sitting; all concur. Kommor filed a motion under SCR 3.480(2) for the Supreme Court to enter an Order suspending him from the practice of law for 181 days, to be probated for two years, subject to certain conditions. The Kentucky Bar Association filed a response stating no objection to the motion and the proposed sanction. The disciplinary charges against Kommor arose from his failure to properly administer his escrow account, resulting in mismanagement of a client’s settlement funds. Kommor admitted that his actions violated SCR 3.130(1.3); SCR 3.130(1.4)(a)(4); SCR 3.130(1.15)(a); and SCR 3.130(1.15)(b). In reviewing Kommor’s violations, the Supreme Court noted that Kommor had no prior disciplinary history, had fully cooperated with the Office of Bar Counsel, was not convicted criminally for his actions, and had fully accounted to his client for her funds. In light of these factors, and upon review of the disposition of similar disciplinary cases, the Court accepted Kommor’s proposed sanction and suspended him from the practice of law for 181 days, probated for two years.

Z. Smith v. Kentucky Bar Association, 2020-SC-000046-KB, 2020 WL 2092923 (Ky. Apr. 30, 2020)

Opinion and Order of the Court. All sitting; all concur. In January 2020, the Kentucky Bar Association suspended Smith for non-payment of his 2019- 20 dues. Smith appealed and tendered his affidavit of good cause that the

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suspension should be revoked. In his affidavit, Smith averred that he had moved out of state and that his failure to pay his dues had been an “oversight” on his part. However, Smith acknowledged that he failed to comply with SCR 3.035(1)(a) by providing the KBA Director with his current address. Moreover, the KBA notified delinquent members by mail, by notice in the Bench & Bar, and by email. Smith received at least two of these emails, along with at least one voicemail from an employee of the KBA Membership Department. KBA membership records indicated that Smith had been delinquent in payment of annual bar dues for the past five (5) fiscal years. Based on this information, the Supreme Court determined that Smith had not shown good cause for revocation of his suspension. The KBA followed the protocol established by SCR 3.050 but Smith failed to pay his bar dues prior to being suspended; failed to keep the KBA informed of his current address; and had been delinquent in his bar dues payments for the last five years. Accordingly, the Court suspended Smith from the practice of law.

AA. Njuguna v. Kentucky Bar Association, 2020-SC-000183-KB 600 S.W.3d 264 (Ky. 2020)

Opinion and Order of the Court. All sitting; all concur. In March 2013, Njuguna was found guilty on two counts of admitted violations of the Rules of Professional Conduct and was suspended from the practice of law for a period of 180 days, with 90 days to be probated for a period of five years under multiple conditions. Because Njuguna failed to file an affidavit of compliance with the terms of his suspension within 180 days, the provisions of SCR 3.510(3) were invoked, requiring referral to the Character and Fitness Committee for proceedings under SCR 2.300 upon filing of his application for reinstatement. On March 18, 2018, less than five years from his suspension date, Njuguna moved to be reinstated and the matter was referred to the Character and Fitness Committee. Following a detailed investigation, the Committee determined the root cause of Njuguna’s disciplinary issues stemmed from a severe addiction problem which he had successfully addressed after a long and difficult process. On March 2, 2020, the Character and Fitness Committee rendered its Findings of Fact, Conclusions of Law and Recommendation finding Njuguna had complied with all conditions of his 180-day suspension, was worthy of the public trust, possessed sufficient professional capabilities, presently exhibited good moral character, and showed contrition, remorse, and sufficient re- habilitation to return to the practice of law. The Committee unanimously recommended reinstatement with conditions imposed including execution of a conditional admission agreement, pursuant to SCR 2.042, concerning his continued involvement with KYLAP and a fiscal planning and debt repayment program. After reviewing the entire record, by a vote of 19-0 with two members absent, the Board of Governors concluded Njuguna had fully complied with the administrative steps, met all standards and requirements for reinstatement, and unanimously recommended reinstatement.

We agree with and accordingly accept the Board’s recommendation that Kungu Njuguna’s Application for

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Reinstatement to the practice of law be approved with conditions. It is therefore ORDERED: 1. Kungu Njuguna’s Application for Reinstatement to the Kentucky Bar Association is approved pursuant to SCR 3.510, subject to paragraphs 2 and 3 below. 2. Njuguna shall comply with the conditions for admission set forth hereinabove as paragraphs a. through f., as recommended by the Board and as amended on request of the Office of Bar Counsel.

IV. CERTIFICATION OF LAW

Kentucky Employees Retirement System v. Seven Counties Services, Inc., 2018- SC-000461-CL, 580 S.W.3d 530 (Ky. 2019)

Opinion of the Court by Justice Hughes. All sitting; all concur. As requested by the U.S. Court of Appeals for the Sixth Circuit, the Supreme Court granted certification of law on the following issue: Whether Seven Counties Services, Inc.’s participation as a department in and its contributions to the Kentucky Employees Retirement System (KERS) are based on a contractual or a statutory obligation. The case arises from the efforts of Seven Counties, a non-profit mental health services provider, to reorganize and rehabilitate its finances under Chapter 11 of the Bankruptcy Code. Seven Counties paid into KERS to secure retirement benefits for its employees, but because the rate of required employer contributions increased dramatically in recent years, Seven Counties initiated bankruptcy proceedings in 2013 primarily to reject its relationship with KERS as an executory contract. The Supreme Court held that employer participation in KERS is exclusively statutory, following the plain language approach to statutory construction in analyzing the provisions of KRS Chapter 61, which authorizes the Governor to issue an executive order for KERS participation. Additionally, the Court held that neither the facts nor Kentucky law support Seven Counties’ position that its relationship with KERS was contractual because the Governor has no authority to contract for entry into KERS. Further, applying the unmistakability doctrine, the Court held that nothing indicates an unmistakable legislative intent to allow employers to contract for participation in KERS. The relationship between KERS and Seven Counties is and always has been purely statutory.

V. CHILD CUSTODY

Krieger v. Garvin, 2018-SC-000154-DGE, 584 S.W.3d 727 (Ky. 2019)

Opinion of the Court by Justice Wright. Minton, C.J.; Buckingham, Hughes, Keller, VanMeter, and Wright, JJ., sitting. Minton, C.J.; Keller, VanMeter, and Wright, JJ., concur. Hughes, J., concurs in result only without separate opinion. Buckingham, J., dissents with separate opinion. Lambert, J., not sitting. This case involved a minor child, K.R.K., and whether her maternal grandfather and his girlfriend, in whose custody K.R.K. has been since she was eight months old, may be considered her de facto custodians pursuant to KRS 403.270. The trial court had found the two were K.R.K.’s de facto custodians, and that ruling was appealed to the Court of Appeals, which reversed. Terry and Donna filed a motion for discretionary review with the Supreme Court of Kentucky, which was granted. The Court reversed the Court of Appeals. In interpreting the statute at question, the

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Court stated: “[i]n using the phrase, ‘unless the context requires otherwise,’ the legislature left room for trial courts to act in the best interests of the child in determining which individual (or individuals in this case) qualify as the child’s de facto custodian(s).”

VI. CIVIL PROCEDURE

Verralab Ja LLC v. Cemerlic, 2017-SC-000675-DG, 584 S.W.3d 284 (Ky. 2019)

Opinion of the Court by Justice Wright. All sitting; all concur. Dr. Senad Cemerlic, a Delaware resident, and ABG Pain Management (a Delaware LLC of which Dr. Cemerlic is the sole member) entered into an agreement with VerraLab, a Kentucky LLC. Under the agreement, VerraLab would provide clinical drug testing for Dr. Cemerlic’s patients at the ABG pain clinic in exchange for certain fees. VerraLab filed a complaint in Jefferson Circuit Court alleging Cemerlic and ABG failed to pay for services and materials. Because Appellees were outside the Commonwealth of Kentucky, Cemerlic and ABG were served through the Secretary of State pursuant to KRS 454.210. However, Cemerlic refused to accept the mail from the Kentucky Secretary of State. After the service was returned, VerraLab filed a motion for default judgment. The circuit court granted the default judgment. VerraLab then sent a notice to Cemerlic (to the same address at which he had refused to accept the certified mail from the Kentucky Secretary of State) to take a deposition. At that point, an attorney entered an appearance for Cemerlic and ABG and filed a motion to set aside the default judgment. At a hearing on the motion, Cemerlic and ABG argued they had not been served, as Cemerlic did not know the contents of the envelopes he refused to accept from the Secretary of State and did not otherwise know of the lawsuit until the deposition notice. The circuit court denied Cemerlic and ABG’s motion to set aside and Cemerlic and ABG appealed to the Court of Appeals. The Court of Appeals held that the trial court had abused its discretion in denying Cemerlic and ABG’s motion to set aside the default judgment and remanded the matter to the trial court for it to hear the case on the merits. VerraLab sought discretionary review from the Supreme Court of Kentucky, which was granted. The Court reversed the Court of Appeals and reinstated the trial court’s denial of Cemerlic and ABG’s motion to set aside the default judgment, stating: “Cemerlic and ABG cannot avoid service, claim it was ineffective and that the opposing party is providing erroneous information to the trial court otherwise, and then succeed in having the trial court’s discretionary act in denying its attempt for another bite at the apple overturned on appeal.”

VII. CONSTITUTIONAL LAW

Landrum v. Commonwealth ex rel. Beshear, 2018-SC-000122-TG, 599 S.W.3d 781 (Ky. 2019)

Opinion of the Court by Chief Justice Minton. All sitting. Minton, C.J.; Buckingham, Lambert, VanMeter, and Wright, JJ., concur. Hughes, J., concurs by separate opinion in which Keller, J., joins. Keller, J., concurs by separate opinion. Office of the Attorney General (OAG) brought declaratory judgment action and sought permanent injunction, asserting that it had the right to contract with outside counsel regarding litigation against opioid manufacturers on a contingency-fee basis free

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from interference by the Government Contract Review Committee of the Legislative Research Commission and the Secretary of the Finance and Administration Cabinet. The OAG also argued that, in the alternative, the Committee and Secretary acted arbitrarily and capriciously in deciding to reject and cancel a contingency-fee contract with outside counsel. The Kentucky Supreme Court first held that any inherent power of the Attorney General to enter into contingency-fee contracts with outside counsel gives way to the overriding authority of the General Assembly. Next, the Court found that the contingency-fee contract at issue constituted an “expenditure of public funds” under KRS 446.010(41) and was therefore subject to the oversight requirements of the Kentucky Model Procurement Code, even though it was possible for the lawsuit to result in no recovery. The Court also determined that the Committee and Secretary’s review of the contract, in which the contract was rejected and cancelled, constituted a non-adjudicatory, quasi-legislative agency determination. The Committee and Secretary’s determination was therefore subject to review for arbitrariness and capriciousness, wherein the court must determine whether the decision was based on a consideration of relevant factors and whether there had been a clear error of judgment. Finally, the Court concluded that the Committee and Secretary did not act arbitrarily or capriciously in deciding to cancel the contract.

VIII. CONTRACT LAW

A. Community Financial Services Bank v. Stamper, 2018-SC-000320-DG 2019-SC-000100-DG, 586 S.W.3d 737 (Ky. 2019)

Opinion of the Court by Justice Keller. All sitting; all concur. Community Financial Services Bank, f/d/b/a Bank of Benton (“Bank”) filed suit in Marshall Circuit Court to enforce a promissory note executed by Ronny Stamper in April 1997. Stamper argued that KRS 413.090(2), which provides a 15-year statute of limitations for written contracts, barred the suit. The trial court disagreed and ultimately granted summary judgment in favor of the Bank. On appeal, the Court of Appeals concluded that the promissory note qualified as a negotiable instrument and, as a result, applied the six-year statute of limitations under KRS 355.3-118, Article 3 of Kentucky’s Uniform Commercial Code (“UCC”). Neither party had raised the applicability of KRS 355.3-118 to the trial court or the Court of Appeals. The Supreme Court affirmed the Court of Appeals and held that (1) the Court of Appeals had properly considered the application of KRS 355.118; (2) the note was a negotiable instrument despite its references to other agreements because it did not incorporate those agreements nor was it subject to or governed by those agreements; and (3) the action was untimely under KRS 355.118.

B. Mostert v. The Mostert Group, LLC 2017-SC-000600-DG, 2020 WL 1846884 (Ky. Mar. 26, 2020)

Opinion of the Court by Justice Hughes. Minton, C.J.; Keller, VanMeter, Wright, JJ.,. and Dunaway and Rhoads, S.J., sitting. All concur. Lambert and Nickell, JJ., not sitting. Appellant Paul Mostert developed computer technology aimed at predicting a thoroughbred’s success by analyzing its

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biomechanics. In 2003, Mostert agreed to transfer the technology to a newly-formed business, The Mostert Group, LLC (TMG), in exchange for TMG stock, cash and a promissory note payable in installments. Mostert subsequently refused to deliver to TMG the source code, a component essential to maintaining and updating the software technology, so TMG declined to make the final promissory note payment to Mostert. In the interim, TMG filed two lawsuits against Mostert in Fayette Circuit Court and, after years of litigation, appealed from an order granting partial summary judgment in favor of Mostert. Based on its construction of the documents executed by the parties in 2003, the Court of Appeals reversed and remanded to the trial court, finding that Mostert’s refusal to turn over the source code was a breach of his contract with TMG. On appeal, the Supreme Court affirmed the Court of Appeals. The resolution of this case hinged on the interpretation of the parties’ agreements, and the Court reasoned that the unambiguous language of a contract will be enforced as written. Because the agreements indicate that the parties recognized and intended a difference between “software” and “source code,” it is clear that Mostert agreed to transfer the source code to TMG. By refusing to relinquish possession he breached the agreement. Mostert’s breach excused TMG’s obligation to perform, and therefore Mostert was not entitled to summary judgment granting him the last installment payment.

IX. CRIMINAL LAW

A. Posey v. Commonwealth, 2018-SC-000085-MR, 595 S.W.3d 81 (Ky. 2019)

Opinion of the Court by Justice Hughes. All sitting; all concur. Posey was sentenced to life in prison for murder and being a convicted felon in possession of a handgun. Posey murdered a man who was in a relationship with the mother of his two children. More than a year before the murder, Posey began making threatening comments to the victim via text message and Facebook. On appeal, Posey argued that the trial court erred by not giving an extreme emotional disturbance (EED) instruction, by not admonishing the jury that prior threats are not substantive evidence that he committed a crime, and by not excluding certain prior convictions. The Supreme Court held that Posey was not entitled to an EED instruction because there was no sudden or shocking triggering event, and Posey’s distraught state of mind was not temporary because he made threats for over a year. Additionally, Posey failed to timely request an admonition regarding the purpose of the threats evidence. Such a request must be made at the time the evidence was admitted and no later than after the direct examination at which the evidence was introduced. As to the prior convictions, the trial court did not err in declining to exclude prior convictions that were provided to the defense before the penalty phase. The Commonwealth received the prior conviction records late, despite attempting to get them sooner. Although not deemed a discovery violation in this case, this Court will not set aside a conviction without reasonable probability that timely disclosure would have changed the result of the trial. The Court affirmed the judgment of the Logan Circuit Court.

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B. Easterling v. Commonwealth, 2018-SC-000184-MR, 580 S.W.3d 496 (Ky. 2019)

Opinion of the Court by Justice Hughes. All sitting; all concur. When Easterling became a suspect in the murder of a high school classmate, a deputy interviewed Easterling at the sheriff’s department with his mother present. Easterling confessed he shot the classmate. Upon hearing her son’s confession, Easterling’s mother terminated the interview by asking for an attorney. Easterling’s grandfather then joined Easterling and his mother in the interview room and Easterling, in response to a question from his grandfather, again acknowledged that he had killed the victim. Unbeknownst to them, the family’s conversation was videotaped. The trial court denied suppression of Easterling’s incriminating statement made during the conversation with his family members. Questions presented: 1) An issue of first impression, whether the trial court erred by denying the motion in limine to suppress the videotaped statement Easterling made to family members while in the police station interrogation room; 2) whether the trial court erred denying his motion in limine to prohibit introduction of gruesome photographs from the crime scene and autopsy. Held: 1) Easterling was in custody at the sheriff’s department, handcuffed and under arrest, with a camera visible upon the wall of the interrogation room where he was being held. Easterling did not have a reasonable expectation of privacy under these circumstances. Furthermore, when Easterling’s mother terminated the interview, the police left the room and the illegal interrogation ceased. The incriminating statements were made as a direct result of a family member’s question to Easterling, a situation not subject to police control. The brief videotaped statement used against Easterling was not fruit of the poisonous tree. 2) The challenged photos depicted the victim fully clothed and lying on the ground, the injuries to his mouth and teeth, and the victim’s gunshot wounds, lacking any disfigurement or gore. The photos, relevant and highly probative of the commission of the crime by Easterling and the nature and severity of the victim’s injuries, were properly admitted.

C. Beard v. Commonwealth, 2017-SC-000633-MR, 581 S.W.3d 537 (Ky. 2019)

Opinion of the Court by Justice Hughes. All sitting; all concur. Criminal Appeal. Beard was arrested for shooting his cousin. While interviewing Beard, the investigating officer identified four witnesses by name who would testify at trial that Beard shot the victim. Only three of those four witnesses testified but the Commonwealth played the videotaped interview which identified the fourth non-testifying witness. A jury convicted Beard of first-degree burglary, second-degree assault, and second-degree wanton endangerment. During the penalty phase, the Commonwealth stated incorrectly to the jury that first-degree burglary is a non-violent offense and that Beard would be eligible for parole after serving 20 percent of his sentence. The Commonwealth urged the jury to recommend the maximum sentence for each crime, stating that Beard would be eligible for parole after just six years. However, as sentenced, Beard was only eligible for parole after serving 17 years. Beard testified during the penalty phase and

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admitted he shot the victim. Beard was removed from the witness stand when he did not comply with the trial court’s admonitions, one being to refrain from testifying about unsubstantiated allegations that the victim sexually abused Beard’s daughter. Questions presented: Whether the trial court erred by 1) allowing inadmissible hearsay testimony into evidence; 2) not correcting the Commonwealth’s misstatement of Beard’s parole eligibility on the first-degree burglary charge; and 3) improperly limiting Beard’s testimony during the penalty phase. Held: 1) Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813, 822 (2006), support Beard’s argument that in this case the witness identifications of the shooter, information provided to the detective during his investigation of the crime, are testimonial. However, given all the evidence, which included three other witnesses’ testimony that Beard shot the victim, palpable error relief was not warranted. 2) The false parole eligibility information had a reasonable likelihood of influencing the jury’s decision regarding Beard’s sentence. Palpable error relief being warranted, Beard’s sentence is reversed, and the case remanded for a new penalty phase. 3) Despite Beard denying during the guilt phase that he shot the victim, once the jury found him guilty of the crimes, hopes of leniency from the jury were tied to reasons he committed the crime. Because the daughter’s allegations served as a motive for Beard’s commission of the crimes, particularly the assault crime, they are relevant to mitigation and leniency and may be included in Beard’s explanation for why he shot the victim.

D. Commonwealth v. Ferguson, 2017-SC-000651-DG, 581 S.W.3d 1 (Ky. 2019)

Opinion of the Court by Justice Wright. All sitting. Buckingham, Hughes, Keller, VanMeter and Wright, JJ., concur. Lambert, J., dissents by separate opinion. After the Supreme Court of Kentucky affirmed Ferguson’s conviction and sentence for murdering his nephew, Ferguson filed an RCr 11.42 motion in the trial court asserting that his trial counsel had been ineffective. The trial court denied that motion and Ferguson appealed to the Court of Appeals. That court reversed, holding that Ferguson had been denied effective assistance of counsel. The Commonwealth sought discretionary review to the Supreme Court, which was granted. Applying analysis pursuant to Strickland v. Washington, 466 U.S. 668, 687 (1984), the Court reversed the Court of Appeals, holding “[t]here is not a reasonable probability that the outcome of the trial would have been different but for any of [Ferguson’s counsel’s] purported deficiencies.”

E. Warick v. Commonwealth, 2018-SC-000229-DG, 592 S.W.3d 276 (Ky. 2019)

Opinion of the Court by Justice Hughes. All sitting. Minton, C.J.; Keller, and Lambert, JJ., concur. Buckingham, J., dissents by separate opinion in which VanMeter and Wright, JJ., join. Wright, J., dissents by separate opinion in which Buckingham and VanMeter, JJ., join. Criminal Appeal, Discretionary Review Granted. Warick and his passengers purchased food at a Floyd County restaurant at the drive-thru and then waited in the parking

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lot for its preparation. A restaurant employee, having noticed an open can of beer in Warick’s console, called the police. Warick passed the field sobriety and breathalyzer tests but after a passenger was removed from the vehicle, searched and found to have drug paraphernalia, the K-9 unit was called. The K-9 unit alerted to the grassy area behind Warick’s car. The officers discovered a baggie of marijuana and a pill bottle containing seven oxycodone pills about 10-15 feet away from the vehicle. Search warrants were issued for the vehicle and Warick’s Johnson County home. After the trial court denied Warick’s suppression motion alleging incriminating evidence was discovered because the police unduly prolonged the DUI stop, Warick entered conditional Alford pleas. The Court of Appeals concluded Warick lacked “standing” to challenge the dog sniff search because he did not show he had a reasonable expectation of privacy in the grassy area searched. Question presented: Whether Warick properly invoked his right to Fourth Amendment protection. Held: As directed by Rakas v. Illinois, 439 U.S. 128 (1978), and previously acknowledged within Kentucky’s Fourth Amendment, Fourth Amendment “standing” is subsumed under substantive Fourth Amendment doctrine. Rather than a question of “standing,” “the question is whether the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.” Id. at 140. Warick properly asserted that the officers’ actions infringed upon his own Fourth Amendment rights. When focusing on the grassy area search as the primary alleged illegality, the Court of Appeals overlooked Warick’s argument that the evidence obtained after the officers completed the traffic stop was tainted fruit which could not be used against him.

F. Rudd v. Commonwealth, 2018-SC-000393-MR, 584 S.W.3d 742 (Ky. 2019)

Opinion of the Court by Justice VanMeter. All sitting; all concur. Jason Rudd appealed as a matter of right from a circuit court judgment sentencing him to 20 years’ imprisonment for first-degree sexual abuse and for being a first-degree persistent felony offender. On appeal, the Court held that Rudd waived any unanimous verdict argument because he submitted the jury instructions which he claimed on appeal were erroneous. Further, the Court held that the entire jury pool was not tainted by a social media post distributed within the community, and the Livingston Circuit Court properly conducted voir dire regarding any alleged bias of prospective jurors. Accordingly, the Court affirmed the judgment and sentence imposed by the circuit court.

G. Iraola-Lovaco v. Commonwealth, 2018-SC-000257-MR, 586 S.W.3d 241 (Ky. 2019)

Opinion of the Court by Justice VanMeter. All sitting; all concur. Asiel Iraola- Lovaco appealed as a matter of right his conviction for three counts of assault in the second degree and one count of DUI first offense, stemming

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from an incident in which he struck three pedestrians with his vehicle while driving intoxicated. Iraola-Lovaco raised two claims of error on appeal. Regarding his first, and unpreserved, claim of error, Iraola-Lovaco argued that the arresting officer should not have been permitted to identify the field sobriety tests (“FSTs”) he conducted as “tests” and to testify that Iraola- Lovaco “failed the tests” as this nomenclature improperly lent the investigative procedures the gravitas of scientific weight for which no scientific opinion foundation was laid, and therefore should not have been admitted under KRE 702. The Court held that no palpable error resulted from the trial court’s admission of the police officer’s testimony to this effect, noting that Kentucky law is clear that evidence of FSTs is admissible and that officers observing a defendant’s driving and physical condition may offer opinion testimony that the defendant was intoxicated. Specifically, in this case, the officer did not equate a level of certainty or probability to his opinion that Iraola-Lovaco was intoxicated, or correlate Iraola-Lovaco’s performance on the FSTs with a specific blood alcohol content (“BAC”) level. Rather, the officer properly testified that based on his training, experience, and personal observations, Iraola-Lovaco’s performance on the FSTs led the officer to opine that Iraola-Lovaco was intoxicated. Secondly, the Court held that the evidence presented at trial did not support an instruction on fourth-degree assault as the evidence showed that all three victims suffered serious physical injury and that Iraola-Lovaco was legally intoxicated when he struck the three victims (his BAC was between 0.105-0.116), he was speeding and drove up on the sidewalk when he struck them, and he left the scene of the accident after striking them.

H. McGuire v. Commonwealth, 2017-SC-000404-MR, 595 S.W.3d 90 (Ky. 2019)

Opinion of the Court by Chief Justice Minton. All sitting. Minton, C.J.; Buckingham, Hughes, and Keller, JJ., concur. Wright, J., concurs in part and dissents in part by separate opinion, in which Lambert and VanMeter, JJ., join. McGuire was convicted in Henderson Circuit Court of first-degree trafficking in a controlled substance, second-degree fleeing and evading police, tampering with physical evidence, resisting arrest, and of being a first-degree persistent felony offender. McGuire appealed to the Kentucky Supreme Court as a matter of right alleging several issues for review. The Court first held that it was not error for the trial court to allow a police officer to testify that, based on his experience, the small plastic bags found on McGuire were commonly used to carry drugs, the quantity of drugs recovered was inconsistent with personal use, and the persons in possession of drugs for personal use were usually found with some means of administering the drugs. The Court determined this testimony did not amount to an opinion on the ultimate issue of whether McGuire was guilty of trafficking and further determined that the officer was qualified to render these opinions. The Court next held that sufficient evidence existed for a jury to conclude that McGuire possessed the drugs in question in order to support the conviction for trafficking in a controlled substance. Specifically, the Court found that testimony by an officer that he saw McGuire move his hand away from his body in a manner consistent with throwing an object during a foot pursuit and that the officer later returned to the same area and

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recovered the drugs was sufficient for a jury reasonably to infer that McGuire was in actual possession of the drugs. Finally, the Court held there was insufficient evidence to support a conviction for tampering with physical evidence because McGuire had merely tossed evidence of a possessory crime in the presence of an officer and the officer was able to quickly and readily retrieve it upon returning to the scene. To reach this conclusion, the Court looked to the rule announced in Commonwealth v. James, 586 S.W.3d 717 (Ky. 2019). Accordingly, the Court reversed McGuire’s conviction for tampering with physical evidence but affirmed the remaining convictions.

I. Commonwealth v. James, 2017-SC-000576-DG, 2018-SC-000066-DG, 586 S.W.3d 717 (Ky. 2019)

Opinion of the Court by Chief Justice Minton. All sitting. Minton, C.J.; Buckingham, Hughes, and Keller, JJ., concur. Wright, J., concurs in part and dissents in part by separate opinion, in which Lambert and VanMeter, JJ., join. James was convicted in the Henderson Circuit Court of tampering with physical evidence, first-degree possession of a controlled substance, and possession of drug paraphernalia. The Court of Appeals reversed the trial court, finding there was insufficient evidence for a jury to conclude James was in possession of the drugs and drug paraphernalia and, therefore, also insufficient evidence to find James tampered with the evidence. The Kentucky Supreme Court granted discretionary review to determine whether sufficient evidence exists to support a charge of tampering with physical evidence under KRS 524.100 where a defendant drops or tosses physical evidence of a possessory crime in the presence of an officer. The Court first concluded that sufficient circumstantial evidence existed to allow a reasonable jury to infer that James was in actual possession of the drugs and paraphernalia because an officer testified that he observed James dropping something from his waistline and later recovered the evidence in that same area. The Court then concluded there was insufficient evidence to support the tampering with physical evidence charge because James’s dropping the glass pipe on the ground in the presence of an officer did not constitute “concealment” or “removal” under the statute. The Court looked to the interpretations of similar statutes by other state courts and concluded that, where a defendant merely drops, throws down, or abandons potential evidence of a possessory crime in the vicinity of the defendant and in the presence and view of the police, and in a manner that renders the evidence quickly and readily retrievable by the police, the act of “concealment” or “removal” has not occurred under KRS 524.100. Accordingly, the Court upheld James’s convictions for possession of a controlled substance and drug paraphernalia but reversed the conviction for tampering with physical evidence.

J. Hunter v. Commonwealth, 2018-SC-000166-MR, 587 S.W.3d 298 (Ky. 2019)

Opinion of the Court by Justice Keller. All sitting; all concur. On July 17, 2012, patrol officers noticed Keantay Hunter jogging and attempting to waive down a car with a heavy object in the pocket of his shorts, which the

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officers believed to be a gun. They approached Hunter and announced that they were police. In response, Hunter immediately ran from the officers. Hunter was apprehended and arrested, but his pocket was empty. Officers set up a perimeter to locate the gun. In this other pocket, the officers located a live .380 round. They then received a “shots fired” call over the radio, in reference to the shooting of two individuals in a nearby home. One of those individuals had been fatally wounded. Hunter, then 17 years old, was ultimately transferred to circuit court under KRS 635.020(4) for trial as an adult. A Jefferson County jury found him guilty of murder, assault in the first degree, tampering with physical evidence, fleeing or evading police in the second degree, and possession of a handgun by a minor. He was sentenced to 25 years in prison. The Supreme Court affirmed in part and reversed in part. The Court first held that the juvenile transfer statute, KRS 635.020(4), was constitutional. Furthermore, the trial court did not err in denying Hunter’s motion to suppress the gun and live round as fruits of an illegal search and seizure. Under California v. Hodari D., 499 U.S. 621 (1991) and Taylor v. Commonwealth, 125 S.W.3d 216 (Ky. 2003), Hunter was not seized until he was physically subdued by the officers. At that point, they had probable cause to arrest Hunter for fleeing and evading in the first degree. The live round was then discovered in a search incident to that lawful arrest. The Court also held that the jury verdict of not guilty on attempted murder and the verdict of guilty on assault first degree were not inconsistent. Lastly, the Court held that the trial court did not err in denying Hunter’s motions for directed verdict on assault in the first degree and tampering with physical evidence because the Commonwealth had presented sufficient evidence of both for a reasonable jury to find guilt. Both parties agreed, however, that the trial court had erred in denying Hunter’s motion for directed verdict on the charge of fleeing or evading police in the second degree. The Supreme Court therefore vacated Hunter’s conviction for fleeing or evading police in the second degree but affirmed the remaining convictions. The case was remanded to the trial court for entry of a judgment consistent with the Court’s opinion.

K. Ward v. Commonwealth, 2018-SC-000056-MR, 587 S.W.3d 312 (Ky. 2019)

Opinion of the Court by Chief Justice Minton. All sitting; all concur. Ward was convicted in Boone Circuit Court of first-degree sexual abuse, third- degree rape, third-degree sodomy, use of a minor in a sexual performance, and possession of matter portraying a sexual performance by a minor. Ward appealed to the Kentucky Supreme Court as a matter of right alleging several issues for review. The Court first held that the Commonwealth’s possession of privileged attorney-client information, in the form of jail phone calls including conversations between Ward and his attorney, did not violate Ward’s Sixth Amendment right to counsel. As such, the Commonwealth’s possession of that information did not require the disqualification of the Commonwealth’s Attorney’s Office and the Sheriff’s Department. The Court noted that there was no evidence suggesting that the jail routinely recorded attorney-client telephone calls or visits, or that the jail had no protocol for privileged calls or visits. The Commonwealth had also not sought to obtain recordings of privileged conversations and,

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instead, the obtaining of such calls was a mistake. The Court next held that the trial Court erred in denying Ward’s motion to strike for cause a prospective juror who indicated that she had previously been raped while she was a minor. The Court found that the nature of the juror’s experience and her answers to defense counsel and the trial court’s questions created a reasonable ground to believe the juror could not render a fair and impartial verdict on the evidence. The Court also found this error to be preserved and, relatedly, announced a new rule that litigants must show clearly on their strike sheet that a peremptory strike was used on the juror for which they later complain on appeal should have been struck for cause. As such, the Court reversed Ward’s conviction and remanded the case for a new trial. The Court also addressed two issues likely to occur on remand. First, the Court held that the trial court’s denial of Ward’s motion to suppress evidence recovered by officers at his residence was, at most, harmless error, because the only evidence recovered was one or two cell phones, and Ward had not explained how the admission into evidence of the cell phones or their contents harmed him during his trial. Second, the Court determined that the trial court did not err in excluding from evidence, pursuant to the rape shield rule, testimony regarding the victim’s prior allegations of sexual misconduct made against her brother because there was not a substantial probability that the prior allegations were false.

L. Commonwealth v. Gilmore, 2018-SC-000588-DG, 587 S.W.3d 627 (Ky. 2019)

Opinion of the Court by Justice VanMeter. All sitting; all concur. The Court granted discretionary review of a Court of Appeals’ decision holding that the trial court’s probation revocation findings were not adequate to satisfy the requirements of KRS 439.3106. After review, the Court opined that an appellate court reviews probation revocation findings of a trial court by looking at “both the written and oral findings in conjunction with one another and not separately in a vacuum.” After conducting this analysis, the Court held that the trial court complied with KRS 439.3106 and the rule set forth in Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014), regarding the requirements of probation revocation hearings. Accordingly, the Court of Appeals’ opinion was reversed.

M. McLemore v. Commonwealth, 2017-SC-000293-MR, 590 S.W.3d 229 (Ky. 2019)

Opinion of the Court by Justice Wright. Minton, C.J., Hughes, Keller, Lambert, VanMeter, and Wright, JJ., concur. Nickell, J., not sitting. A Jefferson Circuit Court jury found Appellant, William McLemore, guilty of murder, first-degree assault, and first-degree wanton endangerment. McLemore and four others were involved in a shooting that left 16-month- old Ne’Riah Miller dead as she played on the porch with her parents and uncles. Ne’Riah’s mother was also injured by a gunshot. McLemore was sentenced to 35 years’ imprisonment for his involvement in these crimes. McLemore appealed his convictions to the Supreme Court of Kentucky as a matter of right, Ky. Const. §110(2)(b), alleging that the trial court erred in: (1) allowing the Commonwealth to present evidence that one of his co-

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defendants had been shot in the months leading up to the murder; (2) ruling that McLemore could not call a particular impeachment witness, as it found the witness had a Fifth Amendment right not to testify; and (3) denying McLemore’s right to a speedy trial. The Supreme Court disagreed with McLemore and affirmed his convictions and corresponding sentences. As to McLemore’s first allegation of error, the Court held that evidence that a co-defendant had been previously shot did not prejudice McLemore, unduly or otherwise. Rather, the Court held that evidence helped establish a motive for the shooting. As to McLemore’s second claim of error, the Court stated that “[b]oth McLemore’s and the Commonwealth’s proffered questions (which concerned where he was on the day of the two shootings, who he was with, and, more directly, whether he was involved in [an earlier] shooting) could have implicated [the witness] in a crime.” Therefore, the Court held that the trial court had not abused its discretion in ruling that McLemore could not call the witness, as that witness had a Fifth Amendment right not to testify. Finally, as to McLemore’s speedy trial claim, the Court went through a thorough analysis of the factors set out in Barker v. Wingo, 407 U.S. 514 (1972). The Court held that while the length of the delay was presumptively prejudicial in order to trigger a full inquiry, “his compliance in agreeing to an order that resulted in his trial date being rescheduled for an unassigned future date casts serious doubt on his desire for a speedy trial.” Holding that McLemore did not show any serious prejudice, the Court held he was not deprived of his right to a speedy trial.

N. Culver v. Commonwealth, 2017-SC-000568-DG, 590 S.W.3d 810 (Ky. 2019)

Opinion of the Court by Justice Hughes. Minton, C.J., Hughes, Keller, Nickell, VanMeter, and Wright, JJ., concur. Lambert, J., not sitting. Criminal Appeal. A jury found Culver guilty of first-degree fleeing or evading police (motor vehicle), first-degree wanton endangerment (two counts, one count for each pursuing police officer), second-degree wanton endangerment, theft by unlawful taking over $500; and being a persistent felony offender in the first degree (PFO I). The Court of Appeals vacated the second- degree wanton endangerment conviction but affirmed all the other convictions. On discretionary review to the Supreme Court, Culver continued only his challenge of the first-degree fleeing or evading and first- degree wanton endangerment convictions, arguing the Court of Appeals erred when affirming the trial court’s denial of his directed verdict motions. Culver’s primary argument was that the Court of Appeals ignored factually similar Willis v. Commonwealth, 2016 WL 4487202 (Ky. Aug. 25, 2016) (unpublished), and like Willis, the evidence introduced at his trial was not sufficient to prove he created a substantial risk of serious physical injury or death, the element common to both charges, when the police pursued him in a motor vehicle chase. Although Culver contends otherwise, the risks created were not due to speeding alone. In the instant case, it is undisputed that the pursuit happened in the dark, while traveling down the highway and curvy side roads, and the officers’ speed reached 10-25 m.p.h. over the limit while pursuing a faster traveling Culver. Both officers testified they felt in danger as they pursued Culver. When speeding occurs with other factors (for example, disobeying stop signs and red lights; inclement weather; and

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circumstances in which other vehicles and pedestrians are at risk of serious physical injury indicated by the need to get out of the defendant’s way, or likely to be put at such risk, such as in congested areas with schools and shopping centers) it may be enough to establish a substantial risk of serious physical injury. See e.g., Brown v. Commonwealth, 297 S.W.3d 557 (Ky. 2009); Lawson v. Commonwealth, 85 S.W.3d 571 (Ky. 2002); McCleery v. Commonwealth, 410 S.W. 3d 597 (Ky. 2013). The officers’ testimony, which may be viewed in harmony with the other circumstances of the pursuit, was sufficient to allow the jury to decide whether Culver caused or created a substantial risk of serious injury or death to the pursuing officers.

O. Bullitt v. Commonwealth, 2018-SC-000190-MR, 595 S.W.3d 106 (Ky. 2019)

Opinion of the Court by Justice Hughes. Minton, C.J., Hughes, Keller, Lambert, VanMeter, and Wright, JJ., concur. Nickell, J., not sitting. Criminal Appeal. A jury found Bullitt guilty of first-degree rape and of being a persistent felony offender in the first degree (PFO I). As recommended by the jury, the trial court sentenced Bullitt to 20 years in prison. Bullitt contends the trial court erred by 1) denying his motion for a directed verdict on the PFO I charge; and 2) denying his motion to suppress his statements to police. KRS 532.080(3) pertinently provides that a person is guilty of being a PFO I when he stands convicted of committing one or more felony sex crimes against a minor as defined in KRS 17.500 and that the previous felony conviction includes convictions in any other jurisdiction as long as certain conditions are met. As to other jurisdictions, KRS 17.500(8)(c) defines “sex crime” as a “felony offense from another state or a territory where the felony offense is similar to a felony offense specified in [KRS Chapter 510, Sexual Offenses].” Bullitt argued on appeal that because the Commonwealth failed to prove the age of the child in the Georgia statutory rape conviction, it did not establish that the Georgia offense is similar to an applicable Kentucky felony statutory rape offense, and his PFO I conviction must be dismissed. Bullitt’s argument on appeal goes beyond the motion for a directed verdict. Review is limited to whether it would be clearly unreasonable for a jury to find Bullitt was previously convicted of a sex crime with a minor. The Commonwealth presented proof during the penalty phase that Bullitt was previously convicted in Georgia of committing the felony offense of statutory rape. Upon review, although it is better practice to introduce a minor victim’s age into evidence as part of the PFO proof, the Court concluded that “statutory rape” is commonly understood to be the offense of unlawful sexual intercourse with a minor. Consequently, the jury could reasonably infer from the evidence that Bullitt was convicted in Georgia of committing a sex crime against a minor. Police officers interviewed Bullitt about the sexual assault accusation the same day he was arrested. Bullitt did not confess to any crimes during his interrogation. Bullitt moved to suppress his statements to police. Bullitt identified two statements which he alleges should have been understood by the interviewing officer as the invocation of his right to remain silent. Bullitt alleges that he first invoked his right to remain silent by stating “if I’m going to jail, I’m saying, let’s go, you know, that’s all I’m saying, sir. I’m innocent,

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I’m innocent.” The Court agreed with the trial court that Bullitt’s request to be taken to jail, made in the context of expressing frustration with being charged with rape, did not clearly communicate to the officer that he wanted to remain silent or that he did not want to talk with the police, and was not an invocation of the right to remain silent. Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010). The other statement at issue, “I’m done talking . . . whatever y’all got to do, man, y’all do it,” on its own, could be viewed as an invocation of the right to remain silent. However, Bullitt on his own volition continued to talk about the case by stating “if I was the rapist . . .” Under these circumstances, Bullitt again waived his right to remain silent and was subject to further interrogation. Oregon v. Bradshaw, 462 U.S. 1039,1043 (1983). Because Bullitt’s Fifth Amendment rights were not violated, the trial court did not err when denying his motion to suppress.

P. Wright v. Commonwealth, 2018-SC-000237, 590 S.W.3d 255 (Ky. 2019)

Opinion of the Court by Justice Lambert. Minton, C.J., Hughes, Keller, Lambert, VanMeter, and Wright, JJ., concur. Nickell, J., not sitting. Defendant was convicted of one count of first-degree sodomy, victim under 12 years old. At trial, after jury deliberations began, the trial court read the jury two separate Allen charges. Allen v. United States, 164 U.S. 492 (1896); RCr 9.57. The trial court also spoke to the foreperson three separate times out of the presence of the rest of the jury regarding their deliberations. On appeal, the defendant implored the Court to adopt a rule stating that giving a jury multiple Allen charges is per se coercive. The Court declined to do so, and instead held that appellate courts should consider the totality of the circumstances to determine whether or not the giving of multiple Allen charges coerced a jury into reaching a verdict. Further, though it found the error to be waived, the Court reiterated that trial courts must follow RCr 9.74’s prohibition against speaking to an individual juror outside the presence of the rest of the jury after deliberations begin.

Q. Herrera Hernandez v. Commonwealth, 2018-SC-000492-DG, 600 S.W.3d 174 (Ky. 2019)

Opinion of the Court by Justice VanMeter. Minton, C.J., Hughes, Keller, Lambert, VanMeter, and Wright, JJ., concur. Nickell, J., not sitting. The Supreme Court granted discretionary review of the Court of Appeals’ dismissal of Genaro Herrera Hernandez’s appeal of the trial court’s order reducing the invoiced fee of a Spanish interpreter for services rendered on Hernandez’s behalf. The Court of Appeals granted the Commonwealth’s motion to dismiss on grounds that the appeal was not timely filed and an indispensable party (the interpreter) was not named in the notice of appeal. The Supreme Court affirmed the dismissal of the case, but on different grounds. The Supreme Court held that irrespective of the initial judicial authorization of the interpreting services, and subsequent orders approving and/or reducing the interpreter’s fee, by statute, the payment obligation for the interpreter’s fee remained with the requesting agency, the Louisville Public Defender’s Office. KRS 30A.415(2). Because resolution of the fee issue is between the interpreter and the Louisville Public Defender’s Office, the Court concluded that the attempt to try and recoup the interpreter’s fee

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in Hernandez’s name and in this circuit court case was improper and dismissed the appeal.

R. Torrence v. Commonwealth, 2018-SC-000322-MR, 2020 WL 1303912 (Ky. Feb. 20, 2020)

Opinion of the Court by Justice Wright. All sitting; all concur. A Jefferson Circuit Court jury convicted Appellant, Michael D. Torrence, of first-degree assault and possession of a handgun by a convicted felon and found him to be a persistent felony offender. He was sentenced to 25 years’ imprisonment and appealed to the Supreme Court of Kentucky as a matter of right, Ky. Const. §110(2)(b). On appeal, Torrence alleged the trial court erred by: (1) failing to remove a juror and failing to grant a mistrial concerning said juror; (2) allowing a lay witness to testify as to historical cell tower data and several other related sub-issues; and (3) failing to suppress the victim’s identification of Torrence in a police photo array and in court. The Supreme Court affirmed, holding: (1) the trial court did not err in failing to remove the juror in question and there was, therefore, no manifest necessity for the court to grant Torrence’s mistrial motion; (2) the trial court did not err in allowing a lay witness to testify regarding historical cell tower data, as lay testimony may be used to present historical cell- tower data so long as the testimony does not go beyond simply marking coordinates on a map – and the witness’s testimony was so limited; and (3) the trial court did not err in allowing the introduction of the victim’s identification of Torrence in a photo array after previously being shown a photograph of Torrence by another individual, as there was no state action involved in showing him the previous photograph.

S. Howard v. Commonwealth, 2018-SC-000468-MR, 2018-SC-000469-MR, 595 S.W.3d 462 (Ky. 2020)

Opinion of the Court by Justice Keller. All sitting; all concur. On May 15, 2016, Michael Howard reported a theft from his home in Harlan County, Kentucky. In the process of investigating that crime, police discovered that Howard had engaged in sexual acts with minors and provided drugs to minors. Howard was indicted on 49 counts involving 16 different victims. A Harlan County jury found Howard guilty on 21 counts, and he was sentenced to the statutory maximum of 70 years in prison. The Court first held that the trial judge did not abuse his discretion in finding that Howard failed to produce sufficient evidence to merit an in camera review of requested juvenile records of some of the victims, as Howard only made vague statements that what transpired in the juvenile cases would be part of his defense and would be exculpatory. Second, the Court held that the trial court did not err in denying Howard’s motion for an independent mental health evaluation as he failed to provide any evidence of a “reasonable necessity” for the assistance of an independent evaluator. Next, the Court held that the waiver of an objection to taking testimony of a child victim pursuant to KRS 421.350 can be executed by counsel without a personal waiver by the defendant, and Howard’s counsel’s waiver was valid. Because the objection was waived, the Court declined to review the alleged

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error any further. Finally, the Court found no palpable error in the admission of KRS 404(b) evidence. Howard’s conviction was affirmed.

T. Helton v. Commonwealth, 2019-SC-000024-MR, 595 S.W.3d 128 (Ky. 2020)

Opinion of the Court by Justice Keller. All sitting; all concur. A jury found Robert Helton guilty of five counts of possession of matter portraying a sexual performance by a minor and five counts of distribution of matter portraying a sexual performance by a minor. The jury recommended a total sentence of 40 years of imprisonment, which was reduced to the statutory maximum of 20 years. The Supreme Court affirmed the judgment of the trial court. The Court held that (1) the trial court did not abuse its discretion in allowing the Commonwealth to show portions of five child pornography videos because the potential for undue prejudice did not outweigh the probative value of the videos; (2) the trial court did not abuse its discretion in permitting testimony about additional child pornography images because the court appropriately limited the scope of that testimony and provided a limiting admonition; and (3) Helton’s due process rights were not violated by the introduction of incorrect parole eligibility information during the sentencing phase because it was unlikely that the incorrect testimony affected his sentence.

U. Lamont White v. Commonwealth, 2014-SC-000725-MR, 600 S.W.3d 176 (Ky. 2020)

Opinion of the Court by Justice VanMeter. All sitting; all concur. This case was heard on remand from the U.S. Supreme Court for further consideration in light of the decision in Moore v. Texas, 137 S. Ct. 1039 (2017), discussing death penalty eligibility for defendants whose intellectual capacity is questioned. Following SCOTUS’s remand, White filed a pro se motion asking to have his intellectual disability claim waived. On remand, the Court opined that a defendant who has set forth evidence of a potential intellectual disability cannot waive his intellectual disability claim, “as that would impose the death penalty on a potentially intellectually disabled defendant – something the Commonwealth is without power to do.” The Court also held that White established a reasonable doubt as to his intellectual capacity based on his age 12 IQ scores of 71 and 68. The Court remanded White’s intellectual disability claim to the trial court to conduct an evidentiary hearing on this issue.

V. Commonwealth v. Bredhold 2017-SC-000436-TG, 2017-SC-000536-TG, 2017-SC-000537-TG, 599 S.W.3d 409 (Ky. 2020)

Opinion of the Court by Justice Hughes. All sitting; all concur. Criminal Appeal, Transfer Granted. Appellees Bredhold, Diaz and Smith, each indicted in Fayette County for murder and robbery, each older than 18 but under 21 years of age at the time of the alleged crimes, and for whom the Commonwealth noticed its intent to seek the death penalty, challenged pretrial the constitutionality of Kentucky’s death penalty statute. Each Appellee requested the trial court to extend the Roper v. Simmons, 543

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U.S. 551 (2005), death penalty prohibition for juvenile offenders under 18 years of age. The trial court was persuaded that the current national consensus and more recent scientific research now support raising the age for death-penalty eligibility to 21 years of age and accordingly declared Kentucky’s death penalty unconstitutional. Question presented: Whether evolving standards of decency are such that the Eighth Amendment to the United States Constitution prohibits imposition of the death penalty as to a defendant under 21 years of age at the time of his offense. Held: The question whether Kentucky’s death penalty is unconstitutional as to the age-based group identified by Appellees is currently not justiciable. At this stage of the criminal proceedings, none of the Appellees has been convicted, much less sentenced, and thus none of the Appellees has standing to present the issue of whether Kentucky’s death penalty constitutes “cruel and unusual” punishment under the Eighth Amendment.

W. Roberts v. Commonwealth, 2018-SC-000249-MR, 599 S.W.3d 841 (Ky. 2020)

Opinion of the Court by Justice Wright. All sitting. Minton, C.J.; Hughes, Keller, Lambert, and VanMeter, JJ., concur. Nickell, J., concurs in result only. A Graves Circuit Court jury convicted Appellant, Tammy Marie Roberts, of murdering her boyfriend, James Pinion. She was sentenced to 20 years’ imprisonment and appealed to the Supreme Court of Kentucky as a matter of right, Ky. Const. §110(2)(b). In her appeal, Roberts alleged: (1) the trial court erred in failing to grant a mistrial; (2) the trial court erred in refusing to instruct on self-defense and imperfect self-defense; (3) the trial court erred in ruling she did not qualify for the domestic violence exemption; and, (4) that she should be granted a new trial because of cumulative errors. The Supreme Court held that the trial court erred in failing to grant a mistrial where the Commonwealth played recordings of police interviews with Roberts containing references to a prior assault she committed 12 years earlier. The Supreme Court held that the trial court should have granted Roberts’s motion in limine which sought to exclude the evidence, but this alone was not reversible error. The Supreme Court reversed the trial court, holding the lower court committed reversible error in denying Roberts’s motions for mistrial after the inadmissible evidence was played numerous times for the jury. Furthermore, the Supreme Court held the trial court’s ruling that Roberts had not met the burden in showing her actions were “in regard to” domestic violence for parole eligibility in KRS 403.720 was clearly erroneous where extensive evidence indicated that Pinion’s act of taking money from Roberts was an act of domestic violence in the couple’s relationship.

X. Mulazim v. Commonwealth, 2018-SC-000466-MR, 2018-SC-000471-MR, 600 S.W.3d 183 (Ky. 2020)

Opinion of the Court by Justice Hughes. All sitting; all concur. A Fayette County jury found Dawan Q. Mulazim and Quincinio Deonte Canada guilty of several counts of first-degree robbery, tampering with physical evidence and of being first-degree persistent felony offenders. Mulazim and Canada robbed three people at gunpoint and robbed two others five days later,

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killing a man in the process. The trial court sentenced Mulazim to 60 years in prison and Canada to 50 years in prison in accordance with the jury’s recommendation. On appeal, they raise identical issues. The Supreme Court held that the trial court properly admitted a pre-trial photo identification in which police digitally removed a small tattoo from Canada’s face. Recognizing the novelty of the issue, the Court determined that the manipulation did not render the identification procedure impermissibly suggestive. Additionally, Mulazim and Canada argued that the trial court erred in failing to strike jurors for cause. The trial court granted more strikes than required by RCr 9.40 to both the defendants and the Commonwealth. Given the number of jurors the Appellants alleged should have been removed for cause, the trial court could have erroneously failed to remove four jurors and the Appellants still would have received everything they were entitled to under RCr 9.40. The Court determined that two of the five jurors were properly allowed to continue in the jury pool, thus concluding that the Appellants retained the advantage built into RCr 9.40. Other issues included the sufficiency of evidence to overcome a motion for directed verdict, impermissible burden shifting, evidence of prior convictions, and improper but harmless shackling in the penalty phase. Finding no error, the Court affirmed the judgment of the Fayette Circuit Court.

Y. Eversole v. Commonwealth, 2018-SC-000656-MR, 600 S.W.3d 209 (Ky. 2020)

Opinion of the Court by Justice Wright. All sitting; all concur. A Laurel Circuit Court jury found Appellant, Steven Dale Eversole, guilty of first-degree fleeing or evading, first-degree wanton endangerment, reckless driving, and being a first-degree PFO. He was sentenced to 20 years’ imprisonment in accordance with the jury’s recommendation. Eversole appealed to the Supreme Court of Kentucky as a matter of right, Ky. Const. §110(2)(b). On appeal, Eversole raised five issues, alleging the trial court erred by: (1) depriving him of counsel at a critical stage of trial; (2) failing to grant his motions for directed verdict; (3) denying him a unanimous verdict; (4) admitting evidence of uncharged prior bad acts; and (5) providing the jury with improper penalty-phase jury instructions. Agreeing with Eversole that the trial court erred in depriving him of the right to be represented during a critical stage of the trial when it had an ex parte discussion with a juror in which the juror revealed an attempted bribe, the Court reversed Eversole’s conviction, vacated the corresponding sentence, and remanded for further proceedings. Because it was reversing on other grounds, the Court only took up Eversole’s remaining arguments concerning his motions for directed verdict, holding the trial court had not abused its discretion in denying said motions.

Z. Zapata v. Commonwealth, 2018-SC-000666-MR, 2020 WL 2091861 (Ky. Apr. 30, 2020)

Opinion of the Court by Justice Wright. All sitting; all concur. A Jefferson County grand jury indicted Steven Zapata for one count of murder for killing his wife, Tondelia. Zapata entered a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), in which he maintained his innocence while

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acknowledging the Commonwealth had sufficient evidence to convict him. A week after entering the plea, Zapata’s court-appointed counsel filed a motion to withdraw the guilty plea. Four days after his counsel’s motion to withdraw the plea, Zapata mailed his own motion to withdraw the guilty plea, alleging deficiencies in representation. The trial court denied both motions and Zapata appealed to the Supreme Court of Kentucky. In Zapata v. Commonwealth, 516 S.W.3d 799 (Ky. 2017), the Supreme Court vacated the judgment and order denying Zapata’s motion to withdraw the guilty plea and remanded the case for further proceedings. On remand, Zapata’s newly-appointed counsel filed a new motion to withdraw Zapata’s guilty plea. After an evidentiary hearing, the trial court denied Zapata’s motion to withdraw his guilty plea and sentenced Zapata to 24 years’ imprisonment in accordance with the agreement. He again appealed to the Supreme Court of Kentucky as a matter of right, Ky. Const. §110(2)(b). In his second appeal to the Supreme Court, Zapata argued: (1) the trial court erred by not permitting him to withdraw his guilty plea (due to (a) ineffective assistance of counsel, (b) Elleman’s disqualifying conflict of interest, and (c) “Zapata’s incorrect belief of his absolute right to withdraw his guilty plea at any time prior to sentencing”); and (2) even assuming the plea was voluntarily entered, the trial court abused its discretion when it denied his motion to withdraw his guilty plea. The Supreme Court affirmed, holding the trial court did not err in denying Zapata’s motion to withdraw his guilty plea due to ineffective assistance of counsel, counsel’s alleged conflict of interest, or Zapata’s incorrect belief that he could withdraw his guilty plea at any point prior to sentencing. The Supreme Court also held the trial court did not abuse its discretion in denying Zapata’s motion to withdraw his plea.

AA. Breazeale v. Commonwealth 2019-SC-000113-MR, 2020 WL 2091814 (Ky. 2020)

Opinion of the Court by Justice Lambert. All sitting; all concur. Defendant was convicted of one count of first-degree assault and one count of first- degree criminal abuse in relation to severe injuries suffered by a one-year old child in his care. The Court held: (1) the defendant’s convictions for first- degree assault and first-degree criminal abuse did not violate his rights against being subjected to double jeopardy; (2) the jury instruction for first- degree criminal abuse did not violate his right to a unanimous verdict; (3) the trial court did not err by failing to instruct the jury on use of force by a person with the responsibility for care, discipline, or safety of others; (4) the trial court did not err by allowing prior bad acts evidence; and (5) the trial court did err by allowing two photographs into evidence.

AB. Carlisle v. Commonwealth, 2018-SC-000680-MR, 2020 WL 2831454 (Ky. 2020)

Opinion of the Court by Justice Keller. All sitting. Minton, C.J.; Hughes, Lambert, VanMeter, and Wright, JJ., concur. Nickell, J., concurs in result only by separate opinion. Rodney Carlisle, Jr. appealed his conviction of three counts of first-degree trafficking in a controlled substance. These charges stemmed from a routine traffic stop for faulty equipment, during which the driver consented to a search of the truck. Based on items

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

AC. Curry v. Commonwealth, 2019-SC-000306-MR, 2020 WL 2831836 (Ky. May 28, 2020)

Opinion of the Court by Justice Lambert. All sitting. Minton, C.J.; Hughes, Lambert, and VanMeter, JJ., concur. Keller, J., concurs in part and concurs in result only in part by separate opinion in which Nickell and Wright, JJ., join. Defendant was convicted of one count of murder, one count of being a felon in possession of a handgun and was found to be a first-degree persistent felony offender in relation to the fatal shooting of his roommate. The defendant claimed the shooting was in self-defense and that he was therefore entitled to jury instructions on both self-defense and no duty to retreat. As a matter of first impression this Court considered whether being a convicted felon in possession of a handgun was an “unlawful activity” for the purposes of entitlement to an instruction on no duty to retreat under KRS 503.055(3). This Court reiterated that entitlement to an instruction on self-defense does not automatically entitle a defendant to an instruction on no duty to retreat and held that being a felon in possession of a firearm is an unlawful activity under KRS 503.055(3). Accordingly, the defendant was not entitled to a jury instruction on no duty to retreat. The Court further held that the trial court did not abuse its discretion in declining to strike two potential jurors for cause.

X. DEBT COLLECTION

University of Kentucky v. Moore, 2018-SC-000193-TG, 2018-SC-000194-TG, 599 S.W.3d 798 (Ky. 2019)

Opinion of the Court by Justice Hughes. All sitting; all concur. Using KRS Chapter 45’s statutory framework for debt collection, University of Kentucky referred Sarah Moore’s delinquent UK Healthcare accounts to the Kentucky Department of Revenue for collection rather than filing civil suit against Moore. The Department’s collection efforts included imposition of a 25 percent collection fee and interest as well as garnishment of Moore’s paychecks, bank accounts, and tax refunds. Moore

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filed suit against UK and the Department and petitioned the circuit court for a declaration that the University is not an agency within the executive branch as required by KRS 45.237(l)(a) and therefore not authorized to refer its accounts to the Department. The circuit court rejected the University’s claim that sovereign immunity barred Moore’s action and declared the University is not in the executive branch of state government for purposes of KRS 45.237 et seq. Both decisions were appealed by the University and the Department, and the appeals were transferred from the Court of Appeals to the Supreme Court. Held: UK is within the executive branch for purposes of KRS 45.237 et seq. The University is principally a creature of the legislature and must fall within one of the three recognized branches. Neither removal of UK from the Department of Education through the 1952 amendment of KRS 156.010(3), nor KRS164.225’s or KRS164.160’s grant of a level of autonomy to the state universities which may not be enjoyed by other executive branch entities excludes UK from the executive branch. Furthermore, while Commonwealth ex rel. Beshear v. Commonwealth Office of the Governor ex rel. Bevin, 498 S.W.3d 355 (Ky. 2016), recognized that state universities maintain statutorily recognized independence in many respects, it also recognized that they are attached to the executive branch. Finally, as explained in Com. v. Kentucky Retirement Systems, 396 S.W.3d 833 (Ky. 2013), the state is not sovereignly immune from a declaratory judgment action.

XI. DEPENDENCY, NEGLECT, OR ABUSE

Cabinet for Health and Family Services v. H.C., 2018-SC-000534-DGE, 581 S.W.3d 580 (Ky. 2019)

Opinion of the Court by Justice Keller. All sitting; all concur. In a dependency, neglect, and abuse proceeding, the Harrison Family Court denied the indigent mother’s request for expert funding. The mother missed the deadline to file her notice of appeal of that decision, but the family court permitted a belated appeal. The Court of Appeals then reversed the family court’s expert funding decision, finding that the mother’s constitutional due process rights were impacted. The Supreme Court found that the Court of Appeals lacked jurisdiction because the mother had failed to timely file her notice of appeal and had failed to demonstrate excusable neglect for doing so as required by CR 73.02(1)(d). Accordingly, the Supreme Court vacated the Court of Appeals’ order and reinstated the order of the Harrison Family Court.

XII. FAMILY LAW

A. B.S.S. v. K.S., 2019-SC-000019-DG, 599 S.W.3d 858 (Ky. 2020)

Opinion of the Court by Justice Lambert. Minton, C.J.; Hughes, Keller, Lambert, VanMeter, and Wright, JJ., sitting. Hughes, Keller, Lambert, VanMeter and Wright, JJ., concur. Minton, C.J., dissents. A child custody and visitation case wherein the Mother filed a motion for sole custody of the child during the parties’ dissolution of marriage proceedings. The basis for the Mother’s motion for sole custody was that the Father was under investigation by the CHFS for allegedly sexually abusing the child. The family court granted the Mother temporary sole custody of the child. The Father subsequently filed for visitation in the dissolution action. After the

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Father filed for visitation, a dependency, neglect, and abuse action was filed against the Father with the same family court judge that presided over the dissolution action. The family court denied the Father’s motion for visitation due to the pending dependency, neglect, and abuse action. In the dependency, neglect, and abuse action, the family court ultimately found a risk of sexual abuse if the child was returned to the Father’s care. Prior to a disposition hearing in the dependency, neglect, and abuse action, the Father appealed to the Court of Appeals. The Court of Appeals failed to recognize that the appeal was interlocutory and affirmed the family court. After the Court of Appeals affirmed the family court in the dependency, neglect, and abuse action, the Father filed a motion to modify visitation. The family court judge noted that he did not find that sexual abuse occurred in the dependency, neglect, and abuse hearing, but rather that a risk of sexual abuse was present. After a hearing, the family court then ordered an incremental reunification plan between the Father and the Child. On appeal to the Court of Appeals, the Mother argued first that, because the Court of Appeals affirmed the family court in the dependency, neglect, and abuse proceeding, law of the case doctrine precluded the family court from disregarding its previous findings when ruling on visitation in the dissolution action. She further asserted that the family court abused its discretion by ignoring its own previous finding that sexual abuse occurred. The Court of Appeals did not address the law of the case argument, as it found clear error in the family court’s finding that it did not find that sexual abuse occurred in the dependency, neglect, and abuse proceedings. The Supreme Court’s holding was twofold. First, dependency, neglect, and abuse proceedings and dissolution of marriage proceedings are two different causes of action, and therefore law of the case doctrine was inapplicable. Second, the family court did in fact only find a risk of harm was present in the dependency, neglect, and abuse proceedings, not that sexual abuse had occurred. Holding there was substantial evidence to support the trial court’s findings, the Court of Appeals was reversed.

B. Layman v. Bohanon, 2019-SC-000364-DGE, 599 S.W.3d 423 (Ky. 2020)

Opinion of the Court by Justice Keller. Minton, C.J.; Hughes, Keller, Lambert, and Wright, JJ., concur. VanMeter, J., concurs in result only. Nickell, J., not sitting. The family court issued an order modifying the parties’ timesharing arrangement and holiday schedule and recalculating child support. The father appealed. The Court of Appeals affirmed the family court’s modification of the holiday schedule but reversed that portion of the family court’s order that modified timesharing and child support. The Supreme Court granted discretionary review on the timesharing and child support issues and ultimately reversed the Court of Appeals. The Supreme Court first held that the Court of Appeals had incorrectly applied the presumption of joint custody and equal parenting time found in KRS 403.270. Because this was a timesharing modification, KRS 403.320 – not KRS 403.270 – applied, and that statute did not contain any such presumption. The Supreme Court next held that the trial court did not err in modifying timesharing under the standard set forth in KRS 403.320. Lastly, the Supreme Court held that the trial court did not err in declining to impute any income to the mother for gifts received by her parents because the

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evidence indicated that these gifts were either nonrecurring or were given to the children rather than the mother.

XIII. GOVERNMENTAL IMMUNITY

Benningfield v. Fields, 2018-SC-000292-DG, 584 S.W.3d 731 (Ky. 2019)

Opinion of the Court by Justice Keller. All sitting; all concur. In this retaliation and wrongful termination case, the Taylor Circuit Court granted summary judgment in favor of Rick Benningfield, individually and in his official capacity as Taylor County Jailer, Taylor County Fiscal Court, and several other government officials. The Court of Appeals reversed, holding that KRS 342.197 constitutes a waiver of sovereign immunity against a governmental employer and that genuine issues of material fact existed, thereby precluding summary judgment. The Supreme Court affirmed the Court of Appeals’ holding that KRS 342.197 constitutes an implied waiver of sovereign immunity and affirmed the holding that disputed issues of material fact existed on Fields’s retaliation claim against Taylor County Fiscal Court and Benningfield in his official capacity. However, the Supreme Court concluded that no material facts remained in dispute as to the involvement of the other government officials, and therefore reversed that part of the Court of Appeals’ decision that held summary judgment was inappropriate for these individuals. The Supreme Court also held that Benningfield was entitled to qualified official immunity and therefore reversed the Court of Appeals’ decision to the extent it held summary judgment was inappropriate for Benningfield in his individual capacity. Accordingly, the Supreme Court reversed in part, affirmed in part, and remanded the matter back to Taylor Circuit Court on the remaining claim against Taylor County Fiscal Court and Rick Benningfield, in his official capacity as the former Taylor County Jailer.

XIV. JURISDICTION

Hauber v. Hauber, 2018-SC-000394-DG, 2019-SC-000154-DG, 600 S.W.3d 204 (Ky. 2020)

Opinion of the Court by Justice VanMeter. All sitting; all concur. John Hauber and Cheri Hauber (“the trustees”) petitioned for discretionary review of the Court of Appeals’ decision reversing the Jefferson Circuit Court’s dismissal of this case. The Jefferson Circuit Court had dismissed Henry Hauber, III’s and Rebecca Alter’s second action against the trustees of their parents’ trust on grounds that a prior action had been filed in and decided by the Jefferson District Court. The Kentucky Supreme Court affirmed the Court of Appeals, finding that while KRS Chapter 386B provides for concurrent jurisdiction for district and circuit courts over many trust-related matters and disputes, under subsection 2 of KRS 386B.2-030, the legislature focused on matters arising from any given trust in determining exclusive jurisdiction. Based on the statutory language, the Court held that the term “matter” as used in KRS 386B.2-030(2) refers to a discrete event arising from the trust, rather than the trust itself. Thus, although this case involves the same siblings, and same trust and trust instrument, the underlying matter and claims brought in circuit court differ from the dispute in district court. Accordingly, the Court remanded the case to the Jefferson Circuit Court to exercise jurisdiction over all further appropriate proceedings.

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XV. JURY SELECTION

Floyd v. Neal, 2018-SC-000277-DG, 590 S.W.3d 245 (Ky. 2019)

Opinion of the Court by Justice Lambert. Minton, C.J.; Hughes, Keller, Lambert, VanMeter, and Wright, J., sitting. Minton, C.J., Hughes, Keller, Lambert and VanMeter, JJ., concur. Wright, J., dissents by separate opinion. Nickell, J., not sitting. A medical malpractice case wherein the sole issue on appeal was whether the trial court’s alleged error of failing to strike a juror for cause was properly preserved. The Court acknowledged the need for clarity on the steps required to preserve such an issue, and held that the proper procedure was as follows: (1) move to strike a juror for cause and be denied the for cause strike; (2) exercise a peremptory strike on said juror by clearly indicating the peremptory strike on the litigant’s strike sheet; (3) exhaust all other peremptory strikes; (4) clearly indicate, by writing on the litigant’s strike sheet, the juror he or she would have used a peremptory strike on, had the litigant not been forced to use a peremptory on the juror complained of for cause; (5) designate the same number of would-be peremptory strikes as the number of jurors complained of for cause; (6) the would- be peremptory strikes must be made known to the court prior to the jury being empaneled; and (7) the juror identified on the litigant’s strike sheet must ultimately sit on the jury. To establish this procedure, the Court prospectively overruled Sluss v. Commonwealth, 450 S.W.3d 279 (Ky. 2014) insofar as it held that verbally stating on the record the juror a litigant would have exercised a peremptory strike on had the litigant not been required to use a peremptory strike on a juror that should have been struck for cause was sufficient to preserve the issue.

XVI. LANDLORD/TENANT ACT

Waugh v. Parker, 2018-SC-000405-DG, 584 S.W.3d 748 (Ky. 2019)

Opinion of the Court by Justice Buckingham. All sitting; all concur. Tenant filed a personal injury complaint against landlords after tenant was injured when a porch railing gave way, causing tenant to fall and sustain injuries. The circuit court granted landlords summary judgment and the Court of Appeals affirmed. Upon review the Court held: Landlords generally do not owe any duty to a tenant except to warn of any latent dangerous conditions that may exist on the property; Landlords were not liable to tenant for breach of a statutory duty under the Uniform Residential Landlord and Tenant Act, because the statute indicates that the URLTA was intended to supplement, not replace, the common law, and thus tenant's personal injury action was controlled by common law principles. KRS 383.590, 383.595(1)(a), 383.625, 383.635; Landlords were not liable to tenant under the negligence per se statute providing that any person injured by a violation of statute may recover such damages as he sustained by reason of the violation because the URLTA included remedies for a landlord’s noncompliance that materially affected health and safety. KRS 446.070; Where the statute both declares the unlawful act and specifies the civil remedy available to the aggrieved party, the aggrieved party is limited to the remedy provided by the statute; and that the jural rights doctrine did not preclude the General Assembly's limitation of a tenant's common law right to recover for injuries resulting from a violation of safety rules.

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XVII. MEDIAL MALPRACTICE

Sneed v. University of Louisville Hospital, 2019-SC-000048-DG, 600 S.W.3d 221 (Ky. 2020)

Opinion of the Court by Justice Keller. All sitting; all concur. Jassica Sneed was admitted to the University of Louisville Hospital (“Hospital”) on August 1, 2013 in active labor. She delivered her baby the next day under the care of Doctors Tanya Franklin and Jennifer Ford Allen. During her delivery, Sneed suffered a fourth- degree laceration. Two weeks later she was diagnosed with a rectovaginal fistula. She eventually filed claims against the Hospital and various doctors and nurses, including Drs. Franklin and Allen. The trial court granted summary judgment in favor of the defendants. On appeal Sneed argued that the statute of limitations was tolled by the continuous treatment doctrine and the fraudulent concealment of her medical records which delayed her discovery of the doctors who delivered her baby. She also argued that the physicians were ostensible agents of the Hospital. The Supreme Court (1) declined to expand the continuous treatment doctrine under the facts of this case to include situations when a patient continues to receive care at the same hospital but not by the same physician; (2) declined to apply equitable tolling principles due to fraudulent concealment because Sneed was well aware of her cause of action prior to the running of the statute of limitations; and (3) held that the there was no genuine issue of material fact as to whether Drs. Franklin and Allen were ostensible agents of the Hospital because the Hospital took reasonable steps to notify patients that they would be treated by independent contractor physicians, and there was no evidence of any intent of the Hospital to deceive its patients into believing that the physicians were employees of the Hospital, nor was there evidence of the Hospital holding the physicians out to be employees.

XVIII. MEDICAL NEGLIGENCE

Ashland Hospital Corporation v. Lewis, 2018-SC-000276-DG, 2018-SC-000279- DG, 581 S.W.3d 572 (Ky. 2019)

Opinion of the Court by Justice Keller. Minton, C.J.; Buckingham, Hughes, Keller, VanMeter, and Wright, JJ., sitting. All concur. Lambert, J., not sitting. The Boyd Circuit Court granted summary judgment in favor of Dr. Paul Wesley Lewis and Ashland Hospital Corporation d/b/a King’s Daughters Medical Center (“KDMC”) after finding that the complainant, David Shackelford, could not establish a prima facie case of negligence. Shackelford had alleged that the failure to diagnose his stroke, which arose after an angiogram, was negligent and caused injury greater than that which the stroke would have caused with earlier intervention. The trial court found that the proffered expert testimony failed to establish that any negligence on the part of the doctor or hospital was a substantial factor in causing injury to Shackelford. The Court of Appeals reversed, finding that expert testimony was not required to establish causation in this case. The Supreme Court reversed the Court of Appeals, holding that the complex medical evidence in this case was beyond the common knowledge of a layperson, and, as a result, expert opinion evidence was required to establish causation. The proffered expert opinion evidence failed to raise a genuine issue of material fact on the issue of causation and therefore, summary judgment was appropriate. Accordingly, the Court

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reversed the Court of Appeals and reinstated the trial court’s judgment.

XIX. REAL PROPERTY

Melton v. Cross, 2018-SC-000336-DG, 580 S.W.3d 510 (Ky. 2019)

Opinion of the Court by Chief Justice Minton. All sitting; all concur. The Crosses brought suit against the Meltons in Clinton Circuit Court claiming a vested right to use a private road across the Melton’s land as an easement acquired by prescription. The Meltons asserted that their predecessor-in-interest gave the Crosses permission to use the road. The Kentucky Supreme Court determined that a jury instruction stating that continuous, uninterrupted use of a passway without interference by the landowner for a period of more than 15 years gives rise to a presumption that the use was under a claim of right was warranted. The effect of that instruction would have been to shift the burden to the Meltons to offer evidence that the Crosses’ use was permissive. The Court found the trial court’s refusal to give this instruction was an abuse of discretion and was not harmless error. Accordingly, the case was reversed and remanded to the Clinton Circuit Court. The Court also determined that KRE 801A(c)(2), the admission-by-privity, predecessors-in-interest hearsay exception, allows statements by a predecessor in interest to be used only against a predecessor-in-interest’s successor. As such, on remand, the Meltons could not use that rule to admit a witness’s testimony that the Melton’s predecessor in interest had told the witness that he gave the Crosses permission to use the road. The Melton’s use of the testimony would have been in support of their position, not against it.

XX. SOVEREIGN IMMUNITY

State v. Great Lakes Minerals, LLC, 2018-SC-000161, 597 S.W.3d 169 (Ky. 2019)

Opinion of the Court by Justice Keller. Minton, C.J., Hughes, Keller, Lambert, VanMeter, and Wright, JJ., concur. Nickell, J., not sitting. Ohio’s Department of Taxation issued a tax assessment against Great Lakes Minerals, LLC (“Great Lakes”), a mineral processing company with a plant in Kentucky. In response, Great Lakes sued Ohio and Ohio’s Tax Commissioner in his official and individual capacities in circuit court in Kentucky, seeking both declaratory and monetary relief. Ohio moved to dismiss Great Lakes’ complaint on various grounds, including immunity and comity. The trial court denied the motion, Ohio appealed, and the Supreme Court accepted transfer of that interlocutory appeal. The Kentucky Supreme Court relied on the U.S. Supreme Court’s unequivocal statement in Franchise Tax Board of California v. Hyatt that under the U.S Constitution, “States retain their sovereign immunity from private suits brought in the courts of other States.” 139 S.Ct. 1485, 1492 (2019). The Kentucky Supreme Court saw no distinction between claims seeking monetary damages and claims seeking other types of relief and held that Ohio was protected by sovereign immunity. The Court further held that the Tax Commissioner, in his official capacity, was entitled to the same sovereign immunity that protects Ohio. Finally, the Court relied on the principle of comity to dismiss the claim against the Tax Commissioner in his individual capacity. The Court therefore reversed the judgment of the trial court and remanded for dismissal of the claims.

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XXI. STATUTE OF LIMITATIONS

Williams v. Hawkins, 2019-SC-000012-DG, 594, S.W.3d 189 (Ky. 2020)

Opinion of the Court by Justice Hughes. Minton, C.J.; Keller, VanMeter, Wright, JJ., concur. Lambert, J. dissents without separate opinion. Nickell, J., not sitting. Appellant Tracie Williams was injured in a two-vehicle accident with Charlotte Hawkins in March 2015. Despite public records indicating that Charlotte had died in October 2015, Appellant did not discover her death until one day prior to the expiration of the statute of limitations in March 2017. Because Appellant did not name her estate in place of Charlotte individually, the trial court dismissed the complaint and the Court of Appeals unanimously affirmed. On discretionary review, the Supreme Court affirmed. Appellant argued that she was not afforded the full statutory period to file her complaint because the non-existence of an estate prevented her from timely filing suit. She sought application of the doctrine of equitable tolling, which pauses the running of the limitations period if (1) she had been pursuing her rights diligently, and (2) some extraordinary circumstance stood in her way. The Supreme Court concluded that Appellant did not pursue her rights diligently because available public information indicated that Charlotte was deceased – an obituary and the probate case. The plaintiff has an affirmative obligation to locate the proper party defendant and determine their vital status, which could have easily been determined in this case by a simple internet search. Additionally, equitable estoppel is inapplicable because, contrary to Appellant’s assertion, there is no evidence suggesting that Charlotte’s insurer knew of her death. Without evidence that the insurer knew of the death, there is no evidence that the insurer concealed a material fact or intended to induce Appellant’s action or inaction in reliance thereon, as required by the estoppel doctrine. Lastly, despite Appellant’s argument that application of Gailor v. Alsabi, 990 S.W.2d 597 (Ky. 1999), regularly leads to unjust results, the result in this case could have been avoided with due diligence, something Kentucky law has always required in cases such as this. No extraordinary circumstance justifies deviating from this routine application of the statute of limitations.

XXII. SUMMARY JUDGMENT

Lawrence v. Bingham Greenebaum Doll, LLP, 2018-SC-000344-TG, 2019 WL 4072919 (Ky. Aug. 29, 2019), not reported in S.W.3d.

Opinion of the Court by Chief Justice Minton. All sitting; all concur. Bingham Greenebaum Doll, LLP, sued Meredith Lawrence in Gallatin Circuit Court to foreclose on property Lawrence had agreed to mortgage as security on his debt for services rendered by one of Bingham’s attorneys, Richard Kiefer. Lawrence counterclaimed for legal malpractice. The trial court granted summary judgment in favor of Bingham. The Kentucky Supreme Court concluded that the trial court erroneously granted summary judgment. Kiefer was not engaged in the unauthorized practice of law when representing Lawrence in the Eastern District of Kentucky even though Kiefer was not admitted to practice law in Kentucky because he had been duly admitted pro hac vice. Lawrence waived any allegation of improper service by filing answer and counterclaim in the foreclosure action. Lawrence’s failure to sign one part of a total agreement for Bingham to continue rendering services to Lawrence did not discharge Lawrence’s obligations under

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the agreement, particularly where Bingham continued to render services to Lawrence. Kiefer’s alleged representation that he was licensed to practice law in Kentucky was not material to agreement for representation of Lawrence and therefore did not render the agreement unenforceable. Lawrence was precluded from asserting an ineffective-assistance-of-counsel claim and from challenging the amount of legal fees owed to Bingham and Kiefer by issue preclusion and claim preclusion, respectively. Finally, Lawrence’s breach of fiduciary duty claim was not barred by res judicata, and genuine issues of material fact with respect to that claim remained.

XXIII. TERMINATION OF PARENTAL RIGHTS

A. Cabinet for Health and Family Services v. P.W., 2019-SC-000020-DGE, 582 S.W.3d 887 (Ky. 2019)

Memorandum Opinion of the Court. All sitting; all concur. The Fayette County Family Court terminated P.W.’s parental rights to K.N.W.W. and K.L.W.W. P.W. appealed to the Court of Appeals. The Court of Appeals reversed P.W.’s termination of parental rights, holding that “for a person to abuse or neglect a child, she must intend to do so” and finding that sufficient evidence did not support the trial court’s finding that P.W. intended to abuse or neglect the children. The Cabinet for Health and Family Services petitioned the Supreme Court for discretionary review, which it granted. The Supreme Court reversed the Court of Appeals, explicitly overruling its holding that a parent must intend that the result of their actions be that the child is abused or neglected. The Court further found that substantial evidence supported the family court’s finding of neglect and remanded the case to the Court of Appeals to determine whether sufficient evidence supported the trial court’s finding that the remaining requirements of KRS 625.090 were met.

B. Cabinet for Health and Family Services v. K.S., 2018-SC-000523-DGE, 585 S.W.3d 2020 (Ky. 2019)

Opinion of the Court by Justice Buckingham. All sitting. Minton, C.J.; Hughes, and VanMeter, JJ., concur. Keller, J., concurs in result only by separate opinion in which Minton, C.J., joins. Lambert, J., dissents by separate opinion in which Wright, J., joins. Wright, J., dissents by separate opinion in which Lambert, J., joins. The Family Court found K.S.’s son to be a neglected child and terminated K.S.’s parental rights. K.S. appealed, and the Court of Appeals vacated and remanded. The Cabinet for Health and Family Services petitioned the Court for discretionary review, which it granted. Upon review the Court held: The testimony of the Cabinet’s witnesses and other evidence presented clearly and convincingly supported the trial court’s finding that the child was an abused or neglected child as that term is defined in KRS 600.020(1). The testimony of the Cabinet’s witnesses and other evidence presented clearly and convincingly supported the trial court’s finding that termination was in the best interest of the child. The testimony of the Cabinet’s witnesses and other evidence presented clearly and convincingly supported the trial court’s finding that grounds listed in KRS

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625.090(2) existed: that the parent, for a period of not less than six months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child; that the parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child’s well-being and that there is no reasonable expectation of significant improvement in the parent’s conduct in the immediately foreseeable future, considering the age of the child; and that the child has been in foster care under the responsibility of the cabinet for 15 cumulative months out of 48 months preceding the filing of the petition to terminate parental rights. That KRS 600.020 does not in all cases require that a parent intend to abuse or neglect his or her child for a finding of abuse or neglect to be reached by a trial court; and pursuant to KRS 600.020(1) a child whose health or welfare is threatened with harm, that is, whose health or welfare has not actually been harmed but where there is a clear and convincing threat of harm to a child, a trial court is authorized under this definition to find that the child is an abused or neglected child.

XXIV. TORTS

Jackson v. Estate of Day, 2018-SC-000297-DG, 595 S.W.3d 117 (Ky. 2020)

Opinion of the Court by Justice Hughes. All sitting. Minton, C.J.; Keller, Nickell, VanMeter, and Wright, JJ., concur. Lambert, J., dissents without separate opinion. Appellants Marshall and Jackson were injured in a two-vehicle accident with Gary Day in February 2014. On December 29, 2015, well before the statute of limitations period expired pursuant to KRS 304.39-230(6), Appellants filed a complaint against Day. After several unsuccessful service attempts, a sheriff’s return filed in the record on May 18, 2016 indicated that Day was deceased. However, it was not until receipt of a special bailiff report in August 2016, after expiration of the limitations period, that all parties discovered his death. Appellants filed a third amended complaint, naming Day’s estate in place of Day individually, on December 19, 2016. Appellees filed a motion for summary judgment arguing that the claims were time barred by the statute of limitations, while the Appellants argued that the third amended complaint could relate back to the original complaint pursuant to CR 15.03. The trial court granted summary judgment and dismissed the complaint based on this Court’s holding in Gailor v. Alsabi, 990 S.W.2d 597 (Ky. 1999). The Court of Appeals adopted the trial court opinion in its entirety. Affirming the Court of Appeals, the Supreme Court determined that the Appellants’ case is factually similar to Gailor, where the Court upheld the dismissal of a complaint against a deceased driver’s estate as untimely. The plaintiff has an affirmative obligation to locate the correct party defendants and determine their vital status, a status that could have been easily determined in this case by simply examining the court file. The original complaint filed against Day, the deceased driver, was a nullity. Moreover, his estate could not have known about the proceedings against it during the applicable limitations period as required by CR 15.03 and the relation back doctrine because the estate did not exist during that

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time frame. Further, the facts do not warrant equitable tolling of the statute of limitations because Appellants did not pursue their claim diligently despite readily available information accessible within the limitations period informing the parties that Day was deceased. The Supreme Court also reiterated that proof that the tortfeasor is an underinsured motorist (UIM) is an essential fact that must be proved before an insured can recover judgment in a lawsuit against his UIM insurer.

XXV. TRUSTS & ESTATES

Getty v. Getty, 2018-SC-000111-DG, 581 S.W.3d 548 (Ky. 2019)

Opinion of the Court by Chief Justice Minton. Minton, C.J.; Buckingham, Hughes, Keller, Lambert and Wright, JJ., sitting. VanMeter, J., not sitting. Minton, C.J.; Buckingham, Hughes, Keller, and Lambert, JJ., concur. Wright, J., concurs by separate opinion. Upon Richard J. Getty’s (“Dick”) death, his son, Richard A. Getty (“Rich”) and granddaughter, Sesamie Bradshaw, brought suit against Dick’s widow, Sue Getty, seeking to invalidate Dick’s estate plan and alleging that Sue misappropriated funds from an income stream of property placed in trust. The Bourbon Circuit Court entered judgment upon a jury verdict for plaintiffs and the Court of Appeals reversed in part. The Kentucky Supreme Court first determined the issues of whether Dick lacked testamentary capacity to execute his estate plan, and whether Sue exercised undue influence over Dick in executing the estate plan were for the jury, and the trial court did not err in denying Sue’s motion for a directed verdict on those issues. The Court next held that Dick and Sesamie could not maintain an action against Sue based on wrongful use of income derived from property placed into a living trust because the income was earned by both Sue and Dick. Both Sue and Dick contributed to the earnings derived from the property, and it therefore could not be considered separate property owned solely by Dick. Finally, the Court held that Sue and her attorneys did not improperly seek to have Dick’s body cremated in violation of a trial court stay or order and, as such, were not liable to Rich and Sesamie for attorney fees and costs.

XXVI. WORKERS’ COMPENSATION

A. Wetherby v. Amazon.com, 2018-SC-000542-WC, 580 S.W.3d 521 (Ky. 2019)

Opinion of the Court by Justice Hughes. Minton, C.J.; Buckingham, Keller, VanMeter, and Wright, JJ., sitting. All concur. Lambert, J., not sitting. Samuel Wetherby suffered a work-related back injury and was awarded 6 percent permanent partial disability benefits. Wetherby suffered an unrelated back injury to a different part of his spine 30 years prior. The ALJ found a 31 percent whole person impairment but deducted 25 percent as attributable to Wetherby’s prior injury. On appeal, Wetherby argued that the Administrative Law Judge (ALJ) failed to make sufficient findings to exclude a pre-existing condition pursuant to Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007). A pre-existing active condition must be symptomatic and impairment ratable immediately prior to the work injury. While Wetherby’s condition was impairment ratable, it was not symptomatic, thereby not qualifying as an active or dormant condition.

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Therefore, the ALJ did not need to apply Finley. The deduction of 25 percent for the prior injury was not a “carve out” in the sense of a pre- existing active condition, but rather a requirement of the AMA Guides regarding spinal impairment. Because substantial medical evidence supported the 6 percent impairment rating, the Court of Appeals decision reinstating the ALJ’s award and order was affirmed.

B. Hampton v. Intech Contracting, LLC, 2018-SC-000611-DG, 581 S.W.3d 27 (Ky. 2019)

Opinion of the Court by Justice Buckingham. All sitting; all concur. Employee filed a workers’ compensation enforcement action against his employer. The circuit court granted partial summary judgment in favor of the employee. The Court of Appeals dismissed the subsequent appeal in part because the appeal was from an interlocutory order, but considered the appeal insofar as the Employer argued that the circuit court was without jurisdiction because the Employer’s challenge to jurisdiction was the functional equivalent of a challenge based upon immunity from lawsuit. Upon review the Court held: The circuit court’s order granting employee award for payment of a wheelchair and award for reimbursement of expenses for medically-related trip to Oklahoma was a nonappealable interlocutory order because employee’s complaint included a request for attorney fees, and the circuit court’s order did not resolve the employee’s request for attorney fees, so that attorney fee issue remained pending at time appeal was filed, and, further, the order did not include any finality language. CR 54.01, 54.02, The Court of Appeals erred by treating the employer’s challenge to jurisdiction as the equivalent of a claim of immunity from lawsuit because the issue did not constitute a substantial public interest, and thus order was not immediately appealable under collateral order doctrine, even assuming circuit court lacked subject matter jurisdiction and this equated to absolute immunity of employer from suit, in employee’s workers' compensation enforcement action against employer. The collateral order doctrine, under which orders may be immediately appealable when they implicate a right that cannot be effectively vindicated after the trial occurs, requires that an order (1) conclusively decides an important issue separate from the merits of the case; (2) is effectively unreviewable following final judgment; and (3) involves a substantial public interest that would be imperiled absent an immediate appeal. All elements of the collateral order doctrine must be met before there will be jurisdiction to consider an interlocutory appeal based on a denial of immunity.

C. Holcim v. Swinford, 2018-SC-000627-WC, 581 S.W.3d 37 (Ky. 2019)

Opinion of the Court by Justice Wright. All sitting; all concur. James Swinford had worked for his employer, Lafarge Holcim, or its predecessor entity, for more than four decades when he sustained a work-related injury at 75 years of age. The ALJ awarded Swinford permanent partial disability (PPD) benefits based on his treating doctor’s impairment rating of 15 percent. That award and the duration of Swinford’s benefits were appealed to the Workers’ Compensation Board and then the Court of Appeals. They were also the subject of this appeal to the Supreme Court of Kentucky. The

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Court first held that the ALJ relied upon substantial evidence in finding Swinford’s work injury to be the combination of the exacerbation of a dormant pre-existing condition and a new injury and also relied upon substantial evidence in determining that Swinford has a whole-body impairment resulting from his work-related injury. The Court then reversed the Court of Appeals’ on the issue of the retroactivity of KRS 342.730(4), holding the new amendments to the statute are retroactive. The Court held that the statute was exempt from normal requirements, as it is temporary in nature. Therefore, the legislature had made a declaration concerning retroactivity in this case through the Legislative Research Commission’s note following the statute. Therefore, the Court reversed the Court of Appeals on these grounds and remanded the case to the ALJ to determine the amount of Swinford’s benefits under the amendment.

D. Wilkerson v. Kimball International, Inc., 2019-SC-000053-WC, 585 S.W.3d 231 (Ky. 2019)

Opinion of the Court by Justice Keller. All sitting; all concur. James A. Wilkerson sustained a back injury while working for Kimball International, Inc. (Kimball). Wilkerson filed a claim with the Department of Workers’ Claims, and a hearing was held on his claim. The ALJ awarded Wilkerson temporary total disability, permanent partial disability, and medical benefits for a back strain he sustained while working for Kimball. The ALJ denied benefits for a knee injury and two back surgeries, finding they were not causally related to his employment, and therefore not compensable. Wilkerson did not file a petition for reconsideration with the ALJ prior to appealing the denial of benefits to the Workers’ Compensation Board (Board). The Board affirmed the ALJ, and the Court of Appeals affirmed the Board. The Supreme Court, likewise, affirmed the Court of Appeals. The Supreme Court first made clear that it could always address the issues of whether substantial evidence supported the ALJ’s findings and whether the evidence compelled a difference result regardless of whether a petition for reconsideration had been filed. It then reviewed the evidence of record and concluded that the ALJ’s finding that Wilkerson’s knee injury was not work-related and therefore not compensable was supported by substantial evidence and that the evidence of record did not compel a different result.

E. Tryon Trucking, Inc. v. Medlin, 2019-SC-000212-WC, 586 S.W.3d 233 (Ky. 2019)

Opinion of the Court by Justice Buckingham. All sitting; all concur. The Uninsured Employers’ Fund appealed from the ALJ’s determination that claimant was an employee of an uninsured employer on the date of motor vehicle accident, and that in the absence of any “up-the-ladder” employer, the Fund would be liable to pay claimant's benefits if his employer did not pay for the benefits or filed for bankruptcy. The Workers’ Compensation Board affirmed in part, reversed in part, and remanded to the ALJ for additional findings of fact with regard to possible up-the-ladder liability by transportation broker that had leased the truck claimant was driving at the time of the accident. The Court of Appeals upheld the Board’s decision,

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and transportation broker appealed. Upon review the Court held: If the ALJ has made all necessary findings to resolve the issue at hand and the Workers’ Compensation Board has erred in remanding for additional, unneeded findings that would be of no additional value in resolving the issues in the case, if for no other reason than judicial economy alone, that decision, just as any other, is subject to review and reversal by the appellate courts, overruling Campbell v. Hauler’s Inc., 320 S.W.3d 707 (Ky. App. 2010); remand from the Workers’ Compensation Board to the ALJ was warranted to allow the ALJ to reexamine the issue of whether the transportation broker that leased trucks and trailers as part of its business model qualified as an up-the-ladder employer for the claimant because the ALJ made a factual error when he determined the facts of the case were nearly identical to another case in which no up-the-ladder liability was found, but in that case, the transportation broker did not lease the truck and trailer that was involved in the accident. KRS 342.610(2).

XXVII. WRIT OF MANDAMUS

Stars Interactive Holdings (IOM) Ltd. v. Wingate, 2019-SC-000381-MR, 594 S.W.3d 181 (Ky. 2020)

Memorandum Opinion of the Court. All sitting; all concur. The Commonwealth of Kentucky filed suit against Appellants seeking recovery under the Loss Recovery Act (LRA), a statute allowing gamblers or “any other person” to sue the winner of a gambling transaction to recover money lost. KRS 372.020. The Franklin Circuit Court entered a judgment in favor of the Commonwealth totaling more than $1.1 billion, and Appellants appealed the judgment and posted a supersedeas bond. The Court of Appeals reversed the trial court and directed that the case be dismissed on remand. Despite the Commonwealth’s then-pending motion for discretionary review, Appellants sought release of the supersedeas bond in the trial court, which denied the motion because of the pending motion for discretionary review. They also petitioned for a writ of mandamus in the Court of Appeals seeking release of the bond, but that court denied relief because discretionary review had been granted by the Supreme Court. On appeal to the Supreme Court, Appellants argued that because the Court of Appeals reversed the trial court no underlying judgment existed and therefore the bond was unnecessary to stay execution of the judgment. The Supreme Court held that because the Court of Appeals’ opinion was not yet final, and because it will render a final decision regarding the underlying dispute, the trial court did not abuse its discretion in concluding the status of the parties should be maintained pending the outcome on discretionary review. A supersedeas bond is necessary to stay execution of a judgment throughout the course of all appeals, not just until the party posting the bond received a favorable result on a first appeal to an intermediate appellate court. Appellants failed to establish that the trial court acted incorrectly in denying release of the bond, a prerequisite for granting a second-class writ. Because the trial court did not err in its handling of the supersedeas bond, the opinion of the Court of Appeals denying the writ was affirmed.

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XXVIII. WRIT OF PROHIBITION

A. University of Louisville v. Eckerle, 2018-SC-000651-MR, 580 S.W.3d 546 (Ky. 2019)

Opinion of the Court by Justice Buckingham. All sitting; all concur. University and supervisors’ attorney filed petition for writ of prohibition and mandamus, seeking to prohibit enforcement of order entered by circuit court compelling University and attorney to provide to former associate professor communications relating to faculty grievance proceedings initiated by the professor. The Court of Appeals denied the writ. Upon review the Court held: If a trial court orders the production of communications protected by the attorney-client privilege, the aggrieved party is entitled to a writ of prohibition or mandamus halting the production of such communications. KRE 503. Not all communications between an attorney and a client are privileged, and the burden is on the party claiming the privilege to prove that it exists as to the communications so claimed. Tthe trial court did not clearly err in finding that the attorney represented only the supervisors in the faculty grievance proceedings, such that attorney client privilege did not protect communications between attorney and University employees other than the supervisors relating to the proceedings. Although University allegedly paid attorney's legal fees, University was not party to grievance proceedings, University had role of neutral arbiter, and University's assistant legal counsel was available to advise University in proceedings in which it was not party.

B. Lucas v. McDonald-Burkman, 2018-SC-000176-MR, 581 S.W.3d 20 (Ky. 2019)

Opinion of the Court by Justice Keller. All sitting. Minton, C.J.; Hughes, Keller, Lambert, and VanMeter, JJ., concur. Wright, J., dissents by separate opinion in which Buckingham, J., joins. After her employment was terminated, Jackie Lucas filed suit against Baptist Hospital and Stephen Hanson alleging gender discrimination and retaliation, identity theft, and invasion of privacy. During the discovery process, Lucas identified Dr. Gregory K. Collins, her husband, as her treating physician and an employer. Baptist sought to depose Dr. Collins, but Lucas objected to his deposition, asserting the husband-wife privilege found in KRE 504. The trial court granted in part and denied in part Baptist’s motion to compel. The trial court ordered that Baptist could not depose Dr. Collins regarding Lucas’s “private conversations and observations,” but that Baptist could depose him on the following three topics: (1) Lucas’s public manifestations of her emotional health; (2) the medical treatment he provided her; and (3) employment issues he observed as her employer. Lucas filed a petition in the Court of Appeals for a writ to prohibit the trial court from allowing Baptist to depose Dr. Collins at all, based on the spousal testimony privilege found in KRE 504(a). The Court of Appeals granted the writ in part and denied the writ in part. Lucas appealed to the Supreme Court which affirmed in part and reversed in part. The Court pointed to the limitation contained in KRE 504(a) that testimony must be “against” the party-spouse to be subject to the privilege. The Court denied the writ in total, allowing the deposition

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to proceed and the parties to assert the privilege on a question-by-question basis.

C. Harilson v. Shepherd, 2019-SC-000156-MR, 585 S.W.3d 748 (Ky. 2019)

Opinion of the Court by Justice Hughes. All sitting. Minton, C.J.; Buckingham, Lambert, VanMeter, and Wright, JJ., concur. Keller, J., concurs in result only. The Lexington Herald-Leader requested records from the Legislative Research Commission (LRC). LRC ultimately denied the request and the Herald-Leader filed a complaint in Franklin Circuit Court challenging the denial. LRC sought dismissal of the action contending the circuit court lacked subject matter jurisdiction. When the circuit court concluded it had jurisdiction to resolve the dispute, LRC sought a writ of prohibition from the Court of Appeals. The Court of Appeals denied the writ. Question presented: Whether Franklin Circuit Court lacks subject- matter jurisdiction to decide a KRS 7.119 records request dispute. Held: KRS 7.119 provides for the inspection of legislative records by the public. The plain language of KRS 7.119(3), incorporating all provisions of the Open Records Act except KRS 61.880(3), grants the circuit court jurisdiction to review a denial of the records request and does not limit the circuit court’s jurisdiction to resolve KRS 7.119 inspection disputes to only those cases where LRC fails to act within 30 days on a matter submitted for review. Furthermore, the trial court does not lack jurisdiction based on the separation of powers doctrine. The circuit court’s judicial function in this case, interpreting KRS 7.119(3), is in no way an encroachment on the legislative function.

D. PNC Bank, National Association v. Edwards, 2019-SC-000183, 590 S.W.3d 818 (Ky. 2019)

Opinion of the Court by Justice VanMeter. All sitting; all concur. PNC Bank (“PNC”) appealed the decision of the Court of Appeals granting in part and denying in part PNC’s petition for a writ of the first class. The Court of Appeals held that the Jefferson Circuit Court maintained concurrent jurisdiction with the Jefferson District Court over Hope Boyd’s breach of fiduciary duty, breach of trust, and breach of confidential relationship claims. The Kentucky Supreme Court reversed the Court of Appeals’ decision, finding that under KRS 386B.8-180 the Jefferson District Court had exclusive jurisdiction over these claims, as they were the same claims raised in her objections to PNC’s . Based on the statutory language, the Court held that “the district court possesses exclusive jurisdiction over any breach of trust claims raised in a KRS 386B.8-180 objection which is subsequently filed by the trustee in district court for resolution in accordance with the statute.” Thus, the Court ultimately remanded the case to the Court of Appeals to enter a writ of prohibition consistent with the Supreme Court’s opinion.

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E. Commonwealth v. Shaw, 2019-SC-000218-MR, 600 S.W.3d 233 (Ky. 2020)

Opinion of the Court by Justice VanMeter. All sitting; all concur. The Commonwealth appealed the Court of Appeals’ decision denying a writ of prohibition against the trial court for granting Rutledge’s motion for in camera review of the victim’s therapy records during a particular one-month period of treatment. On appeal, the Court held that the trial court properly followed the directive set forth in Com. v. Barroso, 122 S.W.3d 554 (Ky. 2003), but overstepped its authority by ordering the Commonwealth to retrieve the names of the victim’s medical providers. The Court set out a new process by which medical providers’ identities and records can be retrieved and reviewed in camera when the defendant knows of the relevant information and specific time frame but lacks the names of the medical providers. The Court ultimately granted the Commonwealth’s writ and ordered the trial court to follow this new framework to retrieve the relevant documents for in camera review.

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KENTUCKY GENERAL ASSEMBLY 2020 REGULAR SESSION Legislative Research Commission

Summaries contained herein represent the legislation passed by the 2020 Kentucky General Assembly in Regular Session.

For a more detailed summary of legislation from the Regular Session, please consult General Assembly Action 2020 Regular Session, available online and in print from the Legislative Research Commission.

Copies of bills may be obtained from the Public Bill Room at:

Legislative Research Commission State Capitol 700 Capital Avenue Frankfort, KY 40601-3486

They may also be obtained from the Legislative Research Commission website at legislature.ky.gov.

INSTRUCTIONS FOR DOWNLOADING A BILL FROM THE KENTUCKY GENERAL ASSEMBLY WEB PAGE

General Information

1. The General Assembly Web Page is located at legislature.ky.gov.

2. When reaching the web page, click "Bills" at the top of the page.

3. You will be taken to the online “Legislative Record.” Click “2020 Regular Session.”

After accessing the Legislative Record, and if you know the House Bill or Senate Bill number:

1. Browse the links. You will find information sorted for Senate bills and House bills, and also for various stages in the process. To quickly download a particular bill, click either “Senate Bills” or “House Bills,” and then click the bill number.

2. This page provides key information, including the last action, links to versions of the bill, fiscal impact statements, sponsors, summary of the bill, indexing information, full legislative history, and proposed amendments and their summaries.

238 After you have tried the above, do not know the House Bill or Senate Bill number, but you know the name of the sponsor:

Under the Senate or House column, you might wish to click "Bills and Amendments by Sponsor," which shows all of the bills for which the particular legislator was either the primary sponsor or a co-sponsor.

If you know only the Bill Request (BR) number:

1. Click "Bill Request to Bill Conversion List" under “Miscellaneous” in the last column.”

2. This will give you the bill number for the bill upon introduction.

3. The hyperlink for the bill number will take you to the summary and other related information for the bill.

If you only know the subject matter:

Click “Bill and Amendment Index Headings” under “Miscellaneous” in the last column.

239 2020 Regular Session Codification Tables

Bill Numbers to Acts Chapters Table – Each bill that becomes a law is assigned a sequential chapter number in the Kentucky Acts. For example, 2020 RS SB 2 is 2020 Ky. Acts ch. 89. Use this table to find the Acts chapter if you only have a bill number.

Acts Disposition Table – Sorted by Acts chapter number, this table lists all statutes amended, created, or repealed in each bill that became law during the 2020 Regular Session.

Table of KRS Sections Affected – Sorted by statutory number, this table lists all statutes that were amended, created, or repealed during the 2020 Regular Session, and references the bill making the change. This table is particularly useful in allowing a practitioner to quickly ascertain if there were legislative changes in a specific area of the KRS, such as in the Penal Code.

CODES AND ABBREVIATIONS a amended app appropriation c created Const. Ky. Constitution cc construction clause chap. chapter ec emergency clause or specified effective date eo executive order HB House Bill HCR House Concurrent Resolution HJR House Joint Resolution KRE Kentucky Rules of Evidence nc not codified nc-act-r repeal of prior Acts chapter or section r repealed re repealed and reenacted re-a repealed, reenacted, and amended re-ren repealed and reenacted as a new section re-ren-a repealed, reenacted as a new section, and amended SB Senate Bill SCR Senate Concurrent Resolution SJR Senate Joint Resolution SR Senate Simple Resolution sec. section sev severability t temporary v vetoed

240 Kentucky General Assembly 2020 Regular Session Bill Numbers to Acts Chapters

Bill Acts Bill Acts Bill Acts Bill Acts No. Ch. No. Ch. No. Ch. No. Ch. SB 2 89 SB 149 118 HB 167 14 HB 356 96 SB 5 90 SB 150 73 HB 186 2 HB 357 15 SB 8 5 SB 157 127 HB 195 87 HB 361 109 SB 15 85 SB 158 112 HB 204 23 HB 362 72 SB 21 117 SB 160 31 HB 208 37 HB 366 66 SB 37 125 SB 174 113 HB 214 10 HB 369 115 SB 38 52 SB 177 26 HB 229 40 HB 374 48 SB 40 53 SB 184 114 HB 236 1 HB 375 67 SB 42 54 SB 186 59 HB 238 13 HB 377 27 SB 45 8 SB 191 99 HB 242 19 HB 378 49 SB 50 70 SB 193 60 HB 256 30 HB 382 34 SB 55 108 SB 237 126 HB 266 28 HB 387 128 SB 56 35 SB 239 121 HB 271 46 HB 405 95 SB 57 22 SB 249 82 HB 276 42 HB 411 119 SB 60 55 SB 251 100 HB 279 43 HB 414 71 SB 63 17 SB 263 122 HB 284 44 HB 415 80 SB 66 123 HB 298 97 HB 417 50 SB 72 74 HB 2 75 HB 299 106 HB 419 105 SB 79 32 HB 8 110 HB 302 77 HB 420 68 SB 80 101 HB 24 7 HB 307 24 HB 453 51 SB 82 56 HB 29 120 HB 308 81 HB 457 78 SB 94 4 HB 44 12 HB 312 64 HB 458 104 SB 99 102 HB 46 107 HB 313 47 HB 479 103 SB 101 57 HB 59 16 HB 319 11 HB 484 79 SB 102 36 HB 98 62 HB 327 45 HB 491 76 SB 111 124 HB 99 33 HB 331 65 HB 570 98 SB 115 111 HB 129 21 HB 336 88 SB 122 29 HB 135 39 HB 344 20 HCR 5 6 SB 123 9 HB 150 86 HB 351 91 HJR 8 3 SB 125 61 HB 153 69 HB 352 92 HJR 66 83 SB 132 18 HB 154 41 HB 353 93 HJR 105 116 SB 134 58 HB 155 25 HB 354 94 SB 148 38 HB 156 63 HB 355 84

241 I. SENATE BILLS

A. SB 2

AN ACT relating to voter identification and making an appropriation therefor. Creates a new section of KRS Chapter 117 to permit an otherwise qualified voter, who is unable to provide proof of identification and who is not personally known to the election officer, the authority to cast a ballot on the day of a primary, an election, or during in-person absentee voting if the voter: executes a voter affirmation furnished by the State Board of Elections affirming the requisites of his or her ability to vote and a statement of impediment that has prevented the voter from procuring proof of photo identification, provides to the election officer an alternative ID such as a Social Security card, a Kentucky issued identification card that has been approved by the State Board of Elections, an identification card with the voter’s photograph and name stated, a Kentucky issued food stamp identification card with the name of the voter stated, a Kentucky issued electronic benefit transfer card with the name of the voter stated, a Kentucky issued supplemental nutrition assistance card with the name of the voter stated, or a debit or credit card with the name of the voter stated; provides voter affirmations and election official affirmations of personal acquaintance of the voter are to be processed in the same manner as an oath of voter affidavit; creates a new section of KRS Chapter 117 to incorporate provisional voting as applicable to federal elections with federal candidates; amends KRS 116.065 to include verification of federal provisional ballots and federal provisional absentee ballots and include the penalties of perjury; amends KRS 117.066 to require two ballot boxes or ballot receptacles be transferred to the county board of elections, if any federal provisional ballots are cast, at the close of voting on the day of a primary or an election; amends KRS 117.085 to require a voter to submit a copy of the voter’s proof of identification or a voter affirmation with his or her mail-in absentee ballot application; requires in-person absentee voting to conform to the same ID and affirmation requirements as those voters who vote on the day of a primary or an election; requires the State Board of Elections to provide an instructional statement on mail-in absentee ballot applications to reflect photo identification requirements and voter affirmation requirements; amends KRS 117.0851 to include federal provisional absentee ballots in the tabulation of ballots and procedures; amends KRS 117.086 to provide for in-person absentee voting for those voters who are unable to provide proof of identification; requires separate ballot boxes and lists to be maintained by the county clerk for those voters voting absentee ballots and federal provisional absentee ballots; amends KRS 117.0863 to include provisions for mail-in absentee ballots; amends KRS 117.0865 to include federal provisional absentee ballots within the prohibition against aiding another in completing an absentee ballot or encouraging the voter to vote in a particular way; amends KRS 117.087 to require federal provisional in-person absentee voting to be processed in accordance with the Help America Vote Act; amends KRS 117.145 to require the county clerk to print a sufficient number of federal provisional absentee ballots, voter affirmations, and election official affirmations; specifies the substance of the federal provisional absentee ballot; amends

242 KRS 117.175 to include instructions for filling out federal provisional ballots and voter affirmations in the instruction cards provided by the county clerk; amends KRS 117.187 to include proof of identification and federal provisional absentee voting in the training provided by the county board of elections; amends KRS 117.195 to include federal provisional ballots, voter and election official affirmations, and a locked ballot box or receptacle to be furnished to each precinct by the county clerk; amends KRS 117.225 to prescribe the requirements for a voter to cast a vote in a precinct polling place; provides an exception to requiring proof of identification if the voter resides in a state licensed care facility where the voting is taking place; amends KRS 117.227 to require election officers to confirm the identity of each voter by proof of identification; amends KRS 117.245 to specify that challenging a person’s right to vote does not apply for failure to provide proof of identification; amends KRS 117.255 to include instructions for voters using a federal provisional ballot when marking a spoiled ballot; amends KRS 117.265 to include instructions for voters using a federal provisional ballot for write-in candidates; amends KRS 117.275 to provide for tabulation of federal provisional ballots by the county board of elections, ballot reporting, and retention of voter and election official affirmations; amends KRS 117.305 to include federal provisional ballots and federal provisional absentee ballots in the recanvassing procedures; allows for the county board of elections to rule on questions regarding proof of identification; amends KRS 117.365 to include voter and election official affirmations to be presented to the grand jury; amends KRS 117.375 to include federal provisional ballot and federal provisional absentee ballot in the definition of “ballot” or “official ballot” and to define “proof of identification,” “federal provisional voter,” and “federal provisional ballot” or “federal provisional absentee ballot”; amends KRS 117.383 to require the State Board of Elections to design ballot cards to reflect federal provisional ballots; provides that all federal provisional voting shall be conducted in a manner as prescribed by the Help America Vote Act; amends KRS 117.385 to include instructions on where a voter is to place his or her completed in- person ballot; amends KRS 117.995 to include federal provisional voting, federal provisional absentee voting, and voter and election official affirmations within the penalty provisions relating to voting; amends KRS 118.015 to redefine “ballot” or “official ballot” to include federal provisional ballots and federal provisional absentee ballots; amends KRS 118.305 to ensure that federal provisional ballots and federal provisional absentee ballots are not tabulated or recorded for any candidate who was not properly on the ballot; ensures that only duly nominated candidates have their names printed on federal provisional absentee ballots and federal provisional ballots; amends KRS 118.405 to prohibit more than one appearance of a candidate’s name on any federal provisional ballot or federal provisional absentee ballot; amends KRS 119.005 and 120.005 to redefine “ballot” or “official ballot” to include federal provisional ballots and federal provisional absentee ballots; amends KRS 186.531 to allow a free standard personal identification card to an individual who does not then currently have a valid operator’s license or commercial driver’s license, is at least 18 years of age, and is otherwise eligible to vote in the regular election; and amends KRS 117.035 to allow for the county board of

243 elections to rule on questions regarding proof of identification; APPROPRIATION; VETOED; OVERRIDDEN.

B. SB 5

AN ACT relating to special purpose governmental entities. Creates a new section of KRS Chapter 65A to require a special purpose governmental entity that proposes to increase a fee, levy an ad valorem tax rate that is greater than the compensating tax rate, or levy a new ad valorem tax or fee submit the tax rate or fee to the governing body of the county or city for review; allows 30 days for the governing body to review the proposed tax rate or fee; exempts air boards established or operating under KRS 183.132 to 183.160, fire protection districts established or operating under KRS Chapter 75, and ambulance taxing districts established or operating under KRS 108.090 to 108.180 from the provisions of the bill; amends various sections of the Kentucky Revised Statutes to conform; and repeals KRS 65A.100; delayed effective date of January 1, 2021; VETOED; OVERRIDDEN.

C. SB 8

AN ACT relating to school safety and declaring an emergency. Amends KRS 158.441 to clarify the definition of “school resource officer”; amends KRS 158.4412 to allow the superintendent to specify any individual to serve as the district’s school safety coordinator; amends KRS 158.4414 to clarify which facilities are required to have school resource officers and to require that school resource officers are armed with a firearm; amends KRS 158.4416 to specify that the goal is to have at least one school counselor per public school and to have at least one school counselor or school- based mental health services provider for every 250 students; amends KRS 61.902 to specify that the commission of a special law enforcement officer employed as a school resource officer shall be for four years; amends KRS 156.095 to specify that the Kentucky Department of Training is to prepare an active shooter training video in consultation with the Department of Education; amends KRS 158.162 to include exceptions to locked classroom doors; amends KRS 508.078 to clarify when a person is guilty of terroristic threatening; and amends KRS 16.128, 1.315, 70.062, and 95.970 to conform.

D. SB 9

AN ACT relating to the protection of born-alive infants and abortion and declaring an emergency. Creates new sections of KRS Chapter 311 to prohibit a person from denying or depriving a born-alive infant of nourishment with the intent to cause or allow the death of the infant; prohibits a person from denying or depriving a born-alive infant of medically appropriate and reasonable medical care, medical treatment, or surgical care; requires a physician performing an abortion to take all medically appropriate and reasonable steps to preserve the life and health of a born- alive infant; specifies that if the physician is unable to perform those duties then an attending physician assistant, advanced practice registered nurse,

244 nurse, or other health care worker shall assume the duties; provides that a born-alive infant shall be treated as a legal person under the laws of the Commonwealth; specifies that any born-alive infant, whose parents file a petition for voluntary termination of parental rights, shall become a ward of the Cabinet for Health and Family Services; specifies that this section shall not be construed as preventing a born-alive infant’s parent or guardian from refusing medical care that is not medically appropriate or reasonable; specifies that the parent or guardian of a born-alive infant shall not be held criminally or civilly liable for the actions of a physician, physician assistant, advanced practice registered nurse, or other health care provider that acted without his or her consent; provides for civil and administrative penalties for violations of this Act; allows the General Assembly by joint resolution to appoint members to intervene as a matter or right in any case that challenges the constitutionality of this Act; amends KRS 311.595, 311.850, 314.091, and 315.121 to suspend or revoke the license of any physician, physician assistant, advanced practice registered nurse, nurse, or pharmacist who violates this Act; amends KRS 311.990 to establish criminal penalties for violations; amends KRS 15.241 to allow the Attorney General to seek injunctive relief as well as civil and criminal penalties to prevent, penalize, and remedy violations of KRS Chapter 216B relating to abortion facilities, KRS 311.710 to 311.830 relating to abortions, and emergency management orders relating to elective medical procedures issued under KRS Chapter 39A; specifies that nothing in this section shall limit or preclude the secretary of the Cabinet for Health and Family Services from seeking similar relief; allows for severability; and establishes the short title of “Born-Alive Infant Protection Act”; EMERGENCY; VETOED.

E. SB 11

AN ACT relating to criminal damage to rental property. Amends KRS 512.010 to create definitions of “lease or rental agreement,” “residential rental property,” and “tenant”; and amends KRS 512.020, 512.030, and 512.040 to specifically include damage to residential rental property in the crime of criminal mischief; VETOED.

F. SB 15

AN ACT proposing to create a new section of the Constitution of Kentucky relating to crime victims’ rights. Proposes to create a new section of the Constitution of Kentucky to establish a crime victims bill of rights; and submits to voters.

G. SB 21

AN ACT relating to veterinarians. Creates a new section of KRS Chapter 321 to allow veterinarians to report the abuse of an animal with which the veterinarian has a veterinarian-client-patient relationship; allows the veterinarian to report abuse to the Office of the State Veterinarian only for an animal for which an on-farm livestock or poultry care standard has been promulgated or to law enforcement for any other animal; and amends KRS

245 321.185 to allow a veterinarian to release information concerning a client or the care of a client’s animal in cases of animal abuse.

H. SB 37

AN ACT relating to veteran-managed nonprofit businesses. Amends KRS 14A.1-070 to add a nonprofit business which is at least 51 percent unconditionally controlled by one or more veterans to the definition of “veteran-owned business”; and amends KRS 14A.2-060 and 14A.2-165 to conform.

I. SB 38

AN ACT relating to the disposition of human remains. Amends KRS 367.93117 to allow a court-appointed guardian or conservator to determine the disposition of remains after death if other alternatives have been exhausted; and permits cremation under specified circumstances.

J. SB 40

AN ACT relating to child welfare. Amends KRS 194A.062 to require front- line staff to submit to national and state fingerprint-supported background checks; repeals KRS 199.8966 and reenacts as a new section of KRS 199.640 to 199.680 to define the term “staff member” and to require national and state fingerprint-supported background checks of staff members of child-caring facilities and child-placing agencies in Kentucky; and specifies that child-placing agencies are subject to the background check requirements only when background checks can be conducted electronically under KRS 17.185.

K. SB 42

AN ACT relating to student health and safety. Creates a new section of KRS Chapter 158 to require any student identification badge issued to a public middle or high school student to contain the contact information for national crisis hotlines specializing in domestic violence, sexual assault, and suicide; applies the requirement to public schools; requires the Cabinet for Health and Family Services to publish recommendations for at least one national crisis hotline in each specialized area; and creates a new section of KRS Chapter 164 to require any student identification badge issued by a public or private postsecondary institution or other institution that offers a postsecondary degree, certificate, or license to contain the contact information for national crisis hotlines specializing in domestic assault, sexual assault, and suicide.

L. SB 45

AN ACT relating to child-care centers in Kentucky. Creates a new section of KRS 199.896 to 199.8996 to establish operational standards for child- care centers in Kentucky.

246 M. SB 50

AN ACT relating to pharmacy benefits in the Medicaid program and declaring an emergency. Creates various new sections of KRS 205.510 to 205.560 to define terms, to require the Department for Medicaid Services to contract with a third-party administrator to serve as the state pharmacy benefit manager, to establish that the state pharmacy benefit manager is responsible for administering all pharmacy benefits for Medicaid recipients enrolled with a managed care organization, to require managed care organizations contracted by the department for the delivery of Medicaid services to contract with and utilize the state pharmacy benefit manager for the purpose of administering pharmacy benefits, to require that certain information be disclosed by any entity seeking to become the state pharmacy benefit manager, to establish the minimum requirements for the master contract used by the department to contract with the state pharmacy benefit manager, to require that the contract between the department and the state pharmacy benefit manager be submitted to the Government Contract Review Committee for comment and review, to require the department to establish a single preferred drug list, reimbursement methodologies, and dispensing fees to be used by the state pharmacy benefit manager, to establish certain requirements and restrictions on the actions of the state pharmacy benefit manager, to require that all payment arrangements between the department, managed care organizations, and the state pharmacy benefit manager comply with federal law and administrative regulations promulgated by the Centers for Medicare and Medicaid Services, to prohibit a pharmacy benefit manager currently contracted with managed care organizations from adjusting reimbursement methodologies, dispensing fees, and other fees prior to December 31, 2020, and to require the Technical Advisory Committee on Pharmacy to annually make recommendations to the department regarding reimbursement methodologies and dispensing fees to be used by the state pharmacy benefit manager; amends KRS 205.590 to revise the membership of the Technical Advisory Committee on Pharmacy; and amends KRS 205.647 to conform; EMERGENCY.

N. SB 55

AN ACT relating to blockchain technology. Creates a new section of KRS Chapter 42 to establish a nine-member Blockchain Technology Working Group; attaches the working group to the Commonwealth Office of Technology; and requires the working group to examine the applicability of blockchain technology for various utility sectors and report to the Governor and the Legislative Research Commission by December 1 of each year.

O. SB 56

AN ACT relating to the sale of tobacco, alternative nicotine, and vapor products and declaring an emergency. Amends KRS 438.305 to change the definitions of “proof of age,” “tobacco product,” and “vapor product”; amends KRS 438.310 to prohibit the sale of tobacco, alternative nicotine, or vapor products to persons under the age of 21; amends KRS 438.311

247 to make it unlawful for persons under 21 to buy tobacco, alternative nicotine, or vapor products; allows for the confiscation of a tobacco product, alternative nicotine product, or vapor product from a person under the age of 21 who violates KRS 438.311, but prohibits any other penalty from being imposed; removes status offense designation for violations by persons under 18; removes jurisdiction of the juvenile section of the District Court for violations by persons under 18; removes references to court appearances by persons under 18; amends KRS 438.313 to prohibit the wholesale, retail, or manufacturer distribution of tobacco or vapor products to persons under 21; removes references to court appearances for persons under 18; amends KRS 438.315 to raise the minimum age for vending machine sales of tobacco, alternative nicotine, or vapor products to 21; removes references to court appearances for persons under 18; amends KRS 438.325 to establish 21 as the age limit regarding tobacco, alternative nicotine, or vapor product retail notifications; amends KRS 438.330 to set tobacco, alternative nicotine, and vapor product enforcement standards so that they relate to persons under the age of 21; amends KRS 438.350 regarding possession of tobacco, alternative nicotine, or vapor products by a person under age 21; amends KRS 600.020 to remove tobacco offenses from the definition of “status offense action”; amends 610.010 to remove tobacco related offenses as provided in KRS 438.305 to 438.340 from the jurisdiction of the juvenile section of the District Court; and amends 630.020 to remove tobacco related offenses as provided in KRS 438.305 to 438.340 from the jurisdiction of the juvenile section of the District Court; EMERGENCY.

P. SB 57

AN ACT relating to public school building renovations and declaring an emergency. Amends KRS 162.062 to remove the applicability to plans for the renovation of existing public school buildings; EMERGENCY.

Q. SB 60

AN ACT relating to newborn screening for spinal muscular atrophy (SMA). Amends KRS 214.155 to add spinal muscular atrophy to the list of required tests for infants.

R. SB 63

AN ACT relating to high school programs. Amends KRS 158.100 to include virtual high school completion programs, give local board authority to establish program, identify the purpose of such programs, outline enrollment eligibility requirements, allow a district to accept nonresident students who would otherwise qualify into the program, identify graduation requirements for enrollees of the program, authorize schools to charge students tuition and fees for the program, require that an enrollee in the program be at least 21 years old, establish school requirements for eligibility, allow a district to choose between requiring completion of graduation requirements at the time of drop out or the requirements in place

248 currently, and allow a district to accept nonresident students who would otherwise qualify into the program.

S. SB 66

AN ACT relating to the disposition of a decedent’s body. Amends KRS 367.93117 and 367.93121 to provide that a person who has been criminally charged in the death of another cannot make decisions regarding the disposition of the decedent’s remains.

T. SB 72

AN ACT relating to female genital mutilation and declaring an emergency. Creates a new section of KRS Chapter 508 to define “female genital mutilation” and create the Class B felony of female genital mutilation; creates a new section of KRS Chapter 211 to require the Department for Public Health in the Cabinet for Health and Family Services to develop, produce, and disseminate educational materials related to female genital mutilation; amends KRS 15.334 to require law enforcement training on female genital mutilation; amends KRS 311.595 to require a conviction of female genital mutilation to result in mandatory revocation of a physician’s license; creates a new section of KRS Chapter 413 to permit civil action for female genital mutilation for 10 years; amends KRS 620.020 to include female genital mutilation in the definition of “abused or neglected child”; amends KRS 620.030 to provide that if a person knows or has reasonable cause to believe that a child is a victim of female genital mutilation, then that person shall immediately make an oral or written report to the appropriate authorities; and creates a new section of KRS Chapter 620 to require a report to the Cabinet for Health and Family Services; EMERGENCY.

U. SB 79

AN ACT relating to school background checks. Amends KRS 160.380, relating to the employment of school personnel, to define “administrative findings of child abuse or neglect” to mean a substantiated finding of child abuse or neglect that is upheld on appeal or not appealed; and amends the definition of “clear CA/N check” to include administrative findings instead of substantiated findings.

V. SB 80

AN ACT relating to crime victims’ rights. Repeals and reenacts or repeals, reenacts, and amends various sections of KRS 421.500 to 421.575, the Crime Victim Bill of Rights, to change statutory definition of “victim”; requires that restitution to the victim be made when possible; and repeals KRS 421.540; EFFECTIVE November 3, 2020, only if voters ratify a proposed constitutional amendment providing protection of crime victims’ rights.

249 W. SB 82

AN ACT establishing the Kentucky Eating Disorder Council and making an appropriation therefor. Creates a new section of KRS Chapter 210 to establish the Kentucky Eating Disorder Council in the Cabinet for Health and Family Services; sets forth membership and duties; requires a report annually beginning December 1, 2020; sunsets the council on December 1, 2030, unless otherwise reestablished by the General Assembly; and creates a new section of KRS Chapter 210 to establish the Kentucky Eating Disorder Fund.

X. SB 94

AN ACT relating to motor fuel. Amends KRS 363.904 to specify waiver requirements for gasoline containing up to 15 percent ethanol.

Y. SB 99

AN ACT relating to alcoholic beverages. Amends KRS 241.010 to conform definition of “moist,” revise “private club” definition to include profit or nonprofit entity, and amend “small farm winery” definition to include gallonage increase to 500,000 gallons; creates a new section of KRS Chapter 242 to allow a local option election for a microbrewery; amends KRS 242.1241 to remove the 1:00 p.m. restriction on small farm winery opening time; amends KRS 242.1243 to remove the sunset provision for local option elections for distilleries; amends KRS 243.0305 to allow distillery gift shops to sell products that were produced in collaboration with a brewer or microbrewer, add a nonexclusivity provision, and require the distiller to purchase the jointly branded souvenir packages from a licensed malt beverage distributor; amends KRS 243.0307 to allow malt beverage sampling; amends KRS 243.040 to remove the residency requirement; amends KRS 243.086 to remove the one-year requirement for a private club license; amends KRS 243.100 to remove the residency requirement; amends KRS 243.200 to remove the residency requirement; amends KRS 243.110 to include NQ3 license; amends KRS 243.120 to establish minimum production amounts for distillery licensees; amends KRS 243.155 to increase annual small farm winery gallonage cap to 500,000 gallons and allow Sunday opening time to be set by local ordinance; amends KRS 243.157 to add language regarding territories moist through local option election; amends KRS 244.085 to add live music or other entertainment or public facility language to places where minors can be on premises and remove requirements for advance written permission; amends KRS 244.290 to allow local ordinance to set Sunday opening time for a small farm winery; amends KRS 244.461 to specify conditions for coupons and rebates; amends KRS 244.500 to remove coupons and rebates; and amends KRS 244.590 and 244.600 to specify that sampling is not a violation.

250 Z. SB 101

AN ACT relating to awarding of credit under articulation agreements. Amends KRS 164.2951 to require the Council on Postsecondary Education to facilitate the implementation of a standardized articulation agreement for each approved high school career pathway to be honored at any public college or university.

AA. SB 102

AN ACT relating to operations of executive branch agencies. Amends KRS 42.545 to delete the Kentucky Health and Geriatric Authority; amends KRS 42.720, 42.726, 42.728, and 61.8715 to delete reference to the Statewide Strategic Planning Committee for Children in Placement; amends KRS 154.20-020 to delete reference to building a 100-bed inpatient mental health facility in eastern Kentucky; amends KRS 194A.050, 194A.180, and 194A.190 to delete reference to the Public Health Services Advisory Council; amends KRS 199.894 to change definitions of “child-care center” and “family child-care home”; amends KRS 199.896 to add exemption from licensure for certain instructional programs; amends KRS 202A.422 to add to persons who may serve as a witness, notary public, or other person authorized to administer oaths to the signing of an advance directive; amends KRS 205.178 to change reporting requirement to upon request; amends KRS 205.201 to delete report that no longer exists; amends KRS 209.552 to change flu immunization requirements for long-term care facilities; amends KRS 209.554 to delete the Department for Public Health’s mandate to negotiate purchase prices of vaccines for long-term care facilities; amends KRS 210.575 and 210.577 to revise the membership and duties of the Commission on Services and Supports for Individuals with an Intellectual Disability and Other Developmental Disabilities; amends KRS 211.1752 to delete appeals hearings from the local Health Department Employment Personnel Council duties; amends KRS 211.596 to change the membership of the Pediatric Cancer Research Trust Fund Board; amends KRS 213.011 to add the terms “abortion” and “stillbirth” and delete the terms “induced termination of abortion” and “fetal death”; amends KRS 213.031 to delete vital statistics and the Department of Education coordination on children’s Social Security numbers; amends KRS 213.036 to delete requirement for a local registrar in each registration district, change district to county, and permit local health departments to designate a deputy registrar; amends KRS 213.041 to delete that vital statistic forms be typewritten and change local to state registrar; amends KRS 213.046 and 213.051 to require certificates of birth be filed with the state registrar within five working days and change local to state registrar; amends KRS 213.047 to change local to state registrar and add that fee and form may be submitted to a local health department; amends KRS 213.071 to change sealing of birth certificates; amends KRS 213.076 to delete requirement to provide color-coded envelopes to funeral homes; amends KRS 213.096 and 213.156 to add the terms “abortion” and “stillbirth” and delete the terms “induced termination of abortion” and “fetal death”; amends KRS 213.101 to conform; amends KRS 214.160 to require an infant born with substance abuse withdrawal symptoms to be reported

251 to child protective services; amends KRS 214.554 to delete the Breast Cancer Advisory Committee; amends KRS 216.2920 to change definitions of “ambulatory facility,” “facility,” and “health-care provider”; amends KRS 216.2925 to conform; amends KRS 216.2980 to delete required reports to the Department for Public Health; amends KRS 222.231 to change inspection of accredited agencies to at least every two years; amends KRS 304.14-617 to change requirements for long-term care policies that cover adult day health care services; amends KRS 304.14-675 to change requirements for short-term nursing home insurance policies; amends KRS 205.6317 and 342.375 to conform; amends KRS 605.120 to change foster parent rate review reports to upon request; and repeals KRS 194.245, 194A.140, 194A.145, 194A.146, 194A.200, 199.8992, 200.662, 205.217, 205.950, 205.955, 211.215, 211.400, 211.402, 216.2960, 216.370, 216.375, 216.750, 216.760, 216.770, 216.780, 216.800, 216.803, 216.805, 216.807, 216.810, 216.813, 216.815, 216.817, 216.820, 216.823, 216.825, 216.827, 216.830, 216.833, 216.835, 216.837, 216.840, 216.843, 216.845, 216.847, 216.850, 216.853, 216B.021, 216B.022, 216B.182, 216B.459, 219.390, and 620.157.

AB. SB 111

AN ACT relating to public safety personnel. Creates a new section of KRS Chapter 72 to require the coroner to ensure that the remains of police officers, firefighters, or emergency medical services personnel, as defined in KRS 61.315, or coroners or deputy coroners, killed in the line of duty are transported in a professional manner so as to obscure the contour of the decedent’s remains, to cover the remains in an American flag when so requested, and to allow the coroner to make arrangements for other entities to transport the decedent in the same professional manner; and amends KRS 15.440 to allow the Kentucky Law Enforcement Council to approve basic training credit for police officers seeking certification who meet certain experience and training levels.

AC. SB 115

AN ACT relating to the tuition waiver for Kentucky foster or adopted children. Amends KRS 164.2847 to include graduate programs in the tuition waiver for foster and adopted children and extend eligibility to include 150 consecutive or nonconsecutive credit hours.

AD. SB 122

AN ACT relating to assisted outpatient mental health treatment. Amends KRS 202A.0815 to permit a person to be court-ordered into assisted outpatient mental health treatment if the person has been involuntarily hospitalized at least twice in the past 24 months instead of twice in the past 12 months.

252 AE. SB 123

AN ACT relating to reorganization. Amends KRS 12.020 to restructure units within the Cabinet for Health and Family Services; amends KRS 194A.030 to restructure units and establish functions in the Office of the Secretary of the Cabinet for Health and Family Services; creates a new section of KRS Chapter 194A to establish the Division of Telehealth Services; and confirms Executive Orders 2019-286, 2019-466, and 2019-719.

AF. SB 125

AN ACT relating to athletic trainers. Amends KRS 311.900 to modify definitions used for athletic trainer licensing; amends KRS 311.901 to require athletic trainer regulations that address designated topics, add a third supervising physician member to the athletic trainer advisory council and allow meetings of the council to be held online or by telephone conference call; amends KRS 311.903 to describe areas of an athletic trainer’s scope of practice; directs the medical board to establish a formulary of legend medications an athletic trainer may obtain, transport, provide, or administer, authorize athletic training services for employment injuries; and requires an athletic trainer and the athletic trainer’s supervising physician to complete a board form that establishes the athletic trainer’s authorized practice activities.

AG. SB 132

AN ACT relating to . Amends KRS 29A.040 to add holders of personal identification cards issued within a county to the master list of potential jurors for that county.

AH. SB 134

AN ACT relating to the Optometry Scholarship Program. Creates a new section of KRS Chapter 164.740 to 164.7891 to establish the Optometry Scholarship Program, define scholarship eligibility requirements, direct the Kentucky Higher Education Assistance Authority to promulgate regulations and administer the program, and create the Optometry Scholarship Program fund; APPROPRIATION.

AI. SB 148

AN ACT relating to the registration of farmers for sales and use tax exemption purposes. Creates a new section of KRS Chapter 139 to require persons regularly engaged in farming to register with the Department of Revenue for purposes of issuing an exemption certificate if the person is tilling and cultivating soil for the production of crops as a business, regularly engaged in the occupation of raising and feeding livestock of a kind the products of which ordinarily constitute food for human consumption, raising and feeding poultry, producing milk for sale, or regularly engaged in raising ratite birds, llamas, alpacas, buffalos, cervids, or aquatic organisms as an agricultural pursuit.

253 AJ. SB 149

AN ACT relating to veterans. Amends KRS 40.317 to decrease the number of veterans’ benefits regional administrators and modify their duties; amends KRS 40.325 to include definition of nurse aides and allow for the hiring of nurse aides at veterans’ centers; and amends KRS 45A.690 to include a definition of nurse aides.

AK. SB 150

AN ACT relating to the state of emergency in response to COVID-19 and declaring an emergency. During the state of emergency in response to COVID-19, permits the Governor to direct any administrative body to suspend or waive fees and administrative obligations under certain circumstances; permits the Governor to waive or suspend provisions of KRS Chapter 341; permits the Education and Workforce Development Cabinet to seek assistance from the federal government and use other resources to reimburse the unemployment insurance trust fund; permits the Governor to provide administrative directives based on United States Department of Labor guidance; requires the Department of Revenue to adhere to tax filing and payment requirement changes made by federal authorities for comparable Kentucky tax filing and payment requirements; requires that penalties and interest not be imposed for any tax extensions; permits out-of-state telehealth services; requires insurers to provide coverage for out-of-state telehealth services; provides when health care providers shall be considered in compliance with Executive Orders and directives related to elective procedures; establishes a defense to civil liability for health care providers who in good faith render care or treatment of a COVID-19 patient; exempts legally permitted food service establishments from state laws prohibiting the sale of food items and other grocery staples; permits certain license holders to sell alcohol on a delivery, to-go, or take-out basis in conjunction with food sales under certain circumstances; grants the Department of Alcoholic Beverage Control (ABC) discretion to promulgate an emergency administrative regulation; provides for the extension of ABC licenses; extends the deadline for responding to Open Records requests; suspends Open Meetings laws to allow for live audio or live video teleconference meetings; allows live audio or live video teleconferences for court-ordered counseling and educational classes; suspends deadlines for hearings and decisions by local legislative bodies, boards, or commissions relating to land use, planning, or zoning pursuant to KRS Chapter 100; suspends deadlines for code enforcement proceedings or hearings arising from or related to KRS 65.8825 and 65.8828; provides that a tax district may suspend or otherwise extend applicable deadlines for filing taxable net profit or taxable gross receipt returns; establishes a defense to civil liability for businesses that make or provide personal protective equipment or personal hygiene supplies relative to COVID-19 that do not make or provide such products in the normal course of their businesses; provides that a real-time video teleconference shall be considered in the presence of one another for the purposes of complying with testimony, signature, or notarization requirements; suspends requirement to obtain a limited commercial

254 driver’s license for farm-related services under certain circumstances; provides that the State Boards of Medical Licensure, Emergency Medical Services, and Nursing may waive or modify certain laws; provides for the General Assembly’s support of access to KY COVID-19 Hotline; and requires the Governor to declare, in writing, the date upon which the state of emergency in response to COVID-19 has ceased; EMERGENCY.

AL. SB 157

AN ACT relating to governmental ethics. Creates a new section of KRS 6.601 to 6.849 to specify that applicable criminal statutes of limitation shall not apply to ethical misconduct under KRS 6.601 to 6.849; amends KRS 6.686 to provide for dismissal of a legislative ethics complaint upon the affirmative vote of at least five members, including at a teleconference meeting, and allow a complaint to be filed against a former legislator, legislative agent, or former employer of a legislative agent within one year of the date he or she left office or terminated lobbying registration; amends KRS 6.701 to require the commission to design seminars for employees of the legislative branch of state government, change the design requirement for continuing legal education class, and reduce the current issue seminars for legislators from three hours to two hours; amends KRS 11A.201 to define “financial impact” and refine the definitions of “executive agency decision” and “substantial issue”; amends KRS 11A.211 to include real parties in interest as part of the engagement of the executive agency lobbyist in the requirement to report compensation paid or received; and amends KRS 11A.010 and 11A.233 to conform.

AM. SB 158

AN ACT relating to education. Amends KRS 158.6455 to specify the components of the statewide accountability system, require state indicators be evaluated on “status” and “change” and defines the terms, require a school’s overall performance, status, and change to be displayed on an online dashboard, and clarify that a superintendent, principal, or school district can appeal a performance judgment; amends KRS 160.346 to define “approved turnaround vendor list,” revise the criteria for determining targeted support and improvement and additional targeted support and improvement, require the Kentucky Department of Education to conduct the audit when a school is identified for comprehensive support and improvement, requires a local board of education to select a turnaround vendor for a comprehensive support and improvement school from the approved list, require the local school board to consult with the department on the turnaround plan, require the Kentucky Board of Education to promulgate administrative regulations on how the department shall disburse school improvement funds to schools identified for comprehensive support and improvement, require the department to submit an annual report to the Interim Joint Committee on Education on the performance of turnaround vendors, and remove the principal evaluation and reassignment provisions from the audit and turnaround process; amends KRS 156.160 to prohibit high school graduation requirements from including a postsecondary readiness indicator used in the state

255 accountability system or a minimum score on a statewide assessment; amends KRS 158.140 to prohibit a local board from requiring achievement of a minimum score on a statewide assessment as a high school graduation requirement; amends KRS 158.649 to revise the definition of “achievement gap” and amends various sections to conform; amends KRS 160.1594 to prohibit charter authorizer training for local school boards until a charter application is received; and amends KRS 158.6453 to require scores on IB examinations of four or higher to be included on the school report card, and add noncodified language encouraging the department to assign more weight in the accountability system for progress made by subgroups toward goals.

AN. SB 160

AN ACT relating to the Department of Law. Reorganizes Office of the Attorney General.

AO. SB 174

AN ACT relating to elementary and secondary teachers and principals. Amends KRS 161.1211 to allow national board certification to qualify a teacher for Rank II status and change Rank I requirements to reflect the change; amends KRS 161.027 to remove the Kentucky specialized assessment requirement for principal certification; and amends KRS 157.395 to provide that a teacher who attains national board certification after July 1, 2020, shall receive an annual supplement in the amount appropriated by the General Assembly and allow a local board to provide an additional supplement up to an amount for the total supplement to equal $2,000.

AP. SB 177

AN ACT relating to education and declaring an emergency. Provides that school districts may be approved for nontraditional instruction days related to the COVID-19 emergency; waives student attendance day requirements and provides options for schools to complete 1,062 instructional hours for the 2019-2020 school year; includes state agency children in the student instructional requirements related to the COVID-19 emergency; allows school districts to provide additional emergency leave days for staff due to the COVID-19 public health emergency; directs the Kentucky Department of Education to seek federal waivers regarding school meal service rules in relation to the COVID-19 public health emergency; provides that the Kentucky Department of Education may waive statewide assessment and accountability system requirements in accordance with federal waivers received; directs the Kentucky Department of Education to seek federal waivers from the Individuals with Disabilities Education Act in relation to the COVID-19 public health emergency; allows a local board of education to revise its certified evaluation plan due to the COVID-19 public health emergency; allows a principal to award additional educational enhancement opportunity days to students to meet obligations that occur prior to the last day of school due to the COVID-19 public health

256 emergency; allows school districts to email required notices to school district employees; allows school districts to submit 2018-2019 attendance data for the 2019-2020 school year; and makes provisions of the Act retroactive to March 6, 2020; EMERGENCY.

AQ. SB 184

AN ACT relating to grain. Amends KRS 251.370 to specify financial statement requirements; and amends KRS 251.440 to specify application requirements.

AR. SB 186

AN ACT relating to the Auditor of Public Accounts. Amends KRS 43.020 to delete requirement that the Auditor of Public Accounts reside at the seat of government; amends KRS 43.030 to allow the assistant state auditor to recuse himself or herself in specified instances to comply with professional standards of accountancy; amends KRS 43.040 to require the Auditor of Public Accounts to file a certification of the inventory of the office with the Secretary of State at the end of his or her term of office, provide for delivery of the inventory to the successor of the Auditor of Public Accounts and provide that in the event of a vacancy in the office of Auditor of Public Accounts, the assistant state auditor shall deliver the inventory to the Auditor’s successor; amends KRS 43.050 to provide the Auditor of Public accounts with the authority to bill for audits, examinations, investigations, and reviews; specifies that the Auditor of Public Accounts may provide consulting services to state and local government entities and may charge a mutually agreed upon rate; deletes reference to “outstanding warrants”; amends KRS 43.060 to specify that the Auditor of Public Accounts is required to annually audit the Commonwealth’s Comprehensive Annual Financial Report (CAFR); amends KRS 43.090 to require that all audit reports and responses be posted online in a publicly searchable format; and amends KRS 43.200 to make the Auditor of Public Accounts’ scholarship discretionary rather than mandatory.

AS. SB 191

AN ACT relating to substance use disorders. Creates a new section of KRS Chapter 222 to encourage employment of workers who participate in employer-sponsored substance use disorder treatment, require each employer to provide its program records by court order, and describe employer liability and the permissible use of information in litigation; creates new sections of KRS 309.080 to 309.089 to establish the certification requirements for alcohol and drug counselor associates I and II; amends KRS 309.080 to define certified alcohol and drug counselor associates I and II; amends KRS 309.0813 to mandate application approval or disapproval at least once every other month; amends KRS 309.083 and 309.0832 to require applicants for alcohol and drug counselor certification or licensure to meet all education, supervision, and training requirements of the International Certification and Reciprocity Consortium and make a supervising certified alcohol and drug counselor attend board-sponsored

257 supervision training; amends KRS 309.0831 to direct a certified counselor supervisor of an alcohol and drug peer support specialist applicant to attend board-sponsored supervision training and reduce a peer support specialist’s minimum time in recovery from two years to one year; amends KRS 309.0805, 309.0833, and 309.088 to conform; and delays the effective date of drug and alcohol counselor changes to March 1, 2021.

AT. SB 193

AN ACT relating to educational goals. Amends KRS 158.849 to establish a goal of increasing participation in computer science courses by underrepresented groups, change goal score on IB examinations to “4” or better, and require the Department of Education to submit an annual report on public school students participating in computer science courses.

AU. SB 237

AN ACT relating to tissue sample collection in autopsies. Amends KRS 213.161 and 72.405 to allow for the collection of tissue samples from autopsies of children for research purposes.

AV. SB 239

AN ACT relating to local government pension plans. Amends KRS 61.637 to provide that a mayor or member of a city legislative body who is at least 62 years of age and eligible to retire from the County Employees Retirement System shall not be required to resign from his or her position as mayor or member of a city legislative body in order to begin drawing benefits from the system and provide that no additional benefits will be accumulated with any employer after the mayor’s or city legislative body member’s effective retirement date; amends KRS 90.400 and 90.410 permitting the board of trustees of a legacy city pension fund having fewer than 12 active and retired members or beneficiaries to offer those individuals a one-time irrevocable option to convert monthly pension benefits from the fund to monthly annuity benefits from an insurance company for the same amount, requiring the insurance company to honor any features and options available under the existing plan, and requiring the board to provide beneficiaries with complete and appropriate disclosures sufficient to make an informed decision; amends KRS 95.022 to provide that retired police officers who, after retirement, are hired by the city for purposes of KRS 158.4414 shall not count against the limitations of the number of reemployed retirees hired by a city; amends KRS 95.290 permitting the board of trustees of a legacy policemen’s pension fund or firefighters’ pension fund in a city of the first class having fewer than 12 active and retired members or beneficiaries to offer those individuals a one- time irrevocable option to convert monthly pension benefits from the fund to monthly annuity benefits from an insurance company for the same amount, requiring the insurance company to honor any features and options available under the existing plan, and requiring the board to provide beneficiaries with complete and appropriate disclosures sufficient to make an informed decision; amends KRS 95.530, 95.622, 95.767, and 95.869

258 permitting the board of trustees of a local legacy policemen’s and firefighters’ pension fund having fewer than 12 active and retired members or beneficiaries to offer those individuals a one-time irrevocable option to convert monthly pension benefits from the fund to monthly annuity benefits from an insurance company for the same amount, requiring the insurance company to honor any features and options available under the existing plan, and requiring the board to provide beneficiaries with complete and appropriate disclosures sufficient to make an informed decision; and amends KRS 95.620 to conform.

AW. SB 249

AN ACT relating to retirement and declaring an emergency. Amends KRS 61.510 to remove the definition of “level dollar amortization method” that was declared void by a recent court decision and to restore definition of “level percentage of payroll amortization method”; amends KRS 61.522 to delay the one-time window where nonhazardous quasi-governmental agencies may voluntarily cease participation in the KERS from June 30, 2020, to June 30, 2021, provide that Kentucky Retirement Systems shall amend the 2019 actuarial valuation in accordance with the amendments to KRS 61.565 in this Act and provide updated employer contributions to the Governor and General Assembly, provide that CERS employer rate phase- in is paused at current levels for a one year period; amends KRS 61.565 to reset amortization period to a new 30-year period effective with the 2019 valuation for the Kentucky Employees Retirement System (KERS), the County Employees Retirement System (CERS), and the State Police Retirement System (SPRS) and establish a layered amortization method for these systems by requiring any increase or decrease in actuarially accrued liability after the 2019 valuation to be amortized over separate 20- year closed periods beginning with the valuation in which the increase or decrease is first recognized; and makes amendments to KRS 61.522 retroactive to April 1, 2020; EMERGENCY.

AX. SB 251

AN ACT relating to mining. Amends KRS 351.010 and 352.010 to change the definition of “open-pit mine” to exclude the excavation of refuse from a coarse coal refuse fill that is permitted and bonded under KRS Chapter 350 and regulated by the Mine Safety and Health Administration from the licensing requirements of KRS Chapters 351 and 352.

AY. SB 263

AN ACT relating to the coal workers’ pneumoconiosis fund. Amends KRS 342.1242 and 342.1243 to set forth the process to refund excess assessments to coal employers.

259 II. SENATE SIMPLE RESOLUTIONS

A. SR 91

Confirm the reappointment Gale Fox Lively to the Kentucky Housing Corporation Board of Directors for a term expiring October 30, 2023.

B. SR 92

Confirm the reappointment of Larry Ray Brock to the Parole Board for a term expiring July 30, 2023.

C. SR 93

Confirm the reappointment of Patrick Kelly Downard to the Board of Trustees of the Kentucky Retirement Systems for a term expiring June 17, 2023.

D. SR 94

Confirm the reappointment of Jonathan Robert Weatherby as an administrative law judge in the Department of Workers’ Claims for a term expiring December 31, 2023.

E. SR 95

Confirm the reappointment of Paul Bryan Horn, Jr. to the Kentucky Fish and Wildlife Resources Commission for a term expiring August 13, 2023.

F. SR 96

Confirm the reappointment of Monica Rice-Smith as an administrative law judge in the Department of Workers’ Claims for a term expiring December 31, 2023.

G. SR 97

Confirm the reappointment of Grant Stewart Roark as an administrative law judge in the Department of Workers’ Claims for a term expiring December 31, 2023.

H. SR 98

Confirm the reappointment of Christina Ditty Hajjar as an administrative law judge in the Department of Workers’ Claims for a term expiring December 31, 2023.

260 I. SR 99

Confirm the reappointment of Marc Christopher Davis as an administrative law judge in the Department of Workers’ Claims for a term expiring December 31, 2023.

J. SR 100

Confirm the reappointment of Raymond Malcolm Burse to the University of Louisville Board of Trustees for a term expiring January 13, 2025.

K. SR 101

Confirm the reappointment of Frank Edward Collecchia to the Board of Trustees of the Teachers’ Retirement System of Kentucky for a term expiring March 10, 2023.

L. SR 102

Confirm the reappointment of Douglas W. Gott as an administrative law judge in the Department of Workers’ Claims for a term expiring December 31, 2023.

M. SR 103

Confirm the reappointment of John Hampton McCracken as an administrative law judge in the Department of Workers’ Claims for a term expiring December 31, 2023.

N. SR 104

Confirm the reappointment of Gordon Ferrell Jones to the Agricultural Development Board for a term expiring July 6, 2023.

O. SR 105

Confirm the reappointment of Matthew Russell Hinton to the Agricultural Development Board for a term expiring July 6, 2023.

P. SR 106

Confirm the reappointment of Karl Duane Clinard to the Kentucky Fish and Wildlife Resources Commission for a term expiring August 13, 2023.

Q. SR 107

Confirm the reappointment of Barry Grant Noffsinger to the Kentucky Housing Corporation Board of Directors for a term expiring October 30, 2022.

261 R. SR 108

Confirm the reappointment of Michael J. Schmitt to the Public Service Commission for a term expiring July 1, 2023.

S. SR 204

Confirm the reappointment of William M. Boggs to the Kentucky Public Transportation Infrastructure Authority for a term expiring October 1, 2023.

T. SR 205

Confirm the appointment of Jeffery Douglas Morgan to the Kentucky Fish and Wildlife Resources Commission for a term expiring August 13, 2022.

U. SR 206

Confirm the appointment of Ashley Hughes Vice to the Education Professional Standards Board for a term expiring June 30, 2022.

V. SR 217

Confirm the appointment of Bridget Skaggs Brown to the Parole Board for a term expiring June 30, 2023.

W. SR 220

Confirm the reappointment of Marcus S. Carey to the Kentucky Claims Commission for a term expiring September 30, 2022.

X. SR 221

Confirm the reappointment of Stephen P. Brunson to the Kentucky Housing Corporation Board of Directors for a term expiring October 30, 2023.

Y. SR 222

Confirm the reappointment of Albert William Pedigo to the Agricultural Development Board for a term expiring July 6, 2023.

Z. SR 223

Confirm the appointment of Alexander Douglas Gaddis to the Kentucky Registry of Election Finance for a term expiring August 15, 2020.

AA. SR 224

Confirm the reappointment of Craig C. Dilger to the Kentucky Registry of Election Finance for a term expiring August 15, 2020.

262 AB. SR 225

Confirm the reappointment of William D. Donan to the Mine Safety Review Commission for a term expiring May 23, 2023, and appoint the same as chair.

AC. SR 226

Confirm the appointment of George J. Miller to the Mine Safety Review Commission for a term expiring May 23, 2022.

AD. SR 227

Confirm the appointment of Adam Dewayne Smith to the Education Professional Standards Board for a term expiring June 30, 2022.

AE. SR 228

Confirm the appointment of Melanie Shay Callahan to the Education Professional Standards Board for a term expiring June 30, 2022.

AF. SR 229

Confirm the reappointment of Elizabeth J. Smith to the Education Professional Standards Board for a term expiring June 30, 2022.

AG. SR 230

Confirm the reappointment of Sherry Wilson Powers to the Education Professional Standards Board for a term expiring June 30, 2022.

AH. SR 231

Confirm the reappointment of Mark F. Sommer to the Kentucky Lottery Corporation Board of Directors for a term expiring November 28, 2023.

AI. SR 232

Confirm the reappointment of Thomas Patrick O’Brien III to the Kentucky Registry of Election Finance for a term expiring August 15, 2023.

AJ. SR 233

Confirm the reappointment of Jordan M. Lanham to the Kentucky Public Transportation Infrastructure Authority for a term expiring October 1, 2023.

AK. SR 234

Confirm the appointment of Joseph L. Grossman to the Board of Trustees of the Kentucky Retirement Systems for a term expiring June 17, 2022.

263 AL. SR 235

Confirm the appointment of Richard Clayton “Clay” Larkin to the Kentucky Registry of Election Finance as the appointee of the Auditor of Public Accounts.

AM. SR 236

Confirm the appointment of Caswell Prewitt Lane to the Board of Trustees of the Kentucky Retirement Systems for a term expiring June 17, 2023.

AN. SR 237

Confirm the appointment of John Carroll Cheshire III to the Board of Trustees of the Kentucky Retirement Systems for a term expiring June 17, 2023.

AO. SR 238

Confirm the appointment of Phillip J. Moffett to the Kentucky Housing Corporation Board of Directors for a term expiring October 30, 2021.

AP. SR 239

Confirm the appointment of Jerry Dale Yates to the Kentucky Housing Corporation Board of Directors for a term expiring October 30, 2021.

AQ. SR 240

Confirm the appointment of John Christopher Robinson to the Education Professional Standards Board for a term expiring June 30, 2022.

AR. SR 241

Confirm the appointment of Aaron Scott Collins to the Education Professional Standards Board for a term expiring June 30, 2022.

AS. SR 242

Confirm the reappointment of Steven Robert Thomas to the Education Professional Standards Board for a term expiring June 30, 2022.

AT. SR 253

Confirm the appointment of Christopher James Girdler to the Kentucky Community and Technical College System Board of Regents for a term expiring July 21, 2025.

264 AU. SR 254

Confirm the appointment of Scott W. Brinkman to the University of Louisville Board of Trustees for a term expiring January 13, 2023.

AV. SR 255

Confirm the appointment of John Edward Chilton to the University of Louisville Board of Trustees for a term expiring January 13, 2022.

AW. SR 256

Confirm the appointment of Randall Jay Buford to the University of Louisville Board of Trustees for a term expiring January 13, 2021.

AX. SR 257

Confirm the appointment of Ronald Lynn Wright to the University of Louisville Board of Trustees for a term expiring January 13, 2020.

AY. SR 258

Confirm the appointment of Diane B. Medley to the University of Louisville Board of Trustees for a term expiring January 13, 2025.

AZ. SR 259

Confirm the appointment of Adam Lambert Hinton to the Morehead State University Board of Regents for a term expiring June 30, 2025.

BA. SR 260

Confirm the reappointment of Andrá R. Ward to the Northern Kentucky University Board of Regents for a term expiring June 30, 2025.

BB. SR 261

Confirm the appointment of Cathy A. Black to the University of Kentucky Board of Trustees for a term expiring June 30, 2025.

BC. SR 262

Confirm the appointment of Joe Rollin Bowen to the University of Kentucky Board of Trustees for a term expiring June 30, 2025.

BD. SR 263

Confirm the appointment of Sharon P. Clark as commissioner of the Department of Insurance, Public Protection Cabinet.

265 BE. SR 264

Confirm the appointment of Russell Scott Borders as a member of the Workers’ Compensation Board in the Department of Workers’ Claims for a term expiring January 4, 2024.

BF. SR 265

Confirm the appointment of Stanley Dewayne Johnson to the Governor’s Postsecondary Education Nominating Committee for a term expiring April 14, 2020.

BG. SR 266

Confirm the appointment of David A. Dickerson to the Kentucky Public Transportation Infrastructure Authority for a term expiring October 1, 2021.

BH. SR 267

Confirm the appointment of Bryan T. Sunderland to the University of Kentucky Board of Trustees for a term expiring June 30, 2022.

BI. SR 268

Confirm the appointment of Richard Ryan Nelson to the Council on Postsecondary Education for a term expiring December 31, 2022.

BJ. SR 269

Confirm the reappointment of Kristi P. Nelson to the Council on Postsecondary Education for a term expiring December 31, 2024.

BK. SR 270

Confirm the reappointment of Matthew Louis Monteiro to the Board of Trustees of the Kentucky Retirement Systems for a term expiring June 17, 2023.

BL. SR 277

Confirm the appointment of Charles Leon Owens to the Murray State University Board of Regents for a term expiring June 30, 2025.

BM. SR 281

Confirm the appointment of Demetrius O. Holloway to the Personnel Board for a term expiring January 1, 2024.

266 BN. SR 282

Confirm the appointment of Tommy Chandler to the Personnel Board for a term expiring January 1, 2024.

BO. SR 293

Confirm the appointment of Kellie D. Wilson to the Board of Directors of the Kentucky Employers’ Mutual Insurance Authority for a term expiring December 31, 2023.

BP. SR 295

Confirm the appointment of Mark A. Workman to the Board of Directors of the Kentucky Employers’ Mutual Insurance Authority for a term expiring December 31, 2023.

BQ. SR 307

Confirm the appointment of Holly Bloodworth to the Kentucky Board of Education for a term expiring April 14, 2024.

BR. SR 308

Confirm the appointment of June Patrice McCrary to the Kentucky Board of Education for a term expiring April 14, 2024.

BS. SR 309

Confirm the appointment of Sharon Porter Robinson to the Kentucky Board of Education for a term expiring April 14, 2024.

BT. SR 310

Confirm the appointment of Lu Settles Young to the Kentucky Board of Education for a term expiring April 14, 2024.

BU. SR 311

Confirm the appointment of JoAnn Griffey Adams to the Kentucky Board of Education for a term expiring April 14, 2024.

BV. SR 312

Confirm the appointment of Cody Pauley Johnson to the Kentucky Board of Education for a term expiring April 14, 2024.

BW. SR 313

Confirm the appointment of Alvis Johnson to the Kentucky Board of Education for a term expiring April 14, 2022.

267 BX. SR 314

Confirm the appointment of Lee Trover Todd to the Kentucky Board of Education for a term expiring April 14, 2022.

BY. SR 315

Confirm the appointment of Claire Michelle Batt to the Kentucky Board of Education for a term expiring April 14, 2022.

BZ. SR 316

Confirm the appointment of Michael Dean Bowling to the Kentucky Board of Education for a term expiring April 14, 2024.

III. HOUSE BILLS

A. HB 2

AN ACT relating to human trafficking and making an appropriation therefor. Amends KRS 17.500 to add offenses to what qualifies as a sex crime; amends KRS 49.370 to state that a human trafficking victim’s cooperation shall not disqualify the victim from a claim; creates a new section of KRS Chapter 183 to require airports to post a human trafficking hotline in publicly accessible bathrooms; creates a new section of KRS Chapter 277 to require passenger train stations to post a human trafficking hotline in publicly accessible bathrooms; creates a new section of KRS Chapter 281 to require truck stops to post a human trafficking hotline in publicly accessible bathrooms; amends KRS 529.010 to create new definitions related to human trafficking; amends KRS 529.100 to specifically list the elements of human trafficking; amends KRS 529.130 to state that $10,000 is the minimum fine to be paid to the human trafficking victims fund for a conviction of human trafficking; amends KRS 529.140 to add to the list of functions that may be funded by the human trafficking victims fund; and amends KRS 529.180 to list defenses that are not available to a defendant charged with human trafficking; APPROPRIATION.

B. HB 8

AN ACT relating to ground ambulance service providers and making an appropriation therefor. Amends KRS 142.301 to define terms; creates a new section of KRS Chapter 142 to require a ground ambulance provider to pay an assessment in an amount established by the Department for Medicaid Services; amends KRS 142.323 to conform; creates a new section of KRS Chapter 205 to permit the Cabinet for Health and Family Service to reimburse each ground ambulance provider in an amount not to exceed the emergency medical services ambulance rate adopted by the cabinet; creates a new section of KRS Chapter 205 to define terms, set the rate of assessment on a ground ambulance service provider, and implement all provisions of the assessment; and creates a new section of

268 KRS Chapter 205 to establish the ambulance service assessment fund in the state treasury; APPROPRIATION.

C. HB 24

AN ACT relating to the Bowling Green Veterans Center, making an appropriation therefor, and declaring an emergency. Appropriates to the Department of Veterans’ Affairs $2,500,000 from the General Fund in fiscal year 2019-2020 for design and preconstruction costs for the Bowling Green Veterans Center; stipulates that appropriations in this Act shall be paid from the General Fund Surplus Account or the Budget Reserve Trust Fund Account; APPROPRIATION; EMERGENCY.

D. HB 29

AN ACT relating to long-term care administrators. Amends KRS 216A.070 to extend temporary permits from a period not to exceed six months to nine months.

E. HB 44

AN ACT relating to key infrastructure assets. Creates a new section of KRS 411 that a civil action may be maintained against any person that knowingly directs or causes a person to violate subsection (1)(b) of Section 2 and that liability may include punitive damages and court costs; amends KRS 511.100 to change the definition of “key infrastructure assets” to specify that natural gas or petroleum pipelines are the type of pipelines covered in the definition and add cable television headends to the definition; and amends KRS 512.020 to include tampering with a key infrastructure asset in a manner that renders the operations harmful or dangerous in the offense of criminal mischief in the first degree.

F. HB 46

AN ACT relating to the promotion of living donor human organ and bone marrow donation. Creates a new section of KRS Chapter 18A to allow full- time employees of the Commonwealth of Kentucky a paid leave of absence of 240 hours for donating a human organ and 40 hours for donating bone marrow and to establish requirements for the paid leave of absence; and amends KRS 18A.025 and 18A.110 to conform.

G. HB 59

AN ACT relating to farmer suicide prevention and awareness. Creates a new section of KRS Chapter 2 to designate the Wednesday of National Farm Safety Week, which is the third week of September, as “Farmer Suicide Prevention Day.”

269 H. HB 98

AN ACT relating to causes of actions for building code violations. Amends KRS 198B.130 to allow a court award under KRS Chapter 198B or the Uniform Building Code to include attorney’s fees if a certificate of occupancy has not been issued.

I. HB 99

AN ACT creating and funding a Kentucky Economic Development Finance Authority loan for a qualifying public medical center located in a city of the first class, making an appropriation therefor, and declaring an emergency. Appropriates to the Cabinet for Economic Development General Fund moneys in the amount of $3,069,000 in fiscal year 2020-2021 and $3,069,000 in fiscal year 2021-2022 for new debt service to support $35,000,000 in new bonds in fiscal year 2019-2020 for the creation and funding of a KEDFA loan for a qualifying public medical center in a city of the first class; sets parameters for the KEDFA loan; stipulates that the Cabinet for Economic Development shall distribute funds by April 1, 2020, shall determine the terms and conditions of the KEDFA loan, and shall monitor the performance of the qualifying public medical center to achieve partial loan forgiveness not to exceed 50 percent of the KEDFA loan amount; and requires the public medical center that receives the loan to provide an annual report detailing the status of the KEDFA loan for as long as it is in effect; APPROPRIATION; EMERGENCY.

J. HB 129

AN ACT relating to public health, making an appropriation therefor, and declaring an emergency. Creates new sections of KRS 211.180 to 211.190 to establish definitions and establish the amount of funds to be allocated to and used by local health departments in Kentucky for employment, services, and programs; amends KRS 194A.050, 211.180, 211.357, 211.976, 217.125, and 217.811 to establish new requirements of allowable fees for year 2020 and allowable fees for subsequent years beginning in 2021 and add reporting requirement; amends KRS 212.725 and 212.755 to add provisions for tax rate levy and expense of funds that are already established by KRS 212.740 and 212.760; makes conforming changes; and repeals KRS 212.740 and 212.760; APPROPRIATION; EMERGENCY.

K. HB 135

AN ACT relating to licensees of the Kentucky Board of Medical Licensure. Amends KRS 218A.010 to amend the definition of “practitioner”; amends KRS 311.842 to require the Kentucky Board of Medical Licensure to promulgate administrative regulations relating the prescribing of controlled substances by physician assistants; amends KRS 311.844 to establish continuing education requirements for physician assistants who are authorized to prescribe controlled substances; amends KRS 311.850 to permit the board to take action against the license of a physician assistant

270 for certain sexual offenses, for being unable to practice medicine due to physical or mental illness, or for engaging in dishonorable, unethical, or unprofessional conduct; amends KRS 311.856 to conform; amends 311.858 to establish the process by which a physician assistant can apply for authorization to prescribe and administer controlled substances and to establish limitations on prescriptions for controlled substances issued by a physician assistant; creates a new section of KRS 311.840 to 311.862 to permit a hearing or inquiry panel to order a physician assistant to complete a clinical competency examination or clinical skills assessment; amends KRS 311.616 to expand eligibility for the Kentucky Physician Health Foundation to include all individuals licensed by the Kentucky Board of Medical Licensure; amends KRS 311.619 to conform; and repeals KRS 311.617.

L. HB 150

AN ACT relating to the interpretation of laws and declaring an emergency. Creates a new section of KRS Chapter 446 to provide that a statement or restatement of the law in any legal treatise or other explanatory text shall not constitute the law or public policy of this state, and no Kentucky court shall treat any such publication as controlling authority; and provides that in the absence of a constitutional section or a statute on a given matter, Kentucky shall be deemed to have adopted the common law; EMERGENCY; VETOED; OVERRIDDEN.

M. HB 153

AN ACT relating to mental health first aid training and making an appropriation therefor. Creates a new section of KRS Chapter 210 to establish the Kentucky Mental Health First Aid Training Program or similar program to be administered by the Cabinet for Health and Family Services, subject to appropriation by the General Assembly or funding from other sources, list objectives of the training program, direct how grants are to be awarded, require the cabinet to promulgate administrative regulations to implement the program, create the Kentucky Mental Health First Aid Training fund, and require moneys from the fund to be used for the training program; APPROPRIATION.

N. HB 154

AN ACT relating to grants of legal authority by individuals. Amends KRS 381.225 to provide that a new perpetuities period may be started when a power of appointment is exercised, if the person exercising the power so provides; amends KRS 381.226 to exclude any interest in property created by the exercise of a special power of appointment granted by an instrument that was irrevocable on September 25, 1985, from being construed as requiring the interests to vest within the period specified in KRS 381.224, 381.225, and 381.226; repeals KRS 386.095, 394.060, and 394.070, which relate to exercise and release of powers; establishes KRS Chapter 390 and creates new sections thereof to define various terms, specify the governing law over a power of appointment, state that common law supplements this

271 chapter, outline the creation of a power of appointment, prohibit the transfer of a power of appointment, specify general presumptions upon a power of appointment’s creation, make an exception to the general presumption about a power of appointment, defines “adverse party,” allow a donor to revoke or amend a power of appointment in certain instances, state when a power of appointment may be exercised, provide that a residuary clause manifests a powerholder’s intent to exercise a power of appointment, state that a blanket-exercise clause extends to a power acquired by the powerholder after executing the instrument containing the clause, require substantial compliance with a formal requirement of appointment, outline permissible appointments, provide that appointment to a deceased appointee is ineffective and appointment to an impermissible appointee is ineffective, require a powerholder’s intent to be carried out in cases of selective allocation, establish the procedure for disposition of property ineffectively appointed, provide for the disposition of unappointed property under released or unexercised general power, provide for the disposition of unappointed property under released or unexercised nongeneral power, provide for the disposition of unappointed property if partial appointment is to the taker in default, provide for the disposition of property appointed to the taker in default, allow a powerholder to revoke or amend an exercise, allow a powerholder to disclaim a power of appointment or contract to appoint or not appoint any property subject to the power, allow a powerholder to release a power of appointment, state the method in which a powerholder may release a power of appointment, allow a powerholder to revoke or amend a release of power, allow a powerholder of a presently exercisable power of appointment and a not presently exercisable power of appointment to contract, establish a remedy for a powerholder’s breach of a contract to appoint or not to appoint appointive property, outline the rights of a powerholder’s creditors in appointive property, state when appointive property is subject to a claim when the power is general, state when appointive property is subject to a claim when the power is nongeneral, require uniformity of interpretation and application with regard to other states that have enacted this Act, specify how the enactment of this Act affects existing powers of appointment; provides that KRS Chapter 390 may be known as the Kentucky Uniform Powers of Appointment Act; amends KRS 457.030 to exclude powers of attorney granted to motor vehicle dealers; amends KRS 457.050 to remove the requirement of a power of attorney being signed in front of two disinterested witnesses; creates various sections of KRS Chapter 457 to codify Articles 2 and 3 of the Uniform Powers of Attorney Act; and repeals and reenacts KRS 457.240, 457.250, and 457.260 to conform.

O. HB 155

AN ACT relating to property and trusts. Creates new sections of KRS Chapter 386 to establish the Kentucky Community Property Trust Act and set requirements for creation of community property trusts by spouses; amends KRS 141.019, relating to individual income tax, to provide that adjusted gross income does not include a change in the cost basis of the surviving spouse’s share of property owned by a Kentucky community property trust occurring for federal income tax purposes; amends KRS

272 386.175 to provide that a second trust may be created from an original trust whose terms have been modified; creates a new section of KRS Chapter 396 to provide that creditor claims are barred if not presented within six months after the appointment of a personal representative or if not presented within 60 days of a personal representative giving actual notice to the creditor; and amends KRS 396.011 to require creditor claims to be brought within the earlier of eight months after the decedent’s death or the established time periods.

P. HB 156

AN ACT relating to Uniform Fiduciary Access to Digital Assets Act. Establishes KRS Chapter 395A to enact the Revised Uniform Fiduciary Access to Digital Assets Act framework for the management and disposition of digital assets upon death or incapacitation; designates application to personal representatives, conservators, agents with powers of attorney, and trustees; lists documentation required to access the content of electronic communications and to access noncontent digital records; applies fiduciary duties and authority to digital assets; provides compliance guidelines for the custodians of digital records; and provides that the chapter may be cited as the Revised Uniform Fiduciary Access to Digital Assets Act (2015).

Q. HB 167

AN ACT relating to involuntary termination of parental rights and declaring an emergency. Amends KRS 625.060 and 625.070 to specify the rights of a foster parent related to involuntary termination of parental rights cases; EMERGENCY.

R. HB 186

AN ACT relating to direct sellers. Amends KRS 337.010 to exclude direct sellers from the definition of employee in regard to payment of wages; amends KRS 341.055 to exclude direct sellers from “covered employment” in regard to unemployment compensation; and amends KRS 342.650 to exempt direct sellers from coverage in regards to workers’ compensation.

S. HB 195

AN ACT relating to the publication of local government legal advertisements. Creates a new section of KRS 424.110 to 424.370 to give certain local governments and counties over 80,000 the option to post required advertisements online on a notice website operated by local government in lieu of newspaper publication, so long as a one-time advertisement is published in an actual newspaper; specifies requirements for advertisements published on the notice website and in an actual newspaper; specifies rights of public and duties of local government; sets out consequences of local government’s failure to publish as required by law; provides a penalty; VETOED; OVERRIDDEN.

273 T. HB 204

AN ACT relating to sex offender registrants. Amends KRS 17.545 to prohibit sex offender registrants from living within 1,000 feet of a publicly leased playground and from being on the grounds of a publicly leased playground.

U. HB 208

AN ACT relating to commercial mobile radio service charges and declaring an emergency. Amends KRS 65.7636 to remove the ability of Lifeline providers to bill and collect the CMRS service charge levied under the section from end users, and prohibit Lifeline providers from using any moneys received for participation in the Lifeline program from the universal service fund administered by the Federal Communications Commission to pay for any portion of the CMRS service charge levied under the section; and makes conforming changes; EMERGENCY.

V. HB 214

AN ACT relating to the Veterinary Contract Spaces Program and making an appropriation therefor. Creates a new section of KRS Chapter 164 to establish the Veterinary Contract Spaces Program, require the Kentucky Higher Education Assistance Authority to administer the program, require the authority to purchase enrollment spaces annually for Kentucky students at participating veterinary schools, establish the Veterinary Contract Spaces Program trust fund, and affirm the General Assembly’s intent that the Commonwealth’s contract spaces relationship continues with Auburn University and Tuskegee University; APPROPRIATION.

W. HB 229

AN ACT relating to 911 services and making an appropriation therefor. Amends KRS 65.7631, relating to amounts distributed to public safety answering points (PSAPs) for the purposes of answering, routing, and properly disposing of CMRS 911 calls, to remove the qualifier “CMRS” and allow money collected for the carrier cost recovery fund to be spent on establishing and maintaining statewide next generation 911 initiatives once the obligations of the carrier cost recovery fund have been met; amends KRS 65.7621 to redefine “prepaid wireless telecommunications service”; and amends KRS 65.7634 to specify that the CMRS prepaid service charge includes transactions on prepaid wireless telecommunications services; APPROPRIATION.

X. HB 236

AN ACT relating to hemp and declaring an emergency. Amends KRS 250.355 to allow the Department of Agriculture to establish hemp testing procedures; creates a new section of KRS 260.850 to 260.869 to set forth requirements for the transportation of hemp or hemp products; creates a new section of KRS 260.850 to 260.869 to specify hemp extract material;

274 amends KRS 260.858 to specify hemp extract material; amends KRS 260.850 and 260.852, 260.860, 260.864, and 260.866 to make technical corrections; amends KRS 260.858 to specify unlawful conduct; amends KRS 260.862 to specify licensure requirements; and repeals KRS 260.867; EMERGENCY.

Y. HB 238

AN ACT relating to the deputy and state veterinarian and declaring an emergency. Amends KRS 257.210 to remove residency requirement for the state veterinarian and make technical corrections; amends KRS 257.240 to remove residency requirement for the deputy state veterinarian and reinstate recommendation of the state veterinarian to the Board of Agriculture in hiring a deputy state veterinarian; and makes technical corrections; EMERGENCY.

Z. HB 242

AN ACT relating to the transportation of overdimensional loads. Amends KRS 189.270 to allow for an annual permit for transporters of new manufactured housing, notwithstand[sic] the provisions of KRS 189.269 to allow for a maximum height under this permit of 15 feet; maintains all other maximum dimension and weight limits used for regular overweight and overdimensional permits; sets fees for annual manufactured housing transport permit at $1,500 if the width exceeds 14 feet or the height exceeds 13 feet, 6 inches, otherwise sets fee at $500; sets forth additional requirements for permit holders, including use of a GPS device on the permitted vehicles, with records subject to Transportation Cabinet inspection; and sets forth a $1,000 fine if a permit holder transports a load in excess of 13 feet, 6 inches in height in restricted area, as designated by the Transportation Cabinet.

AA. HB 256

AN ACT relating to the rights of victims of sexual offenses. Amends KRS 403.322 and 405.028 to specify that a felony offense from another jurisdiction that leads to the conception and delivery of a child eliminates custody and visitation rights for the offender.

AB. HB 266

AN ACT relating to children of military families. Amends KRS 159.075 to include parents or guardians who are transferring to a reserve component or separating from the military under honorable conditions, include a home under contract to be built as a qualifying residence, and allow qualifying students to temporarily reside outside of district if the housing is unavailable and be included in the attending district’s average daily attendance.

275 AC. HB 271

AN ACT relating to death-in-line-of-duty benefits and declaring an emergency. Amends KRS 16.601 and 61.621 to remove provisions that reduce line of duty or duty-related death benefits upon remarriage; establishes noncodified sections to provide that an eligible surviving spouse who has subsequently remarried shall have their benefit increased, provide that an eligible surviving spouse of a member whose death was determined by the systems to be a direct result of an act in line of duty or a duty-related injury, but chose to receive monthly death benefits in lieu of line of duty benefits, shall receive line of duty or duty-related death monthly benefits, and to provide that Kentucky Retirement System shall establish process by which a surviving spouse of a member who died prior to retirement and prior to April 13, 2018, may apply for the line of duty death benefits; and provides that an eligible surviving spouse of a member who died in the line of duty, who remarried prior to April 13, 2018, shall have monthly benefit increased; EMERGENCY.

AD. HB 276

AN ACT relating to licensing. Amends KRS 186.041 to clarify eligibility for a special military license plate, add veteran’s identification cards to proof of veteran status, and provide for a special military license plate sticker for spouses of veterans; and amends KRS 186.416 to clarify proof required for a veteran designation on an operator’s license and adds veteran’s identification cards to proof of veteran status.

AE. HB 279

AN ACT relating to military affairs. Amends KRS 154.12-203 to update Kentucky Commission on Military Affairs membership based on current commands, battalions, and military installations.

AF. HB 284

AN ACT relating to probation program credits. Creates a new section of KRS 439.250 to 439.560 to establish probation program credits; amends KRS 439.3108 to allow those incarcerated as a graduated sanction to be placed on work release for work at their place of employment; amends KRS 439.341 to specify that revocation hearings for those on probation, parole, or post-incarceration supervision shall be probable cause revocation hearings; amends KRS 439.352 to provide for the termination of parole or other post-release supervision if the supervised individual is recommitted to prison or jail; amends KRS 439.440 to require the parole board to hear any prisoner returned to state custody within 60 days; and amends KRS 439.250, 439.3106, and 533.020 to conform.

AG. HB 298

AN ACT relating to police pursuit policies and making an appropriation therefor. Creates a new section of KRS Chapter 61 to provide definitions,

276 require each law enforcement agency in the state to establish and enforce policies governing vehicular pursuit prior to January 1, 2021, provide the criteria for decision-making to initiate and terminate a pursuit, allow the adoption of a model policy that would be subject to certain criteria, require transmission of adopted policy to the Justice and Public Safety Cabinet, require written certification that each member of the agency has received a copy of the policy and instruction on the policy, require annual review of policy, allow update of policy at any time, and require agencies to file copies of any revised policy with the Justice and Public Safety Cabinet within 10 days of its adoption; amends KRS 15.440 to require by December 31, 2022, and every two years thereafter, a four hour training course in “emergency vehicle operations”; amends KRS 186.560 to allow suspension of driver’s license for fleeing or evading in the second degree when the case involves the use of a motor vehicle; creates new section of KRS Chapter 15 to require law enforcement agencies to keep records of law enforcement officers who have met the emergency vehicle operation training requirements and make those records available to the Kentucky Law Enforcement Council and the Justice and Public Safety Cabinet; and names section 1 of the Act “Jill’s Law”; APPROPRIATION.

AH. HB 299

AN ACT relating to deputy jailers. Amends KRS 71.060 to allow jailers to appoint deputy jailers who are nonresidents of the Commonwealth if the jailer certifies that no suitable deputy jailer applicants were available in- state before appointing one who resides out-of-state and files the certification with the fiscal court.

AI. HB 302

AN ACT relating to the Kentucky State Plane Coordinate System. Amends KRS 1.010 to delete reference to the Kentucky Coordinate System of 1983 and replace with the Kentucky State Plane Coordinate System; and amends KRS 1.020 to delete reference to the Kentucky Coordinate System of 1983 and replace with the Kentucky State Plane Coordinate System, replace reference to the National Ocean Service with reference to the National Oceanic and Atmospheric Administration through its National Geodetic Survey, require the Commonwealth Office of Technology to establish and publish a series of layered zones covered by geodetically referenced mapping projections adopted by the National Geodetic Survey, provide updated means for converting meters to feet, set parameters for plane coordinate values, require coordinates based on the Kentucky State Plane Coordinate System that define a position of a corner on a land boundary to be tied to a control monument or station established by conforming to the standards of accuracy for boundary surveying as specified through administrative regulation, and allow the use of other geodetic reference networks.

277 AJ. HB 307

AN ACT relating to a statutory exemption for surviving spouses. Amends KRS 391.030, relating to the descent of property, to increase the surviving spouse exemption from $15,000 to $30,000.

AK. HB 308

AN ACT authorizing the payment of certain claims against the state which have been duly audited and approved according to law and have not been paid because of the lapsing or insufficiency of former appropriations against which the claims were chargeable or the lack of an appropriate procurement document in place, making an appropriation therefor, and declaring an emergency. Appropriates funds for the payment of claims against the Commonwealth; APPROPRIATION; EMERGENCY.

AL. HB 312

AN ACT relating to children. Amends KRS 158.448 to require the Kentucky Department of Education (KDE) to develop processes to promote more expeditious enrollment of students in foster care who are transferring to a new school or district, and the sharing of information among schools, school districts, the Cabinet for Health and Family Services (CHFS), and a child’s caseworker; creates a new section of KRS Chapter 199 to provide that educational records released from a school to CHFS, a private agency, or a child’s caseworker, shall be limited to the purpose of serving the needs of the student and shall be released only to persons authorized by statute to receive the records; amends KRS 199.640 to require child-placing agencies to have written policies and procedures to explain their outreach activities undertaken to develop cooperative relationships with local school districts and allow the agencies to release information to authorized school staff where a child is enrolling; amends KRS 199.660 to require the notification by child-placing agencies to CHFS and each other through a registry when a foster family home is closed; amends KRS 199.801 to conform; amends KRS 199.802 to require that the child’s caseworker shall accompany the child to the new school to enroll the child or contact the school via telephone during the day of enrollment and provide as much information as is known; requires how a new enrolling school obtains school records of an enrolling foster child from prior district; requires all educational records to be shared with CHFS and the child’s caseworker on a confidential basis; allows CHFS, private agencies, and the caseworker to share information with the school and teachers as to a child’s unique needs; and creates new language to require the Kentucky Department of Education to conduct a review of its policies and procedures related to student record retention and transfer.

AM. HB 313

An ACT relating to insurance. Amends KRS 304.47-055 to permit the insurance commissioner to share and receive certain documents, materials, and other information with the National Insurance Crime Bureau;

278 amends KRS 304.47-060 to provide that a person shall not be subject to civil liability for information relating to suspected fraudulent insurance acts furnished to or received from the National Insurance Crime Bureau; repeals and reenacts KRS 304.20-410 to require motor vehicle insurance companies to give appropriate discounts on comprehensive coverage for insured motor vehicles with an antitheft device or mechanism; amends KRS 304.13-065 to conform; repeals KRS 304.20-400, 304.20-420, 304.20-430, 304.20-440, and 304.20-450 relating to insurance discounts for antitheft devices; provides that the changes to antitheft device discounts on comprehensive motor vehicle coverage shall apply to motor vehicle policies issued or renewed on or after the effective date of this Act.

AN. HB 319

AN ACT relating to historical preservation of Revolutionary War battlefields, Civil War battlefields, and Underground Railroad sites, and making an appropriation therefor. Creates a new section of KRS Chapter 171 to establish the Kentucky Civil War site preservation fund and allow the Kentucky Heritage Council to provide grants from the moneys deposited in the fund to private nonprofit organizations for the purchase of certain sites; APPROPRIATION.

AO. HB 327

AN ACT relating to expungement of criminal records. Amends KRS 431.076 to create automatic expungement of acquittals and dismissals with prejudice occurring after the effective date of the Act, allow expungement of past acquittals and dismissals with prejudice by petition, and allow expungement of felony charges held to the grand jury that have not resulted in an indictment and did not proceed by information after 12 months, limit expungement to criminal records, and exclude records of the Department for Community Based Services.

AP. HB 331

AN ACT relating to the Kentucky Educational Savings Plan Trust. Amends KRS 164A.305 to include in the definition of “qualified educational expenses” certain qualified education loan repayments and certain expenses for registered apprenticeship programs.

AQ. HB 336

AN ACT relating to elections. Amends KRS 117.015 to provide that the retired county clerks shall be voting members of the State Board of Elections; creates new sections of KRS Chapter 118 to require a candidate for Governor to select a running mate in a slate of candidates after filing a certificate or petition of nomination and not later than the second Tuesday in August preceding the regular election for the office of Governor; establishes a procedure to follow if a vacancy occurs in a candidacy for the office of Lieutenant Governor; amends KRS 121.015 to redefine “slate of candidates”; amends KRS 117.275, 118.025, 118.125, 118.245, 120.055,

279 120.095, and 121.170 to conform; and repeals KRS 118.127 and 118.227; VETOED; OVERRIDDEN.

AR. HB 344

AN ACT relating to Kentucky All Schedule Prescription Electronic Reporting. Amends KRS 218A.240 to add permission for the Cabinet for Health and Family Services or applicable licensing board to access KASPER data to notify patients of a practitioner’s emergency closure; and amends KRS 218A.245 to delete reporting requirement on reciprocal interstate agreements for prescription drug monitoring program data exchanges.

AS. HB 351

AN ACT relating to governmental operations and declaring an emergency. Amends KRS 131.190 to allow the Department of Revenue to report tax data to the Interim Joint Committee on Appropriations and Revenue; amends KRS 131.183 to clarify that the application of interest does not apply to the addition of tax for estimated tax purposes; amends KRS 131.250 to allow the Department of Revenue to determine which returns, reports, or statements should be electronically filed; amends KRS 133.225 to require certain specific information to be posted on the Department of Revenue’s website related to the assessment of property and the property tax calendar; amends KRS 138.220 to clarify when motor fuel dealers are to be notified about a change to the average wholesale price; amends KRS 138.450, 139.260, and 141.039 to make a technical correction; amends KRS 141.0401 to clarify that it is the affiliated group that must file a single return for limited liability entity tax purposes; amends KRS 141.044 to restore language permitting interest on refunds to begin after 90 days; amends KRS 141.121 to make technical corrections; amends KRS 141.201 to clarify that the specific corporations exempt from taxation are not included in the consolidated return; amends KRS 141.202, 141.205, 141.206, 141.383, and 141.900 to make technical corrections; amends KRS 141.985 to clarify that the application of interest does not apply to the addition of tax for estimated tax purposes; amends KRS 154.60-040 to codify the guideline published by the Cabinet for Economic Development related to the parameters for the selling farmers tax credit; creates a new section in KRS Chapter 141 to allow the selling farmers tax credit to be claimed against the income taxes and the limited liability entity tax; amends KRS 141.0205 to order the selling farmers tax credit and the renewable chemical production tax credit; amends KRS 154.60-005 and 154.60-020 to conform; creates a new section of KRS Chapter 246 to allow the Department of Agriculture to administer the renewable chemical production program; creates a new section of KRS Chapter 141 to allow the renewable chemical production tax credit to be claimed against the income taxes and the limited liability entity tax; amends KRS 141.422 to require the renewable chemical production tax credit cap to be included within the current biodiesel and renewable diesel tax credit cap of $10 million beginning in calendar years on or after January 1, 2021; amends KRS 141.432 to conform; amends KRS 141.0101 to allow property placed in

280 service which exceeds $400,000 to also be expensed for income tax purposes according to Section 179 of the Internal Revenue Code; amends KRS 224.50-868 to extend the new tire fee for four years and clarify that the fee applies to trailer and semitrailer tires; amends KRS 224.50-855 to conform; amends KRS 224.60-130, 224.60-142, and 224.60-145 to extend the petroleum storage tank assurance fund process for four years; amends KRS 139.010 to expand the definition of machinery for new and expanded industry to include certain manufacturers of distilled spirits, wine, or malt beverages and to clarify the definition of “marketplace provider”; amends KRS 139.470 to expand the exemption for supplies and industrial tools and to expand the exemption of labor or services to install, repair, or maintain tangible personal property to include certain manufacturers of distilled spirits, wine, or malt beverages; amends KRS 189A.050 to increase the service fee paid by a person convicted of certain violations by $50 and deposit the additional funds in the ignition interlock administration fund; amends KRS 189A.350 to allow the Transportation Cabinet to require that certain fees be paid by ignition interlock providers and deposit the additional funds in the ignition interlock administration fund; creates a new section of KRS Chapter 189A to establish the ignition interlock administration fund; amends KRS 138.146 to allow a delayed payment of cigarette tax under certain conditions; amends KRS 139.495 and 139.498 to clarify that all golf course admissions are taxable, unless the sale of admissions is the result of a fundraising event held by a nonprofit qualifying under Section 501(c)(3) of the Internal Revenue Code or a governmental entity; amends KRS 139.200 to conform; amends KRS 45A.077 to extend the time before a public-private partnership capital project with an aggregate value of $25 million or more must be authorized by the General Assembly by inclusion in the branch budget bill until July 1, 2022; amends KRS 132.285 and 139.590 to allow an additional bracket for the payments to certain property valuation administrators for the use of assessed values by cities and counties; creates a new section in KRS Chapter 143 to allow a refund process for coal severance tax paid on coal that is transported directly to a market outside North America; amends KRS 103.200 to include within the definition of “building” those suitable for producing solar- generated electricity; amends KRS 95A.210 to allow the provisions to apply to a firefighter employed by an air board created under KRS Chapter 183; amends KRS 65.710 to allow the contract for ambulance service to be for a time no greater than four years; amends KRS 138.130 to define the terms “closed vapor cartridge,” “open vaping system,” “vapor products,” and “vapor products tax”; amends KRS 138.140 to impose a tax of $1.50 on each vapor cartridge and 15 percent of the actual price on an open vaping system; amends KRS 138.132, 138.135, 138.183, 138.195, and 138.197 to conform; creates a section within KRS Chapter 141 to allow partnership level audits; amends KRS 141.210 and 141.235 to conform; amends KRS 132.195, 132.020 and 132.200 to describe a privately owned leasehold interest in residential property owned by a purely public charity, imposes a state rate of 1.5 cents on each $100 of assessed value, and allows the state rate only if an exemption is approved by the county, city, school, or other local taxing district; includes noncodified language related to various administrative fees, assessments for charges among state agencies, reimbursement for audits performed, the exemption from tax for certain

281 water withdrawal fees, reimbursement if insurance proceeds are received, certain publishing requirements, and the deposit of certain insurance premium taxes to the General Fund; amends KRS 39A.100 to allow the Governor, upon recommendation of the Secretary of State, to declare by executive order a different time, place, or manner for holding elections in an election area for which a state of emergency has been declared for part or all of the election area and that any procedures established shall be subject to the approval of the Secretary of State and the Governor by respective executive orders; and repeals KRS 132.550, 132.635, and 189A.360; EMERGENCY; VETOED IN PART; OVERRIDDEN.

AT. HB 352

AN ACT relating to appropriations measures providing funding and establishing conditions for the operations, maintenance, support, and functioning of the government of the Commonwealth of Kentucky and its various officers, cabinets, departments, boards, commissions, institutions, subdivisions, agencies, and other state-supported activities. The State/Executive Branch Budget: Details Part I, Operating Budget, as follows: appropriates to General Government: 2019-2020: $21,535,000, 2020-2021: $1,794,495,300; appropriates to the Economic Development Cabinet: 2020-2021: $29,994,600; appropriates to the Department of Education: 2020-2021: $5,123,942,200; appropriates to the Education and Workforce Development Cabinet: 2020-2021: $614,363,800; appropriates to the Energy and Environment Cabinet: 2019-2020: $700,000, 2020-2021: $298,796,200; appropriates to the Finance and Administration Cabinet: 2019-2020: $2,800,000, 2020-2021: $972,494,200; appropriates to the Health and Family Services Cabinet: 2019-2020: $300,000, 2020-2021: $14,945,374,300; appropriates to the Justice and Public Safety Cabinet: 2019-2020: $17,216,900, 2020-2021: $1,308,658,400; appropriates to the Labor Cabinet: 2020-2021: $193,479,800; appropriates to the Personnel Cabinet: 2020-2021: $62,500,200; appropriates to Postsecondary Education: 2019-2020: $497,400, 2020-2021: $8,509,248,800; appropriates to the Public Protection Cabinet: 2020-2021: $126,589,800; appropriates to the Tourism, Arts and Heritage Cabinet: 2019-2020: $2,700,000, 2020-2021: $272,910,000; not included in the appropriation amounts are capital project amounts as follows: 2019-2020: $16,000,000, 2020-2021: $8,548,765,500; details Part II, Capital Projects Budget; details Part III, General Provisions; details Part IV, State Salary/Compensation, Benefit, and Employment Policy; details Part V, Funds Transfer; details Part VI, General Fund Budget Reduction Plan; details Part VII, General Fund Surplus Expenditure Plan; details Part VIII, Road Fund Budget Reduction Plan; details Part IX, Road Fund Surplus Expenditure Plan; details Part X, Phase I Tobacco Settlement; and details Part XI, Executive Branch Budget Summary; APPROPRIATION; VETOED IN PART; OVERRIDDEN.

AU. HB 353

AN ACT relating to appropriations providing financing and conditions for the operations, maintenance, support, and functioning of the

282 Transportation Cabinet of the Commonwealth of Kentucky. The Transportation Cabinet Budget: Details Part I, Operating Budget, as follows: appropriates to General Administration and Support: 2020-2021: $88,284,200; appropriates to Aviation: 2020-2021: $24,519,100; appropriates to Debt Service: 2020-2021: $147,991,400; appropriates to Highways: 2020-2021: $1,666,311,500; appropriates to Public Transportation: 2020-2021: $40,430,000; appropriates to Revenue Sharing: 2020-2021: $350,007,300; appropriates to Vehicle Regulation: 2019-2020: $4,265,500; 2020-2021: $63,513,500; not included in the appropriation amounts are capital project amounts as follows: 2019-2020: $1,460,000, 2020-2021: $14,640,000; details Part II, Capital Projects Budget; and details Part III, Funds Transfer; APPROPRIATION; VETOED IN PART; OVERRIDDEN.

AV. HB 354

AN ACT relating to road projects and declaring an emergency. Sets out the 2020-2022 Biennial Highway Construction Plan; EMERGENCY; VETOED IN PART; OVERRIDDEN.

AW. HB 355

AN ACT making appropriations for the operations, maintenance, and support of the Legislative Branch of the Commonwealth of Kentucky. The Legislative Branch Budget: Details Part I, Operating Budget, as follows: appropriates to the General Assembly: 2020-2021: $19,095,700; appropriates to the Legislative Research Commission: 2020-2021: $52,965,700; details Part II, General Provisions; and details Part III, Budget Reduction or Surplus Expenditure Plan; APPROPRIATION.

AX. HB 356

AN ACT making appropriations for the operations, maintenance, support, and functioning of the Judicial Branch of the government of the Commonwealth of Kentucky and its various officers, boards, commissions, subdivisions, and other state-supported activities. The Judicial Branch Budget: Details Part I, Operating Budget, as follows: appropriates to the Court of Justice: 2020-2021: $440,802,800; appropriates to the Judicial Retirement System: 2020-2021: $7,147,500; details Part II, Capital Projects Budget; details Part III, General Provisions; and details Part IV, Budget Reduction or Surplus Expenditure Plan; APPROPRIATION; VETOED IN PART.

AY. HB 357

AN ACT relating to emergency medical services professions reciprocity. Amends KRS 311A.142 to require reciprocity of certification or licensure for any member of the United States military who is registered by the National Registry of Emergency Medical Technicians as an emergency medical responder, emergency medical technician, advanced emergency medical technician, or paramedic; and grants reciprocity to any emergency medical

283 responder, emergency medical technician, advanced emergency medical technician, or paramedic that is currently certified or licensed and is in good standing with a state contiguous to Kentucky.

AZ. HB 361

AN ACT relating to prisoners and declaring an emergency. Amends KRS 441.520, relating to the transfer of prisoners, to require an agreement between an originating and receiving jail before ordering the transfer of a prisoner; specifies that if a transfer is ordered before receiving an agreement, the receiving jail shall not be required to house the prisoner nor shall the receiving jail’s jailer be subject to contempt; outlines what a receiving jail may charge for housing a transferred prisoner; requires a sheriff to transport the transferred prisoner; requires a Circuit Judge to review his or her transfer order every 60 days; amends KRS 441.530 to conform; amends KRS 532.100, relating to the placement of state prisoners, to provide for the transfer of state prisoners from jails at or over 150 percent capacity; allows a jail to place county prisoners in an area usually reserved for state prisoners if that area has vacant beds; amends KRS 197.020, 439.3407, 441.005, 441.045, 441.146, and 533.025 to conform; creates the Jail and Corrections Reform Task Force; outlines task force membership; requires the task force to meet monthly during the 2020 interim; and requires the task force to submit findings and recommendations to the Legislative Research Commission by December 1, 2020; EMERGENCY.

BA. HB 362

AN ACT relating to broadband deployment. Amends various sections of KRS Chapter 224A to add definitions of “broadband,” “broadband deployment fund,” “broadband deployment project,” “broadband deployment project area,” “census block,” “shapefile,” and “underserved area”; includes moneys received under KRS 224A.1121 as revenues of the Kentucky Infrastructure Authority; and amends KRS 224A.112 and 224A.1121 to separate the “broadband deployment fund” from the “infrastructure revolving fund,” specify that the broadband deployment fund would be used to provide assistance to construct infrastructure for deployment of broadband service to underserved and unserved areas of the Commonwealth, specify that moneys in the 2020 water service account and the broadband deployment fund shall not be commingled, and specify that the moneys shall be appropriated for those purposes, provide that the broadband deployment fund shall be used to provide grants to deploy broadband service to underserved as well as unserved areas of the Commonwealth, and provide the requirements for grant applications process.

BB. HB 366

AN ACT relating to Eastern Kentucky University’s model and practice school. Amends KRS 164.380 to establish guidelines for the operation and management of the model and practice schools operated by Eastern

284 Kentucky University, require the board of regents to adopt policies for the operation of the model and practice school, ensure model and practice schools and students eligible for state programs, establish a model and practice school advisory council, provide that for the purposes of determining equalization and local effort the model and practice school students shall be included in the residing district’s average daily attendance; amends KRS 164.7874 and 164.7885 to conform; and repeals KRS 156.472, relating to textbooks for model and practice school.

BC. HB 369

AN ACT relating to cervid meat disposal. Amends KRS 150.722 to include taxidermists and butchers or meat processors in the requirements for disposal of unused cervid meat, define “butcher or meat processor,” and limit the acceptable methods of disposal of unused cervid meat; and amends KRS 150.010 to define “cervid.”

BD. HB 374

AN ACT relating to rest periods and collective bargaining agreements and declaring an emergency. Amends KRS 337.365 to allow employers and employees working under a collective bargaining agreement to alter the time when a 10-minute break may be taken, require one 10-minute break during each four-hour work period, allow the employer and employee to alter the time when break periods are used so long as the ratio of break time remains 10 minutes for every four hours, and indicate that the regular statutory provisions apply if the collective bargaining agreement is silent about breaks; and amends KRS 339.270 to specify that minors shall receive a minimum 10-minute break for every four hours worked; EMERGENCY.

BE. HB 375

AN ACT relating to reorganization. Amends KRS 95A.020 to define “chief fire officer”; changes the name of the Commission on Fire Protection Personnel Standards and Education to the Kentucky Fire Commission; attaches the commission to the Kentucky Community and Technical College System for administrative purposes; requires the commission to have male, female, and minority representation; requires that no more than three appointed members reside in the same congressional district; reduces the number of members from 17 to 14; changes the qualifications for certain members appointed to the commission by the Governor; and amends various sections to conform.

BF. HB 377

AN ACT relating to special purpose governmental entities. Amends KRS 65A.020 to allow the Department for Local Government (DLG) to exclude certain revenues received by special purpose governmental entities (SPGEs) that are public use airports in determining the annual fee due from those entities; and amends KRS 65A.030 to allow the DLG to exclude

285 certain receipts received by SPGEs that are public use airports in determining the requirements relating to audits and financial statements of those entities.

BG. HB 378

AN ACT relating to the filing of documents. Amends KRS 186A.520 to provide that a county clerk’s reliance on salvage title application relieves the county clerk from liability and provide that when a salvage vehicle is transferred from an owner to an insurer it is exempted from notarization requirements; and amends KRS 64.012 to provide a $20 fee for filing, recording, or release of a lien.

BH. HB 382

AN ACT relating to the operation of golf carts. Amends KRS 189.286 to remove time of operation restrictions for golf carts operating on city and county roads where allowed by local governments.

BI. HB 387

AN ACT relating to the rural hospital operations and facilities revolving loan fund, making an appropriation therefor, and declaring an emergency. Creates a new section of Subchapter 20 of KRS Chapter 154 to establish the rural hospital operations and facilities revolving loan fund and allow unbudgeted restricted funds be allotted and expended [for the purchase of personal protection equipment for the evaluation and treatment of COVID- 19 patients during a declared emergency and may be deemed necessary government expenses] (vetoed in accordance with veto message); APPROPRIATION; EMERGENCY; VETOED IN PART.

BJ. HB 405

AN ACT proposing to amend Sections 97, 119, and 122 of the Constitution of Kentucky relating to terms of Constitutional offices. Proposes to amend Sections 97, 119, and 122 of the Constitution of Kentucky to increase the term of office for Commonwealth’s Attorneys from six years to eight years beginning in 2030, increase the term of office for district judges from four years to eight years beginning in 2022, increase the requirement of being a licensed attorney from two years to eight years for district judges beginning in 2022, and exempt any person serving as a district judge on the effective date of the Act from the eight-year licensure requirement, provide ballot language, and submit to voters for ratification or rejection.

BK. HB 411

AN ACT relating to security interests. Amends KRS 186A.120, regarding notation of security interest on a certificate of title, to establish that the county of residence designated by the debtor shall be relied upon in the titling process and that reliance shall relieve motor vehicle dealers, assignee lenders, secured parties, and county clerks from liability from third

286 parties and establish when a security interest is deemed to be perfected; and amends KRS 186A.195 and 186A.200 to conform.

BL. HB 414

AN ACT relating to the use of automated calling equipment. Amends KRS 367.461 to allow automatic calling equipment to place calls, with recorded messages or artificial voices, to publicly available phone numbers of businesses and to prevent dissemination of information collected from customers who use the services allowed by the bill.

BM. HB 415

AN ACT relating to alcoholic beverages and making an appropriation therefor. Creates new sections of KRS Chapter 243, relating to alcoholic beverage licensing, to allow a manufacturer or an out-of-state alcoholic beverage supplier to hold a direct shipper license, which authorizes the shipment of alcoholic beverages from the direct shipper licensee to the consumer; limits these shipments to only those conducted through a licensed common carrier; establishes rules and requirements to hold a direct shipper license; instructs the Department of Alcoholic Beverage Control to promulgate administrative regulations to reduce unlicensed deliveries and shipments; requires quarterly reporting by direct shipper licensees; sets monthly consumer aggregate quantity limits for direct shipped alcoholic beverages; establishes consumer age verification processes; requires each direct shipper licensee to collect and remit any applicable alcoholic beverage taxes; amends KRS 241.010 to define “consumer” and “valid identification document”; redefines “retail sale” to include in-person, electronic, online, by mail, or telephone transactions; amends KRS 243.020 to allow an independent contractor of a licensee to conduct activities authorized under that license; amends KRS 243.075 to require a direct shipper licensee to collect and remit regulatory license fees as though it were located in the receiving city or county; directs a city or county imposing a regulatory license fee to report on fee collections and modifications; amends KRS 243.200 and 244.165 to remove liability of a licensed common carrier or any of its employees on behalf of a consignor for delivering or shipping into areas where alcoholic beverages are not lawfully sold; amends KRS 243.240 to allow a retailer to purchase distilled spirits and wine from a wholesaler or retailer, but only if the distilled spirits and wine have first gone through the three tier system; amends KRS 244.150 to remove common carrier reporting to the department; and amends various sections of KRS Chapter 243 to conform; APPROPRIATION.

BN. HB 417

An ACT relating to credit for reinsurance. Amends KRS 304.5-140 to define “reciprocal jurisdiction” and “covered agreement,” establish requirements for certain reinsurance arrangements, and require the commissioner to publish a list of reciprocal jurisdictions and assuming insurers.

287 BO. HB 419

AN ACT relating to postsecondary transparency. Creates a new section of KRS Chapter 164 to require the Council on Postsecondary Education to annually compile available data on in-demand jobs within the state that includes median salary, compiles available data for each public postsecondary instruction and each campus of the Kentucky Community and Technical College System relating to student success, costs, and financial aid; requires Council on Postsecondary Education to develop delivery method to ensure access to information by prospective students; authorizes Council on Postsecondary Education to promulgate necessary administrative regulations that may include the collection of data on specific programs within postsecondary institutions; establishes citation as the Students’ Right to Know Act; EFFECTIVE July 1, 2021.

BP. HB 420

AN ACT relating to food safety. Creates new sections in Chapter 260 to direct the Department of Agriculture to implement the Food Safety Modernization Act, define terms, establish exemptions for covered produce and covered farms, authorize a department representative to enter a covered farm or farm eligible for inspection, authorize the department to promulgate administrative regulations, authorize a department representative to issue a stop movement order for covered produce, establish procedure before an appropriate court, establish violations, and establish a civil penalty.

BQ. HB 453

AN ACT relating to identity documents, making an appropriation therefor, and declaring an emergency. Amends various sections of KRS 186.400 to 186.640 and KRS Chapters 189A and 281A to make the Transportation Cabinet the sole application and issuance entity for operator’s licenses and personal identification cards and to eliminate the requirements that these documents be applied for in the county of residence; requires the Transportation Cabinet to accept, beginning July 1, 2020, cash and personal checks as payment for all fees for operator’s licenses, personal ID cards, and CDLs; expands the documents that might be used to prove veteran status for the veteran designation on the license or ID card; amends KRS 186.419 to expand the list of documents an applicant can use when applying for a voluntary travel ID; amends KRS 186.490 to allow circuit clerk offices to continue issuing standard identity credentials until the Transportation Cabinet determines that a cabinet regional office can assume those duties; requires all circuit clerks’ offices to stop issuing operator’s licenses and personal ID cards by June 30, 2022; amends KRS 186.531 to set forth a distribution schedule for license and ID card fees for these documents that are applied for with the Transportation Cabinet; amends KRS 186.010 to define the phrase “alternative technology”; requires that, beginning July 1, 2020, the Transportation Cabinet shall have their licensing offices open on Saturdays for an aggregate total of eight hours per month until June 30, 2022; requires that for FY 2021 and FY

288 2022, Transportation Cabinet mobile units shall visit counties without a cabinet licensing office a minimum number of times per year, based on population size; and amends KRS 116.0452, 116.0455, and 116.085 to conform; APPROPRIATION; EMERGENCY.

BR. HB 457

AN ACT relating to election precinct boundaries and declaring an emergency. Amends KRS 117.056 to provide that no change shall be made to the boundaries of election precincts from January 1 of each year ending in “0” until after the next session of the General Assembly, which enacts congressional and state legislative redistricting legislation following receipt of the decennial United States Census; EMERGENCY.

BS. HB 458

AN ACT relating to home or hospital instruction. Repeals, reenacts as a new section of KRS Chapter 158, and amends KRS 157.270 to clarify eligibility of students for home or hospital instruction; requires the Kentucky Board of Education to promulgate administrative regulations for home or hospital instruction; and amends KRS 159.030 to clarify the evidence requirements for exemption from compulsory attendance due to physical or mental conditions.

BT. HB 479

AN ACT relating to policemen’s and firefighters’ retirement funds of the urban-county governments. Amends KRS 67A.440 allowing a surviving spouse’s retirement benefit to continue upon remarriage; amends KRS 67A.450 to specify that members of policemen’s and firefighters’ retirement funds of urban-county governments who die not in the line of duty and who would have been eligible for voluntary retirement at the time of death are presumed to have retired on the date of death calculated with credit for accumulated sick leave credit, instead of issuing the standard annuity death benefit; amends KRS 67A.462 to prevent a member on disability retirement from holding a sworn position as an elected, paid, or volunteer peace officer, firefighter, paramedic, or other position of public safety/hazardous duty; permits the board of trustees to make reasonable investigations, including hearings, to ensure compliance with disability provisions; amends KRS 67A.492 to provide a surviving minor child or children an annuity in addition to the retirement benefits for surviving spouses and, based on factors including whether the surviving spouse is eligible for benefits and the number of minor children, set the benefits at between 50 percent and 75 percent of a member’s final annuity, final rate of pay, or service retirement, whichever is greater; allow benefits to extend to adult children between 18 and 23, who are enrolled in full-time educational activities; amends KRS 67A.530 to provide that retired fund members voting for representatives to the board of trustees shall vote for nominees of the department, police or fire, from which the member retired; amends KRS 67A.560 ensuring statutory and regulatory compliance with the Internal Revenue Code, applicable federal regulations, and published

289 guidance; and amends KRS 67A.660 requiring the board to fix the time for a rehearing at the board’s next scheduled meeting after the filing of the application.

BU. HB 484

AN ACT relating to retirement and declaring an emergency. Creates a new section of KRS 61.510 to 61.705 to specify contents/intent of bill that includes transferring the administration of the County Employees Retirement System (CERS) from the Kentucky Retirement Systems (KRS) board of trustees to the CERS board of trustees established by the Act; provides that the administration of the Kentucky Employees Retirement System (KERS) and the State Police Retirement System (SPRS) shall continue to be the responsibility of the KRS board of trustees; provides that the Kentucky Public Pensions Authority (KPPA) established by the Act shall provide personnel needs, day-to-day administrative duties, a centralized website, contracting for a single actuary for use by all systems, and other duties for the KRS board of trustees and the CERS board of trustees; and provides that it is the intent of the General Assembly in the 2021 Regular Session to enact legislation to create separate statutory benefit structures for KRS and CERS while retaining shared statutes that relate to administrative provisions that will be the responsibility of the KPPA; creates a new section of KRS Chapter 61 to establish the KPPA membership, duties, and powers; provides that membership shall include four KRS board members and four CERS board members; provides that effective April 1, 2021, KRS staff shall become the staff of the KPPA to serve the needs of both the KRS and CERS boards but shall remain part of the state personnel system; provides that the KPPA shall not be subject to reorganization by the Governor; provides that CERS shall pay for the all initial setup costs for establishing a separate CERS board and the KPPA and for annual costs attributable to separation; creates a new section of KRS 78.510 to 78.852 to establish a nine-member CERS board with powers/duties/reporting requirements similar to the KRS board in KRS 61.645; provides that the CERS board shall not be subject to reorganization by the Governor; amends KRS 61.645 to remove CERS representation from the KRS board and establishes a new nine-member KRS board that will administer KERS and SPRS; provides that the KERS board shall not be subject to reorganization by the Governor; amends KRS 78.790 to establish a CERS Investment Committee and requirements for an investment procurement policy by the CERS board; creates new sections of KRS 78.510 to 78.852 to add in actuarial valuation requirements/experience study requirements/reporting requirements of actuarial data and reports for the newly created CERS board and the process for the CERS board to determine employer contribution rates; amends KRS 7A.250 to require the Public Pension Oversight Board to review administrative expenses of all retirement systems once every four years and to make technical amendments; amends KRS 11A.010, 11A.201, and 11A.236 to add the CERS board and the KPPA to the Executive Branch Code of Ethics requirements; amends KRS 66.400 to provide that no municipality may file bankruptcy if it is in default or delinquent in paying contributions to CERS; amends KRS 61.701 to establish a CERS insurance trust fund for retiree

290 health benefits separate from the KRS insurance trust fund and to move CERS funds in the KRS insurance trust fund to the CERS insurance trust fund; amends KRS 78.535 to add in KRS 61.522 provisions regarding employer cessation of participation for CERS and provides that the CERS board shall determine the cost of ceasing participation; amends KRS 78.540 to add in provisions of KRS 61.535 and 61.550 relating to when membership ceases that were previously cross-referenced in KRS 78.545; amends KRS 78.625 to add in employer reporting provisions that were included in KRS 61.675 for KERS employers and were previously cross- referenced via KRS 78.545; makes technical amendments; amends KRS 78.852 to restore language in the statutes due to a recent court decision and provides that CERS employers are responsible for funding CERS obligations; amends KRS 6.350, 18A.205, 18A.225, 42.726, 42.728, 61.510, 61.522, 61.535, 61.552, 61.555, 61.592, 61.637, 61.650, 61.670, 61.702, 64.475, 64.640, 70.293, 78.510, 78.530, 78.545, 78.610, 78.615, 95.022, and 95.290 to conform, makes technical and clarifying amendments to provide the same authorities to the CERS board as provided the KRS board and restores language in the statutes due to a recent court decision; repeals KRS 78.533, 78.534, 78.532, 78.542, and 78.780; establishes noncodified language to provide that decisions made by the KRS board on behalf of CERS will stand and shall not be reversed except under authority granted by KRS 78.510 to 78.852; provides that the three elected CERS trustees serving/elected to the KRS board on April 1, 2021, shall be the three elected trustees of the new CERS board; provides that the two elected KERS trustees and one SPRS trustee serving/elected to the KRS board on April 1, 2021, shall continue to serve on the newly amended KRS board; provides that the three trustees previously appointed to the KRS board from lists submitted by KLC, KACO, and KSBA shall serve as the three trustees to the CERS board with “retirement experience” for the remainder of their term of office; provides that the six trustees previously appointed to the KRS board with “investment experience” shall for their remaining term of office serve as the three KRS board trustees with “retirement experience” and the three KRS board trustees with “investment experience”; provides that the Governor shall make the three appointments with investment experience to the new CERS board by March 1, 2021; provides that the Governor shall not reorganize the KRS board prior to the new boards being established; specifies that no provision of this Act shall increase or decrease benefits; specifies that no provision of this Act shall limit the General Assembly’s authority held prior to the Act; confirms the CERS board election process passed in 2019 to synchronize elections; provides that the effective date of Sections 1 to 46 of this Act shall be April 1, 2021; and adds EMERGENCY clause for Section 48 relative to reorganization of the KRS board prior to establishment of new KRS and CERS board.

BV. HB 491

AN ACT relating to economic development incentives. Amends KRS 103.220 and 103.246 to extend the time period upon which a bond shall be payable; amends KRS 154.20-234 to change the definition of “closely related”; amends KRS 154.20-236 to change the percentage of qualified

291 investment allowable as a tax credit; amends KRS 154.20-240 to clarify when unclaimed credits expire for a small business that becomes insolvent; and amends KRS 154.60-010 to change the definitions of “base employment” and “small business.”

BW. HB 564

AN ACT relating to waiver programs. Creates a new section of KRS Chapter 205 to require the Cabinet for Health and Family Services to ensure that home and community-based waiver programs provide for attendant care or nonskilled in-home care services across all waiver programs without disparity and skilled nursing visits for adult day health care and home health care providers; VETOED.

BX. HB 570

AN ACT relating to interlocal cooperation agreements. Amends KRS 65.220, establishing the purpose of KRS 65.210 to 65.300, to allow public agencies to participate in interlocal agreements; amends KRS 65.230 to define “interlocal agency,” “local government,” and “public agency”; creates a new section of KRS 65.210 to 65.300 to set protocols for establishing an interlocal agreement; amends KRS 65.240 to establish that an interlocal agreement may be for sharing revenues, add certain utilities to the list subject to an interlocal agreement, and outline purposes for which schools may enter into agreements; amends KRS 65.242 to require agreements amended only to adjust participating parties, and that the agreement be sent to the Secretary of State rather than to the Department for Local Government and the Attorney General; amends KRS 65.250 to specify the contents of the agreements themselves; creates a new section of KRS 65.210 to 65.300 to specify the powers exercised by interlocal agencies; amends KRS 65.255 to make technical corrections to the authority of peace officers exercising powers outside their immediate jurisdiction; amends KRS 65.260 to make technical changes and specify when the Attorney General and the Department for Local Government reviews agreements, and establish a deadline for review; amends KRS 65.270 to specify the execution and sale of bonds by public agencies and remove language dealing with income pledging for bond issuance; amends KRS 65.290 to no longer require agreements to be filed with county clerks and provide that no additional filings are required for the addition or removal of parties to the agreement; amends KRS 65.300 to make technical corrections; amends KRS 68.200, 154.22-040, and 154.32-050 to conform; adds a noncodified section to specify that amendments to the Act do not invalidate interlocal agreements entered into prior to the effective date of the Act; and repeals KRS 65.245.

BY. HCR 5

A CONCURRENT RESOLUTION calling for the expediting of research regarding the safety and efficacy of the use of marijuana for medical purposes. Urges federal policymakers to expedite research regarding the safety and efficacy of the use of marijuana for medical purposes.

292 BZ. HJR 8

A JOINT RESOLUTION directing the Energy and Environment Cabinet and the Louisville Metro Air Pollution Control District to determine the environmental benefits, related costs, and potential alternatives to the federal reformulated gasoline requirements currently imposed in Jefferson County and partial areas in Bullitt and Oldham Counties. Directs the Energy and Environment Cabinet and the Louisville Metro Air Pollution Control District to determine the environmental benefits, related costs, and potential alternatives to the federal reformulated gasoline requirements currently imposed in Jefferson County and partial areas in Bullitt and Oldham Counties.

CA. HJR 66

A JOINT RESOLUTION relating to road projects. Sets out the last four years of the six year road plan.

CB. HJR 105

A JOINT RESOLUTION designating honorary names for various roads and bridges and directing the placement of honorary roadside signs. Directs the Transportation Cabinet to erect road signs denoting honorary road designations and other honorary signs.

293 Index

Grain licensees, applications, requirements for Administrative Regulations and Proceedings - SB 184 Hemp program, changes to - HB 236 Cabinet for Health and Family Services, waiver Medical marijuana, safety and efficacy research, programs - HB 564 advocating for - HCR 5 Council on Postsecondary Education, student Sales and use tax, agriculture exemption number, success data, collect and publish - HB 419 requiring - SB 148 Department State/Executive Branch Budget - HB 352 for Medicaid Services, state pharmacy benefit manager - SB 50 of Criminal Justice Training, basic training Alcoholic Beverages credits - SB 111 Kentucky COVID-19 state of emergency, alcoholic beverage Board of Education, home or hospital instruction retailers - SB 150 - HB 458 Distilleries, minimum production amounts for, Board of Education, school improvement funds, establishment - SB 99 disbursement of - SB 158 Distillery local option election sunset provision, Board of Medical Licensure, prescribing removal of - SB 99 controlled substances, physician assistants - HB Shipping alcoholic beverages, regulation of - HB 135 415 Optometry Scholarship Program, require for - SB 134 Alcoholism State Board of Elections, omnibus voter identification bill - SB 2 Kentucky Mental Health First Aid Training Program, creating - HB 153 Advertising Substance use disorder treatment, methods of - SB 191 Required publication in newspaper, alternative internet website posting - HB 195 Animals, Livestock, and Poultry

Aeronautics and Aviation Abuse of animals, reporting by veterinarian - SB 21 Cervid meat, waste disposal requirements - HB 369 Air boards, review of fee and tax increase Sales and use tax exemptions, agriculture exemption requirements, exemption of - SB 5 number, require - SB 148 Airport firefighters, transportation of body when killed in line of duty - SB 111 Appropriations Airports, publicly accessible restrooms, require display of human trafficking hotline in - HB 2 911 service, carrier cost recovery fund - HB 229 Public use airports, reporting requirements as a Alcoholic beverages, fees and taxes to ship - HB 415 special purpose governmental entity - HB 377 Bowling Green Veterans Center, design and preconstruction - HB 24 Aged Persons and Aging Cabinet for Health and Family Services, funding, establish - HB 129 Executive Order 2019-719, confirm - SB 123 Claims against the Commonwealth, appropriate Home and community-based waiver programs, funds for - HB 308 administrative regulations - HB 564 Direct Health Care Services and Research Facilities Nurse aides, veterans center employment, inclusion Operations Loan - HB 99 of - SB 149 Ground ambulance provider, assessment of - HB 8 Judicial Branch Budget - HB 356 Justice Cabinet, in-service training requirement, Agriculture emergency vehicle operation - HB 298 Kentucky COVID-19 state of emergency, farm-related Civil War site preservation fund - HB 319 services, CDL licenses - SB 150 Eating Disorder Fund, directs spending - SB 82 Deputy and State Veterinarian, qualifications, Mental Health First Aid Training fund, creating - changes to - HB 238 HB 153 Ethanol, requirements, removal of - SB 94 Legislative Branch Budget - HB 355 Farmer Suicide Prevention Day, designating - HB 59 Local health departments, funding, establish - HB Food safety, procedures, implementation of - HB 420 129

294 Optometry Scholarship Program fund, creation of - Background Checks SB 134

Rural hospital operations and facilities revolving loan Child abuse and neglect check, content, fund - HB 387 administrative findings - SB 79 State Board of Elections, omnibus voter identification

bill - SB 2 State/Executive Branch Budget - HB 352 Banks and Financial Institutions Transportation Cabinet Budget - HB 353 Veterinary Contract Spaces Program trust fund, Community Property Trust Act, creation of - HB 155 creation of - HB 214 Creditor’s claim, time period for - HB 155

Area Development Districts Boards and Commissions

State/Executive Branch Budget - HB 352 Alcohol and drug counselors, board requirements for - SB 191 Athletics Charter school authorizer training, requirements for - SB 158

COVID-19 state of emergency, fees and other Licensed athletic trainers, scope of practice of - SB requirements, waiver or suspension of - SB 150 125 Kentucky

Board of Education, turnaround vendor list, creation Attorney, Commonwealth’s of - SB 158 Board of Medical Licensure, cause for disciplinary State/Executive Branch Budget - HB 352 action, amended - HB 135 Term of office, extension of - HB 405 Commission on Military Affairs, membership of - HB 279 Attorney, County Fire Commission, membership of - HB 375 State/Executive Branch Budget - HB 352

State/Executive Branch Budget - HB 352 Boundaries Attorney General Kentucky Coordinate System, changes to - HB 302

Abortion statutes, enforcement of - SB 9 Interlocal agreements, approval of - HB 570 Budget and Financial Administration Office of, reorganize - SB 160 State/Executive Branch Budget - HB 352 Biennial Highway Construction Plan, FY 2020-2022 - HB 354 Auditor of Public Accounts Bowling Green Veterans Center, design and preconstruction - HB 24

Claims against the Commonwealth, appropriate Accounting scholarships, make discretionary - SB funds for - HB 308 186 COVID-19 Hotline, support of - SB 150 Assistant state auditor, recusal, specified Direct Health Care Services and Research Facilities circumstances, allow - SB 186 Operations Loan - HB 99 Audit reports and responses, online, post - SB 186 Driver license and ID card fees, distribution - HB 453 Billing for audits, authorize - SB 186 Ground ambulance provider, assessment of - HB 8 Commonwealth’s Comprehensive Annual Financial Judicial Branch Budget - HB 356 Report (CAFR), annual audit, require - SB 186 Kentucky Civil War site preservation fund - HB 319 Consulting services, billing, authorize - SB 186 Legislative Branch Budget - HB 355 Inventory of office, end of term, require - SB 186 Rural hospital operations and facilities revolving loan Outstanding warrants, reference, delete - SB 186 fund - HB 387 Seat of government residence, requirement, repeal - Six year road plan, last four years of - HJR 66 SB 186 State/Executive Branch Budget - HB 352 State/Executive Branch Budget - HB 352 Transportation Cabinet Budget - HB 353

Audits and Auditors Cannabis

Public use airports, reporting requirements as a Hemp program, changes to - HB 236 special purpose governmental entity - HB 377

295 Capital Construction Circuit Clerks

Bowling Green Veterans Center, design and Operator’s license application, transfer to preconstruction - HB 24 Transportation Cabinet - HB 453 State/Executive Branch Budget - HB 352 Personal Transportation Cabinet Budget - HB 353 identification card, issuance of - SB 2 identification cards, addition of holders to list of Cemeteries and Burials potential jurors - SB 132 Veteran designation on operator’s license, proof

required for - HB 276 Disposition of remains, guardian to determine - SB

38 Cities Charter County Government CERS, mayors or city council members, retirement

at age 62 or over - SB 239 Police pursuit policy, requirement for - HB 298 Commercial Mobile Radio Service fees, collection,

use, and accounting of - HB 229 Children and Minors County Employees Retirement System, separate governance structure from Kentucky Retirement Abortion statutes, enforcement of - SB 9 Systems - HB 484 Background check of staff, fingerprint-supported, Emergency medical services personnel, requiring - SB 40 transportation of body when killed in line of duty Born-alive infants, protection of - SB 9 - SB 111 Child abuse and neglect check, content, Employment of retired officers, those hired under administrative findings - SB 79 KRS 158.4414 do not count for KRS 95.022 cap Child care - SB 239 center standards, establishing - SB 45 Firefighters, transportation of body when killed in line providers, definitions, changing - SB 102 of duty - SB 111 Children of military families, pre-enrollment in school Interlocal agreements, omnibus changes - HB 570 - HB 266 Pensions, legacy funds, insurance annuity Custody and visitation, after felony offense resulting payments, optional conversion to - SB 239 in child, prohibition of - HB 256 Police Department of Education, foster children, officers, transportation of body when killed in educational record sharing, providing for - HB line of duty - SB 111 312 pursuit policy, requirement for - HB 298 Female Required publication in newspaper, alternative genital mutilation, abused or neglected child - Internet website posting - HB 195 SB 72 Sex offenders, publicly leased playground, genital mutilation, requirement to report - SB 72 prohibition against - HB 204 Foster children, educational record sharing, Special purpose governmental entities, review of fee providing for - HB 312 and tax increases, requiring - SB 5 Military families, children, temporary enrollment in school - HB 266 Cities, First Class Newborn screening, spinal muscular atrophy, adding

- SB 60 Pensions, legacy funds, insurance annuity Parental rights, involuntary termination of, foster payments, optional conversion to - SB 239 parent involvement, establishing - HB 167

Post-mortem tissue sample collection, children, for research - SB 237 Civil Actions School closure due to COVID-19, provisions for - SB 177 Abortion statutes, enforcement of - SB 9 Sex offenders, publicly leased playground, Born-alive infants, protection of - SB 9 prohibition against - HB 204 Building code, violations of - HB 98 Student identification badges required to contain Community Property Trust Act, creation of - HB 155 national crisis hotline numbers - SB 42 COVID-19 state of emergency Substance abuse syndrome, newborns, reporting - defenses to civil liability - SB 150 SB 102 receipt of testimony, video teleconference Tobacco purchase and possession offenses, under procedures - SB 150 21, confiscation only penalty - SB 56 Creditor’s claim, time period for - HB 155 Tobacco-related offenses, minors, remove status Criminal mischief in the first degree, personal or real offense designation - SB 56 property damages, recovery of - HB 44

296 Female genital mutilation - SB 72 Confirmation of Appointments Immunity from civil liability, reporting of insurance

fraud - HB 313 Adams, JoAnn Griffey, Kentucky Board of Education Revised Uniform Fiduciary Access to Digital Assets - SR 311 Act, adoption of - HB 156 Batt, Claire Michelle, Kentucky Board of Education Trust, amendment of instrument creating - HB 155 - SR 315

Black, Cathy A., University of Kentucky Board of Civil Procedure Trustees - SR 261 Bloodworth, Holly, Kentucky Board of Education Born-alive infants, protection of - SB 9 - SR 307 Revised Uniform Fiduciary Access to Digital Assets Boggs, William M., Kentucky Public Transportation Act, adoption of - HB 156 Infrastructure Authority - SR 204 Trust instruments, time period related to power of Borders, Russell Scott, Department of Workers’ appointment - HB 154 Claims - SR 264 Bowen, Joe Rollin, University of Kentucky Board of Claims Trustees - SR 262 Bowling, Michael Dean, Kentucky Board of

Education - SR 316 Building code, violations of - HB 98 Brinkman, Scott W., University of Louisville Board of Financial claims against the Commonwealth, Trustees - SR 254 appropriate funds for - HB 308 Brock, Larry Ray, Parole Board - SR 92 Human trafficking victims, lack of cooperation with Brown, Bridget Skaggs, Parole Board - SR 217 law enforcement, ability to pursue claim despite - Brunson, Stephen P., Kentucky Housing Corporation HB 2 Board of Directors - SR 221

Buford, Randall Jay, University of Louisville Board of Coal Trustees - SR 256 Burse, Raymond Malcolm, University of Louisville Coal Workers’ Pneumonoconiosis fund, procedure to Board of Trustees - SR 100 refund assessments to employers - SB 263 Callahan, Melanie Shay, Education Professional Definition, open-pit mine - SB 251 Standards Board - SR 228 Carey, Marcus S., Kentucky Claims Commission Collective Bargaining - SR 220 Chandler, Tommy, Personnel Board - SR 282

Break requirements, waivers, and collective Cheshire III, John Carroll, Board of Trustees, Kentucky Retirement Systems - SR 237 bargaining agreement - HB 374 Chilton, John Edward., University of Louisville Board

of Trustees - SR 255 Commendations and Recognitions Clark, Sharon P., Department of Insurance, Public Protection Cabinet - SR 263 Road namings and honorary signs, omnibus Clinard, Karl Duane, Kentucky Fish and Wildlife resolution - HJR 105 Resources Commission - SR 106 Collecchia, Frank Edward, Board of Trustees, Commerce Teachers’ Retirement System - SR 101 Collins, Aaron Scott, Education Professional Tobacco, alternative nicotine, and vapor products, Standards Board - SR 241 raise minimum purchase age to 21 - SB 56 Davis, Marc Christopher, Department of Workers’ Claims - SR 99 Dickerson, David A., Kentucky Public Transportation Communications Infrastructure Authority - SR 266 Dilger, Craig C., reappointment to Kentucky Registry Blockchain Working Group, establishment of - SB 55 of Election Finance - SR 224 Lifeline CMRS service charge, prohibit collection Donan, William D., Mine Safety Review Commission from end user - HB 208 - SR 225 Lifeline provider CMRS service charge, federal Downard, Patrick Kelly, Board of Trustees, Kentucky universal service fund moneys, prohibit use of - Retirement Systems - SR 93 HB 208 Gaddis, Alexander Douglas, Kentucky Registry of Required publication in newspaper, alternative Election Finance - SR 223 Internet website posting - HB 195 Girdler, Christopher James, Kentucky Community and Technical College System Board of Regents - SR 253 Gott, Douglas W., Department of Workers’ Claims - SR 102

297 Grossman, Joseph L., Board of Trustees, Kentucky Robinson, Retirement Systems - SR 234 John Christopher, Education Professional Hajjar, Christina Ditty, Department of Workers’ Standards Board - SR 240 Claims - SR 98 Sharon Porter, Kentucky Board of Education - SR Hinton, 309 Adam Lambert, Morehead State University Schmitt, Michael J., Public Service Commission - SR Board of Regents - SR 259 108 Matthew Russell, Agricultural Development Board - Smith, SR 105 Adam Dewayne, Education Professional Holloway, Demetrius O., Personnel Board - SR 281 Standards Board - SR 227 Horn, Paul Bryan Jr., Kentucky Fish and Wildlife Elizabeth J., Education Professional Standards Resources Commission - SR 95 Board - SR 229 Johnson, Sommer, Mark F., Kentucky Lottery Corporation Alvis, Kentucky Board of Education - SR 313 board of directors - SR 231 Cody Pauley, Kentucky Board of Education - SR Sunderland, Bryan T., University of Kentucky Board 312 of Trustees - SR 267 Stanley Dewayne, Governor’s Postsecondary Thomas, Steven Robert, Education Professional Education Nominating Committee - SR 265 Standards Board - SR 242 Jones, Gordon Ferrell, Agricultural Development Todd, Lee Trover, Kentucky Board of Education Board - SR 104 - SR 314 Lane, Caswell Prewitt, Board of Trustees, Kentucky Vice, Ashley Hughes, Education Professional Retirement Systems - SR 236 Standards Board - SR 206 Lanham, Jordan M., Kentucky Public Transportation Ward, Andrá R., Northern Kentucky University Board Infrastructure Authority - SR 233 of Regents - SR 260 Larkin, Richard Clayton, appointment to Kentucky Weatherby, Jonathan Robert, Department of Registry of Election Finance - SR 235 Workers’ Claims - SR 94 Lively, Gale Fox, Kentucky Housing Corporation Wilson, Kellie D., Kentucky Employers’ Mutual Board of Directors - SR 91 Insurance Authority - SR 293 McCracken, John Hampton, Department of Workers’ Workman, Mark A., Kentucky Employers’ Mutual Claims - SR 103 Insurance Authority - SR 295 McCrary, June Patrice, Kentucky Board of Education Wright, Ronald Lynn, University of Louisville Board - SR 308 of Trustees - SR 257 Medley, Diane B., University of Louisville Board of Yates, Jerry Dale, Kentucky Housing Corporation Trustees - SR 258 Board of Directors - SR 239 Miller, George J., Mine Safety Review Commission, Young, Lu Settles, Kentucky Board of Education confirmation - SR 226 - SR 310 Moffett, Philip J. Kentucky Housing Corporation Board of Directors - SR 238 Consolidated Local Governments Monteiro, Matthew Louis, Board of Trustees,

Kentucky Retirement Systems - SR 270 Police pursuit policy, requirement for - HB 298 Morgan, Jeffery Douglass, Kentucky Fish and Required publication in newspaper, alternative Wildlife Resources Commission - SR 205 Internet website posting - HB 195 Nelson,

Kristi P., Council on Postsecondary Education - SR 269 Constitution, Ky. Richard Ryan, Council on Postsecondary Education - SR 268 Amendment, crime victims bill of rights, proposing Noffsinger, Barry Grant, Kentucky Housing creation of - SB 15 Corporation Board of Directors - SR 107 Commonwealth’s Attorney, terms of office, extension O’Brien, Thomas Patrick III, reappointment to of - HB 405 Kentucky Registry of Election Finance - SR 232 Crime Victim Bill of Rights, implementation of Owens, Charles Leon, Murray State University constitutional amendment - SB 80 Board of Regents - SR 277 District Court judge, term of office, extension of - HB Pedigo, Albert William, Agricultural Development 405 Board - SR 222 Judge, Powers, Sherry Wilson, Education Professional experience requirements, increase of - HB 405 Standards Board - SR 230 term of office, extension of - HB 405 Rice-Smith, Monica, Department of Workers’ Claims - SR 96 Coroners Roark, Grant Stewart, Department of Workers’

Claims - SR 97 Disposition of remains, deny person charged in a

death the ability to decide - SB 66

298 Post-mortem tissue sample collection, children, for Special military license plate, eligibility for - HB 276 research - SB 237 Vehicle titles, Transportation of bodies of police officers, reliance on debtor’s county of residence firefighters, and EMS personnel killed in line of designation, release from liability for - HB 411 duty - SB 111 security interests, perfection of - HB 411 Voter identification, omnibus bill on - SB 2 Corrections and Correctional Facilities, State Courts Officers killed in line of duty, transportation of - SB 111 Expungement, felony cases in which no indictment State/Executive Branch Budget - HB 352 was issued, exclude cases proceeding by information - HB 327 Counties Fleeing and evading, additional penalties for - HB 298

Judicial Branch Budget - HB 356 Board of elections, omnibus voter identification bill - Parental rights, involuntary termination of, foster SB 2 parent involvement, establishing - HB 167 Commercial Mobile Radio Service fees, collection, Personal identification cards, addition of holders to use, and accounting of - HB 229 list of potential jurors - SB 132 County Employees Retirement System, separate Prisoners, transfer of - HB 361 governance structure from Kentucky Retirement Revised Uniform Fiduciary Access to Digital Assets Systems - HB 484 Act, adoption of - HB 156 Emergency medical services personnel,

transportation of body when killed in line of duty - SB 111 Courts, Circuit Firefighters, transportation of body when killed in line of duty - SB 111 Judicial Branch Budget - HB 356 Jailers, deputy jailers, appointment of nonresidents Courts, District - HB 299

deputy jailers, certification of need prior to hiring Court-ordered assisted outpatient mental health out-of-state - HB 299 treatment - SB 122 Interlocal agreements, omnibus changes - HB 570 Judicial Branch Budget - HB 356 Police Tobacco-related offenses, minors, remove officers, transportation of body when killed in jurisdiction - SB 56 line of duty - SB 111

pursuit policy, requirement for - HB 298 Public use airports, reporting requirements as a Courts, Family special purpose governmental entity - HB 377 Sex offenders, publicly leased playground, Judicial Branch Budget - HB 356 prohibition against - HB 204 Special purpose governmental entities, review of fee Courts, Fiscal and tax increases, requiring - SB 5

Jailer’s certification of need prior to hiring deputy out- Counties with Cities of the First Class of-state - HB 299

Reformulated gasoline requirements, study of Court, Supreme - HJR 8

Judicial Branch Budget - HB 356 Counties, Urban Crime Victims Required publication in newspaper, alternative

Internet website posting - HB 195 Constitutional amendment, crime victims bill of

rights, proposing creation of - SB 15 County Clerks Crime Victim Bill of Rights, statutory changes upon ratification of constitutional amendment - SB 80 Candidates for Governor, running mate selection, Human trafficking victims, lack of cooperation with delay of - HB 336 law enforcement, ability to pursue claim despite Interlocal agreements, filing requirement, removal of - HB 2 - HB 570 Sex offenders, publicly leased playground, Salvage titles, release from liability for - HB 378 prohibition against - HB 204

299 Crimes and Punishments Dairying and Milk Marketing

Abortion statutes, enforcement of - SB 9 Sales and use tax exemptions, agriculture exemption Born-alive infants, protection of - SB 9 number, require - SB 148 Criminal mischief in the first degree - HB 44 Criminal mischief, specific inclusion of damage to Deaths residential rental property under - SB 11

Female genital mutilation, Class B felony - SB 72 Disposition of remains, Fleeing and evading in the second degree; deny person charged in a death the ability to decide suspension of driver’s license for; limit - HB 298 - SB 66 Human trafficking, elaborate elements of - HB 2 guardian to determine - SB 38 Jail and Corrections Reform Task Force, creation of Post-mortem tissue sample collection, children, for - HB 361 research - SB 237 Prisoners, transfer of - HB 361 Transportation by coroner of police officers, Probation program credits, creation of - HB 284 firefighters, and EMS personnel killed in line of Sex duty - SB 111 crimes, add offenses to list of - HB 2

offenders, publicly leased playground, prohibition against - HB 204 Deeds and Conveyances Terroristic threatening, clarification of - SB 8 Tobacco purchase and possession offenses, under Land records, requirements for defining position of a 21, confiscation only penalty - SB 56 land boundary corner - HB 302 Tobacco-related offenses, minors, remove status offense designation - SB 56 Dementia Trespass upon key infrastructure assets - HB 44

Home and community-based waiver programs, Criminal Procedure administrative regulations - HB 564

Abortion statutes, enforcement of - SB 9 Disabilities and the Disabled Born-alive infants, protection of - SB 9

Constitutional amendment, crime victims bill of Commission, disabilities - SB 102 rights, proposing creation of - SB 15 Home and community-based waiver programs, Crime Victim Bill of Rights, statutory changes upon administrative regulations - HB 564 ratification of constitutional amendment - SB 80 Student home or hospital instruction, eligibility for - Criminal mischief, specific inclusion of damage to HB 458 residential rental property under - SB 11

Disposition of remains, deny person charged in a death the ability to decide - SB 66 Diseases Expungement, acquittals, automatic - HB 327 Kentucky Eating Disorder Council, establishment of - dismissals with prejudice, automatic - HB 327 SB 82 exclude records of the Department for Medical marijuana, safety and efficacy research, Community Based Services - HB 327 advocating for - HCR 5 felony cases in which no indictment was issued, Newborn screening, spinal muscular atrophy, adding exclude cases proceeding by information - HB - SB 60 327 Post-mortem tissue sample collection, children, for limit to criminal records - HB 327 research - SB 237 past acquittals and dismissals with prejudice, allowed by petition - HB 327 Distilled Spirits Fleeing and evading in the second degree, suspension of driver’s license for, limit - HB 298 Alcoholic beverages, shipment of - HB 415 Human trafficking, eliminate certain defenses of - HB Distilleries, 2 minimum production amounts for - SB 99 Jail and Corrections Reform Task Force, creation of sales of products made in collaboration with brewer - HB 361 or microbrewer, allowance for - SB 99 Prisoners, transfer of - HB 361 Distillery local option election sunset provision, Probation program credits, creation of - HB 284 removal of - SB 99 Sex offenders, publicly leased playground, prohibition against - HB 204 Supervised individuals, revocation of - HB 284

300 Dogs Graduation requirements, statewide assessment, prohibit inclusion of - SB 158

Home or hospital instruction, eligibility for - HB 458 Abuse of animals, reporting by veterinarian - SB 21 IB examinations, goal score, revision of - SB 193

Interlocal agreements, omnibus changes - HB 570 Driver Licensing Low performing schools, identification of, change requirements for - SB 158 Application, transfer to Transportation Cabinet - HB Kentucky Eating Disorder Council, establishment of - 453 SB 82 Fees Military families, children acceptable forms of payment - HB 453 pre-enrollment - HB 266 distribution - HB 453 temporary enrollment - HB 266 Suspension of, for violations of fleeing and evading - Model and practice schools, operation of - HB 366 HB 298 Public school buildings, renovation plans, exempt Transportation Cabinet mobile units, mandatory from water fountain requirements - SB 57 visits to counties without an office - HB 453 Required publication in newspaper, alternative Transportation Cabinet offices, mandatory Saturday internet website posting - HB 195 hours of operation - HB 453 School closure due to COVID-19, provisions for Drugs and Medicines – SB 177 safety and support, providing for - SB 8

Statewide accountability system, revisions to Medical marijuana, safety and efficacy research, - SB 158 advocating for - HCR 5 Patient notification, practitioner emergency closure - Student identification badges required to contain national crisis hotline numbers - SB 42 HB 344 Teachers, requirements for rank changes - SB 174 Physician assistants, controlled substances, Virtual high school completion program, prescriptive authority limitations for - HB 135 State pharmacy benefit manager, Medicaid eligibility requirements - SB 63 graduation requirements - SB 63 managed care, established - SB 50 nonresident eligibility - SB 63 Substance use disorder treatment, methods of - SB allowing - SB 63 191

Education, Finance Economic Development

Building renovation, exempt from water fountain Automated equipment, phone soliciting - HB 414 requirements - SB 57 Direct Health Care Services and Research Facilities Kentucky Educational Savings Plan Trust, qualifying Operations Loan - HB 99 expenses for - HB 331 Rural hospital operations and facilities revolving loan Model and practice school, districts of residence, fund - HB 387 inclusion of students in - HB 366 State/Executive Branch Budget - HB 352 Optometry Scholarship Program, creation of Tax credits, changes to - HB 491 - SB 134

Postsecondary student success data, collect and Education, Elementary and Secondary report, Council on Postsecondary Education - HB 419 Achievement gap, revise definition of - SB 158 School closure due to COVID-19, provisions for Approved turnaround vendor list, requirement for - SB 177 - SB 158 State/Executive Branch Budget - HB 352 Approved turnaround vendor, school selection of University of Louisville, Direct Health Care Services - SB 158 and Research Facilities Operations Loan Articulated credit, require statewide standardized - HB 99 agreement - SB 101 Veterinary contract spaces, affirm continuing Charter school authorizer training, requirements for relationship with Auburn and Tuskegee - SB 158 - HB 214 Child abuse and neglect check, content, Veterinary Contract Spaces Program, creation of administrative findings - SB 79 - HB 214 Comprehensive support and improvement school, audit requirements for - SB 158 Education, Higher Computer science courses, increase participation in

- SB 193 Articulated credit, require statewide standardized Foster children, educational record sharing, agreement - SB 101 providing for - HB 312

301 Auditor of Public Accounts, accounting scholarships, agreement - HB 374 make discretionary - SB 186 COVID-19 state of emergency, relief measures - SB Eastern Kentucky University, model and practice 150 school, operation of - HB 366 Deputy and State Veterinarian, qualifications, Foster or adopted children, tuition waiver - SB 115 changes to - HB 238 Interlocal agreements, omnibus changes - HB 570 Direct Health Care Services and Research Facilities Kentucky Operations Loan - HB 99 Eating Disorder Council, establishment of Election precinct boundaries, date for maintaining - - SB 82 HB 457 Educational Savings Plan Trust, qualifying Female genital mutilation, Class B felony - SB 72 expenses for - HB 331 Hemp program, changes to - HB 236 Optometry Scholarship Program, creation of - SB Insurance, restatement, application of - HB 150 134 Lifeline CMRS service charge, prohibit collection Postsecondary student success data, collect and from end user - HB 208 report, Council on Postsecondary Education - HB Local health departments, funding, establish - HB 419 129 Student identification badges required to contain Operator’s license application, transfer to national crisis hotline numbers - SB 42 Transportation Cabinet - HB 453 University of Louisville, Direct Health Care Services Parental rights, involuntary termination of, foster and Research Facilities Operations Loan - HB parent involvement, establishing - HB 167 99 Prisoners, transfer of - HB 361 Veterinary Contract Spaces Program, creation of - Public school buildings, renovation plans, exempt HB 214 from water fountain requirements - SB 57 Veterinary contract spaces, affirm continuing Retirement, relationship with Auburn and Tuskegee - HB adjustment of line-of-duty benefits - HB 271 214 KERS, CERS, SPRS Employer Rates - SB 249 Rural hospital operations and facilities revolving loan Education, Vocational fund - HB 387 School

closure due to COVID-19, provisions for Articulated credit, require statewide standardized - SB 177 agreement - SB 101 safety and support, providing for - SB 8 Kentucky Educational Savings Plan Trust, qualifying State pharmacy benefit manager, Medicaid expenses for - HB 331 managed care, established - SB 50 Student identification badges required to contain Taxation, excise, sales and use, income, update of - national crisis hotline numbers - SB 42 HB 351

Tobacco, alternative nicotine, and vapor products, Effective Dates, Delayed minimum purchase age - SB 56

Alcohol and drug counselors, requirements for, Elections and Voting effective March 1, 2021 - SB 191

Crime victims, effective only upon adoption on Nov. Candidates for Governor, running mate selection, 3, 2020, constitutional amendment - SB 80 delay of - HB 336 Motor vehicle insurance, discount for antitheft Precincts, maintain boundaries beginning January 1 device, Jan. 1, 2021 - HB 313 in years ending in “0” - HB 457 Postsecondary student success data, collect and Voter identification, omnibus bill on - SB 2 report, July 1, 2021 - HB 419

Sales and use tax, agriculture exemption number, required, Jan. 1, 2021 - SB 148 Embalmers and Funeral Directors Tax and fee increases, review of, Jan. 1, 2021 - SB 5 Disposition of remains, guardian to determine - SB 38 Effective Dates, Emergency Emergency Medical Services Appropriation to pay claims against the Commonwealth - HB 308 Ambulance service districts, review of fee and tax Biennial Highway Construction Plan, FY 2020-2022 - increase requirements, exemption of - SB 5 HB 354 Commercial Mobile Radio Service fees, collection, Born-alive infants, protection of - SB 9 use, and accounting of - HB 229 Bowling Green Veterans Center, design and Ground ambulance provider, assessment of - HB 8 preconstruction - HB 24 Lifeline CMRS service charge, prohibit collection Break requirements, waivers, collective bargaining from end user - HB 208

302 Lifeline provider CMRS service charge, federal Special purpose governmental entities, public use universal service fund moneys, prohibit use of - airports, administrative fees - HB 377 HB 208 Virtual high school completion programs, allowing Personnel killed in line of duty, transportation of - SB fees for - SB 63 111 Reciprocity, emergency medical services personnel - Fiduciaries HB 357

Revised Uniform Fiduciary Access to Digital Assets Energy Act, adoption of - HB 156

Blockchain Working Group, establishment of - SB 55 Financial Responsibility Broadband deployment fund, underserved and

unserved areas, grants for - HB 362 Special purpose governmental entities, public use Criminal mischief in the first degree - HB 44 airports, reporting requirements - HB 377 State/Executive Branch Budget - HB 352

Trespass upon key infrastructure assets - HB 44 Fire Prevention Engineers and Surveyors Commercial Mobile Radio Service fees, collection,

use, and accounting of - HB 229 Mapping, standards for - HB 302

Firefighters and Fire Departments Environment and Conservation

Districts under KRS Chapter 75, review of fee and New tire fee, application of - HB 351 tax increase requirements, exemption of - SB 5 Reformulated gasoline requirements, determination Firefighters killed in line of duty, transportation of of benefits of - HJR 8 - SB 111 State/Executive Branch Budget - HB 352 Kentucky Fire Commission, membership of - HB 375

Pensions, legacy funds, insurance annuity Ethics payments, optional conversion to - SB 239 Urban-county governments, police and firefighters Executive branch, retirement fund - HB 479 compensation to real party in interest, reporting of - SB 157 Fish and Wildlife “financial impact,” definition of - SB 157

Legislative, Cervid meat, waste disposal requirements - HB 369 criminal statutes of limitation, ethical State/Executive Branch Budget - HB 352 misconduct, shall not apply to - SB 157

former legislative agent or employer, complaint allowed - SB 157 Foods General assembly, former member, complaint allowed - SB 157 COVID-19 state of emergency, food sale laws, food service establishments - SB 150 Federal Laws and Regulations Food safety, procedures, implementation of - HB 420

Clean Air Act, reformulated gasoline requirements, Fuel executive branch study of - HJR 8 Ethanol, requirements, removal of - SB 94 Fees Reformulated gasoline requirements, determination of benefits of - HJR 8

911 service, carrier cost recovery fund - HB 229 Alcoholic beverages, licensing fee to ship - HB 415 General Assembly Commercial Mobile Radio Service fees, collection, use, and accounting of - HB 229 Ethics, criminal statutes, application of - SB 157 Ground ambulance provider, assessment of - HB 8 Former member, complaint allowed - SB 157 Lifeline CMRS service charge, prohibit collection Legislative Branch Budget - HB 355 from end user - HB 208 Lifeline provider CMRS service charge, federal Governor universal service fund moneys, prohibit use of

- HB 208 Candidates for, running mate, delay of - HB 336

303 COVID-19 state of emergency, Substance use disorder treatment, methods of - SB administrative bodies, fees and other 191 requirements, waiver or suspension of - SB 150 declaration of cessation - SB 150 Highways, Streets, and Bridges Emergency powers regarding elections - HB 351

Executive Order Biennial Highway Construction Plan, FY 2020-2022 2019-286, confirm - SB 123 - HB 354 2019-719, confirm - SB 123 Golf carts, operation on public roadways, limits on 2019-466, confirm - SB 123 nighttime, elimination of - HB 382 State/Executive Branch Budget - HB 352 Manufactured housing, annual Transportation Cabinet Budget - HB 353 overweight/overdimensional permits for

transportation, standards - HB 242 Grain Six year road plan, last four years of - HJR 66 Transportation Cabinet Budget - HB 353 Licensees, applications, requirements for - SB 184 Historical Affairs Guardians Kentucky Civil War site preservation fund - HB 319 Disposition of remains, guardian to determine - SB 38 Homeland Security Revised Uniform Fiduciary Access to Digital Assets

Act, adoption of - HB 156 911 service, funds for - HB 229

Commercial Mobile Radio Service fees, collection, Health and Medical Services use, and accounting of - HB 229 State/Executive Branch Budget - HB 352 Athletic trainers, scope of practice of - SB 125 Born-alive infants, protection of - SB 9 Honorary Highway Designations Bowling Green Veterans Center, design and

preconstruction - HB 24 Road namings and honorary signs, omnibus Cabinet for Health and Family Services, Division of resolution - HJR 105 Telehealth Services, create - SB 123

Child care center standards, establishing - SB 45 Commercial Mobile Radio Service fees, collection, Hospitals and Nursing Homes use, and accounting of - HB 229 Controlled substances, physician assistants, Home and community-based waiver programs, prescriptive authority - HB 135 administrative regulations - HB 564 COVID-19 state of emergency, Kentucky Eating Disorder Council, establishment of - defenses to civil liability - SB 150 SB 82 health care providers - SB 150 Long-term care administrators, temporary permit, performance of health care services - SB 150 extension - HB 29 Inspection fees, public health, allow - HB 129 Newborn screening, spinal muscular atrophy, adding Kentucky - SB 60 Eating Disorder Council, establishment of - SB Nurse aides, veterans center employment, inclusion 82 of - SB 149 Mental Health First Aid Training Program, creating - State/Executive Branch Budget - HB 352 HB 153 Living organ donation, promotion of - HB 46 Housing, Building, and Construction Local health departments, funding, establish - HB

129 Building code, violations of - HB 98 Long-term care administrators, temporary permit, Manufactured housing, annual extension - HB 29 overweight/overdimensional permits for Medical marijuana, safety and efficacy research, transportation, standards - HB 242 advocating for - HCR 5 State/Executive Branch Budget - HB 352 Newborn screening, spinal muscular atrophy, adding

- SB 60 Nurse aides, veterans center employment, inclusion Hunting and Fishing of - SB 149 Patient notification, practitioner emergency closure - Cervid meat, waste disposal requirements - HB 369 HB 344 Rural hospital operations and facilities revolving loan fund - HB 387

304 Information Technology Judges and Court Commissioners

Blockchain Working Group, establishment of - SB 55 District Court, term of office, extension of - HB 405 Broadband deployment fund, underserved and Judicial Branch Budget - HB 356 unserved areas, grants for - HB 362 Commonwealth Office of Technology, establishment Judicial Circuits of mapping standards - HB 302

Judicial Branch Budget - HB 356 Inspections Judicial Districts Inspection fees, public health, allow - HB 129

Judicial Branch Budget - HB 356 Insurance Juries and Jurors Credit for reinsurance, reciprocal jurisdictions,

establishing requirements - HB 417 Personal identification cards, addition of holders to Department of Insurance, sharing and receipt of list of potential jurors - SB 132 insurance fraud information - HB 313

Immunity from civil liability, reporting of insurance fraud - HB 313 Labor and Industry Long-term care coverage, adult day care services - SB 102 Economic development, changes to tax credits Restatement, application of - HB 150 - HB 491 State/Executive Branch Budget - HB 352 Insurance, Motor Vehicle Workers compensation, procedure to refund coal assessments to employers - SB 263

Motor vehicle insurance, discount for antitheft devices - HB 313 Landlord and Tenant

International Trade and Relations Criminal mischief, specific inclusion of damage to residential rental property under - SB 11

Credit for reinsurance, reciprocal jurisdictions, establishing requirements - HB 417 Legislative Research Commission

Internet Jail and Corrections Reform Task Force, creation of - HB 361

Legislative Branch Budget - HB 355 Automated equipment, online business - HB 414 Training, legislators and staff, responsibilities for -

SB 157 Interstate Cooperation Licensing Credit for reinsurance, reciprocal jurisdictions,

establishing requirements - HB 417 Alcohol and drug counselors, requirements for

- SB 191 Jails and Jailers Alcoholic beverages, license to ship - HB 415 Athletic trainers, scope of practice of - SB 125 Jail and Corrections Reform Task Force, creation of COVID-19 state of emergency, fees and other - HB 361 requirements, waiver or suspension of - SB 150 Jailers, Reciprocity, emergency medical services personnel deputy jailers, appointment of nonresidents - HB 357 - HB 299 “Veteran-owned business,” amend definition of deputy jailers, certification of need prior to hiring - SB 37 out-of-state - HB 299 Officers killed in line of duty, transportation of - SB 111 Liens Prisoners, transfer of - HB 361

State/Executive Branch Budget - HB 352 Vehicle titles, Supervised individuals, revocation of - HB 284 reliance on debtor’s county of residence

designation, release from liability for - HB 411

security interests, perfection of - HB 411

305 Lieutenant Governor Lottery

Candidates for Governor, running mate, delay of State/Executive Branch Budget - HB 352 - HB 336 State/Executive Branch Budget - HB 352 Malt Beverages

Loans and Credit Alcoholic beverages, shipment of - HB 415

Direct Health Care Services and Research Facilities Medicaid Operations Loan - HB 99

Executive Order 2019-286, confirm - SB 123 Local Government Ground ambulance provider, assessment of - HB 8 Home and community-based waiver programs, Auditor of Public Accounts, consulting services, administrative regulations - HB 564 authorize - SB 186 State/Executive Branch Budget - HB 352 Blockchain Working Group, establishment of - SB 55 State pharmacy benefit manager, Medicaid Commercial Mobile Radio Service fees, collection, managed care, established - SB 50 use, and accounting of - HB 229 County Employees Retirement System, separate Memorials governance structure from Kentucky Retirement

Systems - HB 484 Road namings and honorary signs, omnibus COVID-19 state of emergency, resolution - HJR 105 code enforcement, suspension of deadlines

- SB 150 land use, planning, or zoning, suspension of Mental Health deadlines - SB 150 taxing districts, suspension of deadlines Court-ordered assisted outpatient mental health - SB 150 treatment - SB 122 Distillery local option election sunset provision, Farmer Suicide Prevention Day, designating - HB 59 removal of - SB 99 Kentucky Golf carts, operation on public roadways, limits on Eating Disorder Council, establishment of - SB 82 nighttime, elimination of - HB 382 Mental Health First Aid Training Program, creating Interlocal agreements, omnibus changes - HB 570 - HB 153 Jailers, National suicide hotline number, student deputy jailers, appointment of nonresidents identification badges required to contain - SB 42 - HB 299 School safety and support, providing for - SB 8 deputy jailers, certification of need prior to hiring State/Executive Branch Budget - HB 352 out-of-state - HB 299 Substance use disorder treatment, methods of - SB Kentucky Retirement Systems, line-of-duty benefits, 191 adjustment - HB 271 Police pursuit policy, requirement for - HB 298 Military Affairs and Civil Defense Policies on vehicular pursuit, amended, require filing

within 10 days - HB 298 Kentucky Commission on Military Affairs, Required publication in newspaper, alternative membership of - HB 279 internet website posting - HB 195 Military families, children, Retirement, reset of amortization period, layered pre-enrollment in school - HB 266 process, CERS phase-in pause - SB 249 temporary enrollment in school - HB 266 Sex offenders, publicly leased playground, Special military license plate, eligibility for - HB 276 prohibition against - HB 204 State/Executive Branch Budget - HB 352 Special purpose governmental entities, Veteran designation on operator’s license, proof public use airports, reporting requirements required for - HB 276 - HB 377

review of fee and tax increases by city or county, requiring - SB 5 Minerals and Mining State/Executive Branch Budget - HB 352 Transportation by coroner of police officers, Definition, open-pit mine - SB 251 firefighters, and EMS personnel killed in line of duty - SB 111

306 Motor Carriers prescriptive authority limitations for - HB 135

CDL Oil and Natural Gas application, transfer to Transportation Cabinet - HB 453 Criminal mischief in the first degree - HB 44 fees, acceptable forms of payment - HB 453 Trespass upon key infrastructure assets - HB 44 Manufactured housing, annual overweight/overdimensional permits for Opioids transportation, standards - HB 242

Truck stops, publicly accessible restrooms, display Patient notification, practitioner emergency closure of human trafficking hotline in - HB 2 - HB 344

Motor Vehicles Optometrists

Operator’s license, Optometry Scholarship Program, creation of application, transfer to Transportation Cabinet - SB 134 - HB 453

fees, acceptable forms of payment - HB 453 Salvage titles, county clerks, release from liability for Parental Rights - HB 378 Special military license plate, eligibility for - HB 276 Abortion statutes, enforcement of - SB 9 Vehicle titles, Custody and visitation, after felony offense resulting reliance on debtor’s county of residence in child, prohibition of - HB 256 designation, release from liability for - HB 411 Female genital mutilation, Class B felony - SB 72 security interests, perfection of - HB 411 Parental rights, involuntary termination of, foster parent involvement, establishing - HB 167 News Media Parks and Shrines Required publication in newspaper, alternative Internet website posting - HB 195 Sex offenders, publicly leased playground, prohibition against - HB 204 Notaries Peace Officers and Law Enforcement COVID-19 state of emergency, video teleconference procedures - SB 150 Certified officers, basic training, credit for - SB 111 Commercial Mobile Radio Service fees, collection, Notices use, and accounting of - HB 229 Female genital mutilation, requiring training on

- SB 72 Human trafficking hotline, require posting in certain Interlocal agreements, jurisdiction - HB 570 publicly accessible restrooms - HB 2 Jailers, deputy jailers, Required publication in newspaper, alternative appointment of nonresidents - HB 299 internet website posting - HB 195 certification of need prior to hiring out-of-state

- HB 299 Nurses Police pursuit policy, requirement for - HB 298 Policies on vehicular pursuit, amended, require filing Born-alive infants, protection of - SB 9 within 10 days - HB 298 Newborn screening, spinal muscular atrophy, adding School resource officer, commission for - SB 8 - SB 60 Training in emergency vehicle operation; Nurse aides, veterans center employment, inclusion require every other year - HB 298 of - SB 149 require record keeping - HB 298 Patient notification, practitioner emergency closure - HB 344 Personnel and Employment

Occupations and Professions Direct sellers, payment of wages, exclusion - HB 186

Alcohol and drug counselors, requirements for Pharmacists - SB 191

Athletic trainers, scope of practice of - SB 125 Born-alive infants, protection of - SB 9 Physician assistants, controlled substances,

307 Patient notification, practitioner emergency closure - Prosecutors HB 344

State pharmacy benefit manager, Medicaid Constitutional amendment, crime victims bill of managed care, established - SB 50 rights, proposing creation of - SB 15

Crime Victim Bill of Rights, statutory changes upon Physicians and Practitioners ratification of constitutional amendment - SB 80 State/Executive Branch Budget - HB 352 Alcohol and drug counselors, requirements for - SB 191 Public Advocate Athletic trainers, physician supervision of - SB 125

Born-alive infants, protection of - SB 9 State/Executive Branch Budget - HB 352 Female genital mutilation,

Class B felony - SB 72 revocation of license - SB 72 Public Assistance Kentucky Eating Disorder Council, establishment of Executive Order 2019-466, confirm - SB 123 - SB 82 Physician Health Foundation, eligibility, Public Authorities expanded - HB 135

Newborn screening, spinal muscular atrophy, adding Executive branch ethics, - SB 60 compensation to real party in interest, reporting Patient notification, practitioner emergency closure of - SB 157 - HB 344 “financial impact,” definition of - SB 157 Physician assistants, controlled substances, Interlocal agreements, omnibus changes - HB 570 prescriptive authority limitations for - HB 135 State Board of Elections, retired clerks, voting

members - HB 336 Police, City and County Public Buildings and Grounds Employment of retired officers, those hired under

KRS 158.4414 do not count for KRS 95.022 cap Public school buildings, water fountain requirements, - SB 239 existing buildings exempt - SB 57 Interlocal agreements, jurisdiction - HB 570 State/Executive Branch Budget - HB 352 Officers killed in line of duty, transportation of - SB 111

Pensions, legacy funds, insurance annuity payments, optional conversion to - SB 239 Public Ethics Police pursuit policy, requirement for - HB 298 Urban-county governments, police and firefighters Executive, retirement fund - HB 479 compensation to real party in interest, reporting of - SB 157 Police, State “financial impact,” definition of - SB 157

Officers killed in line of duty, transportation of - SB 111 Public Health Pursuit policy, requirement for - HB 298 State/Executive Branch Budget - HB 352 Alcohol and drug counselors, requirements for - SB 191 Probation and Parole Cabinet for Health and Family Services, operations - SB 102

Cervid meat, waste disposal requirements - HB 369 Probation program credits, creation of - HB 284 Child-care center standards, establishing - SB 45 State/Executive Branch Budget - HB 352 Female genital mutilation, Class B felony - SB 72 Supervised individuals, revocation of - HB 284 Home and community-based waiver programs,

administrative regulations - HB 564 Property Inspection fees, public health, allow - HB 129 Kentucky Community Property Trust Act, creation of - HB 155 Eating Disorder Council, establishment of Kentucky Uniform Powers of Appointment Act - HB - SB 82 154 Mental Health First Aid Training Program, Special powers of appointment, exclusion from creating - HB 153 vesting period - HB 154 Living organ donation, promotion of - HB 46 Surviving spouse exemption, increase exemption Local health departments, funding, establish amount for - HB 307 - HB 129

308 Newborn screening, spinal muscular atrophy, adding Public Salaries - SB 60 State/Executive Branch Budget - HB 352 Post-mortem tissue sample collection, children, for

research - SB 237 Tobacco, alternative nicotine, and vapor products, Public Utilities raise minimum purchase age to 21 - SB 56 Blockchain Working Group, establishment of - SB 55 Public Medical Assistance Broadband deployment fund, underserved and unserved areas, grants for - HB 362

Criminal mischief in the first degree - HB 44 State pharmacy benefit manager, Medicaid State/Executive Branch Budget - HB 352 managed care, established - SB 50 Trespass upon key infrastructure assets - HB 44

Public Meetings Railroads

COVID-19 state of emergency, Open Meetings, live Passenger train stations, publicly accessible audio or video teleconference meetings restrooms, display of human trafficking hotline - SB 150 - HB 2

Public Officers and Employees Redistricting

CERS, mayors or city council members, retirement Election precinct boundaries, maintain beginning at age 62 or over - SB 239 January 1 in years ending in “0” - HB 457 County clerks, interlocal requirement agreements,

removal - HB 570 Interlocal agreements, omnibus changes - HB 570 Reorganization Jailers, deputy jailers, appointment of nonresidents - HB 299 Cabinet for Health and Family Services, restructure certification of need prior to hiring out-of-state units - SB 123 - HB 299 Commission on Fire Protection Personnel Standards Retirement, adjustment of line-of-duty benefits and Education, changing to name and - HB 271 membership of - HB 375 State/Executive Branch Budget - HB 352 Kentucky Fire Commission, membership of - HB 375

Public Protection Reports Mandated

911 service, funds for - HB 229 Blockchain Working Group, establishment of - SB 55 Building code, violations of - HB 98 Department of Education, Commercial Mobile Radio Service fees, collection, computer science courses - SB 193 use, and accounting of - HB 229 instructional hours - SB 177 Jailers, deputy jailers, appointment of nonresidents turnaround vendor performance, report on - HB 299 - SB 158 Female genital mutilation, reporting to the Cabinet Public Records and Reports for Health and Family Services - SB 72 Kentucky Eating Disorder Council, report by Dec. 1,

2020 - SB 82 COVID-19 state of emergency, Open Records,

extension of response time - SB 150 Public use airports, reporting requirements as a Reproductive Issues special purpose governmental entity - HB 377 State/Executive Branch Budget - HB 352 Abortion statutes, enforcement of - SB 9 Born-alive infants, protection of - SB 9 Public Safety Female genital mutilation, Class B felony - SB 72

911 service, funds for - HB 229 Research and Methods Background check of staff, fingerprint-supported, requiring - SB 40 Medical marijuana, safety and efficacy research, Commercial Mobile Radio Service fees, collection, advocating for - HCR 5 use, and accounting of - HB 229 Police pursuit policy, requirement for - HB 298

309 Retirement and Pensions Short Titles and Popular Names

CERS, mayors or city council members, retirement Born-Alive Infant Protection Act - SB 9 at age 62 or over - SB 239 Community Property Trust Act - HB 155 City, police, and fire legacy funds, insurance annuity “Jill’s Law,” names section 1 of the Act - HB 298 payments, optional conversion to - SB 239 Kentucky Uniform Powers of Appointment Act - HB County Employees Retirement System, separate 154 governance structure from Kentucky Retirement Students’ Right to Know Act - HB 419 Systems - HB 484 Kentucky Retirement Systems, Small Business officers hired under KRS 158.4414 do not count

for KRS 95.022 cap - SB 239 Credit expiration, changes to - HB 491 separate CERS from KRS governance - HB 484 Direct sellers, workers’ compensation and Line of duty death benefits, adjustment of - HB 271 unemployment compensation, exclusion of Retirement, reset of amortization period, layered coverage - HB 186 process - SB 249 “Veteran-owned business,” amend definition of State/Executive Branch Budget - HB 352 - SB 37 Urban-county governments, police and firefighters

retirement fund - HB 479 Special Districts Retroactive Legislation Interlocal agreements, omnibus changes - HB 570

Public use airports, reporting requirements as a Revised Uniform Fiduciary Access to Digital Assets special purpose governmental entity - HB 377 Act, adoption of - HB 156 Special purpose governmental entities, review of fee School closure due to COVID-19, provisions for and tax increases, requiring - SB 5 - SB 177

Special Purpose Governmental Entities Sales

Interlocal agreements, omnibus changes - HB 570 Alcoholic beverages, retail sale of - HB 415 Public use airports, reporting requirements - HB 377 Tobacco, alternative nicotine, and vapor products, Tax and fee increases, review of - SB 5 raise minimum purchase age to 21 - SB 56

State Agencies Science and Technology

Attorney General, interlocal agreements, approval of Automated calling equipment - HB 414 - HB 570 Computer science courses, increase participation in Background check of staff, fingerprint-supported, - SB 193 requiring - SB 40

Cabinet for Health and Family Services, Secretary of State clear CA/N check, content, administrative findings Auditor of Public Accounts, end of term inventory, - SB 79 receive - SB 186 eating disorders, council - SB 82 Authority under a state of emergency regarding foster children, educational record sharing, elections - HB 351 providing for - HB 312 Candidates for Governor, running mate, delay of - funding, establish - HB 129 HB 336 national crisis hotline numbers, recommendation Elections, voter identification, omnibus bill on - SB 2 - SB 42 State/Executive Branch Budget - HB 352 operations - SB 102 “Veteran-owned business,” amend definition of - SB patient notification, practitioner emergency 37 closure - HB 344 reorganize - SB 123 Sheriffs Commission on Fire Protection Personnel Standards and Education, changing to name and

membership of - HB 375 Officers killed in line of duty, transportation of - SB 111 Council on Postsecondary Education, development Prisoners, transfer of - HB 361 of statewide articulation agreement - SB 101

Department

for Local Government, interlocal agreements,

approval of - HB 570

310 for Local Government, special purpose requirements - HB 570 governmental entity administration - HB 377 Six year road plan, last four years of - HJR 66 for Medicaid Services, state pharmacy benefit State Board of Elections, manager, established - SB 50 omnibus voter identification bill - SB 2 of Alcoholic Beverage Control, COVID-19, retired clerks, voting members - HB 336 administrative regulations - SB 150 State/Executive Branch Budget - HB 352 of Corrections, state prisoners, transfer of Technical Advisory Committee on Pharmacy, - HB 361 membership, amended - SB 50 of Criminal Justice Training, basic training recommendations, required - SB 50 credits - SB 111 Transportation Cabinet, of Education, computer science courses, report Biennial Highway Construction Plan, FY 2020- on - SB 193 2022 - HB 354 of Education, plans for renovated buildings, Budget - HB 353 exempt from water fountain requirements operator’s license application, responsibility for - SB 57 - HB 453 of Education, school audits, performance of operator’s license fees, acceptable forms of - SB 158 payment - HB 453 of Education, school closure due to COVID-19, provisions for - SB 177 State Employees of Education, turnaround vendor performance,

report on - SB 158 Applicants for school district employment, clear of Insurance, credit for reinsurance - HB 417 CA/N check, content, administrative findings of Insurance, sharing and receipt of insurance - SB 79 fraud information - HB 313 Background check of staff, fingerprint-supported, of Revenue, adherence to COVID -19 tax requiring - SB 40 declarations - SB 150 Human organ donation, paid leave of absence of Veterans’ Affairs, Bowling Green Veterans established - HB 46 Center - HB 24 Judicial Branch Budget - HB 356 Economic Development, Direct Health Care Services Local health departments, funding, establish and Research Facilities Operations Loan - HB 129 - HB 99 Retirement, reset of amortization period, layered Education and Workforce Development Cabinet, process - SB 249 COVID-19, reimbursement of UI fund - SB 150 State/Executive Branch Budget - HB 352 Energy and Environment Cabinet, reformulated gas,

study of - HJR 8 Executive branch ethics, Studies Directed compensation to real party in interest, reporting of - SB 157 Clean Air Act, reformulated gasoline requirements, “financial impact,” definition of - SB 157 executive branch study of - HJR 8 Homeland Security, KY 911 Services Board, 911 services, funds for - HB 229 Substance Abuse Inspection fees, public health, allow - HB 129

Judicial Branch Budget - HB 356 Kentucky Mental Health First Aid Training Program, Kentucky creating - HB 153 911 Services Board, 911 services, funds for Substance use disorder treatment, methods of - HB 229 - SB 191 Fire Commission, membership of - HB 375

Higher Education Assistance Authority, optometry scholarship, administration of - SB Sunset Legislation 134 Higher Education Assistance Authority, COVID-19 state of emergency, relief measures veterinary spaces program, administration of - SB 150 - HB 214 Retirement Systems, line-of-duty benefits, Surface Mining adjustment - HB 271 Legislative Branch Budget - HB 355 Definition, open-pit mine - SB 251 Local health departments, funding, establish - HB 129 Office of the Attorney General, reorganize. - SB 160 Surveying Parental rights, involuntary termination of, foster parent involvement, establishing - HB 167 Kentucky Coordinate System, changes - HB 302 Secretary of State, interlocal agreements, filing

311 Task Forces, Legislative Branch 2021 - SB 148 Machinery for new and expanded industry,

expansion of - HB 351 Jail and Corrections Reform Task Force, creation of Marketplace provider, qualification of - HB 351 - HB 361

Teachers Taxation

Rank change, requirements for - SB 174 Alcoholic beverage taxes, direct shipping, calculation School closure due to COVID-19, provisions for of - HB 415 - SB 177 Cigarette tax, delayed payment of - HB 351 Statewide accountability system, revisions to Community Property Trust Act, creation of - HB 155 - SB 158 COVID-19, Substantiated findings of child abuse and neglect, federal tax relief, application to state tax self-reporting requirement, eliminate - SB 79 requirements - SB 150

state of emergency, taxing districts, suspension of deadlines - SB 150 Technical Corrections Departmental website, public information on property taxes, provision for - HB 351 Taxation, excise, sales and use, income, update of Estimated tax purposes, interest, application of - HB 351 - HB 351 Property tax, public health, rate levy and expense Technology provisions - HB 129

Sales and use tax, agriculture exemption number, 911 service, funds for - HB 229 required, Jan. 1, 2021 - SB 148 Automated calling equipment - HB 414 Special purpose governmental entities, review of fee Broadband deployment fund, underserved and and ad valorem tax increases, requiring - SB 5 unserved areas, grants for - HB 362 Vapor products tax, impose - HB 351

Telecommunications Taxation, Income – Corporate

911 service, funds for - HB 229 Consolidated returns, exempt corporations, taxation, Automated calling equipment - HB 414 subject to - HB 351 Broadband deployment fund, underserved and Estimated tax purposes, interest, application of unserved areas, grants for - HB 362 - HB 351 Commercial Mobile Radio Service fees, collection,

use, and accounting of - HB 229 Taxation, Income – Individual Criminal mischief in the first degree - HB 44 Lifeline CMRS service charge, prohibit collection Community Property Trust Act, creation of - HB 155 from end user - HB 208 Estimated tax purposes, interest, application of Lifeline provider CMRS service charge, federal - HB 351 universal service fund moneys, prohibit use of - HB 208 Taxation, Inheritance and Estate Trespass upon key infrastructure assets - HB 44

Community Property Trust Act, creation of - HB 155 Tobacco Revised Uniform Fiduciary Access to Digital Assets Act, adoption of - HB 156 State/Executive Branch Budget - HB 352 Tobacco, alternative nicotine, and vapor products, Taxation, Property raise minimum purchase age to 21 - SB 56

Privately owned leasehold interest, circumstances Tourism for - HB 351 Public health, rate levy and expense provisions State/Executive Branch Budget - HB 352 - HB 129 Special purpose governmental entities, review of fee Traffic Safety and tax increases, requiring - SB 5

Police pursuit policy, requirement for and penalty Taxation, Sales and Use enhancement - HB 298

Agriculture exemption number, required, Jan. 1,

312 Transportation Eastern Kentucky University, model and practice school, operation of - HB 366

Hemp testing, clarification of - HB 236 Airports, public use, reporting requirements as State/Executive Branch Budget - HB 352 special purpose governmental entity - HB 377 Student identification badges required to contain Biennial Highway Construction Plan, FY 2020-2022 national crisis hotline numbers - SB 42 - HB 354 University of Louisville, Direct Health Care Services COVID-19 state of emergency, farm-related and Research Facilities Operations Loan services, CDL licenses - SB 150 - HB 99 Elections, voter identification and issuance of

personal identification card, omnibus bill on - SB 2 Vaping Golf carts, operation on public roadways, limits on nighttime, elimination of - HB 382 Tobacco, alternative nicotine, and vapor products, Manufactured housing, annual raise minimum purchase age to 21 - SB 56 overweight/overdimensional permits for transportation, standards - HB 242 Veterans Operator’s license application, transfer to

Transportation Cabinet - HB 453 Bowling Green Veterans Center, design and Salvage titles, county clerks, release from liability for preconstruction - HB 24 - HB 378 Designation on operator’s licenses and ID cards, Six year road plan, last four years of - HJR 66 proof of status - HB 453 Special military license plate, eligibility for - HB 276 Military families, children, Transportation Cabinet Budget - HB 353 pre-enrollment in school - HB 266 Vehicle titles, temporary enrollment in school - HB 266 reliance on debtor’s county of residence Nurse aides, veterans center employment, inclusion designation, release from liability for - HB 411 of - SB 149 security interests, perfection of - HB 411 Reciprocity, military medical technicians - HB 357 Veterans designation on operator’s license, proof Special military license plate, eligibility for - HB 276 required for - HB 276 Veteran designation on operator’s license, proof

required for - HB 276 Treasurer “Veteran-owned business,” amend definition of - SB 37 State/Executive Branch Budget - HB 352 Veterans’ benefits regional administrator, duties and number of positions, adjustment of - SB 149 Unemployment Compensation Veterinarians COVID-19 state of emergency, waiver or suspension of KRS Chapter 341 - SB 150 Abuse of animals, reporting by veterinarian - SB 21 Direct sellers, exclusion of coverage - HB 186 Deputy and State Veterinarian, qualifications, changes to - HB 238 Unified Local Governments Veterinary contract spaces, affirm continuing relationship with Auburn and Tuskegee

- HB 214 Required publication in newspaper, alternative Veterinary Contract Spaces Program, creation of internet website posting - HB 195 - HB 214 Urban-county governments, police and firefighters

retirement fund - HB 479 Vetoed Legislation Uniform Laws SB 9

SB 11 Kentucky Uniform Power of Attorney Act - HB 154 HB 356, in part Kentucky Uniform Powers of Appointment Act HB 387, in part - HB 154 HB 564 Revised Uniform Fiduciary Access to Digital Assets

Act, adoption of - HB 156 Veto Overridden Universities and Colleges SB 2

SB 5 Articulated credit, require statewide standardized HB 150 agreement - SB 101 HB 195

313 HB 336 Wines and Wineries HB 351

HB 352 Alcoholic beverages, shipment of - HB 415 HB 353

HB 354 Women Wages and Hours Born-alive infants, protection of - SB 9

Female genital mutilation, Class B felony - SB 72 Break requirements, waivers, collective bargaining

agreement - HB 374 Direct sellers, payment of wages, exclusion - HB 186 Workers’ Compensation Economic development, changes to tax credits - HB 491 Coal Workers’ Pneumonoconiosis fund, procedure to refund assessments to employers - SB 263 Wills and Estates Direct sellers, exclusion of coverage - HB 186 State/Executive Branch Budget - HB 352

Community Property Trust Act, creation of - HB 155 Creditor’s claim, time period for - HB 155 Workforce Revised Uniform Fiduciary Access to Digital Assets Act, adoption of - HB 156 Break requirements, waivers, collective bargaining Special powers of appointment, exclusion from agreement - HB 374 vesting period - HB 154 Direct sellers, workers’ compensation and Surviving spouse exemption, increase exemption unemployment compensation, exclusion of amount for - HB 307 coverage - HB 186 Trust, amendment of instrument creating - HB 155 Economic development, changes to tax credits Trust instrument, time period related to power of - HB 491 appointment - HB 154 Substance use disorders, employer-sponsored treatment - SB 191 Virtual high school completion programs, allowing - SB 63 nonresident eligibility - SB 63

314 MANAGING RISK WHILE PROTECTING YOUR BRAND J. Allan Cobb, Angela Logan Edwards, Andrea Hunt, and Jane Broadwater Long

No Good Goes Unpunished: Managing the Risk in Pro bono Representation

I. WHY PRO BONO MATTERS

Pro bono work offers many benefits to clients and attorneys alike. Accordingly, the ABA’s Model Rule 6.1 recommends pro bono representation, as does SCR 3.130(6.1). It encourages lawyers to voluntarily render a minimum of 50 hours of public interest legal service per calendar year by providing professional services at no fee or a reduced fee to persons of limited means, and/or by financial support for organizations that provide legal service to persons of limited means.

In fact, pro bono representation is so strongly recommended that some states have considered mandating pro bono hours. For example, when California adopted its new Rules of Professional Conduct that went to effect in 2018, there was a debate about whether a pro bono requirement should be included.

A. Recruiting and Retaining

A strong pro bono program can improve a law firm’s recruitment and retention, particularly as to millennial attorneys. Anecdotally, law firms have found that these associates and lateral recruits have expressed greater interest in law firms’ commitment to pro bono representation. They are motivated to select employment that allows them to pursue their passions and be engaged in legal work that would not otherwise be part of their regular day job. In short, a strong pro bono program helps attorneys feel good about where they work.

B. Experiential Learning

Pro bono representation can allow attorneys, particularly those with limited experience in a practice area or those who are recent law school graduates, to broaden their legal training and develop experience earlier in their career. What is more, pro bono cases often provide newer attorneys with flexibility in having more control over the strategy of cases than is customary with paying clients.

C. Other Reasons

There are several other reasons that pro bono representation is beneficial to law firms and attorneys – not to mention to the clients who otherwise may be required to forego legal representation. For example, pro bono representation can be a tool to develop relationships with the judiciary. A San Francisco panel matches pro bono attorneys to prisoners who seek to bring pre-screened federal civil rights cases. Involvement in that pro bono program helps new lawyers establish relationships with the federal judiciary

315 and a reputation in the federal court system when that experience may otherwise be difficult to achieve.

There are so many compelling reasons to commit to pro bono representation. Yet, it is important that a law firm develop its pro bono program in a way that protects the firm.

II. MATTER MANAGEMENT: HAVING AN IN-HOUSE PROGRAM WITHOUT DEDICATED LEADERSHIP

Many firms that implement a pro bono requirement for partners and associates establish an in-house pro bono program with dedicated leadership. In fact, it is becoming standard across the world for large firms to have a dedicated pro bono program leader or partner. However, it is still common for law firms to have a pro bono program but no dedicated leader. That leads to an environment where mistakes can be made.

Two cases involving some of the world’s largest and most prestigious law firms reveal not just the risk management consequences, but life-or-death stakes, that may be involved when pro bono cases are not part of the same case management systems and processes as paying matters.

A. “No Good Deed Goes Unpunished: Takeaways From A Recent Pro Bono Malpractice Complaint” Kevin D. Cardona, Jason E. Fellner.

Busy partners who are under pressure to spend their time on billable work may underestimate the risk and exposure of staffing inexperienced associates on pro bono cases without closely supervising their work. Concerns over effective assistance of counsel can be assuaged if the attorneys staffed on such a case have made sufficient efforts to competently represent the pro bono client through necessary study.

A recent malpractice lawsuit against Jones Day, one of the largest law firms in the world, provides a telling example of what happens when attorneys (allegedly) fail to exercise due care in assisting their pro bono clients. Plaintiffs Zona Bernier and Gary C. Hill sued Jones Day’s partner overseeing pro bono work and three current or former associates for breach of contract, legal malpractice, fraud, breach of fiduciary duty, unfair business practices and false advertising.

The complaint alleges that the plaintiffs lived in a mobile home park where they rented the parking space but owned their home. Plaintiffs paid their rent on time for several years, which was subject to annual rent increases of about 9 percent. On Sept. 1, 2017, the plaintiffs renewed their three-year lease at a rent of $1,447.86. One month later, the landlord sent two 90-day notices to increase the rent by approximately 43.6 percent to $2,080, starting Feb. 1, 2018. The plaintiffs claim to have either not seen or received these notices, and so they continued to pay the same monthly rent through the end of March 2018. In April 2018, the landlord returned their checks and provided the plaintiffs with a 60-day notice to pay or quit. On April 20, 2018, the landlord filed an unlawful detainer lawsuit. Initially

316 the plaintiffs attempted to defend themselves in the action, but on the eve of trial a legal aid clinic referred them to Jones Day.

The plaintiffs principally allege that the malpractice consists of Jones Day rushing the plaintiffs to a settlement as soon as they signed an engagement letter, staffing inexperienced attorneys on the case without proper supervision and failing to properly analyze the facts of the case and consider a trial strategy even though the unlawful detainer action was deficient on its face.

The plaintiffs retained Jones Day as their attorneys on June 18, 2018, and while the engagement letter is signed by a Jones Day partner, he never performed any work on the case. The majority of work was completed by a first-year associate and two summer associates, one of whom was a certified law student permitted to perform legal tasks only under the supervision of a supervising attorney.

Within 24 hours of being retained, Jones Day attorneys filed an ex parte application to continue trial, stating in their declaration that the plaintiffs needed more time to conduct discovery and prepare for trial. Jones Day conducted no discovery between the filing of the ex parte application and settlement. The alleged malpractice occurred when Jones Day’s first-year and summer associates correctly determined that the notices to pay or quit were defective, and that the sudden rent hike was unauthorized under conflicting and confusing lease provisions, but then failed to take any action. In other words, Jones Day identified the flaws with the landlord’s case, but allegedly invested no resources to win the plaintiffs’ case.

On July 9, 2018, a Jones Day summer associate met with the plaintiffs at the Jones Day office in Irvine, California and allegedly pressured them to sign a settlement agreement that agreed to allow the landlord to charge the new rent of $2,080 and stated that the plaintiffs would have 60 days to sell their mobile home and move out. Smith allegedly told the plaintiffs that if they did not come to the office the following day by 5 p.m. to sign the agreement, Jones Day would drop them as clients, and they would have to defend themselves at trial without assistance of counsel which they would surely lose.

According to the complaint, the plaintiffs signed the agreement, but were unable to find a buyer for the mobile home within the 60 days agreed to because the new rent was about $500 above market rate for the area. Only two weeks passed after the signing the conditional settlement agreement. Yet before the case was dismissed, Jones Day signed a disengagement letter and told the plaintiffs they could no longer help them. The plaintiffs were forced to turn over their mobile home in exchange of satisfaction of the landlord’s judgment, leaving the plaintiffs homeless and unable to rent a new home with an eviction on their record.

Regardless of the veracity of the plaintiffs’ allegations, this case illustrates the potential exposure pro bono representation creates for law firms where

317 there is insufficient supervision of the work of junior attorneys and the perception (accurate or not) that the partner who signed the engagement agreement is not participating in the representation.

As a whole, the complaint, which may have the unfortunate consequence of large firms now refusing to participate in pro bono work, argues that Jones Day does not invest the same resources in representing pro bono clients as it does with paying individuals or institutional clients, contrary to the claims Jones Day makes on its website. More likely than not, with a paying client, Jones Day would have analyzed and discussed the merits of their client’s case, and the partner would have had a role in supervising the work of junior attorneys. This case provides a sobering reminder that the same standard of care in providing competent legal representation applies in pro bono cases as it does with paying clients. There is no “pro bono standard” of professional legal services.

B. Maples v. Allen, 586 F.3d 879 (11th Cir. 2009)

Per Curiam

Cory Maples appeals from the district court's denial of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. §2254. The district court granted Maples a certificate of appealability ("COA") on the issue of whether Maples's ineffective-assistance claims are procedurally barred. This Court expanded the COA to include Maples's claim that the jury instructions were constitutionally deficient. After review and oral argument, we affirm.

I. Background

Maples was convicted of capital murder and sentenced to death for killing two companions, Stacy Alan Terry and Barry Dewayne Robinson II, after an evening of drinking, playing pool, and riding around in Terry's car. When the men arrived at Maples's house, Maples went inside and got a .22 caliber rifle. Maples then shot each man twice in the head in an execution-style killing. See Maples v. State, 758 So.2d 1, 14-15 (Ala. Crim. App.1999). Maples fled in Terry's car. Id. at 15-16.

Maples signed a confession, stating that he: (1) shot both victims around midnight; (2) had drunk six or seven beers by about 8 p.m., but "didn't feel very drunk"; and (3) did not know why he decided to kill the two men. Faced with this confession, Maples's trial attorneys argued that Maples was guilty of murder, but not capital murder. See id. at 19, 24. Under Alabama law, capital murder involves, inter alia, (1) murder during a robbery, or (2) the murder of two persons by one act or pursuant to one scheme or course of conduct. See Ala.Code §13A-5-40(a)(2) & (10). The trial

318 judge instructed the jury on capital murder, robbery, and the lesser included charges of murder (a non-capital crime) and first-degree theft of property. Both the capital murder and the lesser included murder charges required that the jury find that Maples had the intention to cause the death of a person. See Ala.Code §§13A-5-40 (capital murder), 13A-6- 2(a)(1) (murder). The jury convicted Maples of capital murder.

…

Maples subsequently filed a petition for post-conviction relief pursuant to Alabama Rule of Criminal Procedure 32, claiming, inter alia, that trial counsel was ineffective for failing to investigate or present evidence of: (1) Maples's mental health history; (2) his intoxication at the time of the crime; and (3) his alcohol and drug history. Maples's Rule 32 petition claimed the jury instructions violated due process by not including the lesser offense of manslaughter due to voluntary intoxication. The State of Alabama moved the state trial court (what Alabama calls the circuit court) to dismiss Maples's Rule 32 petition, and that motion was denied. Seventeen months later, the trial court issued an order (the "Rule 32 Order") dismissing Maples's Rule 32 petition. The trial court dismissed some claims for failure to state a claim, and found other claims procedurally barred because they could have been raised at trial or on direct appeal but were not.

The Alabama trial court clerk sent copies of the Rule 32 Order, filed on May 22, 2003, to: (1) Maples's two attorneys (Jaasi Munanka and Clara Ingen-Housz) with the law firm of Sullivan & Cromwell in New York, who were attorneys of record and had performed all of the substantive work on Maples's Rule 32 case; and (2) Maples's local counsel (John G. Butler, Jr.) in Alabama. No one disputes that both Butler and Sullivan & Cromwell received copies of the Rule 32 Order dismissing Maples's petition.

Neither Maples nor any of his three attorneys filed a notice of appeal from the dismissal of Maples's Rule 32 petition within the 42 days required by Alabama Rule of Appellate Procedure 4(b)(1). Butler took no action whatsoever after receiving the Rule 32 Order. Sullivan & Cromwell received the Rule 32 Order but instead of opening the envelope that contained it, the firm returned it to the Alabama circuit court clerk.

By the time the trial court dismissed Maples's Rule 32 petition, attorneys Munanka and Ingen-Housz had left Sullivan & Cromwell. As Maples's Sullivan & Cromwell

319 attorney acknowledged at oral argument, arrangements had been made within the firm for other attorneys at Sullivan & Cromwell to take over representation of Maples. However, none of Maples's attorneys filed anything with the Alabama trial court reflecting this change.

The State's attorney (Jon Hayden) wrote Maples a letter, dated August 13, 2003, informing him that although his deadline for appealing the dismissal of his Rule 32 petition had passed, Maples still had four weeks to file a federal habeas petition. Hayden gave Maples the address to file a federal habeas petition and informed him how to seek new counsel if he wished.

Thereafter, Maples's mother contacted Sullivan & Cromwell. On Maples's behalf, new attorneys from the Sullivan & Cromwell firm requested that the Alabama trial court re- issue its Rule 32 Order so that he might file a timely appeal. The trial court refused, stating in an order that it was "unwilling to enter into subterfuge in order to gloss over mistakes made by counsel for [Maples]." Ex parte Maples, 885 So.2d 845, 847 (Ala. Crim. App.2004) (quoting trial court order).

Maples, through counsel Sullivan & Cromwell, then petitioned the Alabama Court of Criminal Appeals for a writ of mandamus directing that he be granted an out-of-time appeal. That court denied his petition, finding that the circuit court clerk had properly served Maples's attorneys of record at their listed addresses with the Rule 32 Order and the attorneys had failed to act. Thus, an out-of-time appeal was not warranted. Id. at 848-50 (noting that "the circuit clerk [in Maples's case] was not negligent in its duty to notify the parties of the resolution of the Rule 32 petition"). The Alabama Supreme Court also denied Maples's petition for a writ of mandamus requesting an out-of-time appeal of the Rule 32 dismissal. Ex parte Maples, No. 1030701 (Ala. Sept. 3, 2004) (unpublished). The United States Supreme Court denied Maples's subsequent certiorari petition.

In the meantime, Maples, again through counsel Sullivan & Cromwell, had filed the federal habeas petition at issue here alleging, inter alia, the same ineffective-assistance claims asserted in his Rule 32 petition and the same jury-instruction claim asserted in his direct appeal. The district court stayed the §2254 petition while Maples's state court petition seeking an out-of-time appeal of the Rule 32 Order was pending.

After the state appellate courts denied Maples's requests for an out-of-time appeal in his Rule 32 case, the district court

320 denied Maples's §2254 petition. The district court concluded that: (1) Maples's ineffective-assistance claims were procedurally defaulted because Maples did not timely file an appeal of the dismissal of his Rule 32 petition; (2) even if Maples's default were the result of his three post-conviction counsel's failing to file a Rule 32 appeal, such ineffectiveness could not establish cause for the default because there is no constitutional right to post-conviction counsel; and (3) the Alabama appellate courts' decisions that Maples was not entitled to a sua sponte jury instruction on manslaughter due to voluntary intoxication was not contrary to, or an unreasonable application of, clearly established federal law. This appeal followed.

How can your firm manage the risk illustrated in these two cases? In short, by treating pro bono matters in the exact same way as paying matters.

Even if your firm does not choose to dedicate a partner to managing an in- house pro bono program, it should ensure that there is specific oversight of each matter that comes through. Although the structure of to whom pro bono cases are assigned or the management may be different, appointing a partner to every pro bono matter can help to ensure the required oversight. In addition, your firm should calendar pro bono cases properly and incorporate them into existing case management systems and processes. By contrast, in the Sullivan & Cromwell case, there was no plan for what would happen to mail directed to the associates who left the firm. It is unlikely that this would be the custom for paying clients.

IV. INITIAL ENGAGEMENT

A. Intake and Conflict Screening

The proper time to manage pro bono cases aggressively is in the intake screening process. Pro bono cases generally come to law firms from one of two channels: either an established pro bono program through a legal services organization or a one-off referral from someone in the office. Most law firms establish a uniform process for intake of pro bono cases such as requiring attorneys to submit a pro bono memo so that firm leadership can assess the merits of the case, whether the case aligns with the firm’s pro bono priorities, and whether the firm has the resources and competency necessary to dedicate to the case or matter.

Regardless of where the case originates, it is critical to ensure that the firm has the resources and competency necessary to dedicate to the case. Establishing and implementing a standardized process can ensure that your firm is well-equipped to manage its pro bono matters as well as it manages cases for paying clients.

One reason that law firms choose to partner with established pro bono programs is that the initial screening is already completed. As part of their intake process, the organization will screen for income level, case or matter

321 type, or whatever segment of the community your law firm has decided that it wants to serve.

An added benefit of partnering with established pro bono programs is that conflicts of interest may arise less often. Nevertheless, any time your law firm is considering a pro bono matter, it is necessary to do a traditional conflict check and to ensure that no subject matter conflict exists for a practice group in your firm.

B. Scope of Engagement: Drafting the Engagement Letter

After the intake screening process, the next important opportunity to manage pro bono representation is in defining the scope of engagement— specifically, by drafting the engagement letter. It is critical that the engagement letter makes it clear what the law firm will do for the client and at what point in the legal process the representation will end (i.e., after final judgment or settlement; after a final decision by an administrative body). If there are any steps the firm does not desire to take, such as engaging in litigation, the engagement letter should spell that out so that it is clear from the outset.

A recent case from a New York appeals court illustrates the importance of an engagement letter that clearly defines the scope of pro bono representation from the outset. In Attallah v. Milbank Tweed Hadley & McCloy LLP, 168 A.D.3d 1026 (N.Y. App. Div. 2019), the law firm’s limited engagement with a client seeking to be readmitted to medical school precluded his later malpractice suit against the firm.

The firm agreed to represent Attallah pro bono in 2011, with an engagement letter limiting the firm to a commitment “to investigate and consider” whether there were any avenues other than litigation available to urge the school to reconsider Attallah’s expulsion. Attalah, 168 A.D.3d at 1027. In other words, the scope of engagement expressly excluded any form of litigation or threat of litigation. In addition, the letter provided for automatic termination of the engagement upon either Attallah’s readmission or upon the law firm’s determination that there were no non- litigation options available. After the medical school refused to reconsider Atallah’s expulsion, he sued Milbank for legal malpractice and breach of fiduciary duty.

The New York Supreme Court, Second Appellate Division (the intermediate court of appeal in New York) upheld the lower court’s entry of summary judgment. Its unanimous ruling stated that “[a]nything else” beyond investigating and considering non-litigation avenues available to Atallah “including the defendant's failure to commence litigation against the school … was outside the scope of the letter.” Attallah, 168 A.D.3d at 1028.

The takeaway from Attalah is clear: one of the simplest ways to manage risk in pro bono cases is to make the scope of representation clear in the engagement letter.

322 C. Advance Waivers

Some law firms seek to enter into retainer agreements in pro bono cases that include advance waivers of conflicts of interest. The purpose of such an advance waiver is to permit the firm to pursue future cases and matters from paying clients, even where a conflict of interest might exist due to the law firm’s ethical obligations to its pro bono clients. Any such advance waiver must conform with SCR 3.130(1.7), regarding conflicts of interest with current clients. Comment 22 to that Rule provides:

Consent to Future Conflict:

Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph (b).1 The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict. If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b).

1 See SCR 3.130(1.7)(b), which provides that, notwithstanding a concurrent conflict of interest as defined in SCR 3.130(1.7)(a), a lawyer may represent a client if: (1) the lawyer reasonably believes he or she will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a ; and (4) each affected client gives informed consent, confirmed in writing, pursuant to a consultation that includes explanation of the implications of the common representation and the advantages and risks involved.

323 D. Disengagement: Closing Procedures

Disengagement and closing procedures in pro bono cases should be enhanced when compared to those used for paying matters. Pro bono clients may not understand that engagement has concluded even when a final judgment has been entered in litigation and all avenues of review or appeal have been exhausted. What is more, a court will look to the reasonable expectations of the client in evaluating whether an attorney- client relationship still exists.

For these reasons, it is critical that the law firm communicate clearly to the pro bono client, in writing, that (1) the matter or case has reached the disengagement point identified in the engagement letter or retainer agreement; and (2) the attorney and law firm no longer represent the client in any future matters unless pursuant to a new retainer agreement or engagement letter. Furthermore, the content of the disengagement letter and even the method of delivery should be tailored to the unique communication challenges that may be posed in pro bono representation such as language barriers and the fact that some pro bono clients may not have a permanent physical address at which to receive mail.

E. Other Issues Arising with Pro bono Programs and Procedures: Professional Liability Insurance

Most established pro bono programs have legal professional liability coverage that applies to their volunteers. That said, coverage issues can arise when a law firm pairs with an established outside pro bono program that has its own separate legal professional liability policy. The question arises as to which policy is primary. In those circumstances, it is likely that a plaintiff alleging malpractice or other claims that may fall under either the program’s or the firm’s policy will make claims under all potentially applicable policies and sue the law firm, the outside pro bono program, or both.

If you or your firm engage in pro bono representation other than with a pro bono program that has its own legal professional liability coverage, it is important to read your firm’s professional liability policy to determine whether pro bono representation is covered and if there are any requirements that must be met before coverage is extended. For example, some policies include a requirement that every pro bono matter is approved by the firm’s management and/or partners. If your law firm’s policy does not include pro bono work, you may choose to consider whether a pro bono rider is useful.

324 V. ENGAGEMENT LETTER TO INDIVIDUAL PRO BONO CLIENT TEMPLATE

[Date] [Client Name] [Address]

Dear [Client Name]:

I am pleased to confirm that [insert firm name] (“we” or the “Firm”) will represent and advise you on a pro bono basis in connection with [description of the matter]. We send you this letter to describe certain terms and conditions of our representation of you.

Our services will be provided to you on a pro bono basis, which means that we will not charge you for our legal fees for time spent by the lawyers and paralegal personnel who work on the matter. [For non-indigent individuals: We will, however, bill you for items incident to the performance of our legal services such as court filing fees, or any other fees that become necessary. We will discuss with you any and all such expenses prior to their occurrence, if any such expenses arise.]

We are committed to performing services for you to the best of our ability and with the independent professional judgment that an attorney owes to a client in accordance with the Kentucky Supreme Court Rules of Professional Conduct, as currently effective (which you and we agree will be applicable to this engagement). We reserve our right to withdraw as your lawyers if we believe it necessary to do so, including if there is a serious breakdown in our mutual communication or if we have a fundamental disagreement over the handling of this matter.

We do not disclose nonpublic information about our clients or former clients to anyone, except as permitted by law and the Kentucky Supreme Court Rules of Professional Conduct. We will preserve the confidentiality of any confidential information that you provide to us in the course of our representing you and will not disclose or use any such information for the benefit of any other client. Conversely, we will not disclose to you or use on your behalf any information with respect to which we owe a duty of confidentiality to another client or person.

You, and not any entity with which you may be affiliated as shareholder, officer, director or employee, are our client for purposes of the engagement covered by this letter. Once our services, described above, are completed, our attorney-client relationship will end unless we later agree to represent you. This representation does not extend to any appeals or post-judgment actions or any subsequent proceedings or applications, if applicable. This letter in no way obligates the Firm to accept any further representation in the future. If we later agree to perform new services, our attorney-client relationship will be revived subject to the terms of a new engagement letter.

Any advice provided by us is for your benefit alone and must not be used or relied upon by third parties. The Firm’s duty of care does not extend to third parties, except where such responsibility is accepted by us in writing.

325 By signing this letter, you acknowledge that we have made no representations to you, express or implied, concerning the outcome of the matter of this representation. You further acknowledge that we have not guaranteed and cannot guarantee the success of any action taken by the firm on your behalf during our representation.

All records and files will be retained and disposed of in compliance with our policy in effect from time to time and the Kentucky Supreme Court Rules of Professional Conduct. We will send copies of any relevant documents and filings to you upon your request.

By signing this letter, you acknowledge that you have read this letter in its entirety, have had a full and satisfactory explanation of its contents and have had a full opportunity to ask questions and consider its terms. You further acknowledge that you fully understand its terms and that there are no additional or different terms or agreements with the Firm other than those expressly set forth in this letter. You acknowledge that, if applicable, to the extent required by applicable law or court rule, we are authorized to disclose or file a copy of this engagement letter with any tribunal in which your action is pending or shall be pending.

We look forward to working with you. If you have any questions about any of the arrangements detailed in this letter, please let us know. Otherwise, please keep one original for your files and sign and return the other original to me.

Very truly yours,

[Firm name] [Partner’s Name for Signature] [Associate’s Name]

I HAVE READ AND UNDERSTAND THE ABOVE LETTER, AND ACKNOWLEDGE ITS RECEIPT

Client: ______

Date: ______

326 VI. ENGAGEMENT LETTER TO 501(C)(3) EXEMPT PRO BONO ORGANIZATION TEMPLATE

[Date] [Client Name] [Address]

Dear [Client Name]:

I am pleased to confirm that [insert firm name] (“we” or the “Firm”) will represent and advise [Client Name] (the “Charity”) in connection with [insert description of matter, e.g., incorporation and qualification with the Internal Revenue Service as a public charity exempt from federal income tax under Internal Revenue Code section 501(c)(3)]. We send you this letter to describe certain terms and conditions of our representation of the Charity.

We regret that heavy demand for our pro bono services means that we cannot serve as the Charity’s pro bono general counsel. Once our initial services, described above, are completed, our attorney-client relationship will end. If we later agree to perform new services, our attorney-client relationship at such time will be subject to the terms of a new engagement letter.

Our client for purposes of the engagement covered by this letter will be the Charity and not its founder or affiliates or any of its individual officers, directors or employees. We are committed to performing services for the Charity to the best of our ability and with the independent professional judgment that an attorney owes to a client in accordance with the Kentucky Supreme Court Rules of Professional Conduct, as currently effective (which you and we agree will be applicable to this engagement).

We do not disclose nonpublic information about our clients or former clients to anyone, except as permitted by law and the Kentucky Supreme Court Rules of Professional Conduct. We will preserve the confidentiality of any confidential information that the Charity provides to us in the course of our representing it and will not disclose or use any such information for the benefit of any other client. Conversely, we will not disclose to the Charity or use on its behalf any information with respect to which we owe a duty of confidentiality to another client or person.

Our services will be provided to the Charity on a pro bono basis, which means that we will not charge the Charity for our legal fees for time spent by the lawyers and paralegal personnel who work on the matter. We will, however, bill the Charity for items incident to the performance of our legal services such as Internal Revenue Service filing fees, state application fees, and service company fees for incorporation. In a typical matter, we expect these disbursements and other charges to be approximately [amount].

Any advice provided by us is for the Charity’s benefit alone and must not be used or relied upon by third parties. The Firm’s duty of care does not extend to third parties, except where such responsibility is accepted by us in writing.

327 All records and files will be retained and disposed of in compliance with our policy in effect from time to time and the Kentucky Supreme Court Rules of Professional Conduct. We will send copies of any relevant documents and filings to you upon your request.

We look forward to working with you and your colleagues. If you have any questions about any of the arrangements detailed in this letter, please let us know. Otherwise, please keep one original for your files and sign and return the other original to me.

We look forward to being of service to you in connection with this matter.

Very truly yours,

[Firm name] [Partner’s Name for Signature] [Associate’s Name]

I HAVE READ AND UNDERSTAND THE ABOVE LETTER, AND ACKNOWLEDGE ITS RECEIPT

[NAME OF CHARITY]

By: ______

Name: ______

Date: ______

328 VII. MANAGING RISK WHILE PROTECTING YOUR BRAND: DISCLOSING INFORMATION AND RESPONDING TO CRITICISM ON SOCIAL MEDIA

A. Formal Ethics Opinion KBA E-448, Kentucky Bar Association, Issued: March 14, 2019.

Subject: proposed self-defense opinion

Question: May a lawyer reveal client confidential information reasonably necessary to respond to a former client’s public criticism?

Answer: No

Authorities: Rule 1.6(b)(3), Crystal, Defending Against Internet Criticism: “Silence is Golden,” 26 South Carolina Lawyer 12 (2014); Fucile, Discretion in the Better Part of Valor: Rebutting Negative Online Client interviews, 83 Defense Counsel J. 84 (2016); People v. Issac, 2016 WL 6124510 (Col. 2016); State ex rel Counsel for the Nebraska Supreme Court v. Tonderum, 840 N.W.2d 487 (Nebraska 2013).

Question: How may a lawyer ethically respond to a former client’s public criticism?

Answer: See Opinion

The self-defense exception to the duty of confidentiality (1.6(b)(3)) is triggered by claims or disciplinary complaints against a lawyer. The exception does not encompass internet criticism. In Defending Against Internet Criticism: Silence is Golden, 26 South Carolina Law Review 12(2014), Nathan Crystal uses the Betty Tsamis case to illustrate: After being fired a flight attendant hired Tsamis to seek unemployment benefits from the state. Apparently Tsamis learned after she was hired that the attendant had been fired because he beat up a female co- worker. After a hearing the claim was denied and the attendant complained about Tsamis on the internet. This eventually resulted in Tsamis being publicly reprimanded for posting the following:

This is simply false. The person did not reveal all the facts of the situation up front in our first and second meetings… Despite knowing he would likely lose he chose to go forward with a hearing to try to obtain benefits. I dislike it very much when my clients lose but I cannot invent positive facts for clients when they are not there. I fell badly

329 for him but his own actions in beating up a female coworker are what caused the consequences he is now so upset about.

In most instances the best advice is to ignore the criticism. For the lawyer who wants to respond, the Committee recommends the following:

My professional and ethical responsibilities do not allow me to reveal confidential client information in response to public criticism.

B. Formal Ethics Opinion KBA E-447, Kentucky Bar Association, Issued: January 18, 2019

Subject: Disclosure of Information on Social Media.

Question #1: In a blog or other social media, may a lawyer reveal information relating to the representation of a current or former client without the client’s consent?

Answer: No

Authority: SCR 3.130 (1.9 (c)(2)) and comment 16; (1.6(a)) and comment 4; KBA E-253; Hudson, Client Consent is Key, May 2018 ABA Journal, p. 24; In re Smith, 991 N.E.2d 106 (Ind. 2013); Office of Lawyer Regulation v. Pershek, 798 N.W.2d 879 (Wis. 2011).

Question #2: May an attorney reveal the identity of a current or former client in a blog or other social media without the client’s consent?

Answer: No. See opinion.

Authority: KBA E-253.

Question #3: Is there an exception to (1) or (2) for information contained in a public record?

Answer: No. See opinion.

Authority: SCR 3.130(1.6(a)) and comment 4; KBA E-253; Hudson, Client Consent is Key, May 2018 ABA Journal, p. 24.

DISCUSSION

SCR 3.130(1.6(a)) defines confidential information as “information relating to the representation of a client,” a broader definition than is found in the ABA Model Code of

330 Professional Responsibility and the Restatement of the Law Governing Lawyers. The Model Code (DR 4-101) and the Restatement (§60) limit lawyers’ duty of non-disclosure to communications protected by the attorney-client privilege and information that might work to clients’ disadvantage. Rule 1.6(a) of the ABA Model Rules of Professional Conduct, on which SCR 3.130(1.6)(a) is based, is not so limited. Unless one of the exceptions in Rule 1.6(b) applies, Rule 1.6(a) requires a lawyer to obtain client consent before revealing any information relating to the client’s representation.

In KBA E-253, applying DR 4-101(C) of the Model Code of Professional Responsibility, the Committee opined that, absent consent, a lawyer may reveal names and addresses of clients only: 1) where the information is in the public record as a result of the attorney’s representation; or 2) where the circumstances make it obvious that the client does not expect confidentiality as to the existence of the attorney client relationship, or 3) where the client has specifically authorized in writing the release of the information.

In KBA E-253, the Committee opined that a lawyer may reveal a client’s name and address only if it is obvious that the client does not expect name and address to be confidential. Clients’ names and addresses should be presumed to be confidential. While decided under the old Code, KBA E-253 is sensible and, we believe, consistent with prevailing practice.

Without client consent, a lawyer may reveal names and addresses (and the nature of the representation) where necessary to facilitate a firm merger or lateral transfer (KBA E-443), and there may be other situations in which a lawyer should be permitted to reveal client information. As examples, in comment h to Section 60 of the Restatement, the American Law Institute cited cooperating with other lawyers with similar issues, for example personal injury lawyers with products liability claims, and “cooperating with reasonable efforts to obtain information about clients and law practice for public purposes such as historical research,” for example a biography of a deceased client.

However, there is no justification for revealing information, without consent, about past or present clients in a blog or other social media. In Office of Lawyer Regulation v. Pershek, 798 N.W.2d 879 (Wis. 2011), the lawyer was suspended for blogging about her clients; in In re Smith, 991 N.E.2d 106 (Ind. 2013), the lawyer was disbarred for writing a book about a former client. The disciplinary cases involve

331 negative disclosures, but the rule against disclosure applies to all information, whether positive, neutral or negative.

Lawyers should be careful in using thinly disguised hypotheticals. “A violation of Rule 1.6(a) is not avoided by describing public commentary as a ‘hypothetical’ if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical.” ABA Formal Op. 480.

A lawyer’s duty of confidentiality extends to both current and former clients. SCR 3.130(1.9)(c)(2) requires that a lawyer not reveal information relating to the lawyer’s representation of a client except as the Rules would permit or require with respect to a client. Hence, a lawyer may not reveal confidential client information even though such information may be contained in a public record. However, a lawyer may use information relating to the representation of a former client if the information has become “generally known.” See SCR 3.130(1.9)(c)(1) and ABA Formal Opinion 479.

XIII. RISK MANAGING SOCIAL MEDIA CRITICISM OF LAWYERS2

The problem of lawyers receiving vindictive and nasty reviews on Internet sites such as LawyerRatingz.com, Yelp.com, and RipoffReport is not new. What is new is the enormous increase in these reviews that once put on the Internet can pop up every time a potential client enters a lawyer’s name in a search request. Since the Internet is now the most used method of finding a lawyer, it is imperative that Kentucky lawyers be well versed on the ethics issues when deciding whether to reply to criticism on the Internet or to bring a defamation suit.

A. This Much is Known about Responding to Online Criticism:

1. Lawyers may respond to criticism on the Internet but must avoid revealing confidential information in violation of Kentucky Rule of Professional Conduct SCR 3.130 (1.6) Confidentiality of Information.

2. So far, the exception to Rule 1.6 permitting the revelation of confidential information to establish a claim or defense in a controversy the lawyer has with a client has not been allowed for online negative comments.

3. Defamation suits are an option to deal with online criticism, but lawyers are not often successful in these suits.

2 Adapted from “Risk Managing Social Media Criticism of Lawyers.” 2018, Lawyers Mutual of Kentucky. Available at: https://www.lmick.com/item/risk-managing-social-media-criticism-of- lawyers.

332 B. In the Pennsylvania Bar Association Legal Ethics and Professional Responsibility Committee Formal Opinion 2014-200, Lawyer’s Response to Client’s Negative Online Review, the Committee Concluded:

1. While it is understandable that a lawyer would want to respond to a client’s negative online review about the lawyer’s representation, the lawyer’s responsibilities to keep confidential all information relating to the representation of a client, even an ungrateful client, must constrain the lawyer.

2. A lawyer cannot reveal client confidential information in response to a negative online review without the client’s informed consent.

3. Any decision to respond should be guided by the practical consideration of whether a response calls more attention to the review.

4. Any response should be proportional and restrained. For example, a response could be:

A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.

C. In the ABA’s publication Legal Ethics and the Social Media, the authors Jacobowitz and Browning offer this best practice advice for responding to Internet criticism:

1. “First take a deep breath before lashing out. Then if you feel you must respond online, keep in mind that your reading audience is not just your disgruntled ex-client, but also an online readership of countless potential clients.”

2. “Do not under any circumstances reveal confidential information about the client or the matter you handled for the client.”

3. “Consider addressing your former client with a gracious apology or expression of regret for his or her dissatisfaction.”

D. The authors quote Josh King, the general counsel at Avvo, with this advice:

By posting a professional, meaningful response to negative commentary, an attorney sends a powerful message to any readers of that review. Done correctly, such a message communicates responsiveness, attention to feedback, and strength of character. The trick is to not act defensive, petty, or feel the need to directly refute what you perceive is wrong with the review.

333 IX. KEEPING UP WITH SOCIAL MEDIA RISK MANAGEMENT3

One of the benefits of the nearly universal use by the states of the ABA Rules of Professional Conduct is that other state ethics opinions now offer useful information for Kentucky lawyers. Two recent examples of this are D.C. Bar Ethics Opinion 370, Social Media I: Marketing and Personal Use [11/16]; and Ethics Opinion 371, Social Media II: Use of Social Media in Providing Legal Services [11/16]. This article highlights some of the key information in these opinions. Both include comprehensive treatment of the ethics and malpractice risks lawyers face when using social media and are based on rules very similar to the Kentucky Rules of Professional Conduct.

A. D.C. Bar Ethics Opinion 370, Social Media I: Marketing and Personal Use

For purposes of this opinion the committee identified the following personal use activities that lawyers may engage in on social media and covers each in detail:

1. Connecting and communicating with clients, former clients or other lawyers on social networking sites;

2. Writing about an attorney’s own cases on social media sites, blogs or other internet-publishing based websites;

3. Commenting on or responding to online reviews or comments;

4. Self-identification by attorneys of their own “specialties,” “skills” and “expertise” on social media sites;4

5. Reviewing third-party endorsements received by attorneys on their personal or law firm pages; and,

6. Making endorsements of other attorneys on social networking sites.

One of the more interesting aspects of the opinion is that the committee posited for the first time the risk of a positional conflict of interest when a lawyer takes a position on social media that could be adverse to the interest of a client. Traditionally, positional conflicts of interest apply only to positions taken in different – not on a lawyer blog. Nonetheless, good risk management is to avoid the problem by not taking a contrary opinion to a client’s interest on a blog or other social media.

The committee noted another potential conflict of interest risk by observing that “online communications and interactions with people who are unknown

3 Adapted from “Keeping up with Social Media Risk Management.” 2017, Lawyers Mutual of Kentucky. Available at https://www.lmick.com/item/keeping-up-with-social-media-risk- management.

4 Editor’s note: Kentucky has a much stricter rule on advertising specialization than D.C. See SCR 3.130(7.40). Accordingly, disregard paragraph II D of Opinion 370 on specialization.

334 to the lawyer may unintentionally cause the development of relationships with persons or parties who may have interests that are adverse to those of existing clients.”

Opinion 370 surfaced for the first time the serious risk of LinkedIn’s “Imported Contact” feature for violating client confidentiality, creating conflicts of interest, and other problems:

Most social networking sites require an e-mail address from the user as part of the registration process. Then, once the social networking site is accessed by a lawyer, the site may access the entire address book [or contacts list] of the user. Aside from any data collection purposes, this access allows the social media site to suggest potential connections with people the lawyer may know who are already members of the social network, to send requests or other invitations to have these contacts connect with the lawyer on that social network, or to invite non-members of the social network to join it and connect with the lawyer.

However, in many instances, the people contained in a lawyer’s address book or contact list are a blend of personal and professional contacts. Contact lists frequently include clients, opposing counsel, judges and others whom it may be impermissible, inappropriate or potentially embarrassing to have as a connection on a social networking site. The connection services provided by many social networks can be a good marketing and networking tool, but for attorneys, these connection services could potentially identify clients or divulge other information that a lawyer might not want an adversary or a member of the judiciary to see or information that the lawyer is obligated to protect from disclosure. Accordingly, great caution should be exercised whenever a social networking site requests permission to access e-mail contacts or to send e-mail to the people in the lawyer’s address book or contact list and care should be taken to avoid inadvertently agreeing to allow a third-party service access to a lawyer’s address book or contacts.

The key risk management principle is that lawyers absolutely must know and understand the privacy rules of any social media site and its data collection practices.

B. D.C. Bar Ethics Opinion 371, Social Media II: Use of Social Media in Providing Legal Services

Relying on over 19 other jurisdictions’ analyses of social media issues, this opinion provides a comprehensive review of the major issues. Space limitations preclude discussing each; however, the following is an overview of what the opinion covers. We urge you to read the opinion that is readily available using Google.

335 1. What lawyers must understand about social media.

2. Letters of engagement and social media.

3. Lawyer review of client social media.

4. Advising about adversary review of client social media.

5. Document preservation.

6. Substantive regulatory risks.

7. Investigation of social media of adverse parties, counsel, and experts.

8. Contacting represented persons and unrepresented persons.

9. Pretexting.

10. Inadvertent disclosure.

11. Social media of jurors, fact witnesses and other sources of facts.

12. Social media of judges, arbitrators, and regulators.

13. Supervision of lawyers and staff use of social media.

336 EMPLOYMENT LAW ESSENTIALS: DRAFTING ARBITRATION AGREEMENTS AND UNDERSTANDING RECENT DEVELOPMENTS IN ADA JURISPRUDENCE P. Stewart Abney, Matthew T. Lockaby, and Jeremiah W. Reece

I. DRAFTING ARBITRATION AGREEMENTS1

Litigation is the basic legal right which guarantees every corporation its decade in court. David Porter, Vice-President of Retail Sales Microsoft Corp.

A. Introduction

Cynical as it may be, there is truth to David Porter’s sentiment. Litigation is not for the weary: it’s expensive; it’s time-consuming – indeed, litigation takes more time than any party would rightfully prefer, either to experience a righted wrong or be vindicated against spurious claims; and it’s unpredictable. This isn’t the whole story, of course; there are necessary if not vital nuances to explore.

Enter alternative dispute resolution. Enter arbitration. It, too, is not without its drawbacks: it’s secret, providing little public accountability; it’s without appeal rights, providing little, if any, recourse even for clearly error-ridden outcomes; and it’s rarely voluntary. This likewise isn’t the whole story; there are just as many nuances to explore.

Yet as an alternative form of dispute resolution – despite its drawbacks, despite the hostility and backlash – arbitration has persisted, if not thrived, for more than 100 years. The reason is plain: arbitration can be a helpful tool for employers and employees if employers critically consider their unique needs and carefully draft the agreements requiring arbitration.

B. Federal Arbitration Act, 9 U.S.C. §1 et seq.

According to Congress, arbitration promised a forum for quicker, more informal, and less expensive dispute resolution. Epiq Sys. Corp. v. Lewis, 138 S.Ct. 1612, 1621 (2018). Yet hostility to arbitration had abounded for years. See, e.g., id. (referencing the courts’ “undu[e] hostility to arbitration”); see also Scherk v. Alberto-Culver Co., 417 U.S. 506, 510 (1974) (referencing “centuries of judicial hostility to arbitration agreements” despite their intention to “avoid the costliness and delays of litigation” (citing H.R. Rep. No. 96, 68th Cong., 1st Sess., 1, 2 (1924))).

So, in 1925, Congress enacted the FAA, establishing a “liberal federal policy favoring arbitration agreements,” Epiq Sys. Corp., 138 S.Ct. at 1621

1 This section of the materials, “Drafting Arbitration Agreements,” was prepared by Matthew T. Lockaby.

337 (quoting Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)), under which they were deemed “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. §2.

C. Relevant Statistics and Data.

Whether the FAA was ever good policy or, if so, whether the FAA remains good policy today is fairly debatable. What’s undeniable, however, is the Act’s significance in the everyday lives of Americans. In a 2017 survey conducted by the Economic Policy Institute, almost 54 percent of non-union private-sector employees were subject to mandatory arbitration of employment disputes,2 up from 2 percent in 1992 and 25 percent in 2000.3 In fact, of the companies with 1,000 or more employees, just over 65 percent of them require mandatory arbitration of employment disputes. Id. “[T]his means that 60.1 million American workers no longer have access to the courts to protect their legal employment rights and instead must go to arbitration.” Id.

The rise in arbitration, perhaps not so coincidentally, tracks the decline of civil cases that went to trial. In 1962, for example, 11.5 percent of civil cases filed in the federal courts went to trial. Jeffrey Q. Smith and Grant R. MacQueen, “Going, Going, But Not Quite Gone: Trials Continue to Decline in Federal and State Courts,” at 28 (Judicature, Vol. 101, No. 4) (Winter 2017)4 (citing Marc Galanter, “The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts,” 1 J. Empirical Legal Stud. 459, 464 (2004)). By 2002, only 1.8 percent of such cases went to trial. Id. And by 2017, it was less than one percent. Id. (citing Table C-4 of the Annual Reports of the Administrative Office of the U.S. Courts). Data from the state courts, while less comprehensive and more inconsistent, show similar percentages of civil cases resolved by trial at, just above, or just below 1 percent of all filings. Id. at 31.

The reasons for the decline in the number of civil jury trials, in both state and federal courts, are numerous. The cost and expense of trial has increased significantly over the years. (And the relevant costs and expenses aren’t limited to just attorneys’ fees; they also include lost resources and manpower and decreased productivity.) The rise of summary judgment, especially in the federal courts, also is a likely culprit for the diminishing number of trials, as is an increase in mediation

2 See “Unchecked Corporate Power: Forced Arbitration, the Enforcement Crisis, and How Workers Are Fighting Back,” available at https://www.epi.org/files/uploads/Unchecked-Corporate-Power- web.pdf (last visited May 7, 2020).

3 “The Growing Use of Mandatory Arbitration,” by Alexander J.S. Colvin (April 6, 2018), available at https://www.epi.org/publication/the-growing-use-of-mandatory-arbitration-access-to-the-courts- is-now-barred-for-more-than-60-million-american-workers/ (last visited May 7, 2020).

4 Available at https://judicialstudies.duke.edu/wp-content/uploads/2018/01/JUDICATURE101.4- vanishing.pdf.

338 programs. All three of these reasons, of course, appear to be, and anecdotally probably are, interrelated.

The rise of forced arbitration likewise cannot be ignored. It’s easy to see why arbitration has become so popular. The Economic Policy Institute found that employees subject to mandatory arbitration prevail less often than they do in state and federal court – specifically, 38 percent less often than in state court and 59 percent less often than in federal court. And even when employees prevail, their recovery is less than the typical recovery in court.

Consider also the related statistics compiled by Alexander Colvin and Mark Gough from employment arbitration cases administered by the American Arbitration Association over an 11-year period:5

1. When an employee arbitrates before an arbitrator who has previously arbitrated for the employer:

a. Four times or more, the employee’s chances of winning decrease by 15 percent (relative to first-time pairings); and

b. Twenty-five times or more, the employee’s chances of winning decrease by 75 percent (relative to first-time pairings).

2. The median recovery for employees who prevail in arbitration where the employer and arbitrator:

a. Have never before paired is $130,184;

b. Have paired at least five times before is $90,705; and

c. Have paired at least 30 times before is $9,481.

d. This represents an 8.6 percent decrease in recovery for each pairing.

3. Awarded amounts to employees:

a. Decreased by 35.9 percent if the arbitrator was a member of the National Academy of Arbitrators; and

b. Increased by 72.6 percent if the arbitrator was a former judge experienced in employment cases.

5 See Colvin, A.J.S., & Geogh, M.D., “Individual Employment Rights Arbitration in the United States: Actors and Outcomes,” Indus. & Labor Rel. Rev. 68(5), 1019-1042 (2015).

339 D. Recent Judicial and Legislative Updates in and Affecting Kentucky

1. Epiq Sys. Corp. v. Lewis, 138 S.Ct. 1612 (2018).

The National Labor Relations Act, 29 U.S.C. §151 et seq., protects, among other things, employees’ rights “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, and to engage in all other concerted activities for the purpose of bargaining or other mutual aid or protection[.]” 29 U.S.C. §157 (emphasis added). The Fair Labor Standards Act, 29 U.S.C. §201 et seq., requires employers, among other things, to pay to their employees a minimum wage and overtime wages. 29 U.S.C. §§206, 207. The FLSA also allows employees to band together to assert unpaid wage claims as a class or collective. Id. at §216(b). Then there’s the FAA, which as addressed above, is “a liberal federal policy favoring arbitration agreements” that treats such agreements as “valid, irrevocable, and enforceable.” Epiq Sys. Corp., 138 S.Ct. at 1621 (quoting 9 U.S.C. §2).

What happens when employers force employees to agree that all workplace disputes will be resolved by individual arbitration, where employees cannot band together to assert their rights collectively? Should employees nonetheless be able to arbitrate their workplace claims on a class-wide or collective-wide basis?

In 2010, the National Labor Relations Board’s General Counsel stated that employees and employers can benefit from arbitration, that arbitration agreements do not “involve consideration of the policies of the National Labor Relations Act.” Epiq Sys. Corp., 138 S.Ct. at 1620 (quoting Memorandum GC 10-06, pp. 2, 5 (June 16, 2010)). In 2012, the NLRB reversed course, determining that, for the first time in 77 years since the NLRA was adopted, the NLRA “effectively nullifies the [FAA].” Id. (citing In re D.R. Horton, Inc., 357 N.L.R.B. 2277).

As for the courts, the Fifth and Eleventh Circuits held that class- action and collective-action waivers in employment arbitration agreements are permissible under the FAA and do not violate the NLRA. The Sixth, Seventh, and Ninth Circuits held just the opposite, specifically relying on the FAA’s savings clause to find that such agreements aren’t enforceable if they violate other federal law (e.g., the FLSA or NLRA). See, e.g., NLRB v. Alternative Entm’t, Inc., 858 F.3d 393 (6th Cir. 2017) (holding that arbitration agreements that prohibited class- or collective-action proceedings violated the NLRA).

In 2018, the Supreme Court of the United States put this matter to rest. In Epiq Systems Corp., the Court held that the FAA and NLRA co-exist peacefully, that employment arbitration agreements that

340 require individualized arbitration proceedings and preclude class or collective proceedings, do not violate the FAA.

The Court concluded first that the FAA’s savings clause is no safe harbor. The savings clause, the Court noted, “recognizes only defenses that apply to any contract. In this way the clause establishes a sort of equal-treatment rule for arbitration contracts.” 138 S.Ct. at 1622. Thus, the savings clause “permits agreements to arbitrate to be invalidated by generally applicable contract defenses, such as fraud, duress, or unconscionability.” Id. The employees at issue working under individual arbitration agreements, however, only attacked the agreements on the grounds that they impeded their right to collective action under the FLSA, an argument the Supreme Court rejected as “interfer[ing] with one of arbitration’s fundamental attributes” – “the traditionally individualized and informal nature of arbitration.” Id. at 1622-1623.

The Court next determined that the FAA and FLSA are not irreconcilably in conflict. The employees argued that Section 7 of the NLRA, which guarantees workers the right to unionize, to collectively bargain, and to engage in other “concerted activities,” displaced the FAA and prohibited arbitration agreements that waive class- and collective-action claims. But the Court rejected the argument, stating that Section 7 said nothing about arbitration or even class- or collective-action procedures. Id. at 1625. Moreover, the Supreme Court has never found a conflict among the FAA and any other federal statute, with a multitude of cases finding that the Age Discrimination in Employment Act, the Credit Repair Organizations Act, the Securities Act of 1933, the Securities Exchange Act of 1934, and the Racketeer Influenced and Corrupt Organizations Act could be read harmoniously with the FAA. Id. at 1627. In particular, the Court had already ruled in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), that the collective-action provision in the ADEA, which was the model for the FLSA provision, did not displace the FAA and employers’ ability to require individual arbitration.

Finally, the Court rejected the employees’ arguments that the NLRB’s 2012 opinion is owed deference under Chevron.

Less than three months after Epiq Systems Corp., the Sixth Circuit Court of Appeals issued its opinion in Gaffers v. Kelly Services, Inc., 900 F.3d 293 (6th Cir. 2018), following Epiq and holding that the NLRA does not invalidate individual arbitration agreements, and the FAA’s savings clause did not otherwise render such arbitration agreements unenforceable.

341 2. Northern Ky. Area Dev. Dist. v. Snyder, 570 S.W.3d 531 (Ky. 2018).

In Snyder, the plaintiff was employed by the Northern Kentucky Area Development District, a state agency funded by taxpayers in multiple northern-Kentucky counties to administer various social programs. The District required the plaintiff to sign an arbitration agreement as a condition of employment. Although the plaintiff was allowed to opt out or withdraw from the agreement, her employment would end if she did so.

The District later terminated the plaintiff’s employment, and she filed suit under the Kentucky Whistleblower Act and the Kentucky Wages and Hours Act. The District moved to stay the proceedings and compel arbitration, but the circuit court denied the motion. The Court of Appeals affirmed.

The Supreme Court of Kentucky affirmed, first concluding that the District did not have the power to compel employees to sign mandatory arbitration agreements as a condition of employment. At the time, KRS 336.700(2) prohibited employers – including public employers – from “requir[ing] as a condition or precondition of employment that any employee or person seeking employment waive, arbitrate, or otherwise diminish any existing or future claim, right, or benefit to which the employee or person seeking employment would otherwise be entitled under any provision of the Kentucky Revised Statutes or any federal law.” KRS 336.700(2). Although the District had broad powers to enter into contracts and agreements, KRS 336.700(2) prohibited the district “from conditioning employment on an agreement to arbitrate.”

The Supreme Court next determined that KRS 336.700(2) did not run afoul of the FAA because it “d[id] not actually attack, single out, or specifically discriminate against arbitration agreements[.]” The statute, rather, was “a law of general applicability” that did not prohibit arbitration agreements at all; it merely prohibited employers from conditioning employment on an applicant or employee’s agreement to arbitrate. In this vein, the Court further noted, the statute “[wa]s not an anti-arbitration clause – it is an anti- employment discrimination provision.”

The Snyder opinion was widely read for the proposition that no employer could condition employment upon an agreement to arbitrate workplace-related claims.

3. Grimes v. GHSW Enterprises, LLC, 556 S.W.3d 576 (Ky. 2018).

On the same day that the Supreme Court of Kentucky issued its opinion in Snyder, invalidating an arbitration agreement signed as a condition of employment, it also issued its opinion in Grimes, holding that an arbitration agreement was enforceable even though

342 the employer expressly retained various pre-arbitration remedies that the employee was not expressly granted.

Grimes was a member of the GHSW, a limited liability company that operated a used car lot in Lexington. The parties entered into an employment contract as Grimes was to serve as the company’s sales director. The contract contained a non-compete agreement and an arbitration agreement.

Under the latter, GHSW explicitly reserved the right to seek injunctive relief in a court of law, notwithstanding the mandatory arbitration requirement, for certain kinds of breaches of the contract, such as breaches of the non-compete agreement. The arbitration agreement, however, did not explicitly grant the same right to Grimes.

Grimes’ employment later ended, and he accepted a position at another local used-car dealership. Alleging that Grimes resigned his employment and then accepted another position in violation of the non-compete agreement, GHSW filed a petition for arbitration in accordance with the agreement. Wanting to avoid arbitration, Grimes filed a lawsuit in the Fayette Circuit Court, alleging, among other claims, breach of contract. GHSW responded by filing a motion to compel arbitration. The circuit court denied the motion, finding that the arbitration agreement was invalid and unenforceable because it “lacked mutuality,” i.e., because “it specifically allowed GHSW to seek provisional remedies in a court of law while not specifically providing Grimes with the same option.”

On an immediate interlocutory appeal under CR 65.07, the Court of Appeals reversed. Grimes then sought an immediate review from the Supreme Court under CR 65.09.

After initially recognizing that a trial court’s decision denying a motion to compel arbitration is immediately appealable under CR 65.07, because “the contractual right to arbitrate would be irreparably injured with no adequate remedy by appeal if the parties were required to proceed in the trial court prior to a determination of the validity of the arbitration provision,” the Supreme Court made swift work of Grimes’ lack-of-mutuality argument.

First, the Supreme Court explained that all parties to an arbitration agreement have the ability to seek an injunction in a court of law to preserve the status quo regardless of whether such a pre-arbitration remedy is stated in the agreement. Grimes thus had such a right, even though the agreement itself didn’t say so.

Second, the Supreme Court put to rest any notions that the “mutuality of obligations” and “mutuality of remedies” doctrines have any continuing viability. “Our contract law does not mandate equal obligations and rights on both sides. It is within the nature of

343 contracts and the freedom to contract that each party decides what obligation he or she will accept in return for the obligation imposed upon the other party. The question is not whether the obligations and benefits of the contract are equally disbursed between the parties; the question is whether the consideration is adequate to support the agreement.” Id. at 582 (emphasis original). Thus, in siding with the modern trend among the courts, “[i]f the requirement of consideration is met, there is no additional requirement of . . . mutuality of obligation.” Id. at 583.

At first blush, Grimes may appear to conflict with Snyder because KRS 336.700(2) wasn’t even referenced. In Grimes, however, the arbitration provision in the employment contract wasn’t a pre- condition of employment; it was a provision negotiated at arms’ length. See, e.g., Jones v. Good Shepherd Healthcare Solutions, 2019 U.S. Dist. LEXIS 11251, 2019 WL 321420 (W.D. Ky. Jan. 24, 2019) (holding that Snyder did not apply to invalidate the arbitration agreement at issue because its execution was not a stated precondition of employment).

4. 2019 Amendment to KRS 336.700.

The Kentucky General Assembly wasted little time responding to Snyder, amending KRS 336.700 to expressly permit employers to condition initial employment, and continued employment, upon an employee’s agreement to arbitrate all workplace-related claims. The amendments were enacted on March 25, 2019, and took effect on June 25, 2019.

However, under the amendment, arbitration agreements are still subject to traditional contract defenses, see KRS 336.700(4); and they must provide for a reasonable location where the arbitration will be held, for a fair process in selecting the arbitrator, for an equitable allocation of costs, and for the recovery of all relief that is otherwise available in court, including punitive damages, id. at KRS 336.700(5). Finally, absent language otherwise or if no procedural rules or protocols are specified, the Kentucky Rules of Civil Procedure apply to the arbitration, id. at KRS 336.700(7).

Notably, under the amendment, employers may also require employees to agree to reduce the applicable limitations period by up to 50 percent, see KRS 336.700(3)(c).

E. Recent Backlash to Mandatory Arbitration

In recent years, there has been a significant backlash – from workers, law students, state , and even Congress – to the perceived dangers, evils, or injustices of arbitration. While some measures have resulted in significant change, others haven’t yet experienced the desired impact.

344 1. Workers.

In November 2018, some 20,000 Google employees walked out of work, claiming that the confidentiality provision arbitration agreements allowed sexual harassers to prey on multiple victims. Google responded quickly in early 2019, ending its policy of requiring mandatory arbitration of harassment claims.

Google isn’t the only company that has responded to employee protests related to arbitration agreements in the wake of the #MeToo Movement. Other large employers have also ended mandatory arbitration for harassment and other workplace-related claims, including Facebook, Microsoft, Uber (at least with respect to riders’ claims of harassment and assault), and Lyft (following Uber’s decision).

2. Law students.

In November 2018, the law firm of Kirkland & Ellis decided to no longer require associates to sign mandatory arbitration agreements after a boycott of the firm by the Harvard Law Students’ Pipeline Parity Project. And in March 2019, a national collective of law students released a letter to the National Association of Law Placement (NALP), effectively increasing pressure on top law firms around the country to stop using forced arbitration agreements.

3. State legislatures.

a. California.

Effective January 1, 2020, California prohibits an employer from requiring, as a condition of employment, an employee or applicant to waive the right to file a complaint before any state or governmental agency or a civil action, though the law also states that it is not intended to invalidate an agreement otherwise enforceable under the FAA.

b. Illinois.

In August 2019, the legislature enacted a statute prohibiting employers from requiring arbitration of claims enforced by the EEOC or Illinois’ state human rights commission.

c. Maryland.

The Maryland legislature has enacted a provision prohibiting employers from requiring employees to arbitrate sexual harassment claims.

345 d. New Jersey.

In April 2019, the legislature declared void any employment contract that waived substantive or procedural rights and remedies, including an employee’s right to a jury trial.

e. Washington.

In March 2018, the legislature enacted a statute prohibiting employers from requiring an employee to waive, in any contract or employment agreement, his or her rights to publicly pursue a cause of action under the Washington Law Against Discrimination.

4. Congress.

In February 2019, Democrats in the House and Senate introduced the Forced Arbitration Injustice Repeal Act (FAIR Act). The FAIR Act modifies the FAA to render invalid any contract, with limited exceptions, that requires forced arbitration. In effect, the Act ends mandatory arbitration that prevents workers from filing lawsuits in court over employment practices. The Act also requires judges to decide whether arbitration is required. However, the Act would allow arbitration if the parties voluntarily agreed.

The legislation passed in the House on September 20, 2019, by a vote of 225-186, with two Republican representatives voting in favor of the Act. The legislation has not made it to the Senate floor and, absent a change in leadership after the November 2020 election, is not likely to pass.

F. General Considerations for Arbitration and Drafting Tips for Effective Arbitration Agreements

There are a variety of factors that employers must consider, each in a way unique to their needs, their industry, and their workforce, before requiring employees to sign arbitration agreements. And there are an equal number of considerations for employees and their lawyers who are faced with arbitration. Finally, there are a variety of “best practices” to follow when drafting an arbitration agreement.

For employers, be careful what you wish for. Consider DoorDash, the food delivery service. In January 2020, several DoorDash drivers filed a class-action complaint in the U.S. District Court for the Northern District of California claiming that DoorDash misclassified them as independent contractors, denying them minimum wages, overtime wages, and other monetary benefits, like required reimbursement of expenses. DoorDash moved to dismiss the complaint and compel individual arbitration pursuant to the arbitration agreements, which precluded class and collective actions, signed by the drivers. The court granted the motion.

346 Approximately 5,700 drivers submitted claims for arbitration with the American Arbitration Association, saddling DoorDash with more than $12 million in administration fees. DoorDash then cancelled the arbitrations, but the drivers moved the court to compel arbitration, which the court granted.

As a result, DoorDash is now faced with arbitration fees that will exceed $100 million, not to mention its own attorneys’ fees, costs, and expenses, and, if it settles or loses at a final hearing, the drivers’ attorneys’ fees, costs, and expenses.

The lesson for employers? Arbitration may be a good thing. But it’s not necessarily a good thing all the time. Employers should consider the size and unique demands of their workforce, the nature of the industry, and the potential negatives and disadvantages of arbitration.

For employers, arbitration agreements do not need to cover, or apply to, all employment-related disputes. As the DoorDash example clearly shows, there are occasions when remaining in federal court, or even when allowing class- or collective-action claims, is the most effective strategy, either because it’s less expensive or because of, say, the potential res judicata effects.

For employees, the selection of the arbitrator is crucial. Depending on the agreement, arbitrator selection may be an informal process in which the parties simply need to agree on an arbitrator. But selection may also occur by alternative striking from a list of pre-approved arbitrators, by a highest-cumulative-scoring method, or even by the court. Employees should review as much information as they can about proposed or possible arbitrators –and, if possible, find out how many times any particular arbitrator has paired with the employer in an arbitration. And of course, whenever possible, it’s statistically a better option to go with a retired judge.

For employees, the selection of legal counsel is also crucial. While an employee may not always realize he or she is subject to an enforceable arbitration agreement when he or she first seeks legal counsel, retaining counsel that has experience with and is familiar with the arbitration process is helpful. Just as employers receive a benefit from working with the same arbitrator time and again, repeat attorney-arbitrator relationships can work the same way. In addition, if there is any route to challenge or attack the arbitration agreement itself as unenforceable, an attorney experienced with the applicable case law will be able to provide better and more timely guidance.

With respect to the drafting of an arbitration agreement, here are a variety of “best practices” for consideration. While some language and provisions will cross over from one arbitration agreement to the next, the final version of any agreement will necessary require a tailored approach for each employer.

1. Make the arbitration agreement a separate document, not part of an employment contract. To be sure, an employment contract

347 or an employee handbook may repeat the exact same language; however, employers are advised to obtain a signed and dated separate agreement, initialed at the bottom of each page, to be maintained in the employee’s personnel file.

The separate agreement prevents an employee from claiming that he or she didn’t see or didn’t read the document (e.g., when it’s part of a laundry list of items in a single document reviewed during orientation), and initialing the bottom of every page prevents an employee from claiming that he or she didn’t see or didn’t read any particular provision, on any particular page, of the agreement.

2. State that the arbitration agreement is governed exclusively by the FAA, which preempts any state laws. A useful provision reads as follows: “This Agreement is governed by the Federal Arbitration Act 9 U.S.C. §1 et seq.”

However, the agreement should also state that the disputes arising under the agreement are subject to the substantive laws of the state in which the employee works. And in Kentucky, of course, the arbitration agreement should state that the arbitration will be held in Kentucky.

3. Clearly and unambiguously state that the employee is waiving his or her right to file a civil action and to have the dispute heard by a jury.

4. Clearly and unambiguously state that the employee does not waive his or her right to file a charge with any government agency. This should specifically state that the agreement does not waive his or her right to file a charge of discrimination or retaliation with the EEOC, a charge with the NLRB or the DOL, or any state counterpart (e.g., the Kentucky Commission on Human Rights or Kentucky Labor Cabinet). This should also specifically state that the agreement does not waive an employee’s right to file a workers’ compensation claim for an on-the-job injury or a claim for unemployment insurance benefits.

5. However, clearly and unambiguously state that any post- government-agency complaint must be submitted to binding arbitration.

6. State that the employer will be responsible for all costs of the arbitration proceeding, except for those costs that the employee would bear in a civil action. The costs that an employee would be responsible for covering include, without limitation, the initial filing fee and deposition transcript fees.

Employers, of course, must be mindful of the quickly-escalating arbitrator fees and the escalating administration fees from entities like the AAA and JAMS.

348 Employers must also beware of “fee-splitting” and “fee-shifting” provisions. A “fee-splitting” provision requires the parties to an arbitration agreement share, or split, the costs of the arbitration. A “fee-shifting” provision, of course, requires the losing party in an arbitration proceeding to pay the prevailing party’s fees and costs.

These provisions, in general, do not render an arbitration agreement unenforceable. An exception arises when federal statutory rights are subject to arbitration: such an agreement is unenforceable if the cost of the arbitration effectively precludes the employee from vindicating his federal statutory rights, such as the right to payment of minimum and overtime wages under the Fair Labor Standards Act, 29 U.S.C. §201 et seq. See, e.g., Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79 (2000), and Maldonado v. Mattress Firm, Inc., 2013 U.S. Dist. LEXIS 58742, 2013 WL 1760272 (M.D. Fla. April 24, 2013), which stand for the proposition that an employee who shows the costs he’s likely to incur and his inability to pay those costs, under a fee-splitting provision, can render the arbitration agreement unenforceable. See also Hernandez v. Colonial Grocers, Inc., 124 So.3d 408 (Fla. Ct. App. 2013) (holding that fee-shifting provision in arbitration agreement rendered arbitration unenforceable because it was directly conflicted with the FLSA).

7. State that the arbitration will be held before a single, mutually- selected arbitrator. In addition, the parties will want to carefully select an arbitrator with experience, either as lawyer or an arbitrator, with the dispute being arbitrated, especially if, as outlined in Tip No. 8 below, class- or collective-action claims are involved.

8. State that the arbitration will be conducted on an individual basis, that the employee waives any right to bring or participate in any class or collective action. However, employers are advised to give themselves an out: in appropriate circumstances, allow for the parties to mutually agree to class and/or collective arbitration. This option to resolve all complaints or disputes in a single proceeding will be much cheaper and more efficient than dealing with hundreds or, as the DoorDash example shows, thousands of individual arbitrations.

9. State that mediation is available as an optional first resort. An agreed mediation before the arbitration commences can be a useful tool to resolving disputes quickly and inexpensively. While there are drawbacks to an early mediation (e.g., the lack of discovery and its exchange of information and documents, and the lack of witness testimony), the potential benefits for either resolving the dispute or even narrowing the scope of the dispute may far outweigh the disadvantages.

349 10. State that the parties will be allowed to conduct all necessary discovery, including written discovery and depositions, subject to any fair and reasonable limits based on each dispute’s demands, to prepare their cases for the final hearing.

11. State that the arbitrator will, after a final hearing and upon briefing by the parties, issue a final written ruling that, except in very limited exceptions under the FAA, is not subject to appeal. In general, it’s not possible to appeal an arbitration award to a court, even the court that compelled arbitration in the first place, under the usual grounds of appeal available in the state and federal courts. Under the FAA, grounds for appeal are quite limited – a party must basically show that the arbitrator was corrupt, extremely partial, or otherwise engaged in serious misconduct.

12. However, state that an optional appeal within the arbitration process is available upon the parties’ mutual agreement. Several arbitration providers, including AAA and JAMS, have offered optional appeal rights. Especially in particularly complex or significant, bet-the-company matters, an optional appeal may quell any concerns about otherwise untouchable awards that don’t completely risk the time and money savings that arbitration (at least in theory) promises.

13. State that the arbitrator may award any and all forms of relief that the employee would be entitled to in court, including punitive damages.

14. State that the parties do not waive any right to seek injunctive relief in court to maintain the status quo pending the arbitration. This is especially important in disputes over a non- compete agreement and other restrictive covenants.

15. State that any disputes regarding the validity or enforceability of the agreement is to be decided by either an arbitrator or a court. An arbitration agreement, as a contract, must be enforced according to its terms. Thus, if the agreement states who (e.g., the arbitrator or a court) is to decide “gateway” questions, such as whether the agreement is enforceable or not, then the decision is enforceable. See Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S.Ct. 524 (2019).

16. As in any agreement, state that the employee has entered into the agreement without undue influence or coercion and that he or she has had an opportunity to read, and understands, the agreement.

17. If an employee’s native language is not English, make the agreement available in an employee’s native language.

350 G. Conclusion

Arbitration can be a much cheaper, more efficient, and much quicker alternative to litigation. But not always. As a creature of contract, however, employers can craft arbitration agreements that allow for consideration of the necessary nuances to best ensure that the process is, in fact, cheaper, quicker, and more efficient.

II. UNDERSTANDING RECENT DEVELOPMENTS IN ADA JURISPRUDENCE6

Although Congress intended for the Americans with Disabilities Act of 1990 to broadly protect disabled persons from discrimination, a number of restrictive and demanding standards for individual coverage created by the federal judiciary would render the Act effectively meaningless in the eyes of the United States Congress within only 12 years of its enactment.

The Kentucky Civil Rights Act (KCRA), like the Americans with Disabilities Act of 1990 (ADA) after which it was modeled, prohibits employers from discriminating against qualified individuals with disabilities. As Kentucky courts have long interpreted the KCRA consistently with its several federal counterparts, it would be reasonable to expect that the KCRA’s disability provisions would continue to track the federal judiciary’s evolving construction of the ADA.

With Congress’s amendment of the ADA in 2008, however, a rift has formed between KCRA disability jurisprudence and the current federal standards governing the ADA. Although the statutory definitions of disability – i.e., the threshold for individual coverage – remain virtually identical under both acts, Kentucky courts have thus far continued to apply overridden federal precedent to disability discrimination claims pursued under the KCRA. This departure from Kentucky’s established KCRA construction can likely be attributed to rulings from the United States Court of Appeals for the Sixth Circuit and its lower courts – forums that consistently applied subrogated ADA standards for years following the Act’s amendment, and which are only just now beginning to reconcile their jurisprudence with the ADA’s proper construction.

A. Overview of the ADA & Analogous KCRA Provisions

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) prohibits employers from discriminating against “a qualified individual on the basis of disability...” 42 U.S.C. §12112(a). Likewise, the Kentucky Civil Rights Act (“KCRA”) prohibits employers from discharging or otherwise discriminating “against an individual . . . because the person is a qualified individual with a disability[.]” KRS 344.040(1)(a).

Each Act defines “disability” in nearly identical terms:

6 This section of the materials, “Understanding Recent Developments in ADA Jurisprudence,” was prepared by P. Stewart Abney and Jeremiah W. Reece.

351 ADAAA7 KCRA8

The term “disability” means, with “Disability” means, with respect to respect to an individual: an individual:

a physical or mental impairment A physical or mental impairment that substantially limits one or that substantially limits one (1) or more of the major life activities of more of the major life activities of such individual; the individual;

a record of such an impairment; or A record of such an impairment; or

being regarded as having such an Being regarded as having such an impairment.... impairment.

While the definition of disability is effectively mirrored in the two Acts, each law does carry several, largely procedural, differences as illustrated in the table below.

7 42 U.S.C. §12102(2).

8 KRS 344.010.

352 ADAAA KCRA

Compensatory Damages capped Uncapped Damages10 at $50,000, $100,000, $200,000, or $300,000 depending on number of employees9

Punitive Damages Recoverable11 No Punitive Damages12

Exhaustion of Administrative Exhaustion of Administrative Remedies is Required.13 Remedies is not Required.14

Statute of Limitations: 300 days to Statute of Limitations: Five Years16 file Charge of Discrimination with EEOC15

Causation: But For17 Causation: But For18

B. Enactment of the ADA and Divergence from the Original Intent of the Act

The Americans with Disabilities Act was enacted in 1990 with the express purpose of providing “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 101 P.L. 336 §2(b)(1) (1990). The legislation responded directly to congressional findings that discrimination against disabled Americans – numbering

9 42 U.S.C.S. §1981a(b)(3).

10 See e.g., Ky. Com. on Human Rights v. Fraser, 625 S.W.2d 852, 855 (Ky. 1981).

11 42 U.S.C.S. §1981a(a).

12 Ky. Dep't of Corr. v. McCullough, 123 S.W.3d 130, 140 (Ky. 2003).

13 42 U.S.C. §2000e-5(e)(1); 42 U.S.C. §12117(a); see also Brown v. General Services Administration, 425 U.S. 820 (1976).

14 KRS 344.450; see generally Owen v. Univ. of Ky., 486 S.W.3d 266, 270 (Ky. 2016).

15 42 U.S.C. §2000e-5(e)(1); see also Jones v. AIRCO Carbide Chem. Co., 691 F.2d 1200, 1201 (6th Cir. 1982); Grainger v. Hoskin & Muir, Inc., 2019 U.S. Dist. LEXIS 210630, 2019 WL 6684524 at *16 (W.D. Ky. Dec. 6, 2019). The 300-day statute of limitations applies only to claims filed in “deferral states.”

16 Ammerman v. Bd. of Educ. of Nicholas Cty., 30 S.W.3d 793, 798 (Ky. 2000); KRS 413.120(2).

17 Gohl v. Livonia Pub. Sch. Sch. Dist., 836 F.3d 672, 682 (6th Cir. 2016). However, in Lewis v. Humboldt Acquisition Corp, Inc., 681 F.3d 312, 321 (6th Cir. 2012), when the Sixth Circuit held that the "but for" causation standard governed pre-amendment ADA claims, which prohibited discrimination “because of” an individual's disability, the court did not address the amended ADA provision that now prohibits discrimination “on the basis of” an individual's disability.

18 Asbury Univ. v. Powell, 486 S.W.3d 246, 255 (Ky. 2016).

353 43,000,000 at the time of enactment – persisted in “such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.” 101 P.L. 336 §2(a)(1)-(3) (1990). Accordingly, Congress drafted the ADA to include a broad scope of coverage for individuals who were to be afforded protection under the Act, providing the following definition of disability as a threshold for qualification:

The term "disability" means, with respect to an individual –

1. A physical or mental impairment that substantially limits one or more of the major life activities of such individual;

2. A record of such an impairment; or

3. Being regarded as having such an impairment.

101 P.L. 336 §3(2) (1990).

The above definition was “drawn almost verbatim from the definition of ‘handicapped individual’ included in the Rehabilitation Act of 1973.” Bragdon v. Abbott, 524 U.S. 624, 631-32 (1998) (citing Rehabilitation Act of 1973 (“RA”), 29 U.S.C. §706(8)(B) (1988)). By adopting this definition Congress was not merely recycling language from the RA, but rather was explicitly incorporating existing legal principles and standards that governed the RA’s construction – made clear by the text of the ADA itself, which directed courts to interpret the Act so as to offer “at least as much protection as provided by the regulations implementing the Rehabilitation Act.” Bragdon, 524 U.S. at 632 (citing 42 U.S.C. §12201(a) (1990)).

Despite Congress’s clear expressions of intent, the federal judiciary imposed restrictive standards on individual coverage under the ADA, and specifically with regard to the Act’s definition of disability. See Hostettler v. College of Wooster, 895 F.3d 844, 848-49 (6th Cir. 2018). Of particular significance to the erosion of the ADA’s scope are two Supreme Court opinions: (1) Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); and (2) Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002). In Sutton, the Supreme Court held that, in determining whether an impairment constitutes a disability, courts are required to evaluate the impairment in its mitigated, rather than unmitigated, state. 527 U.S. at 481-89. The Sutton opinion further held that an individual seeking coverage under the “regarded as” prong of the definition was required to prove either:

(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes than an actual, nonlimiting impairment substantially limits one or more major life activities.

354 Id. at 489. Professor Deborah A. Widiss sums up succinctly the practical hurdles imposed on individual litigants by Sutton’s regarded-as requirements:

In other words, a plaintiff was required to prove a complicated counterfactual: Not only that an employer or other covered entity incorrectly believed that she had an impairment, but also that the covered entity incorrectly believed that the impairment (which might not even exist) substantially limited a major life activity.

Deborah A. Widiss, “Still Kickin’ After All These Years: Sutton and Toyota as Shadow ,” 63 Drake L.R. 919, 924 (2015).

In Toyota, the Supreme Court considered the terms “substantially limited” and “major life activities” as used in the definition of disability. As with Sutton, the Court in Toyota strictly construed the ADA to require demanding standards, holding: (1) an activity must be of “central importance to most people’s daily lives” to constitute a major life activity; (2) an impairment must “prevent or severely restrict” an individual’s major life activities to be substantially limiting; and (3) an impairment must be “permanent or long term” to constitute a disability. Toyota, 534 U.S. at 198.

The combined effect of the Sutton and Toyota holdings drastically reduced the number of persons qualifying for protection under the ADA, so much so that the decisions effectively “left the ADA too compromised to achieve its purpose.” Hostettler, 895 F.3d at 848.

The ADA’s strict construction had rendered its protections meaningless. To remedy this, Congress enacted the ADAAA to “restore the intent and protections” of the ADA. Id. at 848-49 (quoting 110 P.L. 325). Congress expressly overruled the restrictive holdings of Sutton and Toyota, and restored the original, proper standards by which the ADA is to be construed. See 110 P.L. 325 §2(b)(2)-(5).

The ADAAA does not substantively alter the ADA’s definition of disability. See 42 U.S.C. §12102(1) (2019).19 Rather, the amendments supplement the ADA’s original provisions with definitions and rules of construction articulating Congress’s original intent. See 42 U.S.C. §§12102(2)(A)-(B), 12102(3)(A)-(B), and 12102(4)(A)-(E). These supplements are intended to produce a construction “in favor of broad coverage . . . to the maximum extent permitted by the [ADA’s] terms[.]” Barlia v. MWI Veterinary Supply, Inc., 721 Fed. App’x 439, 445 (6th Cir. 2018) (quoting 42 U.S.C. §12102(4)(A)).

19 The only textual modification to the definition is found in the regarded-as prong, which now reads: “(C) being regarded as having such an impairment (as described in paragraph (3)).” 42 U.S.C. §12102(1)(C) (2019).

355 C. Sixth Circuit recently Reaffirms the Purpose of the ADAAA and the Original Intent of the ADA

Despite Congress’s repudiation of the holdings set forth in Sutton and Toyota, courts within the Sixth Circuit – including the Court of Appeals itself – continued to apply those overturned standards as recently as June 2019, well after the ADA’s amendment.

In Johnson v. Univ. Hosps. Physician Servs., 617 Fed. Appx. 487 (6th Cir. 2015), a case in which the relevant facts transpired in 2012, the Sixth Circuit evaluated the plaintiff’s regarded-as claim under Sutton’s prima facie standard – i.e., that an employer must “mistakenly believe that the person’s actual, nonlimiting impairment substantially limits one or more major life activities.” Johnson, 617 Fed. Appx. at 491 (citing Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521-22 (1999) (a companion case to Sutton).

Likewise, in Ferrari v. Ford Motor Co., 826 F.3d 885 (6th Cir. 2016), the Sixth Circuit applied the above Sutton standard, and further relied on Sutton’s stringent major life activity standard, to evaluate an ADA claim arising from events occurring in 2013. Ferrari, 826 F.3d at 893 (citing Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 704 (6th Cir. 2008) (quoting directly from Sutton)).

The Sixth Circuit again applied Sutton’s overturned standards in Booth v. Nissan N. Am., Inc., 927 F.3d 387 (6th Cir. 2019), a case involving acts of alleged discrimination taking place between 2015 and 2016 – and relying expressly on the aforementioned Ferrari opinion. Booth, 927 F.3d at 395 (citing Ferrari, 826 F.3d at 893). The Sixth Circuit’s Booth opinion even recites the appropriate ADA standard for regarded-as claims, which requires an individual to establish

that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

42 U.S.C. §12102(3)(A). However, even after citing the text of the statute, the Sixth Circuit flipped the standard on its head, stating: “In other words, a plaintiff may seek relief under the ADA if his employer mistakenly believes that he is substantially limited from performing a major life activity[.]” Booth, 927 F.3d at 395.

Nearly five months later, following the issuance of Booth, the Sixth Circuit would recognize its erroneous continued reliance on Sutton in the matter of Babb v. Maryville Anesthesiologists P.C., 942 F.3d 308 (6th Cir. 2019). In Babb, a nurse brought a regarded-as disability discrimination claim against her former employer, a healthcare practice, alleging it terminated her because of her nondisabling visual impairment. 942 F.3d at 311, 313- 14. In evaluating the claim, the Sixth Circuit definitively corrected its regarded-as jurisprudence, acknowledging the ADAAA’s override of Sutton

356 and setting forth the proper standard for the ADA’s regarded-as prong. Id. at 318-19. Moreover, the Sixth Circuit offered something in the way of penitence for its inapposite reliance on Sutton in post-ADAAA opinions, stating:

We have recognized this amended standard before, albeit not in a published decision. Our sister circuits have done likewise, in published decisions. To the extent we have issued decisions in recent years holding to the contrary – and, regrettably, we have – that was error.

Babb, 942 F.3d at 319 (internal citations omitted).

D. The State of the Law for Disabled Litigants under the KCRA – Breen, Larison and the Federal Case Law Preceding Them

Kentucky courts have interpreted the KCRA consistently with analogous federal law from their earliest decisions on the Act’s provisions. See e.g., Ky. Comm’n on Human Rights v. Commw., Dep’t for Human Res., Hazelwood Hosp., 564 S.W.2d 38, 39 (Ky. App. 1978). A reason for this is found in the statutory purposes articulated in the KCRA itself: “To provide for execution within the state of the policies embodied in” federal civil rights legislation. KRS 344.020(1)(a); see also Brooks v. Lexington-Fayette Urban Cnty. Hous. Auth., 132 S.W.3d 790, 801-02 (Ky. 2004).20 The judicial construction of federal cognates is typically given priority over textual concerns, “Kentucky courts have always construed violations under the KCRA consistent with federal construction of similar violations under the federal civil rights laws.” Ky. Dep’t of Corr. v. McCullough, 123 S.W.3d 130, 138 (Ky. 2003) (emphasis added) (citation omitted).

The General Assembly identified “the policies embodied in ... the Americans with Disabilities Act of 1990 (P.L. 101-336)” for execution within the state. KRS 344.020(1)(a). The KCRA adopts outright definitions and provisions from the ADA. Compare KRS 344.010(4) with 42 U.S.C. §12102(1); see also KRS 344.030(1) and 42 U.S.C. §12111(8).

However, beginning with the ADA’s 2008 Amendments, and truly taking a foothold in 2011 and 2012 with Breen v. Infiltrator Sys., 417 F. App'x 483 (6th Cir. 2011), and Azzam v. Baptist Healthcare Affiliates, Inc., 855 F.Supp.2d 653, 661 (W.D. Ky. 2012), a rift began to develop between the previously consistent interpretations of disability discrimination claims brought under the ADA and KCRA.

1. Breen v. Infiltrator Sys., 417 F. App'x 483 (6th Cir. 2011).

In Breen, after the plaintiff told his supervisor that he had Hepatitis C, some co-workers made negative comments and the supervisor

20 Other reasons identified by the Supreme Court for this standard include: promoting predictability in the law; discouraging forum shopping; and striking a balance between the legitimate interests of both employer and employee. Brooks, 132 S.W.3d at 801-02.

357 gave him a written reprimand for refusing to work with the employer's customer service department. The plaintiff took medical leave to begin treatment for Hepatitis C and when he sought to return to work, the employer told him that he had been discharged before he took leave. The Sixth Circuit determined that the plaintiff’s disability discrimination claim failed because he did not prove that the employer regarded him as disabled and he did not establish that his employer believed him to be substantially limited in a major life activity. With respect to the KCRA, the court stated: “Although Congress recently expanded the definition of ‘regarded as disabled…’ that amendment has yet to be incorporated into the Kentucky statute ... so the pre-2008 ADA standards apply to Breen's claim.” Breen, 417 F. App'x at 486. The Breen court offered in support of its conclusion two other Kentucky decisions:

a. Milholland v. Sumner Cnty. Bd. of Educ., 569 F.3d 562 (6th Cir. 2009), a case involving disability discrimination claims asserted under Tennessee state law, which contains no discussion of the KCRA, and states only that the ADAAA does not apply retroactively to claims arising prior to the amendment; and

b. Adams v. Louisville-Jefferson Cnty. Metro Gov’t, 2009 Ky. App. Unpub. LEXIS 203, 2009 WL 637294 (Ky. App., Mar. 13, 2009), an unpublished Kentucky Court of Appeals opinion that concerns pre-2008 disability discrimination claims and contains no analysis devoted to the application of the ADAAA to KCRA claims.

See Breen, 417 Fed. Appx. at 486. Thus began the divergence of previously consistent interpretations of disability discrimination claims brought under the ADA and KCRA.

2. Azzam v. Baptist Healthcare Affiliates, Inc., 855 F.Supp.2d 653, 661 (W.D. Ky. 2012).

The plaintiff in Azzam contended that she suffered a left hemisphere stroke with resulting aphasia. The plaintiff further alleged that the stroke she suffered substantially limited her neurological functions and her abilities to work and to concentrate. The plaintiff brought disability discrimination claims under both the ADAAA and the KCRA. The court analyzed the plaintiff’s disability discrimination claim under what it termed as “the broadened standards of the ADAAA.” Azzam, 855 F.Supp.2d at 661. Ultimately, the court held that the plaintiff was not disabled even under the ADAAA.

The holding in Azzam did not turn on whether pre- or post-ADAAA standards were applied. However, in a footnote, the court stated that “the KCRA retains the ADA's former definition of disability. Compare KRS 344.010(4) with 42 U.S.C. §12102(2) (2006).” Id. at

358 657 n.2. Notably, the definition of “disability” under the ADA as it existed in 2006 was not changed by the 2008 amendments as the Azzam court’s footnote implies. In fact, the definition of disability in the ADA has not changed since the law was enacted on July 26, 1990. Compare 101 P.L. 336 §3(2) (codified at 42 U.S.C. §12102(2) (1992 ed.)) with 42 U.S.C. §12102(2) (2006), 42 U.S.C.S. §12102 (2020), and KRS 344.010(4). The court in Azzam offered no further analysis of this issue.

3. The progeny of Breen and Azzam.

Following the holdings in Breen and Azzam, several other courts in the Sixth Circuit also found that KCRA disability discrimination claims should continue to be interpreted under the pre-ADAAA standards:

a. Krueger v. Home Depot USA, Inc., 674 F. App'x 490, 494 (6th Cir. 2017) ("[T]he Kentucky legislature adopted the language in the KCRA in 1992 and intended it to reflect the language of the ADA at that time, not the subsequent amendments");

b. Sanders v. Bemis Co., Inc., 2017 U.S. Dist. LEXIS 125090, 2017 WL 3401277 *1, (E.D. Ky. Aug. 8, 2017) (“[T]he KCRA is interpreted consistent with pre-ADAAA, rather than post- ADAAA, jurisprudence”);

c. Laferty v. United Parcel Serv., Inc., 186 F.Supp.3d 702, 707 n.3 (W.D. Ky. 2016) (noting that “[f]ederal courts continue to interpret the KCRA consistent with pre-ADAAA jurisprudence”).

Like Azzam, these cases generally failed to analyze the legislative history and intent behind the enactment of the ADA in 1990, its amendment in 2008, and the KCRA’s amendment in 1992 to include a prohibition of disability discrimination.21

4. Larison v. Home of the Innocents, 551 S.W.3d 36 (Ky. App. 2018).

In 2018, the Kentucky Court of Appeals briefly addressed the effects, or lack thereof, of the ADAAA on disability discrimination claims brought under the KCRA. In Larison, the plaintiff suffered a

21 Other federal decisions reaching the same conclusion of Breen also recite the Sixth Circuit’s reasoning. See White v. Humana Ins. Co., 2011 U.S. Dist. LEXIS 94407, 2011 WL 3715046 at *6- 7 (W.D. Ky., Aug. 23, 2011) (citing solely to the Tennessee case Milholland for support); see also Brown v. Humana Ins. Co., 942 F.Supp.2d 723, 731 (W.D. Ky. 2013) (citing White as supporting authority); Darby v. Gordon Food Serv., Inc., 2015 U.S. Dist. LEXIS 74135, 2015 WL 3622529 at FN 2 (W.D. Ky., Jun. 9, 2015) (citing Breen and Brown as supporting authority); and Baum v. Metro Restoration Servs., 240 F.Supp.3d 684 (W.D. Ky. 2017) (citing Breen, Milholland, Darby, and Brown as supporting authority).

359 stroke that rendered her fully incapacitated for over four months and unable to fully speak for nearly a year after her employer terminated her. Larison filed her disability discrimination claim in 2014 under the KCRA, approximately six years after the ADAAA was enacted and effectively overturned federal precedent that improperly limited the scope of the ADA. However, citing only Azzam, the Larison court held that “‘the KCRA retains the former definition of disability’ prior to the 2008 Amendments of the federal law.” Larison, 551 S.W.3d at 43 (quoting Azzam, 855 F. Supp. 2d at 661). The Larison court made this determination in the context of whether the plaintiff’s disability was permanent or temporary. The court ultimately found that the plaintiff was disabled, but not an otherwise qualified individual with a disability under the KCRA. Larison did not petition the Kentucky Supreme Court for discretionary review of the Court of Appeals’ opinion.

E. The Argument for Adoption of ADAAA Standards in Kentucky

The KCRA was amended to include disability protections 10 months prior to the federal judiciary’s first decision on the ADA, which was rendered in September 1993. See 1992 Ky. SB 210.22 As no federal ADA jurisprudence yet existed, the Kentucky General Assembly (“GA”) could not possibly have intended to incorporate any specific federal judicial standard into the KCRA’s definition of disability. Thus, the only ADA policies the GA could have intended for the KCRA to execute were those contained in the text of the federal act.

Because the ADAAA restores original congressional intent to the ADA, courts can only interpret the KCRA consistently with federal law by adhering to the ADA’s amended provisions. Through the ADAAA, Congress directly rebuked the federal judiciary’s interpretation of the ADA as erroneous, and furthermore, provided specific instructions for the judiciary on the proper interpretation of the ADA’s provisions. Thus, the policies embodied in the ADA, for which the KCRA’s disability provisions were designed to execute, were always those now identified in the ADAAA, despite the distortion of such policies by judicial overreach. Consequently, the ADAAA must necessarily be determinative when interpreting the KCRA’s disability provisions.

While Kentucky courts have previously adhered to the pre-amendment standards such as those enunciated by Toyota, it is clear from the ADAAA that Toyota was a product of misinterpretation and the standards it prescribed were contrary to the ADA’s policies as originally intended by Congress. Thus, an application of the pre-amendment ADA standards to a KCRA disability claim would actually violate the consistent interpretation requirement, as those prior standards are explicitly premised upon a misinterpretation of federal law.

22 Lexis-Nexis Shepardization of 42 U.S.C. §12102 identifies Harmer v. Virginia Elec. & Power Co., 831 F.Supp. 1300 (E.D. Va. 1993), as the earliest decision interpreting the definition of disability in the employment context.

360 Application of the ADAAA to the KCRA is all the more supported by the fact that the ADA was not even in effect at the time of the KCRA’s amendment to cover disability discrimination.23 When the KCRA’s disability provisions were enacted, no federal appellate court had even been presented the opportunity to hear an ADA claim, much less articulate or adopt the unduly restrictive standards the ADAAA was designed to correct. Thus, the General Assembly could not have anticipated those judicially-created standards to be included within the “policies embodied” by the ADA, nor that KCRA disability claims would be governed by those standards. Rather, the General Assembly could have only considered policies contained in the plain text of the ADA. As Congress has explicitly stated that those pre- amendment standards are contrary to the original legislative intent for the ADA, it must follow that the pre-amendment standards are also contrary to the legislative intent underlying the KCRA.

Finally, the Kentucky Supreme Court has indicated it may likely hold that the ADAAA governs KCRA disability discrimination claims arising after 2008. In Wagner’s Pharm., Inc. v. Pennington, 2015 Ky. Unpub. LEXIS 25, 2015 WL 2266374 (Ky. May 14, 2015), the Supreme Court overturned an appellate court decision ruling that an employee’s morbid obesity qualified as a disability under the KCRA. Id. at *24. The Supreme Court noted that while the ADAAA “indicated a trend in the law to treat morbid obesity as a disability per se,” the amendments to the ADA were not retroactive and therefore did not apply to the case. Id. at *12, fn 2. The Supreme Court went on to note several times that the ADAAA superseded various authorities cited by the parties but was not applicable to the case because it involved pre-2008 events. Id. at *19 fn 4, *23 fn 6. While the Pennington opinion has since been substituted, it provides significant insight into the Supreme Court’s potential analysis of this issue.

23 The ADA was enacted on July 26, 1990, but did not become effective for two years following enactment. See 101 P.L. 336 §108. The KCRA’s disability discrimination amendments were signed into law on April 8, 1992. See 1992 Ky. SB 210.

361 ESTATE PLANNING DOCUMENTS THAT DON’T SUCK: CRAFTING AND DRAFTING ROBUST INCAPACITY AND ESTATE PLANS THAT WILL BE RECOGNIZED ACROSS THE COMMONWEALTH AND BEYOND Scott E. Collins, Shelly Ann Kamei, and Shari Polur1

As we draft this document, Covid-19 stay-at-home orders are in force. The world is changing in the face of this massive challenge. We are, of necessity, changing with it. The crisis has brought the need to have portable legal documents into stark relief. Many have found themselves stranded far from home. Others face difficulty traveling to other climes. Now more than ever, clients are aware of just how vital properly crafted incapacity and estate planning documents can be and the hurdles faced by those without these tools.

Elder law attorneys are uniquely poised to address these challenges. Our practices are built around serving clients in emotionally charged situations. We see documents drafted in other phases of life applied to situations that neither client nor attorney contemplated at the time of drafting. We often see clients whose resources, capacity, and support networks have dwindled. We see clients in crisis, scrambling to adjust to their radically altered lives. We see families caught between the Scylla and Charybdis when trying to make difficult, no-win decisions while simultaneously grieving the imminent or eventual loss of a loved- one. We see clients that have passed through the cycles of life and are facing its ending.

Incapacity and estate planning documents must be sufficiently robust to address the client’s goals while preserving their autonomy for as long as is possible. Robust plans and the documents that implement them also need to be flexible enough to evolve. Some changes are the result of conscious decisions made by our clients. Other changes are the result of the natural aging process. Still others occur because the world changes around us. Consequently, documents must be drafted, witnessed, notarized, and implemented in a fashion that leads to recognition as readily and widely as is possible. Documents should withstand the test of time whether the documents, principals, or agents cross the street, cross state lines, cross the ocean, or cross-off their extant plans.

I. GENERAL PRINCIPLES OF ROBUST, RECOGNIZED, AND PORTABLE DOCUMENTS

A. A Philosophy for Crafting Plans and Drafting Documents

Our goal is to apply the lessons we have learned to scenarios you may see in your practice and your personal lives. We view Kentucky statutes, regulations, and caselaw as our starting point. Rarely are they the ending point. Documents that are legally sufficient may not be robust enough to serve client interests nor readily accepted by others.

B. Practice Pointers Applicable to All Documents

1. Default provisions as gap-fillers.

1 Shelly Ann Kamei of Shelly Ann Kamei Law Offices PLLC can be reached at [email protected] or (502) 331-5574. Scott E. Collins of Elder Law Guidance: The Elder Law Practice of Scott E. Collins, PLLC can be reached at 859-684-5333. Shari Polur of Polur Elder Law, PLLC can be reached at (502) 442-2666.

362 Charles is 71. He and his wife Camilla have just moved to Kentucky. They want an estate plan completed as cheaply and efficiently as possible and would prefer their documents to be “as short as possible” with no “customization” on your part. You believe that they fear tailoring documents to their needs increases cost. What do you advise?

Best practice is to avoid using statutory default language as a gap- filler. Laws change. We do not want to leave ambiguity as to which law applies even where we, as attorneys, are certain. Further, our client might not like the default provision. Finally, other parties may not recognize a term or power not expressed in the document.

a. Don’t rely on statutory defaults as gap-fillers.

b. Warn the client that short is not always sweet when it comes to ensuring their goals are carried out. Cost savings in drafting might cause additional costs later.

2. Broad and non-specific grants of authority and implied powers.

Charles hands you his existing Power of Attorney (POA). It is one page and grants “all power I would have if acting on my own behalf under state law.” What do you advise?

Best practice is to avoid reliance on broad and non-specific grants of authority such as “all powers under Kentucky law” or implied powers. Even though state statute governing the creation of the document allows such a grant, there are some specific situations where this will not work. Other laws and governmental entities require specifically enumerated provisions. If the principal no longer has the capacity to revise the document, the only recourse to fix the issue might be conservatorship or guardianship.

a. Don’t rely on broad and non-specific grants of authority even if allowed by statute.

b. Expressly include any powers which an agent might need to carry out a principal’s interests. It’s better to include a power they don’t need than to omit powers they do.

3. Party names and other identifiers.

363 Charles brings you a deed that was drafted by another attorney. He wants you to review the deed. His name is listed on the deed as Charlie, but his actual legal name is Charles. Camilla is listed under her maiden name of Parker. Also, he tells you that the other party on the deed has been called, Thomas, Tommy, and Tom in different iterations of the deed, Homestead Exemption Form, and on his government issued identification. However, his friends don’t call him any of these. He goes by Mack. What do you advise?

There has been some debate in Kentucky about the form of a name on a deed. Some states have more stringent requirements. Best practice is to include a client’s full legal name and any variations of their name in documents. You may also include prior legal names. This should eliminate any confusion as to who is being described.

a. Include variants of names under a “formerly known as” or “also known as” clause.

b. Include any information needed to identify parties and persons in the document.

4. Executing documents.

Charles invites you to his hunting lodge to execute his documents. He will provide the witnesses. When you arrive, his brother Edward and his friend Ken, the person named as the fourth alternate on his Power of Attorney, are the only persons present. Should you proceed?

Some states require documents be notarized. Some require them to be witnessed. Some require both. The number of witnesses varies from none to three. The requirements for disinterested witnesses also vary. Consequently, best practice is to use a notary and at least two disinterested witnesses when executing documents.

Another best practice is to use a self-proving affidavit stating that all the requirements for executing the document have been met such as principal’s age, capacity, and lack of undue influence. Even where these are not required for the document to be valid at execution, they may be required in order to get the document recognized when needed. If time or distance pass between the execution of the document and its use, witnesses may not be available or able to prove the necessary facts. Further, human memory is imperfect. Will your witness really, truly remember witnessing a document for your client months, years, or decades after the fact?

364 a. Use at least two disinterested witnesses.

b. Witness and notarize the document unless the statute forces a choice.

c. Use self-proving affidavits stating the prerequisites for valid execution are met.

d. Document all processes and procedures. Document proof of identity of all persons signing a document even if the person is personally known to you.

5. Notary practice.

You send one of Charles’ documents to Florida where Charles’ financial advisor is located. The financial advisor rejects it because there is no notary stamp on the document even though the notary name, ID number, and expiration date are clearly present in the notary block. You also notice the notary signed as “Pat” even though their stamp has the name listed as “Patrick.” What should you do?

As with execution of documents, notary practice varies greatly. Some states have extremely stringent requirements for verifying identification. Best practice is to develop a system of verifying identity. Consider using an online verification service. Document your process carefully so that you could prove your process if a challenge arises years down the road. Further, best practice is to obtain and record some form of identification even if the party is known to you. Finally, a notary’s signature must match the name on file with the Secretary of State per KRS 423.360(b). This section also requires that the notaries’ commission number and date of expiration also be listed per section (e). Kentucky does not require a stamp or embossed seal. Most other states do. Some states even require use of a raised embossed seal with contrasting colors.

Any attorney intending to perform notarial acts using remote technology must comply with KRS 423.455 and related regulations, notify the Secretary of State of the methods they will use to ensure that they comport with the statute, and document the process thoroughly. There are separate requirements for notarization of digital documents.

a. Require proof of identity even if the party is known to you.

b. Have the notary sign exactly as their name appears in state records.

c. Have a plan for recording and preserving each notarial act.

365 d. Use a stamp or embossed seal that comports with KRS 423.370.

e. Comply with Kentucky law regarding use of technology and digital notarization.

6. Actions after documents executed.

When we craft and draft a plan for our clients, we do not consider our work done after the documents have been executed. We assist our clients in providing the documents to service providers, funding any trusts or other vehicles, and ensuring that our client completes other forms and documents necessary to complete their plan.

a. Client documents.

Camilla says she is going to put her documents in her original safe deposit box as soon as she leaves her office but will retrieve them later to make copies. She doesn’t want to keep the documents at home because she distrusts her brother-in-law, Andrew, who often drops by. Camilla shows you a file stuffed with prior versions of her will dating back decades. She sheepishly confesses she no longer knows if these are originals or copies. She’s not sure where the originals would be if not in this file. What do you advise?

Best practice is to advise clients to provide their documents to any agents designated in the documents and any persons or entities to whom they may be presented. This allows the others time to review the document and to address ambiguities and concerns with the client so that the client can provide guidance and take any corrective action needed.

If the client wants to keep their documents in a safe deposit box, make sure that another trustworthy individual has both signing rights and a key or code. If the client stores the documents in a home safe, ask if the safe is bolted to the floor or difficult to remove. Finally, encourage all clients to destroy old documents that are no longer needed or mark those documents so that it is clear that these documents are no longer effective.

i. Provide documents to any parties or entities who may later need to rely on them.

ii. Advise clients how to ensure documents will be accessible when needed.

366 iii. Advise clients to destroy old documents, keep originals safe, and mark copies.

b. Funding.

Charles’ son from a previous marriage, Harry, and his wife, Meghan, have just moved to Midway and have bought a bespoke clothing store. They lead a jet-setting lifestyle and are considering a trust to hold their assets. They have assets scattered all over the world and aren’t sure yet what they want to place in the trust. As they are well-educated and savvy, they want to handle funding by themselves. You know that Meghan owns a business out in California and has a ranch in the Carmel Valley that she rents out on Air BnB when she’s not there. What do you advise?

Allowing a client to self-fund is risky. Clients may be loath to admit that the task is complex and time consuming. They may fail to seek timely help. Further, clients may fund trusts with assets that need not or should not be placed in the trust. For example, clients may place assets that are situated outside of Kentucky into the trust, inadvertently and unknowingly subjecting the trust to the filing requirements and taxation of the state or foreign jurisdiction where the asset is located. Some have quite expansive views on what trusts are subject to taxation and when tax returns must be filed.2 Clients may also fail to place assets in their trust, thus subjecting assets to undesirable consequences such as being subject to creditor claims against the probate estate.

i. Oversee or conduct the funding process in-house whenever possible.

ii. Issue plenty of written warnings to clients who insist on self-funding.

iii. Warn clients of the unintended consequences of placing some assets in the trust.

c. Beneficiary designations and payable-on-death designations.

2 See, for example, California’s rules at https://www.ftb.ca.gov/file/personal/filing- situations/estates-and-trusts/index.html.

367 Harry tells you that a significant portion of their wealth is in a joint investment account, Meghan’s IRA, and a money market account. He is under the impression that his will or a trust will govern the disposition of these assets. What do you advise?

An increasing percentage of American wealth passes outside of probate. Americans pass wealth through many vehicles including beneficiary designations on retirement accounts, pensions with survivor benefits, and life insurance. Many financial institutions have payable-on- death or similar designations. Clients often do not understand that these assets pass by the terms of the documents they have signed and the policies of the institutions holding the assets instead of by will. Clients regularly fail to update these designations or make designations inconsistent with a carefully drafted plan.

i. Always explain carefully which assets can pass via probate, and which pass through trusts, beneficiary designations, or other contractual means.

ii. Do not accept your client’s word that everything is up to date and accurate. Ask when they last reviewed their designations. Request copies of their completed forms.

iii. Understand that some clients will be evasive because they are ashamed about their own inability to complete the task. d. Joint owners v. co-signors.

Meghan tells you that her mother, Doria, is having difficulty managing her own affairs, so she has put her car in Meghan’s name, added Meghan to her bank account, and wants to deed her house to Meghan for ease of management. What do you advise?

When clients become overwhelmed, particularly those who are elderly or those with disabilities, they seek ways to cope. When confronted with difficult-to-manage assets, elderly clients often rely on a trusted child. They add the adult child as co-owner on a bank account or add them to the title of a vehicle. Clients do this solely to manage the asset and will confidently assert that the child will share whatever remains after their parent’s death fairly with their siblings. The elderly client is proud to have a child that they can trust and to have

368 found a method to manage their funds and property. The client had no intention of gifting assets to the trusted child but has done so.

From the perspective of determining eligibility for means- tested government benefits such as Medicaid, adding anyone (except perhaps a spouse) as a co-owner on any asset is deemed a gift equal to the value of the uncompensated transfer. Such transfers may be penalized when clients apply for benefits to cover the cost of their long- term care. Best practice is to advise adding the child as a co-signor, giving them authority under a robust Power of Attorney, or placing the assets in trust.

i. Advise clients that powers granted under robust POA, trusts, co-signor rights, etc. are usually adequate to manage their assets.

ii. Proactively warn clients not to add anyone’s name as a co-owner of an asset.

iii. Proactively ask clients about these topics. Watch out for clients who seem overwhelmed. Ask elderly clients about their plans for managing assets and paying bills when they become unable to do so themselves.

II. DRAFTING TIPS FOR ESSENTIAL INCAPACITY AND ESTATE PLANNING DOCUMENTS

A. Power of Attorney (KRS 457.010 et. seq.)

Some time has passed. Charles is estranged from his son Harry. His other son Bill wants to update his estate plan and use your services. Bill tells you that the and his wife Kate both have valid POAs that were drafted by a high-powered, nationally-known law firm prior to their move to Kentucky. You examine the POAs to discover that they are one page long. Bill’s grants Kate – and only Kate – “all powers and authority that I would have in order to do and perform any right or power I hold as fully as if I were doing it myself.” Kate’s grants Bill “all powers that an agent could exercise under law in effect in this state when I sign this document.” You also notice that Bill’s document is notarized, but not witnessed. Kate’s is witnessed, but not notarized. What do you advise?

1. The purpose of the document.

A Power of Attorney (POA) is an instrument for appointing another person to manage your legal and financial affairs. Elder law attorneys view the purpose of a POA through a particular lens. Our clients commonly utilize POAs for:

369 a. Planning for emergencies during retirement when children and other loved ones may be far away whether travelling in their golden years or residing in different states;

b. Providing a mechanism for completing the often over- whelming and complex legal and financial transactions which need to be done on behalf of the elder; and,

c. Obtaining government benefits needed to pay for long-term care.

2. How the document relates to other documents.

A client may have one comprehensive POA addressing all matters to be dealt with when they are incapacitated except for those items that must be specifically addressed by an advance directive (see below). Powers of attorney drafted under KRS 457 do not include the power to make health care decisions unless expressly authorized to do so per KRS 457.030(2). Some clients may need several documents separating out powers over real property, financial and legal matters, health care, etc. Irrespective of how the document set is structured, best practice is to include provisions that the Health Care Power of Attorney prevails over a legal and financial or real property POA and that the Living Will prevails over all other documents.

3. Notes on the practice in other states.

A survey of other state’s laws reveals that there is no universal approach to POAs.3 Here are several key areas where states differ, including, but not limited to;

a. The presumption of durability;4

b. Whether springing POAs are allowed;5

c. The form of the document;

3 See ACTEC’s August 2019 50 State (Plus D.C.) Survey of Powers of Attorney at https://www.actec.org/assets/1/6/Douglass_Powers_of_Attorney_Survey.pdf.

4 Some states have the default set to no presumption of durability (e.g., Ariz. Rev. Stat. §14-5501, Okla. Stat. tit. 58, §1072, and Wash. Rev. Code §11.125.040) and some to a presumption of durability unless otherwise stated in the POA (e.g., Ohio Rev. Code §1337.24 and Wyo. Stat. Ann. §3-9-104).

5 Some states expressly allow them (e.g., Cal. Prob. Code §4129). Others are silent on the matter (e.g., Louisiana and New Jersey). In others, one has to carefully check the date of execution (e.g., Fla. Stat. §709.2108).

370 d. The power to make gifts;6

e. The power to self-deal by an agent;7

f. Whether designation of multiple concurrent agents carries a presumption that agents may act alone or must act jointly and severally;8

g. The execution of a valid POA in terms of witness and notary requirements;9

h. Whether and under what conditions the POA authority is revoked if a curatorship, conservatorship, or guardianship action is filed;10 and,

i. Whether the POA must be recorded and under what circumstances.11

6 Some states imply a broad power to gift, particularly where it is in line with previous gifting (See North Dakota N.D. Cent. Code §30.1-30-06 and Miss. Code Ann. §§87-3-7O, Va. Code §64.2- 1600). Some require that the power be expressly granted in the POA (e.g., Mo. Rev. Stat. §§404.710 6(3)). Some states limit the power to gift by amount unless expressly authorized to exceed it in the POA (e.g., Or. Rev. Stat. 127.002 125.435). Arkansas limits an agent to the annual exclusion unless expressly authorized to exceed it in the POA per Ark. Code §28-68-217. New York requires a separate gifting rider under N.Y. Gen. Oblig. Law §§§5-1501B 2, 5-15021 14, and 5-1514.

7 Arkansas requires a specific grant of authority if not a closely related party such as a spouse or descendent. Ark. Code §28-68-201(b).

8 Some states allow the agents to act independently unless otherwise specified in the POA (e.g., Fla. Stat §709.111, Wyo. Stat. Ann. §3-9-111) while others require joint action (e.g., Wash. Rev. Code §11.125.110(1)). Some have no statutory default and leave it entirely up to the POA (e.g., South Dakota).

9 Oregon has no statutory requirements. Most states presume a signature is valid if notarized (e.g., Ala. Code §26-1A-105). Some require witnesses but vary on the number required and who is barred from witnessing. Ariz. Rev. Stat. §14-5501 requires signatures of principal and witness other than the agent, agent’s spouse, agent’s children, or the notary public. Delaware bars anyone related to the principal by blood, marriage, or adoption as well as anyone entitled to any portion of the estate of the principal under the principal’s then existing will or trust instrument. Del. Code. Titl. 12 §49A- 105. Illinois bars attending physicians or mental health providers; an owner, operator, or relative of an owner or operator of a health care facility serving the principal; the agent or successor agent; and relatives such of either the principal or any agent or successor agent per Ill. Comp. Stat. §45/3- 3.6. Georgia requires both witnessing and notarization. O.C.G.A. §10-6B-5.

10 Filing suspends the powers of the POA in several states, but not in all (e.g., Fla. Stat. §709.2109 suspends the POA unless under an exception). Once a conservatorship or guardianship is granted, some states automatically revoke the powers of the agent under POA and others do not. (For example, Ga. Code Ann. §10-6B-8 revokes but 755 Ill. Comp. Stat. §§45/2-5 does not whereas Al Conn. Gen. Stat. §§1-350g allows an agent to continue to act, but clarifies they have a duty to the principal and the appointed conservator or guardian).

11 Recording the POA when a transaction deals with real estate is a nearly universal requirement.

371 4. Robust documents.

We do not assume that any power can be inferred from the then- existing Kentucky law. Laws change. Third parties may look at the law in effect when a POA is presented, not the law when it was drafted. Further, other parties may not recognize a term or power that is not expressed in the document even though these terms and powers exist under Kentucky law as default provisions codified by statue.

a. Gifting.

An attorney should always discuss gifting in detail with his clients, tailor the POA to their needs, and include an express clause delineating the power to gift. This power is too critical to be left to chance. It should be thoroughly, expressly addressed by stating to whom gifts can be made, in what form, and in what amounts. Further, KRS 457.140(2)(f)4 places a duty on the agent to preserve the estate and pursue eligibility for governmental benefits and programs. These two duties can, and often do, conflict, especially when acting on behalf of elders in need of long-term care. A drafting attorney should ensure that the agent can balance these duties. Without express gifting powers, agents may be too hamstrung to fulfill their duties and protect the principal’s interests.

b. Self-dealing.

Many attorneys are afraid to grant the abilities to gift and to self-deal to an agent, fearing that the power could be exploited. Nevertheless, the interplay of these powers becomes critical as the principal ages and must be included in a POA to protect the elderly client’s interests. Eventually, the agent acting for an elderly client is left with a Hobson’s choice: either fail to adequately protect the interests of the elderly principal with respect to paying for long term care or run afoul of their fiduciary duties. An express clause allowing self-dealing nullifies this conflict. Best practice is to include the provision, choose agents wisely, and notify them of their duties under KRS 457.140. Kentucky law now explicitly requires that an agent act in good faith and in the best interest of the principal.

c. Real-property transactions.

It may become necessary to insure, maintain, improve, lease, mortgage, or sell real property on behalf of an aging principal. In order to avoid unnecessary hurdles or even protracted litigation regarding sale, best practice is to include such powers.

372 d. Trusts.

As there are several types of trusts used widely in planning for older clients, it is essential that a POA expressly include the power to make trusts, administer trusts, decant existing trusts, terminate trusts, and exercise other trust powers.

e. Government benefits.

Expressly include a power to represent the grantor before government agencies, to apply for, and to manage benefits received. Kentucky Medicaid, for example, requires that a party applying for Medicaid on behalf of another have permission from a competent applicant who completes the state’s form or authority under a POA.

f. Multiple concurrent agents.

POA documents often travel across state lines. Some states have a statutory presumption that all agents must act in unison. If a principal does not wish to compel joint action, the POA should state that individual action by a joint agent is allowed.

g. Relationship to guardianship.

Under current Kentucky law the powers granted in a POA terminate at the appointment of a conservator or guardian. This is not necessarily the case in other states. A rogue family member relying on the POA can be exceptionally difficult to stop in states where the POA does not so terminate. Best practice is to address this directly in the document. Additionally, state that the agents designated in the POA should serve as conservator or guardian if one is needed unless that agent has been proven to have violated their duties. Best practice is to advise clients to consider listing any closely related individuals they would not wish to serve in those capacities. While this might not be binding on every court across the land, it is persuasive evidence of a client’s intent.

h. Revocation.

Kentucky statutes only require written revocation where a POA was previously recorded and relied upon. Best practice is to advise clients to include provisions on revocation that expressly grant oral revocation in other contexts.

373 5. Recognized documents.

a. Durability.

Kentucky’s statute provides that a POA is to be presumed durable unless otherwise specified. This is not a universal position. Best practice is to expressly state that the POA is durable and to title the document Durable Power of Attorney (DPOA).

b. Agent as fiduciary.

KRS 457.140 now provides clear guidance on the role of the agent as fiduciary who must act in the best interest of the principal. Some elder law attorneys state clearly that the agent is a fiduciary on the face of the document and in correspondence with the agent.

c. Execution of documents

Per KRS 457.050(1) the principal must execute the POA in the presence of two disinterested witnesses. Best practice is to always document the relationship of the witnesses to the client so that you can prove they were disinterested you need to do so. KRS 457.050(2) further provides that notarizing the signature of the grantor makes that signature presumptively valid. Considering these statutory requirements and the spectrum of requirements of other states, best practice is to use two disinterested witnesses and notarization. Also, while KRS 394.225 does not require the use of a self-proving affidavit, other states do. Best practice is to include one.

d. Recording requirements.

There is no statutory requirement that all POAs be recorded. When an agent signs a deed or otherwise deals with real property on behalf of a principal, the POA must be recorded before the deed. Take care in cases where both are presented simultaneously.

e. Remedies in Kentucky.

There has long been a practice by some entities to accept unrecorded POAs. Kentucky law now requires a third party to either accept a POA or to reject it through the specifically enumerated process in KRS 457.160 and KRS 457.200(3). A third party who fails to follow this process and still rejects a valid POA may be forced by the district court to pay the costs and fees incurred by an agent in enforcing the validity of the POA.

374 i. Don’t create a short, broad, and non-specific POA as it might not be honored.

ii. Do expressly and thoroughly address the powers listed above and any other powers that agents might foreseeably need to carry out their duties.

iii. Do include notice to third parties about recording, recognition requirements, remedies, and fiduciary duties of agent.

iv. Make sure there is no conflict with the HCPOA or Living Will and no gaps in powers.

v. Advise the client to choose an agent whose age and health status increase the chances that the agent is going to be around to serve in the role when needed.

vi. Advise the client to choose multiple successor agents – as many as necessary.

vii. Advise the client to allow the agent to delegate powers, to self-deal, and to do other acts that are necessary for agents to carry-out their duties for elderly clients.

viii. Use two disinterested witnesses, a notary, and a self-proving affidavit.

B. Health Care Power of Attorney and Surrogate Designation

Charles tells you that they are concerned about what would happen if one of them is sick. He is concerned about his upcoming surgery. While his doctor has told him that there is very little chance of death, his recovery will likely be difficult. He may require therapy and medication that will render him unable to care for himself or make decisions. This concern is magnified because Camilla plans to vacation in Nassau for a week during his recovery period. What do you advise Charles and Camilla to do?

1. The purpose of the document.

There are many names for the document granting healthcare decision-making to another: Medical POA, Health Care POA (HCPOA), etc. Such a document is drafted to deal with matters relating to health care that go beyond the scope of an advance directive (e.g., Kentucky’s Living Will). Relying solely on a legal and financial POA and a Living Will creates a gap when the grantor is unable to make health care decisions but in no danger of dying. A

375 HCPOA can fill the gap by designating a surrogate to act on the principal’s behalf and to state the conditions of service.

2. How the document relates to other documents.

A POA does not include healthcare powers unless specifically enumerated per KRS 457.030(2). While such powers can be included in a POA for financial and legal matters, consider separating the documents. A client may not wish to provide a physician or facility with a broader POA that includes otherwise unrelated private information.

A HCPOA should work in concert with the POA and any advance directives. Any provisions which might lead to a direct conflict of powers should be removed. Further, if a HCPOA provides a grant of authority for a surrogate to act, the POA should make clear the power and obligation of the POA agent to pay for care. While it is often the case that a grantor chooses the same agents to serve in both capacities, this is not always the case. Best practice is to advise clients that there is no guarantee that the agent designations will always be in sync. It is also critical that nothing in the HCPOA contradict the choices made in the Living Wil or other advance directives. In such a case, the Living Will prevails per KRS 457.030(2).

3. Notes on the practice in other states.

Some states allow health care to be included in a POA with legal and financial powers and some require that they be separate documents. Others integrate HCPOAs, advance directives, organ donation, and even funeral and burial provisions. If your client owns a home in another state or travels frequently, consider whether that state is one that requires that the health care power of attorney, health care surrogate designation, advance directives for non- critical care, and advance directives for end of life care (as covered by Kentucky Living Will) be included in one integrated, single document.

4. Robust documents.

a. Terms to include.

As with a POA, this document should be tailored to a client’s needs. It should include provisions on:

i. In-home care.

Care does not begin when a client enters a hospital or institutional care. Often, there is a period of care provided in the home.

376 ii. Care-giver agreement.

Clients need contracts specifying the conditions under which care is provided in-home in assisted living, how care is compensated, etc.

iii. Assisted living and nursing home.

Expressly address who has the authority and under what conditions your client can be admitted to a care facility.

iv. Intent to remain at home.

Expressing an intent to remain or return to their own home is invaluable to elderly clients who apply for means-tested benefits.

v. Authority to consent to therapies, treatments, and surgeries.

The medical needs of an elderly client can be complex, difficult to anticipate, and even more difficult to manage. Err on the side of overly broad and meticulously enumerated powers.

vi. Medications and therapies.

Expressly grant the surrogate authority to consent to medications and therapies or refuse them.

vii. Psychiatric treatment.

In many states, a surrogate does not have the power to consent to psychiatric treatment unless that power is expressly granted.12

b. Integrated with advance directive.

A Living Will or Living Will section of an integrated document addresses end of life care. A HCPOA addresses all other health care matters where grantors cannot act. Both may contain a designation of a surrogate. Should a HCPOA be coupled with an advance directive in one document? Some clients find it easier to provide smaller, more tailored documents to their health care providers. Further, some Kentucky medical providers have been known to balk at directives that are anything other than the standard

12 Where there is particular concern for our Kentucky-based clients, best practice is to advise clients to use the specific directive for psychiatric care found at KRS 202A.430.

377 Kentucky Living format found in the Living Will packet. Providers in other states might balk at separate documents. Check tall documents to ensure that there is no conflict with the POA. Clearly state that the HCPOA prevails over other POAs. The Living Will always prevails.

5. Recognized documents.

a. Format.

The portions of the document which do not deal with end of life care can be specifically tailored in the same manner as a power of attorney. Any provisions dealing with end of life care must substantially comply with the Living Will statute. See Section III. C. below.

b. Execution.

Use two disinterested witnesses, notarize the HCPOA, and include a self-proving affidavit.

c. Review with treating physicians.

The client should provide a copy the HCPOA to their surrogate and review the document with their treating physician, clinic, hospital network, care facility, etc. The client should address any ambiguities or concerns with the agent or treating physicians.

i. Make sure there is no conflict with the POA or Living Will, that there are no gaps in powers, and that the HCPOA is clear that the HCPOA prevails if there is any conflict between the POA and HCPOA.

ii. The Living Will prevails over all other documents.

iii. Direct the client to provide the HCPOA to all care providers. Where possible, they should review the document with their provider and inform you of any concerns.

iv. Use two disinterested witnesses, a notary, and a self-proving affidavit.

378 C. Living Will (KRS 311.621-643).

Charles and Camilla both tell you that they are afraid of lingering past the point of any useful life. Charles exclaims that “Absolutely, without question, we want the plug pulled. No matter what!” They are concerned because their primary care network is affiliated with a religious organization whose principles conflict with this. Additionally, Charles’ brother Andrew stormed in and caused a scene when his mother wanted to take his beloved Gran off life support. What do you advise?

1. The purpose of the document.

Living Wills are a form of advance directive that evidence a principal’s wishes regarding end of life medical care. The document is used only at a future time when the principal is unconscious, too ill to communicate, or otherwise unable to make or communicate these decisions for themselves. Kentucky’s form is divided into four parts:

a. Designation of a health care surrogate;

b. Refusal or request life prolonging treatment;

c. Refuse or request artificial feeding or hydration; and

d. Expressing wishes regarding organ donation.13

2. How the document relates to other documents.

Be sure the terms of the HCPOA and Living Will do not conflict. Do Not Resuscitate (DNR) Orders and Medical Orders for Scope of Treatment (MOST) forms also address care (see below). These three documents should be viewed as a set of complimentary documents. Whenever there is a conflict, the Living Will always prevails.

3. Notes on the practice in other states.

In some states, the term Advance Directive is synonymous with Living Will. The scope is limited to end of life care only. In others, the term Advance Directive covers HCPOAs, surrogate designations, instructions for end of life care, organ donation, and even funeral and burial instructions.14 Additionally, please note that:

13 KRS 311.625 governs a Living Will. A standard form can be found on the Attorney General’s website on the section “Living Wills in Kentucky.”

14 An example is the form for California found at Cal. Prob. Code §4701.

379 a. Some states place bars on who can serve including health care providers, those who have been convicted of certain felonies, and those who have had their professional license suspended;15

b. Some states, such as Kentucky, limit who can witness the document;16

c. States differ on the number of witnesses and whether notarization is required, with four states requiring both;17

d. Some are effective upon signing, others only upon incapacity;

e. Some states have mandatory and proscribed language for authority to withhold or withdraw nutrition, hydration, and life support; authority to admit to a nursing home, authority to restrict visitation, etc.; and

f. Six states, including Kentucky, require substantial compliance with their form.18

4. Robust documents.

You have provided Camilla with the Attorney General’s standard Living Will Packet to review and complete. She returns to your office in a state of aggravation. She wants you to completely redraft the document. What do you advise?

A living will must substantially comply with the statutory form per KRS 311.625(1). The Kentucky Attorney General provides a user- friendly Living Will Packet on his website. A tailored form may be

15 See Charles P. Sabatino, J.D., “Barriers to Universal Advance Directives,” 46(4) J. Law, Medicine & Ethics 978-987 (Winter 2018)).

16 Some states disallow relatives (e.g., Vt. Stat. Ann. §9703); agents and their close relatives (e.g,, 755 Ill. Comp. Stat. Ann. §45/4-5.1); the owner, operator or employee of facility caring for the principal (Cal. Prob. Code §4674); in-home care providers (e.g., Cal. Prob. Code §4674, Wash. Rev. Code Ann, §11.125.050); heirs or beneficiaries of the estate (e.g., Cal. Prob. Code §4674, Kan. Stat. Ann §58-629(e)); creditors of the principal (e.g., Dell. Code Ann. Tit.16, §2503(b)); persons responsible for paying the costs of the principal’s care (e.g., N.S. Cent. Code Ann. §23- 06.5-05(2)); insurance providers (e.g., Mich. Comp. Laws Ann. §700.5506(4)); insurance beneficiaries (e.g., Utah Code Ann. §75-2a-107).

17 26 N.C. Gen. Stat. Ann. §32A-16(3); S.C. Code Ann. §62-5-517 (2017); W. VA. Code Ann. §16- 30-4; MO. Ann. Stat. §404.810.

18 Ala. Code §22-8A-4(H); Kan. Stat. Ann §58-632; KRS §311.625 ; Or. Rev. Stat. Ann §127.515(2) (West 2017); Texas Health & Safety Code Ann §166.162.

380 advisable in order to list successive agents. Proceed with caution if a client demands significant deviation from the statutory format.

5. Recognized documents.

Camilla travels a great deal. She wants to carry a copy of her living will with her. She’s concerned about having it honored in other states and foreign countries. She’s particularly concerned because she is considering spending six months working for the Peace Corps digging fresh water wells in rural Venezuela. What do you advise?

While the statute allows the form to be either witnessed or notarized, best practice is to do both.19 Requirements vary greatly from state to state. Also, there are some countries which have specific agreements regarding honoring powers of attorney, advance directives, and other documents which have been duly notarized.20

a. Determine if the standard form is adequate for your client. Be sure your client either checks the options concerning withholding of life prolonging measures and nourishment and/or fluids or the option for surrogate decision making, but not both.

b. Do not to deviate significantly from the statutory form.

c. Use two disinterested witnesses, a notary, and a self- proving affidavit.

d. Make sure the document does not conflict with other client documents as stated above or other organ donor designations (such as those on driver’s licenses).

e. Advise the client to choose multiple successor agents whose age and health will mean they are likely going to be around to serve in the role when the need arises.

f. Advise the client to share the living will with agents, treating physicians, health care facilities, and to store the original in an accessible location.

19 A witness cannot be a blood relative, a beneficiary that would take under intestacy, an employee of a health care facility where the grantor is a patient, a treating physician, or the person directly responsible for paying for the grantor’s health care. KRS 311.625(2)(a)-(e).

20 For example, the 1940 Pan American Protocol on Uniformity of Powers of Attorney which are to be Utilized Abroad, 56 Stat. 1376, 3 Bevans 612 (Protocol) grants reciprocal recognition of general and special powers of attorney for specific purposes between the USA and several South American countries. Contact the appropriate consulate and the State Department Office of Authentications.

381 g. Advise the client that their agent may be required to produce the original.

D. Wills

Charles and Camilla tell you that they are happy with their existing will and “only want a few tweaks” such as changing the persons designated to serve as executor. You examine a document drafted by their former attorneys. You discover that it’s only two pages, doesn’t include many provisions you’d include in your will, does not include a self-proving affidavit, and leaves everything directly to the surviving spouse, then divides the remainder between their children, all of whom are from previous marriages, using the per capita at each generation method of share division. What do you advise?

1. Robust documents.

a. Caution regarding default provisions.

A short form will that relies on Kentucky statute to gap-fill provisions might not lead to the desired results. Many clients, for example, prefer the per capita at each generation system to per stirpes. Also, consider what will happen should your client leave the state and fail to draft a new will. Assurances that they will never voluntarily leave Kentucky might be moot as a caregiver child can relocate them should they be incapacitated and need care.

b. Leaving gifts outright to elderly spouses and adult children.

Traditional notions of reciprocal wills where one spouse receives all assets of a deceased spouse might create large financial loses where the elderly survivor is in a care facility or enters one after the death of their spouse. If the surviving spouse is in an institutional setting and receiving government benefits such as Veteran’s Aid and Attendance or Medicaid, an inheritance could lead to termination of those benefits. In many cases, the amount is insufficient to cover the cost of care. Thus, an attorney should consider whether clients should disinherit their spouses, place the minimum statutory share in a testamentary special needs trust, or pursue other courses of action. In some cases, it is perfectly fine to use the standard reciprocal will with direct inheritance model. In others, a forced statutory election or a testamentary trust are warranted. Similarly, when dealing with an extremely elderly client, best practice is to consider whether outright distributions from a parent might endanger their adult children. Many spry octogenarians and nonagenarians have adult children who are old enough that

382 a direct gift could endanger the children’s own Veterans or Medicaid benefits. Elder law attorneys have seen cases were clients nearing 100 are still living at home on their own but their children are already residing in a care facility. Direct gifts are not always preferable.

2. Recognized documents.

With regard to execution of wills, the best method to ensure that the will would be honored in other jurisdictions is to have at least two disinterested witnesses. Some U.S. states used to require three witnesses. Some foreign jurisdictions still do. Because of this, some attorneys utilize the three-witness model. The laws on self-proving affidavits also vary greatly by jurisdiction. Best practice is to include such an affidavit per KRS 394.225 as (1) it ensures maximum recognition across all jurisdictions and (2) avoids the need to locate witnesses years or decades after the will is signed. Difficulty in locating witnesses or otherwise proving the will are compounded when a client is extremely elderly, has relocated to a state that differs from the state of execution, and the individuals with personal knowledge of the execution of the will are otherwise unavailable.

E. Trusts

Charles and Camilla were told they should create a revocable trust “in order to avoid probate and to qualify for Medicaid” when they enter the nursing home. Is this advisable?

1. The purpose of trusts.

All practitioners who draft estate plans should be conversant with Kentucky and applicable federal law. They should also be aware that clients will often ask for trusts irrespective of whether they are the proper vehicle to achieve the client’s goals. Some may even be harmful to clients as they age.

2. Robust trust documents.

a. Revocable living trusts and needs-based benefits.

One of the most common misconceptions held by the public is that a revocable living trust (RLT) is essential to avoid the dread of probate, that it will protect one fully as they age, and that it is all the client will ever need to do for an estate plan. Revocable living trusts are often useful, but they do not always offer sufficient protection for elderly clients. For the purposes of certain Veteran’s benefits and other means- tested benefits, the assets in a revocable living trust and income generated therefrom will be counted against the

383 grantor and may prevent a client from receiving desperately needed benefits.

b. Irrevocable trusts for elders.

While some irrevocable trusts are useful tools in assisting an elder in qualifying for benefits that will help pay for long term care, the requirements of such trusts are complex and specific. There are concerns in drafting, funding, and implementation that are well beyond that of a typical revocable family trust. Their focus and purpose is quite different than that of tax shelter trusts. If you feel that such a trust might benefit to your clients, you should contact a member of the Elder Law Section for further assistance.

c. Trusts for persons deemed disabled under the law.

Another trust that requires specific consideration are those created for the benefit of persons with special needs and those considered disabled under the law. Federal law can be found at 42 U.S.C. §1396p(d)(4)(a),(c) and Kentucky law at KRS 387.855-910.

3. Recognized documents.

Best practice is to advise clients that trusts drafted to comport with Kentucky requirements for means-tested benefits may not be portable. For example, some states, including Kentucky, allow trusts to receive income and make certain pre-approved disbursements on behalf of an elder who is otherwise eligible for assistance in paying for long term care (i.e., a Qualified Income Trust a.k.a. Miller Trust). The specific content of these trusts and the language required varies from state to state. The rules on which assets are included as available to pay for care and which are not also varies from state to state. Even where states agree on which assets should be considered exempt from being used for paying for care, they differ greatly on which assets must be used after the elder or their surviving spouse dies in order to reimburse the state. A trust that worked in Kentucky may not shield the asset from estate recovery if the client leaves Kentucky and receives benefits in another state prior to death.

a. Ask if clients have any existing trusts or are the beneficiary of any trusts.

b. Some trusts may be harmful to some clients who later need to apply for means-tested government benefits.

c. Irrevocable trusts that are used by elder law attorneys to help a client prepare for long-term care must be specifically,

384 cautiously drafted. Seek help from a member of the Elder Law Section of the KBA.

d. Proactively determine if your clients or anyone with an interest in their estate has special needs or is disabled under the law.

F. Deeds.

1. How the document relates to other documents.

If a deed transfers an asset into a trust, best practice is to carefully review the trust to ensure the deed is completed properly and all required parties sign the deed. Also, if an owner or holder of an equitable interest in the real estate is over the age of 65 or disabled under the law or a Veteran, a 62A350 Application for Exemption Under the Homestead/Disability form should be completed and submitted. Many clients find this form overwhelming and fail to complete it properly. This is particularly true of elderly clients who have placed real estate into trusts.21 Always ensure this form is properly prepared and timely filed.

2. Notes on the practice in other states.

Clients obtain multiple forms of identification and rarely take care to ensure that their name is consistent across these forms compounding this issue. They also sign legal documents with various iterations of their name. Compounding this, other states have more stringent requirements with respect to the proper form of a name on a deed. Other states also have strict requirements regarding notarization, stamps, and seals. This may make it difficult to rely on Kentucky deeds for any purpose in states with such stringent requirements.

3. Robust documents.

In order to ensure that a client’s estate plan works as intended, contents of deeds should be carefully reviewed. Kentucky legislature has updated the laws governing deeds in the recent past. For example, KRS 382.135 now requires, at a minimum, the following:

a. The full name of the grantor(s) and grantee(s);

b. The mailing addresses of the grantor and grantee;

c. A statement of the full consideration (or the estimated fair market value if a gift);

21 https://revenue.ky.gov/Forms/62A350.pdf.

385 d. A statement indicating the in-care-of address to which the property tax bill for the year in which the property is transferred may be sent; and,

e. Notarized and sworn statement that consideration listed is full consideration.

4. Recognized documents.

There has been some debate about what should constitute a “full name” for purposes of a deed. At present, any variation of the name that includes the surname should suffice under KRS 382.135 (6)(c). Best practice is to include all forms of a party’s name in a document using a formerly known as or also known as clause, include as much information as possible, use a notary stamp or embossed seal, and follow the general rules outlined in section II.

a. Review all deeds to determine when and where they were signed and what law applies.

b. Review deeds to ensure they include all the items listed in the statute.

c. Include any version of a name from prior deeds in the chain of title and variations of their name by including a formerly known as or also known as clause.

d. Prepare and file a Homestead Exemption form for eligible clients.

III. NON-ATTORNEY FORMS TO CONSIDER WHEN PLANNING

A. Do Not Resuscitate Order (DNR)

Charles and Camilla both tell you that they would want CPR in an emergency as they believe it would save their lives and give them more quality time together. They previously indicated that they are strongly in favor of “pulling the plug.” What do you advise?

1. The purpose of the document.

Unlike other advance directives, the DNR applies only to care that occurs only in a prehospital setting and is administered by first responders.22 While the DNR form limits the types of measures that can be performed, it is not a blanket bar to all care. First responders

22 KRS 311.623(3).

386 can still administer oxygen, control bleeding, and provide pain relief as well as other comfort measures.23

2. How the document relates to other documents.

The document overlaps in subject matter with the MOST form addressed in section III. B. The main difference is that a DNR applies to prehospital care by first responders and MOST addresses care by providers in a custodial setting such as a hospital. Both cover some of the same subject matter as a Living Will. However, only a DNR is enforceable with respect to first responders. Neither a MOST nor a Living Will is binding in that case.

3. Practice pointers: Tips and traps for your clients.

In Kentucky, first responders must begin life-saving measures unless someone promptly hands them a completed standard DNR form authorized by Kentucky Board of Medical Licensure24 even though rates of survival after CPR and similar life-saving measures are quite low.25 Unless and someone produces the form or the client wears an approved EMS DNR bracelet, paramedics will perform life-saving measures irrespective of a client’s wishes, a spouse’s protestations, or even legal threats.

a. Inform receptive clients that they may be overestimating their chance of survival.

b. Have clients who wish to forgo treatment by first responders complete a DNR form and wear the appropriate DNR Medic- ID bracelet.

c. Inform the client to keep the DNR form in a location where it will be accessible should their loved ones need to produce it in an emergency.

d. Tell clients to inform their loved ones not to call first responders under circumstances which would lead to being resuscitated against their stated wishes.

23 KRS 311.623(2).

24 See KRS 311.623(1)).

25 All studies report a low rate of survival for those over 70, but several suggest that the rate of recovery for those over 70 may be as low as 5 percent. See, for example, Kira Peikoff “CPR Survival Rates Can Differ Greatly by City” published online at https://www.nytimes.com/2015/12/08/health/ cpr-survival-rates-can-differ-greatly-by-city.html.

387 B. Medical Order for Scope of Treatment (MOST) (KRS 311.6225, .623, .633))

Camilla gushes about your work to her father-in-law, Phillip, who has just moved to Kentucky. He calls you because he’s medically fragile and worried about his ever-diminishing life-expectancy. He’s gotten into several fender-benders, had a stroke, and is feeling the indignities of his age. His doctor told him he should fill out a “weird pink form.” Phillip is hesitant because the doctor told him this is a completely new thing in Kentucky. While he was hip and transgressive in his youth, Phillip has become recalcitrant and suspicious of anything “new- fangled.” What do you advise?

1. The purpose of the document.

The first Physician Orders for Life-Sustaining Treatment (POLST) forms debuted in the United States in 1994. Over two decades later, Kentucky legislature approved a version for Kentucky – the Medical Order for Scope of Treatment (MOST).26 The form provides physicians with a clear, concise set of instructions regarding the patient’s wishes regarding life-sustaining treatment which the treating physician can readily access, understand, and rely upon. The treating physician is required to be in direct contact with the patient or their representative and cannot rely on staff or other medical professionals to fill out the form in their stead. Thus, the doctor is directly involved in creating a document that will govern treatment for one calendar year from the date of execution.

Much of the content of the MOST form will be familiar to attorneys who have drafted advance directives or have experience in caring for the medically fragile, elderly, or terminally ill. The form covers resuscitation, scope of treatment if breathing, use of antibiotics, and provision of fluids and nutrition.27

2. How the document relates to other documents.

The form should be considered part of a complete end of life plan. It is not, however, a substitute for legal documents that address life- sustaining treatment or end of life care. These documents contain some elements that a MOST form does not, such as the ability to designate a surrogate to make health care decisions. Further, the MOST form cannot be altered. A patient must select from the options as presented. Conversely, the HCPOA and Living Will are not a substitute for a MOST or a DNR.28 It is critically important that

26 Further information and the current version of the form can be found at https://www.kymost.org.

27 KRS 311.6225(1)(b-d).

28 A Do Not Resuscitate Order also is considered a medical order but is narrower in scope and content than a MOST and applies in a pre-hospital setting.

388 the client understand that they must consider these documents as a set of complimentary documents that address the same issues in a comprehensive manner.

3. Practice pointers: tips and traps for your clients.

Philip falls unconscious before completing his form. His wife Elizabeth wants to complete it for him. She tells you Phillip was placed under guardianship of his son Edward a few days ago. She declined to serve as guardian, feeling that she was too overwhelmed with her other obligations. What do you advise?

The MOST form can be used when patients lack capacity.29 The MOST form allows spouses, children, parents, guardians, surrogates under a POA to step into the shoes of the patient lacking capacity and ensure their wishes are followed.30 The power extends to legal next of kin should no one else be able to serve.31 In cases where a patient may lack an advance directive or have an inadequate or defective directive and lack capacity, a MOST form is the only option for ensuring that a patient’s wishes are followed.

Edward is not particularly happy with the MOST form. He doesn’t like some of the choices and wants to leave them blank. He also seems to be making choices that are contradictory to what Phillip made when you drafted his HCPOA and Living Will. What do you advise?

A client should be clearly warned that if a space on the form is left blank, the omission will be treated as if the patient had a preference for full treatment. Further, the MOST form has more options than the statutory living will. If a client wants to clarify the choices, they made in the living will and provide more specific instruction, they can do so on the MOST form. Should the choices a client previously made on an existing advance directive conflict with the choices a client now wishes to make in completing the MOST form, the advance directive must be revoked first. If the client does not do so, the choices on the advance directive will prevail.32

29 KRS 311.6225(1).

30 KRS 311.6225(1)(e)(3)(a-h).

31 KRS 311.6225(1)(e)(3)(i).

32 Section E of the form expressly addresses this. See also KRS 311.621(12).

389 Edward wants to take Philip for treatment in Lexington and perhaps also Miami. He asks if Philip’s treating physician can send the MOST form to the clinics. What do you advise?

The MOST is also portable across treating institutions as HIPAA permits disclosure of MOST to other health care professionals as necessary.33 It is also portable across state lines as over 40 states have some form of the POLST/MOST law.34

a. Advise use of a MOST form if the client lacks capacity.

b. Advise clients that the MOST form is only good for one year.

c. Advise clients not to leave blanks.

d. Advise clients to be sure that the form is compatible with their HCPOA & Living Will. Advise them that the Living Will trumps the MOST if they are in conflict.

e. Advise clients that the MOST form is portable. Their doctor can provide it to others.

C. Organ Donation

Kentuckians wishing to donate organs can find information at their circuit court clerk office or online at https://donatelifeky.org. Organ donation is a state priority and the process has been set up to make it as easy as possible for donors. Donation of a body to science, in contrast, is much more complex. Further, an individual’s wish to donate their body does not obligate an institution to accept the donation. Advise clients to investigate their options while they are capable of doing so.

D. Funeral and Burial Forms (KRS 367.93101-93121 and KRS 367.932 -972)

Camilla is worried about her funeral arrangements. She doesn’t want her kids and step-kids fighting. She doesn’t trust her siblings. She wants to be cremated and have her ashes scattered under the oak tree where she and Charles first met. What do you advise?

Under the provisions of KRS 367.93103(1), any competent person over 18 may make a funeral planning declaration. Per KRS 367.93105 this may include:

33 As of this writing, Kentucky does not have an operational registry for MOST forms. In states that do, patients and physicians can upload the form to the registry where other medical providers can access it as needed.

34 See www.POLST.org for information on acceptance and use in other states.

390 (1) The disposition of the declarant's remains after the declarant's death; (2) Who may direct the disposition of the declarant's remains; (3) Who may provide funeral services after the declarant's death; (4) Specific directions about the type and form of funeral services desired; (5) The ceremonial arrangements to be performed after the declarant's death; (6) The funeral merchandise and cemetery merchandise for the disposition of the declarant's remains; (7) Who may direct the ceremonial arrangements to be performed after the declarant's death; and (8) Disinterment.

The declaration must be written, signed by the declarant or another at their instruction, dated, witnessed by two persons, and notarized. KRS 367.93103(4). A sample form can be found on the website of Kentucky Board of Embalmers and Funeral Directors.35

While some states have substantially similar forms and are likely to honor Kentucky’s form, other states have forms that are considerably different.36 Given the differences across states in the type of documents that grant authority (e.g. POA, HCPOA/Advance Directive, specific form), best practice is to advise clients that their form might not be recognized should they relocate. It is always best to contact licensed attorneys in other states if the client has a second residence, spends significant time outside Kentucky, or intends to be buried in another state to determine if the Kentucky form is sufficient.

Kentuckians may also authorize their own cremation by executing a declaration with a funeral home or crematorium under KRS 367.97527(1). Any clients who wish to be cremated should be referred to a funeral home or crematorium for completion of the necessary forms and purchase of any necessary pre-paid plans. Best practice is to advise clients that the requirements for cremation also vary from state to state. If there is a likelihood that a client will relocate prior to death or that disposing of their remains will involve crossing state lines, they should be advised to seek counsel in the other state to determine if their Kentucky documents are sufficient.

35 https://kbefd.ky.gov/New%20Forms/Updated%20Funeral%20Planning%20Declaration.pdf.

36 As noted above, some states include funeral provisions in an HCPOA/Advance Directive Hybrid document. In contrast, Arkansas has a form “Directions for the Disposition of My Body at Death” under statute §20-17-102 that is functions similarly to Kentucky form, but allows much more tailored content.

391 1. Some clients may wish to include a section to address funeral, burial, and memorial wishes within a will or power of attorney. This is not in keeping with current Kentucky law under KRS 367.93103(2) which states that funeral planning declarations shall not be made in a will, POA, or similar document.

2. Clients might die in another state or wish to have a funeral or burial in another state. If so, ask a licensed attorney in that state if a Kentucky form will be honored there.

3. Some funeral and burial plans can be structured in a way that they are considered exempt assets for purposes of government benefits. Advise clients considering prepaying for funeral or burial to specifically ask for such plans. Reputable funeral providers and crematoriums typically discuss this with clients.

IV. OTHER CONSIDERATIONS FOR ELDERLY CLIENTS

If any of your clients might need conservatorship or guardianship, were veterans who served during a time of war, or are considering Medicaid as a means of paying for long-term care, contact a member of Kentucky Bar Association’s Elder Law Section for assistance. Kentucky Bar Association’s Elder Law Section also offers continuing legal education programs on these, and other, topics.

V. CONCLUDING THOUGHTS37

The information and advice provided above is based in what we consider best practices in the current elder law context. It may not be applicable to all attorneys in all situations. It might not be applicable in an elder law context in the future. Incapacity, estate, and elder law planning are dynamic areas of law. Laws and government programs have seen significant changes within the past few years and even more significant changes over the past decade. Practices that have stood for over a century are bending and breaking in the face of change. Current societal mobility, increased longevity, advances in medical practice, and new technology rapidly accelerate the velocity of change.

While we have provided some specific guidance in this document, our main purpose is to provide you with insight in to how we approach these topics and how our approach may differ from what you would consider standard practice. While you may not always use our approach and our specific methodology, we hope you will consider our framework when crafting and drafting your plans so that your plans are as robust as possible and will be readily utilized by your clients, their agents, and other parties and entities when the need arises.

37 For questions and assistance with preparing documents, please contact Scott Collins.

392 FAMILY LAW UPDATE Tamara Combs, Sheila M. Donovan, and Catherine A. Monzingo

I. PARENTING COORDINATION

A. Primary Objectives of Parenting Coordination (PC)

1. Improve parties’ communication skills.

2. Implement existing parenting plans, flesh out details, fill in gaps, clarify responsibilities.

B. Usual Process is Some Combination of the Following (Varies among Parenting Coordinators)

1. Speak with attorneys to get up to speed on issues identified, personalities, problems to be aware of;

2. Receive appointment formally by way of court order;

3. Have parties complete short questionnaire and sign any contract;

4. Review relevant pleadings;

5. Meet with parties individually; and

6. Meet with parties jointly.

a. Usual components of joint meetings (again, can vary).

i. First part of joint meetings: communication exercises.

ii. Second part of joint meetings:

a) Agenda items the parties identify on which they want to work.

b) Examples:

i) Holiday schedule;

ii) Exchanges, communication; and

iii) Extracurricular activities.

b. Meetings with children if possible and with other collaterals such as stepparents if deemed appropriate by PC.

393 c. Draft memo summarizing important points from meetings (topics discussed, issues resolved (specifics), what is not working, what is not resolved).

d. Direct parties back to attorneys sometimes if impasse reached or need their input to move matter forward.

e. Sometimes talk to parties or attorneys separately to facilitate situation improving.

f. Goal is to move parties away from needing us at all.

Caution:

i. PCs typically stay away from financial issues (except if truly about implementation and doesn’t stray too far into mediation); all must agree to undertaking these issues.

ii. PCs generally stay away from MAJOR decisions or adjustments to existing Agreements.

7. Impediments to success (why PC might not be best option).

a. PCs are not miracle workers. In some cases, the goal is simply to contain the troublemaker and minimize problems rather than achieve true growth in relationships.

b. PC doesn’t work when both sides are not committed to success and genuinely willing to try.

c. Personality disorders – particularly narcissistic – can make improvement quite difficult (inability to acknowledge role they play).

d. Significant mental illness or DV issues.

e. Parties with history of not following court orders will likely not cooperate with PC either.

II. FAMILY LAW CASE SUMMARIES

A. S.B.P. v. R.L., 567 S.W.3d 142 (Ky. App. 2018)

The Court of Appeals vacated an adoption on multiple failures for the adoptive parents to meet the statutory requirements for TPR1 and adoption. First, they were not proper petitioners to a TPR action. KRS 625.050 provides that the Cabinet, a child-placing agency licensed by the Cabinet, the county or Commonwealth’s attorney or parent can petition for TPR.

1 A glossary of the abbreviations is at the end of this material.

394 Second, the amended petition failed to name the child as a defendant as required by KRS 199.480, and there was no proof in the record that the child’s GAL was served the original petition. And, the Cabinet did not investigate and file a report as required by KRS 199.510 in a contested adoption, likely because the Cabinet was not served with the amended petition.

B. W.L.F. v. Cabinet for Health & Family Services, 567 S.W.3d 155 (Ky. App. 2018)

Father appealed trial court’s refusal to place child with him or grant him unsupervised timeshare. The Court of Appeals ruled that the trial court’s order was interlocutory (despite the inclusion of finality language). Once Father completed the parenting improvement tasks previously ordered, he could move the trial court for similar or even expanded relief.

C. F.V. v. Commonwealth Cabinet for Health & Family Services, 567 S.W.3d 597 (Ky. App. 2018)

Court of Appeals vacated a TPR of a Guatemalan father residing in the U.S. who had taken substantial steps to regain his children, noting that the Due Process Clause applies to all persons within the United States, including aliens, and that parental rights are a liberty interest protected by the Fourteenth Amendment. An involuntary TPR requires three elements be met: child is found to be abused or neglected, termination is in child’s best interests and statutory termination ground exists by clear and convincing evidence.2 The Court of Appeals vacated the TPR holding that the Cabinet had not met its burden to prove that there is “no reasonable expectation of improvement” by father in either of the TPR grounds of KRS 625.090(2)(e) and (g) under the facts presented.

D. Castle v. Castle, 567 S.W.3d 908 (Ky. App. 2019)

The Court of Appeals vacated a DVO against a stepfather on several grounds. First, the trial court failed to make written findings. Second, the trial court checked the form box “sexual assault” in its order when sexual abuse is the only sexual offense for which a domestic violence order can be entered (sexual abuse being a subset of sexual assault under the criminal code). The Court of Appeals also noted that there was insufficient proof that there was actually sexual contact, touching for sexual gratification, which the trial court inferred. And, there was no evidence that the stepfather took any action against the mother or other daughter for an order to be entered on their behalf.

E. C.C. v. Commonwealth ex rel S.B., 568 S.W.3d 878 (Ky. App. 2019)

The Court of Appeals affirmed the rulings in a child support contempt and subsequent revocation action. Father waived the right to make a defense to the contempt when he originally admitted the contempt. Father also

2 KRS 625.090.

395 waived the right to request a purge amount when he failed to ask for it at the contempt hearing. Father waived the right to make a defense to the probation revocation when he admitted the violation. He was not entitled to a purge amount because he was before the court not for contempt of court but a probation violation. Finally, Father could have presented a defense to his latest non-payment at the sentencing but he waived that by his voluntary failure to appear before the court. He was not entitled to a continuance because revocation of a conditional discharge, like a probation revocation, is not a critical stage of a case necessitating his presence.

F. Carroll v. Carroll, 569 S.W.3d 415 (Ky. App. 2019)

The Court of Appeals affirmed ruling that mother untimely brought motion to set aside agreed judgment of joint custody with her wife. A CR 60.02(c) motion (perjury or falsified evidence) must be brought within a year of the judgment and a CR 60.02(d) motion (fraud affecting the proceedings) must be brought within a reasonable time. Her motion was brought over a year after entry of the order, negating the applicability of CR 60.02(c). She was aware of who the father of the child was at the time she executed the pleadings and deposition resulting in the 2015 joint custody order and did not allege that she was not able to raise that fact at the time the custody order was entered or at a reasonable time thereafter.

G. R.B. v. S.M., 570 S.W.3d 9 (Ky. App. 2019)

The Court of Appeals rejected father’s argument that the trial court was without jurisdiction to make rulings in an emergency custody case because it had not followed the UCCJEA requirement that Kentucky communicate with the child’s home state of Tennessee – neither party had let the trial court know that there had been a Tennessee case until mother’s motion to rescind the temporary order. The Court of Appeals also rejected father’s argument that the trial court did not have jurisdiction to rescind the temporary custody order, noting that a temporary order is not intended to last in perpetuity where another state has issued a child custody determination under KRS 403.828 and the trial court finding that the emergency giving rise to the temporary order no longer existed. (The Court of Appeals also noted that father likely failed to follow up in Tennessee on the grant of emergency custody because Tennessee had given custody to mother originally). However, the Court of Appeals did vacate the modification of the timeshare exchange location as Kentucky was without jurisdiction to modify a previous child custody determination made by Tennessee.

H. A.F. v. L.B., 572 S.W.3d 64 (Ky. App. 2019)

The Court of Appeals rejected the parent’s first claim that TPR order was entered 35 days after the hearing and not 30 days, this being a case under KRS 199.502. The Court of Appeals rejected the parents’ claim that examination of the Cabinet’s worker and her report approving the adoption prejudiced them. The Court of Appeals first noted that the bifurcation of the proceeding by first terminating the parents’ rights did prejudice the parents

396 in that they lost standing to object to the report recommending adoption once the adoption portion of the proceeding advanced; however, the parents did not object to the bifurcated hearing. Then it found that the report did not have to specifically state that the contents of the petition were true if the contents of the report paralleled those of the petition; that the lack of a date in the report was overcome by the date in the cover letter for the report; and, that the statement that the parents were inaccessible for an interview was not necessarily incorrect per the mother’s testimony that she had been unlocatable for a time and both parents testified at the TPR hearing overcoming the lack of their input in the report. Finally, it found that the TPR ruling was supported by clear and convincing evidence, noting in part that a parent is required to support a child regardless of whether or not there is a child support order in place.

I. Cottrell v. Cottrell, 571 S.W.3d 590 (Ky. App. 2019)

The Court of Appeals found that while an evidentiary hearing is required for the original DVO, it is not required to extend one. It found that incarcerated individuals do not have a right to attend every civil hearing in their matter but husband should have asked to be transported to the hearing if he wanted a determination that his absence prejudiced him. The Court of Appeals finally held that a DVO extension does not require the proof of additional actions of domestic violence and that the nature, extent and severity of the original action may be sufficient to warrant the extension. In this case, husband had intentionally driven his truck into the marital residence, nearly killing wife and their child.

J. E.K. v. T.A., 572 S.W.3d 80 (Ky. App. 2019)

The Court of Appeals reversed the dismissal of a stepparent adoption and remanded the matter for a final hearing, holding that in a stepparent adoption the Cabinet is not a party defendant under KRS 199.480. While the Cabinet does need to be notified of the adoption and file a report under KRS 199.510, its involvement pre-petition is not required. Consequently, the petition should not have been dismissed and stepmother should have the opportunity to have the Cabinet notified and it file a report.

K. G.P. v. Cabinet for Health and Family Services, 572 S.W.3d 484 (Ky. App. 2019)

The Court of Appeals affirmed the trial court’s finding that there had been an “immediate danger” requiring placement by virtue of the drugs and unsecured gun in father’s home and affirmed the placement of the son with foster mother. Stepmother was biologically unrelated to the child and therefore not a qualified relative under KRS 620.090(1); the other three blood relatives all had issues making them unsuitable (living with a drug trafficker or having been convicted of being one). While the Cabinet must consider the wishes of the parent as to a child’s placement, the Cabinet is not required to choose who the parent proposes.

397 L. C.J. v. M.S., 572 S.W.3d 492 (Ky. App. 2019)

Court of Appeals affirmed adoption without consent of parent. The statutory prerequisites and the adoption without consent of the parent in KRS 199 had been met, and the Court particularly noted the sufficiency of evidence that the mother “for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child, and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child.”3 While mother was unable to care for the child due to her mental illness, abandonment of a child does not have to be willful to meet this criteria.

M. Meinders v. Middleton, 572 S.W.3d 52 (Ky. 2019)

The Supreme Court held that the six month period for a de facto custodian determination needed to be a continuous period of time. KRS 403.270 requires “a period of six months,” which means a single continuous time period, and aggregating time would more easily put a third party on equal footing with parents, diluting their superior rights. The Supreme Court also overruled Spreacker v. Vaughn, 397 S.W.3d 419 (Ky. App. 2012) which required a totally separate action to be filed to toll the de facto time requirement: “any direct participation in a child custody proceeding to regain custody of their child is sufficient to toll the de facto time requirement under KRS 403.270. Finally, the Supreme Court held that there does not need to be a legal adjudication that someone is a parent if he is otherwise the factual parent.4 Once the paternity test was presented to the trial court, it began to identify him as the parent and that was sufficient to have legal status as the parent.

N. Berzansky v. Parrish, 583 S.W.3d 6 (Ky. App. 2019)

The Court of Appeals affirmed a ruling denying modification of timeshare. The presumption of joint custody would only be applicable once the court determines that there should be a modification. KRS 403.340(6). The trial court here determined that there should not be a modification so the joint custody presumption could not be considered.

O. Wattenberger v. Wattenberger, 577 S.W.3d 786 (Ky. App. 2019)

The Court of Appeals reversed the trial court’s decision in a dissolution proceeding for failing to make findings of fact supporting a maintenance award, a pension allocation and the allocation of an adult child’s debt to one of the spouses.

3 KRS 199.502(1)(e).

4 KRS 600.020(46).

398 P. Ford v. Ford, 578 S.W.3d 356 (Ky. App. 2019)

Wife appealed the divorce judgment and the denial of an AAV motion, and the Court of Appeals affirmed. An AAV motion is a very limited opportunity to bring to the trial court’s attention errors in law and fact but not an opportunity to raise arguments and new evidence that was available before the judgment was rendered (i.e. the appraisals). Moreover, one cannot appeal the denial of an AAV motion, which is interlocutory and does not alter the judgment. The appealable matter is from the underlying order. Finally, the Court of Appeals affirmed the trial court’s ruling that the parties’ mediated agreement was not unconscionable.

Q. Martin v. Cabinet for Health and Family Services, 583 S.W.3d 12 (Ky. App. 2019), rev. denied 9-18-2019

The Court of Appeals vacated the order for failure to comply with procedural and statutory requirements in addition to lacking evidence and directed that the petition itself be dismissed without prejudice. CHFS failed to follow any of the FCRPP (4)(a) and (c) requirements (completed worksheet, movant’s pay statements, income tax return, verification of children’s health insurance, notice, and certification of reasonable efforts to resolve the dispute prior to hearing in Title IV-D case). CHFS was standing in mother’s place and was obliged to comply with all the rules “applicable to the procedure and practice in all actions pertaining to…child support…” Further, this was a modification action, and the complaint did not allege a material change in circumstances that is substantial and continuing to support a modification of the original child support order.5

R. Cabinet for Health and Family Services v. N.B.D., 577 S.W.3d 73 (Ky. 2019), petition for cert. filed (U.S. 1-13-2020), No. 19-638

NBD filed a dependency action on behalf of N, a minor from Guatemala. N and NBD’s minor son M had two children together. N and M went to Mexico for vacation and were kidnapped. NBD paid the ransom and N and M were released at the U.S. border and told not to return. DHS picked them up, began removal proceedings and placed them with a relative in Arizona. N and M ran from the placement back to Kentucky. NBD filed a DNA action and requested placement with her as well as a hearing to determine if N is a Special Immigrant Juvenile (SIJ). An SIJ is a child dependent on juvenile court and whose best interest is served by not returning to her country of origin; such a finding gives an undocumented immigrant child a path to U.S. citizenship. The trial court found that N is dependent, having no legal custodian in Kentucky, but declined to have a hearing on the SIJ matter. The trial court did not think it had authority to rule on SIJ because it was not relevant to the core DNA issue before the court. CHFS sought a reversal of the Court of Appeals’ determination that the trial court erred in failing to hear the SIJ issue.

5 KRS 403.213(1).

399 The Supreme Court reversed the Court of Appeals, citing a Missouri case that has addressed the matter. The Supreme Court held that the Immigration and Nationality Act does not require the state to have the SIJ hearing and the state does not have to conduct an SIJ hearing except “under proper circumstances, where such a placement of the child back into the country where he or she was abused, neglected or abandoned is being considered by the state court, [then] the courts of Kentucky are empowered under KRS 620.023 and other statutes which grant authority to determine custody or placement of a child, to make additional findings to determine whether it would be in the child’s best interest to return to his or her native country.” Here there was a DHS proceeding already initiated, giving “grave concern” that NBD was trying to circumvent federal , and the Supremacy Clause of the U.S. Constitution prevented Kentucky from resolving a federal immigration matter.

S. Barnett v. White, 584 S.W.3d 755 (Ky. App. 2019)

The Court of Appeals affirmed trial court timeshare decision, holding that if parents’ inability to cooperate is sufficient not to award joint custody as held in Squires v. Squires,6 then their inability to cooperate is sufficient not to award equal timeshare. “While the new version of KRS 403.270(2) puts a finger on the scale in favor of joint custody and equal timesharing by requiring only a preponderance of evidence to overcome, such a preference is a slight burden and the trial court continues to possess broad discretion in determining the best interest of the child as to who should have custody and where the child shall live.”

T. French v. French, 581 S.W.3d 45 (Ky. App. 2019)

Father appealed trial court modification of equal timeshare to one in which he received five instead of the previous seven of 14 overnights. The Court of Appeals first chastised father’s counsel for his appalling appellate practice. Instead of outright dismissing the appeal, the Court of Appeals reviewed the case for manifest injustice. The standard for modification of custody and timesharing is still set forth in Pennington v. Marcum,7 and father’s timeshare was not “restricted” which would be something less than reasonable visitation.

U. Qaisi v. Alaeddin, 580 S.W.3d 891 (Ky. App. 2019)

The Court of Appeals affirmed a trial court decision declining to register a purported custody and support document from United Arab Emirates. The foreign order must have been made in substantial conformity of the UCCJEA jurisdictional standards and in compliance with fundamental principles of human rights.8 It was unclear from the UAE order or the

6 854 S.W.2d 765 (Ky. 1993).

7 266 S.W.3d 759 (Ky. 2008).

8 KRS 403.806.

400 parties’ testimony how the ruling was determined and whether fundamental human rights were upheld.

V. Tipan v. Tipan, 582 S.W.3d 70 (Ky. App. 2019)

The Court of Appeals reversed and remanded dismissal of a DVO because the trial court was required to have a full evidentiary hearing on a DV matter, cutting the petitioner off before she even finished her direct testimony. The Court of Appeals, referencing its just decided case of Castle v. Castle,9 reminded the trial court of its mandatory duty to make written findings of fact revealing the rationale for its decision so as to avoid the issue coming back up after conducting a DV hearing.

W. Williford v. Williford, 583 S.W.3d 424 (Ky. App. 2019)

The Court of Appeals upheld entry of a DVO. Wife was afforded a sufficient evidentiary hearing and there was sufficient testimony that DV occurred or that it may occur again considering husband, the older daughter and wife herself gave similar accounts of what had been said. The Court of Appeals discounted the dissent’s concern for insufficient findings of fact – the trial court checked the boxes available on the AOC’s DV form to make its findings. The Court of Appeals noted that its reference to delineated facts on the docket sheet “more than satisfied” the findings requirement (see Pettingill v. Pettingill10), and, following the AOC form findings should “be sufficient to satisfy” the finding requirement. Moreover, if wife had wanted more findings, she could have moved the court for them.

X. Nelson v. Ecklar, 588 S.W. 3d 872 (Ky. App. 2019)

Court of Appeals affirmed a child support modification order. The trial court found a material change in circumstances that was continuous and substantial where Father’s new obligation was more than 15 percent greater than he had been paying; the parties’ previous agreement outside the guidelines did not cause the trial court to lose control over the child support matter at a later date; Father’s proposed formula for child support with equal timeshare did not have any support under the law; the trial court has discretion to deviate from the guidelines, which it did, to account for the parties’ timeshare; and the trial court did indeed follow their agreement regarding health insurance coverage for the child, by pointing out that their agreement was for a parent to provide the health insurance and did not contemplate that coverage by a third party/fiancée.

Y. S.T. v. Cabinet for Health and Family Services, 585 S.W.3d 769 (Ky. App. 2019)

The trial court found that the children’s great-aunt and her husband did not have standing to intervene in a DNA action and ultimately awarded custody

9 567 S.W.3d 908 (Ky. App. 2019).

10 480 S.W.3d 920 (Ky. 2015).

401 to family friends. The Court of Appeals affirmed but on different grounds than the trial court. Contrary to the trial court’s ruling, the clear language of KRS 620.110 provides for any aggrieved person to file for immediate entitlement to custody. The Court of Appeals held that the great-aunt and husband did not show that they were aggrieved – nothing in the record showed that they had a relationship with the children more than a blood connection; they filed their motion nearly a year after the case began and six months after the children were placed with the family friends.

Z. Cabinet for Health and Family Services v. K.S., 585 S.W.3d 202 (Ky. 2019)

Trial court entered TPR for Mother who had pervasive developmental disorder (autism) and an intellectual disability (IQ of 65). The Court of Appeals vacated for a determination of whether additional services would help mother be capable of parenting while being mindful of the child’s best interests. The Supreme Court reversed. All instances of KRS 600.020 do not require intent and the subsections under which the trial court ruled did not require intent. Further, the definition of an abused or neglected child includes a child “threatened with harm;” it would be absurd and unreasonable to require that a child actually be harmed before taking action. Finally, a child could indeed start off with the Cabinet as a dependent child and over the course of time become a neglected or abused child.

AA. Krieger v. Garvin, 584 S.W.3d 727 (Ky. 2019)

The Supreme Court held a grandfather and his long-term, live-in girlfriend could be de facto custodians. The language of KRS 403.270 “unless context requires otherwise” was broad enough for the trial court to find that an unmarried couple could be de facto custodians. And, KRS 446.020(1), concerning statutory construction, provides that “a word importing the singular number may extend and be applied to several persons or things, as well as to one (1) person or thing…” so a de facto custodian can encompass more than one person.

AB. Robison v. Pinto, 2019-CA-000435-ME, 2019 WL 4724761 (Ky. App. Sept. 27, 2019) (discretionary review granted 2019-SC-615)

Trial court denied maternal grandparents visitation of their grandchildren after the death of their daughter. The Court of Appeals vacated and remanded the matter for further proceedings. Walker v. Blair11 did not hold that grandparent visitation was per se unconstitutional, and Walker and Troxel v. Granville12 did not address a statute that provided a set of criteria for grandparent visitation to be granted as is the case here. KRS 405.021 “is a narrowly tailored statute for a very specific set of circumstances as opposed to a broad statute applicable to the populous at large.”

11 382 S.W.3d 862 (Ky. 2012).

12 530 U.S. 57 (2000).

402 AC. Herbener v. Herbener, 587 S.W.3d 343 (Ky. App. 2019)

The Court of Appeals affirmed that husband’s transfer of nonmarital realty to the parties’ LLC did not transform the status of the property to marital. It affirmed the restoration of husband’s non-marital property to him as the parties’ prenuptial agreement controlled over KRS 403.190 and related case law. It affirmed the denial of the appreciation of husband’s property by virtue of wife’s efforts and work, the prenuptial agreement having precluded such. It affirmed the award of attorney fees by the trial court – the prenuptial agreement contained an indemnification provision for a challenge to the prenuptial agreement (and, the trial court is not required to consider financial disparity any longer when awarding attorney fees). It affirmed the allocation of retirement benefits, wife having stipulated to what portion was marital without condition as to how it should be divided. Finally, it affirmed the contempt ruling, wife having admitted to the violation.

AD. Warawa v. Warawa, 587 S.W.3d 631 (Ky. App. 2019)

The Court of Appeals reversed and remanded a ruling in which the trial court accepted the recommendations of the PC (and denied Father a hearing) on issues of a change in the agreed-upon school, medical treatment notice, and contempt. The family court can enlist a PC under the FCRPP, and the parties could, as they did, agree to use a PC. However, that agreement “did not permit the parenting coordinator to be the final decision-maker without the family court conducting an independent review if requested by one of the parties.” And, the authority to make decisions affecting the best interests of the children rests with the family court and that family court cannot delegate its fact-finding and decision-making responsibilities to a PC.

AE. Tager v. Tager, 588 S.W.3d 183 (Ky. App. 2019)

The Court of Appeals affirmed the trial court’s use of the date of divorce for the valuation date of husband’s military pension. The parties had agreed to what constituted the marital portion of the retirement when they divorced 13 years earlier, and the trial court could use a delayed division method since husband was still serving at the time.13 The Court of Appeals rejected husband’s estoppel argument as he had not relied on wife’s silence to conclude she was foregoing a share of his retirement, he did not show that he was unfairly prejudiced from the delay in obtaining the division order for 13 years, and he did not show that wife was receiving more that she was entitled to if the order had been entered more timely.

AF. Brannock v. Brannock, 2018-CA-001202-MR, 2019 WL 5850420 (Ky. App. Nov. 8, 2019) rev. denied 4-22-2020

The Court of Appeals found that there was substantial evidence that the trial court applied the directives for an agreed oral modification of child

13 Young v. Young, 314 S.W.3d 306 (Ky. App. 2010).

403 support found in Whicker v. Whicker.14 To be enforceable the agreement must 1) be proved with reasonable certainty and 2) be fair and equitable under the circumstances (would the modification have been reasonably granted if a proper motion had been brought before the court). Finally the Court of Appeals found that the trial court’s application of the doctrine of equitable estoppel (a.k.a. estoppel by acquiescence) under Sparks v. Trustguard Insurance Co.15 was appropriate. Wife acquiesced to husband paying the note and debt, which freed her up from a housing expenses, in lieu of child support and not seeking the court’s intervention on a child support claim for over six years when the parties finally separated. (The trial court actually cited two unreported cases that referenced the above- reported cases but with facts closer the case at hand; this defeated wife’s argument that the trial court inappropriately relied on an unpublished case when there was a published case addressing the issue.16

AG. Lage v. Esterle, 591 S.W.3d 416 (Ky. App. 2019)

The Court of Appeals reversed trial court denial of de facto custodian status to the Lages. First, the trial court impermissibly took judicial notice of mother’s testimony in an emergency custody proceeding. A judicially noticed fact must be generally known or not subject to dispute, and “courts ‘cannot adopt by judicial notice the evidence introduced in [one]case for the purpose of proving a similar proposition in another case.’” The one judge, one family policy of Family Court does not circumvent the requisites for judicial notice. Moreover, the trial judge in this case did not preside over the emergency custody hearing, which took place eight months earlier. Second, the trial court did not give the required notice to the Lages that it intended to take judicial notice of any matter per KRE 201(e). Finally, a de facto custodian does not have to be the sole financial supporter and the “receipt of public benefits alone does not preclude a financial supporter from obtaining de facto custodian status…”

AH. Roper v. Roper, 549 S.W.3d 211 (Ky. App. 2020)

Husband appealed on six issues. The Court of Appeals rejected his contention that the trial court lost jurisdiction over the child support matter after everyone moved to Texas because they permissibly consented to the continued jurisdiction.17 The Court of Appeals reversed the timeshare modification for lack of jurisdiction.18 The trial court sua sponte modified the timeshare and, at the time the court did so, the parties and the children had all been living in Texas about a year. The Court of Appeals affirmed the

14 711 S.W.2d 857 (Ky. App. 1986).

15 389 S.W.3d 121 (Ky. App. 2012).

16 CR 76.26(4)(c).

17 KRS 407.5202(1)(b).

18 KRS 403.824(1)(b).

404 division of husband’s relocation incentive, being marital property. While there was some very limited chance that husband would have to repay the bonus, the characterization of the bonus as marital is determined when the right to the bonus is earned. The Court of Appeals affirmed the order that wife not reimburse husband for the children’s expenses between the date of separation and date of divorce as they were paid with marital funds. The Court of Appeals affirmed the trial court’s refusal to let husband testify about the interest earned on his premarital retirement after he acknowledged that he did not have all of the documents to account for the interest. The Court of Appeals reversed and remanded the maintenance award since the trial court did not consider wife’s income from her nonmarital IRA and since it found that husband’s gross income was only $650 per month more than his reasonable expenses, thus bringing into question his ability to support himself while paying $1,000 per month maintenance. The Court of Appeals did not reverse on his primary argument against maintenance because of wife’s fault for the divorce – consideration of fault in a maintenance award is permissible but not required (and the trial court could have found fault in both directions). Finally, the Court of Appeals affirmed the award of attorney fees. Disparity in the parties’ incomes is a viable factor for considering the award of maintenance (and wife having greater resources due to her nonmarital IRA did not make the award rise to an abuse of discretion).

AI. Turner v. Hodge, 590 S.W.3d 294 (Ky. App. 2019)

The Court of Appeals affirmed trial court order denying Turner de facto custodian status. Turner could have asserted de facto custody status in the past, but the events from 2015 forward interrupted that status. The de facto custodian status had to be considered anew, and she did not show by clear and convincing evidence that she was presently the de facto custodian of child.

AJ. Hoskins v. Elliott, 591 S.W.3d 858 (Ky. App. 2019)

The Court of Appeals reversed a finding that a third-party was the de facto custodian of child. CHFS and not mother placed child with Elliott. Elliott only had the child for eight months and would have had to have had the child for a year to be de facto custodian.

AK. M.M. v. Allen County Attorney’s Office, 590 S.W.3d 836 (Ky. App. 2019)

M.M. appealed disposition entailing removal of his children after the trial court found DV and environmental neglect in the home. However, M.M. named the county attorney and not CHFS as a party in the notice of appeal. CHFS was the plaintiff in the DNA action (even though the county attorney represented the Cabinet’s interests before the trial court) and is an indispensable party to the appeal. The Court of Appeals ordered M.M. to show cause why his appeal should not be dismissed for failure to name CHFS. He did not do so, and the Court of Appeals dismissed his appeal.

405 AL. Petrie v. Brackett, 590 S.W.3d 830 (Ky. App. 2019)

Father appealed the issuance of a DVO against him on behalf of his 16- year-old son. Son had testified he struck father first and admitted that he did not want to live with father. Finding that the trial court made no findings that son was physically injured by father restraining him or that what father did was actually DV, the Court of Appeals reversed the trial court and ordered the DVO vacated and the DV petition dismissed without prejudice.

AM. Childress v. Hart, 592 S.W.3d 314 (Ky. App. 2019)

The Court of Appeals vacated and remanded the denial of mother’s motion to relocate. The trial court issued a “bare bones” order which only provided a conclusionary statement that the relocation was not in the child’s best interest but failed to state any of the reasons why it came to that conclusion. CR 52.01 provides that the trial court “shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment.” Furthermore, after mother filed an AAV motion, the trial court also failed “to make a finding of fact on an issue essential to the judgment” as required by CR 52.04.

AN. Commonwealth v. H.K., 595 S.W.3d 498 (Ky. App. 2019)

The Court of Appeals affirmed the dismissal of an educational neglect petition, holding that “[t]here can be no educational neglect of a child for excessive absenteeism who is not required by law to attend school.” Five- year-olds may attend kindergarten but are not required to attend, and it cannot be educational neglect to fail to send a five-year-old to kindergarten every day when it is not educational neglect not to send a five-year-old to kindergarten at all. It noted the incongruity between educational neglect and truancy statutes – a five-year-old cannot even be “truant” under KRS 159.190 which by definition applies to children six years of age through 18 years of age, and there are statutorily required remediation provisions before moving forward with a truancy petition, which is not required for educational neglect.

III. CHANGES TO THE FAMILY COURT RULES OF PROCEDURE AND PRACTICE

On January 3, 2020, the Kentucky Supreme Court entered Order 2020-01 amending the Family Court Rules of Procedure and Practice (FCRPP), effective February 1, 2020. The following Summary of Amended Family Court Rules of Procedure and Practice19 was made available by the Administrative Office of the Courts, not to include “unsubstantial changes to wording, word placement, or organization.” An in-depth version of this material showing tracked differences between the new language and the old language is included as an Addendum in the electronic handbook available on the KBA website.20

19 The summary can be found at https://kycourts.gov/Documents/FCRPP/ FCRPPSummary2020.pdf.

20 https://www.kybar.org/page/KLUmaterials1.

406 A. FCRPP 1

1. FCRPP 1(1) adds introductory language giving the intent behind the rules.

2. FCRPP 1(3) revises the list of applicable family court actions to include “parenting time” (see FCRPP 1(6)) and removes “status offenses,” which fall under the Juvenile Court Rules of Procedure and Practice.

3. FCRPP 1(6) allows the use of “parenting time” instead of differentiating between “timesharing” and “custody” unless the law requires otherwise.

4. FCRPP 1(7) specifically states that the FCRPP override any inconsistent local rule, practice, procedure, order, or policy.

B. FCRPP 2

1. FCRPP 2(1)(h) clarifies that a divorce education certificate is only necessary if required by the court.

2. FCRPP 2(2) makes the “first court” rule apply to multiple actions involving the “same underlying claims” instead of the “same subject matter” and makes the rule only apply to Kentucky circuit courts.

3. FCRPP 2(3) changes deadline for an objection to a preliminary verified disclosure statement from 21 days to 20 days.

4. FCRPP 2(4) sets a 14-day deadline for executing and returning written requests for signed releases. Establishes the procedure for challenging a request for release – requires a motion for a protective order pursuant to CR 26. Allows a Motion to Compel Discovery per CR 37 for non-compliance.

5. FCRPP 2(5) moves the former financial status quo language into Appendix A. Requires an evidentiary hearing, as opposed to an “opportunity to be heard” before a financial status quo order may be entered. Permits the court to issue a parenting conduct order, which may be entered on a form prescribed by AOC (Form AOC 242).

6. FCRPP 2(6)(a) changes deadline to file a post-mediation motion for hearing from 10 days to 14 days.

7. FCRPP 2(6)(b) prohibits dismissal of cases due to failure to attend the first case conference. Establishes procedures to dismiss following first case conference.

8. FCRPP 2(8)(a) requires ex parte motions to include an affidavit establishing grounds required for a restraining order or injunctive relief per CR 65.

407 9. FCRPP 2(8)(c) allows a single consolidated affidavit to be used to support simultaneously filed motions that would each require an affidavit.

10. FCRPP 2(9) establishes criteria for filing a contempt motion in a dissolution case. Motion shall include: date of order and specific provision of the order that was violated. Allows court to dismiss contempt motions that lack sufficient support.

C. FCRPP 3

1. FCRPP 3(1)(c) requires that partial agreements must also be signed by counsel, if any, before being submitted to court.

2. FCRPP 3(2)(a) requires certification of all statements required for default. Adds “other papers” to the list of items that, if received by the opposing party, must be disclosed. Requires the date of initial service, if done through personal service. Synchronize wording related to warning order service with the Civil Rules. Requires the date, address, and manner of service of the motion for default.

3. FCRPP 3(2)(b) prohibits default judgment for custody matters without conducting an evidentiary hearing.

4. FCRPP 3(3)(b) clarifies that the Final Verified Disclosure Statement is required unless the Preliminary Verified Disclosure Statement is in the record and the party has filed an affidavit attesting that there has been no change.

5. FCRPP 3(3)(c) requires service of the pre-hearing disclosure, or “no-change” affidavit, on the opposing party at least 21 days prior to the final hearing, instead of 15 days. Requires the parties to file the disclosure or affidavit 14 days prior to trial.

6. FCRPP 3(4)(b) requires parties to exchange witness/evidence lists at least 14 days prior to hearing, unless that deadline is modified by court order or affirmatively waived by the parties. Any witness/exhibit that is not identified shall be excluded at hearing, absent good cause. Clarifies that the rule does not relieve parties of any obligations under discovery rules.

7. FCRPP 3(4)(c) requires that any party who requests discovery keep the original and not file it into the record without leave of the court.

8. FCRPP 3(5) allows court to sever non-family law claims (right to jury or otherwise outside of KRS 23A.100) and file in appropriate jurisdiction.

9. FCRPP 3 commentary clarifies that FCRPP 3’s applicability to interlocutory hearings is subject to the court’s discretion.

408 D. FCRPP 4 NO CHANGE

E. FCRPP 5

FCRPP 5(1)(b) clarifies that the “responding party” shall provide financial verification in response to a motion for maintenance.

F. FCRPP 6

1. FCRPP 6(2)(e) clarifies that the rule applies to guardian ad litems for children.

2. FCRPP 6 commentary clarifies that the rule shall not impede court appointment of experts, investigators, or other professionals allowed per KRE and KRS Ch. 403.

G. FCRPP 7 NO CHANGE

H. FCRPP 8

1. Provides more options for parenting time orders, including the Sample Parenting Time Guidelines, local guidelines, or guidelines that are agreed upon by the parties. Requires affidavit/verification for motions seeking to modify parenting time and allows courts to dismiss a motion if alleged facts fail to state adequate cause.

2. Commentary explains that the options in the rule are only guides and that the intent is to move away from “Model” guidelines so courts craft specific orders on a case-by-case basis.

I. FCRPP 9

1. FCRPP 9(4)(a)(v) allows the option of including a notice in a motion for child support that the court will set a hearing date if the court in the jurisdiction sets hearing dates after the motion is filed.

2. FCRPP 9(4)(b) clarifies that the “responding party” shall provide financial verification in response to a motion for child support.

J. FCRPP 10 – 14 MINOR WORDING/GRAMMAR CHANGES

K. FCRPP 15

Requires the use of AOC forms for any order in DNA proceedings, provided there is an AOC form for that order. Prohibits signature stamps and verbal orders (formerly in FCRPP 21). Prohibits pre-signed orders

409 L. FCRPP 16

Requires foster parents, pre-adoptive parents, and relative caregivers to receive notice of all DNA/TPR proceedings. They also have right to attend and be heard.

M. FCRPP 17

1. FCRPP 17(2) adds options for service of DNA petitions when location and/or identity of a parent or person exercising custodial control is unknown. Service may be on the nearest known relative, by mail to the last known address, or by other service directed by the court and given in a manner reasonably calculated to give actual notice. The use of a warning order attorney is the last option if none of the alternatives are effective. Requires that the petitioner name the nearest adult relative in the petition.

2. FCRPP 17 commentary removes commentary that requires personal service of a motion for permanent custody.

N. FCRPP 18

FCRPP 18(2) & (3) allow electronic notarization and submission of ECO affidavits.

O. FCRPP 19

FCRPP 19(3) mirrors KRS 620.070(1) by authorizing any interested person to file a DNA petition.

P. FCRPP 20(1) requires notice of temporary removal hearing to be provided to the foster parent.

Q. (OLD) FCRPP 21 deleted due to requirement contained in FCRPP 15 to use AOC Orders. All numbering below reflects new numbering due to removal of FCRPP 21.

R. FCRPP 21-25 NUMBER CHANGED

S. FCRPP 26 requires disposition hearing reports to be filed seven days prior to the hearing instead of three days.

T. FCRPP 27 NUMBER CHANGED

U. FCRPP 28

1. FCRPP 28(3) adds Qualified Residential Treatment Program (QRTP) review (required by Family First Prevention Services Act). Requires CHFS to file a notice of hearing within five days of a child being placed in a QRTP. Requires CHFS to submit a report with recommendations related to placement within 30 days of the child’s

410 placement. Requires court review within 60 days of the child’s placement.

2. FCRPP 28 removes commentary that requires personal service of a motion for permanent custody NOTE: Kentucky has not yet recognized any placement as a QRTP.

V. FCRPP 29-31 NUMBER CHANGED

W. FCRPP 32(3) adds provision requiring certification of the DNA court record (paper file and recordings) into the TRP record if the DNA record is relied- upon in the TPR action.

X. FCRPP 33-34 NUMBER CHANGED

Y. FCRPP 35

1. FCRPP 35(1) establishes rules and standards for Court-Appointed Counsel (GALs and Adult Attorneys) for all child welfare cases (DNA, TPR, adoption).

2. FCRPP 35(2) requires CACs to follow Statewide Standards of Expected Conduct for Court-Appointed Counsel (Statewide Standards), unless the Supreme Court approves a local deviation from those standards.

3. FCRPP 35(3) requires that local deviations mirror nationally recognized standards.

Z. FCRPP 36

1. FCRPP 36(1) requires each judge to maintain list of approved attorneys, along with the attorneys’ contact information. (In each jurisdiction that has multiple divisions, each judge may maintain, and appoint from a separate list).

2. FCRPP 36(2) prohibits “exclusive” or “closed” lists, by making them open to any attorney who wants to be included and who has completed the required training.

3. FCRPP 36(3) authorizes sanctions (including removal from the list and/or active cases) for any attorney who does not comply with rules and standards. Prohibits removal of attorney if it would harm client.

4. FCRPP 36(4) requires that, prior to appointment, the court must determine the party is indigent and the file must contain an affidavit of indigency, except courts may appoint without affidavit by making specific findings of indigency. If appointed without an affidavit, the party must file the affidavit within five days of appointment or the appointment is vacated.

411 5. FCRPP 36(5) & (6) require judges to review their approved attorney list every four years and make it available upon request

6. FCRPP 36(7) requires that attorneys be appointed sequentially from the list, with certain exceptions. Allows clerks to make the appointments, if authorized by the judge.

AA. FCRPP 37 requires all attorneys to complete AOC’s DNA training. Requires continuing education of four hours every two years.

AB. FCRPP 38

1. FCRPP 38(1) requires CAC to pursue/defend an appeal if the party wishes. The appeal would be a new proceeding for billing purposes.

2. FCRPP 38(2) prohibits submission of multiple invoicing for partial payments in the same case.

IV. GLOSSARY

• AAV Motion – Motion to Alter, Amend or Vacate (CR 59.05) • CHFS – Cabinet for Health and Family Services • DNA action – Dependency, Neglect and Abuse action • DRC – domestic relations commissioner • DV – domestic violence • DVO – domestic violence order • FCRPP – Family Court Rules of Procedure and Practice • GAL – guardian ad litem • TPR – termination of parental rights • PC – parenting coordinator • PRP – primary residential parent • UIFSA – Uniform Interstate Family Support Act (KRS 407.5101 et seq.) • UCCJEA – Uniform Child Custody Jurisdiction and Enforcement Act (KRS 403.800 et seq.)

V. APPENCIES

A. Appendix A contains the previous language of FCRPP 8, for use in financial status quo orders.

B. Appendix B provides examples of orders courts may use to govern parental conduct (Form AOC 242)

C. Appendix C replaces “Model” with the word “Sample” for the guidelines.

D. Appendix D establishes Statewide Standards of Expected Conduct for Court Appointed Counsel.

412 HOW TO RECOVER YOUR PRACTICE IF THE WORST HAPPENS: BUSINESS CONTINUITY PLANS, DISASTER RECOVERY, AND INCIDENT RESPONSE PLANS Stephen Embry, Michael M. Losavio, and Jeffery L. Sallee

I. INTRODUCTION

When the Task Force on the Practice of Law was deciding on topics to present at the 2020 Kentucky Law Update, we certainly did not anticipate the COVID-19 pandemic or the impact it has had on our profession. In past years, the primary threat to a Kentucky lawyer’s practice were natural disasters, like fire or flood, or the sudden death of an attorney in the firm. The cyber threat to a practice is now the most likely threat to our practices. This CLE session will review the three pillars of defense to help your practice survive cyber threats. It will also provide an opportunity to review the plans you have in place to deal with another massive disruption like another pandemic.

The reality is that some disasters may be too great, and recovery is not possible. While we don’t like to think about that, it is true. It does not have to be a pandemic to create this outcome. If you have an ethical lapse or become unable to practice law due to an addiction, you could lose your license and that would be a personal disaster. Even if the problem does not result in suspension, your reputation could become so tarnished that your ability to make a living as an attorney could be over. This CLE session is not focused on that kind of disaster, but it is important to recognize the possibility. The KBA has an ethics hotline for you to utilize if you are unsure of how to proceed in a matter in an ethical manner. Kentucky Lawyers Assistance Program (KYLAP) is an excellent resource if you believe you or someone you know needs assistance with an addiction, or even if you recognize that your actions are leading down that path.

You will not find a heavy reliance on case law in this material. The focus is on business topics. As such, the citations will come from textbooks and professional organizations where these topics are taught to business leaders.

Before starting a deep dive on these topics, it is important to define the terms we will be using and place them in context with each other.

II. BASIC DEFINITIONS

A. Incident Response1

Your Incident Response is the steps you take for the immediate protection of people. This includes tasks like your fire and severe weather drills. It is also how you account for all employees to ensure that they are safe.

1 Brian D. Jaffe & Bill Holtsnider, IT Managers Handbook: Getting Your New Job Done (2012), p. 260.

413 B. Business Continuity Plan (BCP)2

The BCP is a strategic plan that documents what needs to happen to keep your firm in business if you experience an unexpected disruption in your business. It will include a Disaster Recovery Plan, mentioned below, but is much larger in nature. It will include business activities beyond the IT specific items.

C. Disaster Recovery (DR) Plan3

A DR Plan is a subset of the BCP. The focus of a DR plan is to have a documented and tested set of processes and procedures to protect your practice’s infrastructure in the event of a disaster. The DR plan addresses actions to take in preparation of a disaster, how and when to declare a disaster and the steps to take following that decision.

D. Cyber Incident Response Plan (IRP)4

The IRP is a systematic set of actions taken by a firm to deal with a suspected cybersecurity breach. You need to define your plan in advance and be certain that you know who needs to be involved from your firm’s perspective, who decides between an “event” and an “incident.” You need to know what steps you take to contain and respond to the incident. You also need to decide in advance whom you need to contact and what form that communication will take.

E. Incident Response

This is the easiest of all the preparations you need to make. To a large degree, this is required by OSHA. If you are a firm of 10 or fewer employees, you can share this plan orally,5 otherwise you need to have this in writing and train your employees on it.

Your basic plan for fires and severe weather drills needs to include the following:6

2 Id.

3 Id.

4 Paul Cichonski et al., Computer security incident handling guide: recommendations of the National Institute of Standards and Technology (Revision 2., 2012).

5 29 C.F.R. §1910.38(b).

6 29 C.F.R. §1910.38(c).

414 1. Means of reporting fires and other emergencies;

2. Evacuation procedures and emergency escape route assignments;

3. Procedures for employees who remain to operate critical plant operations before they evacuate;

4. Accounting for all employees after an emergency evacuation has been completed;

5. Rescue and medical duties for employees performing them; and

6. Names or job titles of persons who can be contacted.

At the start of 2020, I would have suggested the only additional concern to include would be to consider an active shooter plan. Since the pandemic hit, I think you also need to consider putting a little more separation between your clients and your staff in your foyer, such as a glass partition, if possible. Making hand sanitizer and facial tissues available to your clients where they wait is also a great idea.

With all plans, you should test these at least once a year. It is a disruption to your business day, but if you do not practice, you will not remember what to do if there is an emergency. For the pandemic protections, these may be around for a while and we should consider adding them to how we interact with clients.

F. Business Continuity Plan (BCP)

You cannot plan for every event. You need to consider the risks and tailor your plans to your risks. You may actually need to have a few different options depending on the kind of business disruption you experience. Some disruptions will cause you to lose everything in your office, e.g., a major flood, fire, or tornado can leave you without an office or require such extensive repairs that your office will be unavailable for an extended period. Several different weather events could make your office unavailable for days due to loss of power or access. The death of an attorney in a firm could also require you to enact some emergency plans, especially in a small firm or if the attorney was responsible for a considerable portion of the revenue to the firm. If you start making plans for a comet strike, the eruption of the Yellowstone super volcano, an EMP blast as a preemptive strike in a global war, or a zombie apocalypse, then you have really gone beyond the scope of an effective BCP.

A pandemic was one of the things that most people did not plan for in their BCP, but it is a good example of how a prepared BCP has helped some firms stay more active than other firms. Many firms had already moved to a position where they could do most of their work from home, even if it they might not be quite as productive. The fact that we have been slowly moving to e-filing has helped as well. The rapid adoption of video conferencing with applications like Zoom and even Facetime has helped us continue to meet

415 with clients and conference with the court. Some people are doing drive- by closings for real estate transactions. Starting in January 2020, we have been able to have documents notarized electronically.7

Because an emergency can be widespread, such as the COVID-19 pandemic has been, it is wise for a firm to develop different timelines for planning purposes. As it became clear that the restrictions related to the pandemic were going to last for an extended period, many larger firms developed 30, 60, 90, and 120-day plans for restoring full services after an emergency.

When you develop your plan, remember to keep a copy of the plan off site. If you have an emergency, and all your planning materials and contact lists are in your office, they may not be available in an emergency.

1. Establish a BCP committee.

This may be impossible in a solo practice, but even then, you need to have input from others in making the decision. Most committees for BCPs include a few roles:

a. BCP coordinator.

This person should have BCP experience and must be emotionally and professional suited to deal with emergencies. Although this person is usually a senior partner, the role may be delegated to anyone in the firm.

b. Management team.

These are the people who will approve of the plan and will have the primary decision-making authority for deciding when to declare the emergency, thereby setting the plan in motion for a real emergency.

c. IT coordinator.

Whoever your senior IT person is at your firm, even if this is an external resource, must be part of the BCP team. This is the person who will lead the DR portion of your BCP.

d. BCP team.

This can be anyone who has a specific role to play in managing the execution of a BCP. You generally do not need everyone involved to be part of the team, but you need people who will manage the process and are responsible for training the people who do have a role to play in the BCP execution.

7 KRS 423.355(7).

416 Examples:

i. Finance.

You need to know how your Accounts Payable and Accounts Receivable process will function in an emergency.

ii. Office manager.

Who will be responsible for contacting the employees, clients, courts, vendors, and other resources?

iii. Relocation manager.

Who will track the physical location of the employees, ensure people have a place to work, and deal with the physical location, if needed?

2. BCP contents.

Some of the basic questions you must consider with your plans are:

a. Do you have a place to work if your building is unavailable?

b. Will you have the equipment you need to do your daily work, or do you know where to get it?

c. What activities can you suspend while restoring the business?

d. Do you have a sufficient emergency fund to reestablish the firm and cover salaries?

e. Does everyone know their roles and responsibilities in the event of an emergency?

f. Do you have a contact list of whom to contact and in what order?

i. Clients with active cases.

ii. Courts where you practice.

iii. Opposing counsel.

iv. Expert witnesses.

v. IT services consultants.

417 vi. Insurance agents (professional liability, business interruption, etc.).

vii. Utility companies.

viii. Landlord/building management.

ix. Banker/accountant.

x. Post office (hold your mail – you will need to pick it up.). xi. Other clients.

xii. Other vendors.

g. Do you know the physical location of every firm member’s home?

This may seem a bit intrusive, but it can be helpful in many situations. For example, if you have people stranded on the other side of a bridge that is not passible or can tell that the power is out in certain places, then you can explain why some people may not be as responsive as others.

3. Business continuity exercises.

Once you have a plan, you need to test your plan. The ABA’s Guide to Developing and Conducting Business Continuity Exercises8 suggests five different types of exercises:

a. Orientation.

Basically a meeting to educate the firm on the plan.

b. Test of functional drill.

A coordinated test of the plan for a part of the plan.

c. Tabletop exercises.

Dedicate some time to have all the parties involved in the BCP to walk through the plan step-by-step to verify that the steps are comprehensive and that the different parts are in place should they be needed in a real emergency.

d. Functional exercise.

A scaled-up version of the functional drill. Implement a portion of your plan to test your capabilities.

8 See https://www.americanbar.org/content/dam/aba/images/disaster/aba_bcm_guide_final.pdf.

418 e. Full scale exercise.

Execute your plan as if the emergency has actually occurred. Simulate the emergency in a way that simulates the stressful conditions.

This CLE session cannot go into all the details for what happens in each of these kinds of exercises. The ABA guide does cover the exercises in additional detail. We encourage you to review this resource. You may decide you need to hire a consultant to help you define your BCP. Many consulting firms offer BCP and DR planning services. They can help you define your plans or review the plans you have created. They may see things you have missed in your planning.

One last thing you need to consider in your BCP preparations: If the cause behind the disaster is widespread and endangers the families of your firm’s associates, you need to assume that some of them will place their family’s safety first and may not be available to participate in your BCP execution on the timing you would prefer.

G. DR

We will cover the anatomy of a disaster plan. What systems do you need to have available? How frequently do you need to back up the data on those systems? How quickly do those systems need to be restored and available? Your decisions have both financial and operational consequences. The quicker and more seamless the restoration, the higher the cost. The slower the recovery and the older the data restored, the greater the impact to the firm and clients.

In today’s world, many lawyers have laptops as their primary workstations. These attorneys need to take their laptops home every day. If you have a disaster and all your computing resources are in the office, not much work will be done. If you do not have laptops for everyone, you may want to ensure that these employees have a computer of some sort available at home and that you have worked with your IT resources to establish a secure way to connect these computers in an emergency.

1. Defining DR parameters.

When it comes to computers and data for your firm, you have a few questions you need to know before you can make an effective disaster plan.

a. How long can your systems be unavailable? The DR process calls this period your Recovery Time Objective (RTO). This is not a simple question. Generally, the RTO can depend to some degree on the kind of disaster and the BCP flavor executed.

419 i. Desired RTO is the time, after declaring a disaster, that you want the systems to be available for use.

a) To some degree, this timing is a function of inconvenience. Are you OK with a loss of your main computer resources and the corresponding decrease in productivity?

b) To a large degree, this will depend on the amount of money you are willing to spend on recovery. The faster you want your systems restored, the more you will pay.

ii. Absolute RTO.

In DR and BCP terminology, this is the maximum amount of time your system can be down and you can still recover your business. For a law firm, you need to consider two kinds of data needs.

a) Your old files that you need to keep for regulatory and ethical reasons may be able to be unavailable for a much longer time than other resources.

b) Your active files may present a much more serious concern for you.

i) Will you miss filing deadlines?

ii) Will you be able to represent your clients effectively in court with what you do have available on your laptop or cloud storage?

• Client files.

• Evidence.

• Expert witness reports. b. How stale can your data be and still be meaningful and reliable? In general terms, this is a question about how recent the latest backup needs to be in order to recover data in your system. In DR/BCP terminology, this is your Recovery Point Objective (RPO). Like the RTO, there are options.

i. Desired RPO is the time that you would like to be able to recover data without significant business disruption.

420

a) Also like the desired RTO, this is partially a matter of inconvenience. The shorter the time, the less data reentry and transactional data loss you will experience.

b) The shorter the RPO, the higher the cost.

ii. Absolute RPO.

This really depends on your practice. Can you recreate this data from other records and sources? (e.g., Can you tell from your banking records which clients paid you? Do you know what expenses you have paid, and which accounts are involved? Do you have all the information you need for that new client to work on their case? Do you now have a client that you cannot contact for a case you cannot remember?)

Once you have your RTOs and RPOs defined, you can start to make a plan. For your RPO, you need to work with your IT resources to ensure you are backing up the right data with the right frequency to meet your needs. This may be a combination of cloud storage and remote copies of data stored at a secure location. For your RTO, this could mean that you need a contract with a disaster recovery site, a separate secure data center, or even a contract with a cloud provider to ensure you have redundant capacity in a datacenter other than the one where you host your active systems.

When considering the IT disaster recovery, you need to think of more than just the ability to restore the servers and applications. Do the firm employees have the ability to work from home if needed? Do they have IT resources they need to connect and be productive? c. Internet access.

Most IT staff will want to live in a place where they have high-speed Internet access. You may not realize that other members of your firm may not have any access. d. IT accessories.

Do members of your firm have the ability to print out documents? Do they have a spare monitor, or will they be limited to the laptop monitor? Do they have headsets for computer conferences, or will they need to call in with their personal phones?

421 e. Physical location.

Do the firm employees have a place where they can work on firm business and keep it confidential? Calling into a conference in a kitchen with one’s spouse, kids, and pets in the background could be more than a distraction. It could be the grounds for an ethics complaint for not keeping client confidentiality.

2. Non-electronic consideration.

Your DR plan should consider more than just the computers and electronics. Your DR plan should also cover any paper files you have at the office or in archival locations. When Katrina hit New Orleans, many law firms had many of their client documents located at the law offices. After the flooding subsided, people found client files all over the area. Filing cabinets do not stand up well to floods or tornados and client confidentiality issues can arise. A fire can completely consume the files and any supporting material you have for your cases.

3. Testing.

You need to test your DR plans regularly. The same kind of tests must exist for your DR plans as for your BCP mentioned above. If you do not test your pans, they will likely fail when you need them most.

A full test is very disruptive, and few firms do this. Most Fortune 500 companies set up a tiered approach to their DR testing.

a. Tier 1 systems:

These are the most critical systems needed to run the business. For a law firm, these are probably your email system, accounting systems, remote access system, and your law practice management system. If you can restore these systems, you can probably continue practicing law while your IT resource restores the other systems more slowly.

b. Tier 2 systems:

These are your nice-to-have systems, which may be your hourly billing system, specialized law practice tools, and the like.

c. Tier 3 systems:

422 This could be a long-term archive system, or similar system used to keep records you need for record keeping purposes but would not need unless there is a specific need.

An annual test will help you identify misses. Most companies take several DR test iterations before they have all the systems restorable. Changes in your IT systems need to be incorporated into your DR plans. Failure to update these changes in your plans is often discovered only during an exercise.

As attorneys, you need to review your contract carefully for DR services. Most third party DR vendors plan for a small percentage of their clients to have concurrent outages. Your contract may provide a location for DR, but on a first come, first served basis. If you wait to declare an emergency, those resources may not be available. Just like the airlines, they often over book their capacity. An alternative is to pay for at least a minimum of dedicated space at the DR site that will not be available to other clients. This kind of arrangement is costly, but it might be worth it for your critical systems. Another consideration for your DR contract is the amount of time you are allowed to remain on-site at your DR location. From a financial perspective, this is a costly place to host your IT systems. From the vendor’s perspective, they enjoy the income, but want to make their systems available for other clients and other emergencies.

4. Miscellaneous DR considerations.

One thing that many DR plans fail to incorporate is the need for backups at the DR site. Once you move to a DR location, you still have a need to keep copies in case you experience another disaster at your DR location. Another reason for the backups is that you will need to either go back to your original location, rent, or build a new facility. The process of moving to away from the DR location is just slightly less impactful as moving there in an emergency. Your systems will become unavailable at your DR site and you need them to come up again at your new site. The good news on this is that you usually have to do that move in a controlled manner.

A final consideration for DR planning is that the decision to declare a disaster is costly and disruptive. Although you may have a plan to declare an emergency if your systems cannot be available within a specific period, consider the time and expense related to the DR declaration. If the system is likely to be restored in a few hours and it will take you 24 hours to have your systems available at a DR location, it may be worthwhile to wait for the few hours. You can also start the DR restore processes but not make those systems available unless your primary data center is still unusable.

423 H. IRP

Can you tell the difference between an “incident” and an “event” from a cybersecurity perspective? In general terms, an incident is anything that could be an indication of a data breach, while an incident is a confirmed situation where you can confirm a data breach has occurred.

The IRP starts with the preparation for such an event. It includes the processes and procedures to detect, contain, and recover from a cybersecurity breach. Your IRP could include the ultimate decision to declare a disaster and trigger your DR and BCP processes, but it does not need to be that disruptive.

Do you know how to prepare for cybersecurity events? Who can assist you in determining what you should do to detect and contain such an event? Do you know the additional steps you may be required to execute following a cybersecurity breach that would go beyond the actions in a non-cyber- related event?

1. Minimum requirements for an incident response plan.

The ABA offers A Brief Guide to Handling a Cyber Incident.9 This guide indicates an IRP should have at least the following four points:

a. Have a list of all the applicable laws and regulations that would be involved if you experience a data breach.

b. Define your data breach trigger(s).

c. Know who (person or organization) you need to contact.

d. Know what information you need to include in the reporting requirements.

e. Ensure you train your team on what steps are needed in order to preserve evidence for a potential prosecution related to the breach.

f. Do what you can to ensure the IRP activities are executed under attorney-client privilege.

2. Like the other plans, you need a team to develop and approve the IRP. This team is usually called the Incident Response Team (IRT) or a Computer Security Incident Response Team (CSIRT). This team is a scaled down version of the BCP team. DigitalGuardian, a

9 See https://www.americanbar.org/groups/litigation/committees/minority-trial-lawyer/practice/ 2019/a-brief-guide-to-handling-a-cyber-incident/.

424 software company specializing in this field, suggests the IRT should include people with the following roles:10

a. Someone to manage the process.

b. Specific computer resources, which may be third parties.

i. Computer security analysts to deal with the technical aspects of the issues.

a) A Triage Analyst to determine which events are actually incidents and which ones are false positives

b) A Forensic Analyst to recover the evidence you will need to deal with the potential breach, while maintaining the evidentiary value of that evidence.

ii. Threat Researchers who keep apprised of the kinds of issues in play in computer breaches on the Internet and to also keep an eye on the internal vulnerabilities.

c. Someone to deal with the HR issues, since most incidents happen due to something an employee did, whether intentionally or accidentally.

d. Someone to manage the PR aspect of the incident and to manage communications to the require parties.

e. The person that leads your internal audit and risk management processes.

f. For most companies, there is a reminder to include the general counsel. In law firms, an attorney fills at least one or more of the roles above.

3. Six steps for handling a computer security incident:

The ABA Guide11 shares the six steps from the SAN article.

10 Tim Bandos, DataInsider, a DataGuardian blog, posted July 27, 201. https://digitalguardian.com/blog/building-your-incident-response-team-key-roles-and- responsibilities.

11 https://www.americanbar.org/groups/litigation/committees/minority-trial-lawyer/practice/2019/a- brief-guide-to-handling-a-cyber-incident/.

425 a. Preparation.

Establish the team (and the processes) for dealing with a computer security incident.

b. Identification.

Using the processes developed above, determine if a data breach has occurred. (If one has, initiate the IRP).

c. Containment.

Limit the impact of the breach. This will include isolating the impacted devices from the network and making forensically sound copies of the affected systems for later analysis and legal action.

d. Eradication.

Remove and restore the affected systems.

e. Recovery.

Replace the restored systems back into your IT infrastructure. The team must also monitor to ensure the breach did not affect other systems.

f. Lessons learned.

The last step is to complete the incident report and document what went right and where the team needs to improve processes to address where things went wrong.

The reality is that most small law firms will not be able to staff an IRT. It is important to hire a company that specializes in this field. The cost may seem like an unwanted expense, but if you wait until you are hacked to start the process, you are too late. The Ponemon Institute found in the 2017 Cost of a Data Breach Report12 that U.S. companies did not detect a breach for 206 days. The same report indicated that 53 percent of breaches were discovered by external sources, and that it took 55 days to fully contain a data breach.

I. Additional Resources

• The ABA has a Committee on Disaster Response and Preparedness.13 Their site has a wealth of information that expands on the information provided in this CLE session.

12 Report available from IBM at this link: https://www.ibm.com/security/data-breach.

13 See https://www.americanbar.org/groups/committees/disaster/.

426 • The Sedona Conference, usually associated with eDiscovery, published an Incident Response Guide14 in January 2020. It is free for individuals, judicial education, courthouses, and law schools, but other use requires a $20 royalty per copy.

• SANS Institute has an Incident Handler’s Handbook,15 which is widely used for developing an IRP.

14 See https://thesedonaconference.org/publication/Incident_Response_Guide.

15 See https://www.sans.org/reading-room/whitepapers/incident/paper/33901.

427 JUSTICE THROUGH PEACEMAKING Bonnie M. Brown and Michael W. Hawkins

I. HOW TO EFFECTIVELY NEGOTIATE AND MEDIATE DISPUTES

A. Mediation vs. Arbitration

Mediation is different from arbitration in important ways. First, while mediators and arbitrators are both neutral, arbitrators are responsible for deciding the issue; mediators try to bring the parties together to a mutually agreeable solution. Therefore, the success of mediation depends in large measure on the cooperation of the parties. Where the parties are entrenched in strongly held positions and not open minded, mediation is less likely to succeed. Second, since mediation is a collaborative effort, it does not result in a binding or final decision; arbitration does result in a binding decision. Third, while there is no statutory basis for enforcing an agreement developed in mediation, the FAA and state arbitration statutes govern arbitration. If the agreement is enforceable under state law as a contract, a party can sue to enforce it. Because so much of success in mediation is dependent on the parties and their positions, the parties’ advocates must effectively prepare! For example, informal discovery may be conducted, a sound and credible strategy should be developed, recent case law on the issue of dispute should be consulted, and document production may be important.

B. Is Mediation a Wise Choice

Attorneys and their clients should consider the following factors when deciding whether to pursue mediation to deal with disputes:

1. Cost and time.

Mediation is often much less costly and time-consuming than litigating in court or before administrative agencies. Many times, the costs of litigation could have been used to settle the dispute. Parties need to give serious thought to pre-suit mediation which can be effective and cost efficient.

2. Opportunity for creative resolutions.

Disputes that are litigated or arbitrated are resolved through an imposed determination or judgment. Someone else makes the decision that neither party may like. Mediators, on the other hand, cannot impose a particular resolution to a problem. Rather, the parties can have control over the outcome and assist in fashioning a resolution they can live with. Therefore, more flexibility is afforded to the parties as they attempt to develop an amicable resolution to their dispute.

428 3. Confidentiality.

Most states have laws that govern mediation confidentiality. Generally, these laws prohibit the disclosure of written and oral communications of mediation sessions in a subsequent court or administrative proceeding. An attorney should, however, consult the state laws for the jurisdiction where the mediation session will take place to be certain about the confidentiality of the process. Attorneys should also be aware of the changes that may occur in mediation confidentiality as a result of the Uniform Mediation Act. (The Uniform Mediation Act ("UMA"), enacted by the National Conference of Commissioners on Uniform State Laws ("NCCUSL") in August 2001, serves to universalize the various state laws regulating the confidentiality of mediation.)

4. Likelihood of obtaining a mutually agreeable resolution.

Many parties believe that mediation should not be used to resolve a dispute when they believe there is no chance that the dispute will come to a resolution that is amicable to both parties. If a party is committed to the process and willing to explore resolution of the dispute, mediation can lead to an agreeable resolution.

5. Respecting the process.

Attorneys must ensure their client is authorized to resolve the dispute in mediation. In addition, the client representative should expect to stay with the mediation process through its end, whether settlement is reached or not.

6. Know the parties.

An attorney must recognize that it is their client who has the claim and remember what that claim is. Do not forget who the client is and what they seek to do. Always be clear on this, particularly when attorneys fees are part of it. Again, early resolution works best.

C. Considerations When Preparing for Negotiations and the Mediation Session

1. Interests.

One of the most important considerations when preparing for mediation is the issue of "interests." What are your needs and interests? What are the needs and interests of the other side? Attorneys must define and analyze the issues involved in the dispute by focusing on the interests, not the positions of, the parties. It is unproductive to have the attitude "I'm right and they are wrong." A clear presentation of your client's interests in a mediation statement to the mediator is essential.

429 2. Prioritize.

Attorneys must prioritize their issues in light of their client's needs. Development of strategies and tactics often comes through the discussion of issues. For instance, what are the other party's interests? You need to take good notes and listen. Anticipate the other party's needs, demands, strengths and weaknesses, positions and version of the facts. Consider if there are third parties not directly involved in the mediation whose interests should be considered.

3. Alternatives.

Consider your best and worst alternative to a negotiated agreement. What is the other party's best or worst alternative? It is necessary to ascertain strengths and weaknesses of your case when considering your best and worst alternatives. You need to have a very good idea of, “Where will this dispute go if we don't get it settled in mediation?” Attorneys must develop an initial proposal (with your ideal "wants" high enough to allow room to negotiate); have a fallback proposal (an acceptable alternative proposal); and have a bottom-line proposal (a final option which you absolutely must have).

4. Options.

Brainstorm possible agreements to reconcile interests. Determine courses of action, positions, and tradeoffs; explore a variety of possible solutions. Do this before you go to mediation and during mediation. Mediation will only be effective to the extent that you recognize the parameters of the given situation (what you can expect realistically given time constraints, available resources, legal ramifications, business practices, etc.) Consider asking the other side for options. You may not have all the answers.

5. Objectivity/legitimacy.

Consider what standards or criteria might be used to establish a fair agreement. What "fair" procedure might be used? You must seek to make your proposals reasonable and legitimate. Be prepared for a thorough discussion of the remedy sought. Do you have objective data to support your interest or positions? Does the other side have objective data to support their positions? Be willing to accommodate the needs of the other party. Have ready your facts, documents,and sound reasoning to support your claims, offers or counter-offers.

6. Relationships.

Consider what kind of relationship you would like to have during and after the mediation ends with the other attorney and other party. If

430 your client is a restaurant chain, do you want the other side to eat there in the future? What can you do to develop that relationship?

7. Communication.

What tone do you as the attorney want to set? What tone does your client want to create? What tone do you want to create from the other party?

8. Commitment.

What is your goal for this mediation session? Are you committed? If the mediation is concluded and is successful, what should be included in well-crafted commitments? Having the parties committed to a resolving their dispute through mediation is one of the most important ingredients to a successful mediation.

9. Working with the mediator.

Many lawyers forget that they need to develop rapport and effective communication with the mediator. He or she needs to understand what role you expect of them. Do you want them to be evaluative of the dispute, just facilitate discussion, or tell you and your client the strengths and weaknesses of the case? Have those discussions prior to the mediation and even send out a Preparation Guide for Mediation to both sides to get them thinking about how to make this an effective mediation.

10. The Agreement.

It is imperative that the parties not leave a successful mediation session without reducing the Agreement to writing. Even if it is an outline of the terms signed by the parties it is better than nothing in writing. With technology you can even bring a draft Agreement and fill in the pertinent blanks. Remember to reduce the Agreement to writing and know what each party agreed to in order to settle the dispute.

II. ARBITRATION INTRODUCTION

The use of Alternative Dispute Resolution (“ADR") has become more widespread after the United States Supreme Court’s decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). In Gilmer, the Court held that an employee was compelled to arbitrate his age discrimination claims against his employer pursuant to the arbitration clause contained in a securities registration agreement that he signed. Although Gilmer did not deal with the issue of arbitration agreements in general employment contracts, employers saw the decision as a green light to include such agreements in employment contracts.

In 2001, the Supreme Court addressed that issue in Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), holding that the Federal Arbitration Act (“FAA”) and

431 its policy of favoring, encouraging and enforcing the resolution of disputes through arbitration, did indeed extend to arbitration of matters between most employers and employees (excluding only transportation workers engaged in “interstate commerce”).

Moreover, the Supreme Court spoke again on the issue of arbitration in EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). In this case, the Supreme Court found that the EEOC could bring suit – seeking back pay, reinstatement, compensatory and punitive damages under the Americans with Disabilities Act on behalf of an employee against his employer – even though the employee had signed, at the time he was hired, an agreement to arbitrate all employment disputes.

(The Circuit City and Waffle House decisions are discussed at greater length below.)

A. Arbitration

In the event that workplace disputes cannot be resolved through internal ADR programs or external mediation, employers can submit unresolved disputes to arbitration.

1. While an employer and an employee can in theory agree to submit to arbitration any given dispute, it is preferable to have an agreed, mandatory arbitration plan in advance.

2. When parties decide to arbitrate a dispute, they submit the dispute to an impartial arbitrator or panel of arbitrators for resolution. Unlike the process of mediation, an arbitrator makes a determination of the dispute and the determination is normally final and binding.

3. Even though an arbitrator’s decision may be challenged in court, courts apply a highly deferential standard when reviewing an arbitrator’s decision and generally uphold the award unless there has been fraud, corruption, procedural unfairness or the arbitrator has exceeded his authority.

B. Considering Arbitration

An employer should consider the following factors when deciding whether to require employees to arbitrate workplace disputes:

1. Quantity of potential employment-related lawsuits.

If an employer historically has experienced, or expects in the future to experience, a high number of employment-related lawsuits, arbitrating those disputes instead of litigating them will likely result in lower expenditures of time and money.

432 2. Protection of reputation for vigorously defending adverse claims.

Many employers prefer to litigate rather than settle disputes with their employees to convey the message that they will defend the integrity of their company against adverse claims. Arbitration is enough like litigation, and unlike settlement, to maintain an employer’s reputation for not backing down to employees’ grievances. Arbitration has the advantage of being generally less time consuming and expensive than litigation.

3. Desire to avoid employee-friendly jurisdictions.

If the jurisdictions in which the employer is often sued are employee friendly, an employer may achieve more success by arbitrating employment-related disputes.

On the other hand, an employer who is likely to be sued in an employer-friendly jurisdiction may avoid a significant amount of the time and costs associated with litigation through frequent success on summary judgment.

4. Effectiveness of arbitration given the culture and environment of the workplace.

An employer should be cognizant of how employees will perceive the use of arbitration to resolve workplace disputes. If employees do not trust dispute resolution processes outside of the court, they may be reluctant to agree to submit disputes to arbitration.

C. Drafting an Arbitration Plan: Essentials

As with any ADR program, an employer must ensure that its arbitration program will appear neutral and, in fact, operate fairly from a substantive and procedural standpoint. Some of the things that an employer should include in any arbitration plan to ensure its fairness are:

1. Bilateral policy.

The policy should subject both the employee and the employer to arbitrate certain claims that they may have against each other.

2. Division of costs associated with arbitration.

Employers should ensure that arbitration is a financially viable method of conflict resolution for its employees. Therefore, the costs of the arbitration should be divided in a way that an employee does not have to pay an unreasonable amount, if any amount at all. The Sixth Circuit’s decision in Morrison v. Circuit City Stores, Inc., 317 F.3d 646 (6th Cir. 2003) (en banc) is discussed below.

433 3. Procedure for selecting a neutral arbitrator and the arbitration forum.1

Employers are cautioned to include all the parties to the dispute in the process of selecting an arbitrator and the place where the arbitration is to be held. In addition, the parties should choose an arbitrator that is experienced and trained in dealing with the types of disputes that arise in the workplace.

4. A list of the types of employees by job category that are subject to arbitrating their workplace disputes.

5. A list of types of claims that may be arbitrated.

Even though the list need not be exhaustive, it should provide the employee with an indication of the types of statutory and common law claims that may/must be arbitrated.

6. Ensure the availability of the same remedies that would have been available to the employees had they litigated their claims.

7. Clear notification to employees about their right to be represented at an arbitration hearing.

The policy should allow employees to be represented by counsel at an arbitration hearing. In addition to promoting fairness concerns, employees should be encouraged to be represented by counsel because attorneys will often help the arbitration process to run more efficiently.

8. Ensure that employees are aware of and understand the plan.

To this end, an employer should include a separate signature page in the employment application or contract that specifically references and incorporates the arbitration program.

D. Legal Developments in Arbitration

1. Circuit City case.

As previously noted, the U.S. Supreme Court in Gilmer did not resolve the issue of whether mandatory arbitration clauses in employment contracts were enforceable under the Federal

1 In Garrett v. Hooters-Toledo, 295 F.Supp.2d 774 (N.D. Ohio 2003), the court concluded that an arbitration provision that required the plaintiff to attend an arbitration in Louisville, Kentucky, when her home and place of work was Toledo, Ohio, imposed an unreasonable and unfair requirement on the employee. See also Geiger v. Ryan’s Family Steak Houses, Inc., 134 F.Supp.2d 985 (S.D. Ind. 2001) (administration of arbitration program by one dispute resolution company that was chosen by employer made arbitration agreement unconscionable).

434 Arbitration Act. In 2001, the Supreme Court resolved that issue in the Circuit City case.

Circuit City involved a sales counselor, Adams, with Circuit City Stores, who signed an employment application that explicitly stated that all claims that might arise out of his employment would be submitted to arbitration. The language of the application was clear about the types of claims that would be settled by arbitration, and that the arbitrator’s decision would be final and binding. After two years of employment with Circuit City, however, Adams filed an employment discrimination lawsuit against the company in court, asserting claims under California state law. In response, Circuit City filed an action in U.S. District Court to compel Adams to arbitrate his claims pursuant to the arbitration clause in the employment application he had signed. The district court concluded that Adams was obligated to arbitrate his claims.

Adams appealed the district court’s decision and the Ninth Circuit Court of Appeals reversed the district court, holding that the scope of the FAA did not cover arbitration clauses in employment contracts. Therefore, the court concluded that Adams did not have to arbitrate his employment discrimination claims. Contrary to the conclusion of all the other federal Courts of Appeal that had dealt with this issue, the Ninth Circuit reasoned that the statutory language of the FAA excepted all contracts of employment from its reach.2 Due to the Ninth Circuit’s creation of a “circuit split” on the issue, the Supreme Court agreed to resolve the debate.

The Supreme Court began with an explanation that the FAA was enacted in response to judicial hostility toward the enforcement of private arbitration agreements. From this, the Court reasoned that unless the FAA applied broadly, its purpose would be thwarted. The Court relied upon §2 of the FAA for textual support of the statute’s broad coverage, which states:

[A] written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of a contract.

9 U.S.C. §2. Despite the broad language in §2, the Court recognized that the source of the debate over the FAA’s coverage

2 The Sixth Circuit Court of Appeals had held that the FAA enforces arbitration agreements in employment contracts except for those directly involving transportation workers. Asplundh Tree Expert Co. v. Bates, 71 F.3d 592 (6th Cir. 1995). See Circuit City, 121 S.Ct. at 1306-07 (citing all the Courts of Appeal that have decided this issue).

435 was in the exceptions listed in §1. The relevant portion of §1 of the FAA states that:

nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.

9 U.S.C. §1. In support of the argument that the FAA did not apply to employment contracts, Adams relied upon the phrase, “or any other class of workers engaged in interstate commerce.” The Court, however, reasoned that this phrase is an explicit reference to the categories of “seamen” and “railroad employees” that precede it. According to the Court, the inclusion of the phrase that Adams relied upon simply refers to employment similar in nature to that of seamen and railroad workers – broadly, transportation workers.

The Court concluded that a broader reading of “any other . . . workers engaged in interstate commerce” would defeat the intent of §2 of the FAA. The Court pointed out that when a court interprets provisions of a statute, it should interpret those provisions in light of the whole statute and the purpose behind it, as evidenced by the text. Given these reasons, the Court held that the FAA enforced arbitration agreements in employment contracts except for those contracts affecting transportation workers.

2. An application of Circuit City: employers.

In the short term, Circuit City provides employers with the confidence that valid mandatory arbitration agreements in general employment contracts are enforceable under the FAA. Therefore, employees who sign employment agreements that contain valid arbitration clauses will be obliged to arbitrate any employment law claims that are covered by the agreement.

While mandatory arbitration agreements are enforceable under the FAA, however, the validity of specific agreements may still be challenged based upon internal flaws. To avoid those types of challenges to mandatory arbitration agreements, employers must concern themselves with drafting a contract that (1) has proper consideration, (2) mutuality, and (3) is not unfairly weighted against the employee. To this end, there should be provisions in the agreement that address issues like fee sharing, choosing a neutral arbitrator, appropriate remedies and bilateral applicability.

3. Recent court decisions.

a. In Gaffers v. Kelly Services, Inc., 900 F.3d 293 (6th Cir. 2018), the Sixth Circuit upheld an arbitration agreement that required individual arbitration of claims under the federal Fair Labor Standards Act (FLSA). The Court’s decision

436 follows the rationale of the Supreme Court’s recent holding in Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018).

In this case, the employee filed a collective action under the Fair Labor Standards Act (FLSA) on behalf of himself and other employees similarly situated. About half of the employees in the class signed an arbitration agreement with the defendant stating that individual arbitration is the “only forum” for employment claims, including unpaid-wage claims. As such, the employer moved to compel arbitration under the FAA.

In light of the Supreme Court’s decision in Epic, the Sixth Circuit reversed the district court decision that the National Labor Relations Act (NLRA) and the FLSA rendered the arbitration agreements unenforceable.

In its opinion, the Sixth Circuit quickly dispensed with the argument that the NLRA makes these arbitration agreements illegal because “the Supreme Court heard and rejected these arguments last term in Epic.”

The Sixth Circuit also rejected the argument that the FLSA precludes individual arbitration agreements because it allows collective actions on the basis that the FAA preempts the FLSA. The court reasoned that a federal statute is preempted by the FAA unless there is a “clear and manifest” congressional intent to make individual arbitration agreements unenforceable. The FLSA provision at issue simply provided that an employee can sue on behalf of himself and other employees similarly situated.

In other words, it gives employees the option to bring their claims together. It does not require employees to vindicate their rights in a collective action, and it does not say that agreements requiring one-on-one arbitration become a nullity if an employee decides that he wants to sue collectively after signing one.

Thus, the Court explained, both statutes can be given effect: “employees who do not sign individual arbitration agreements are free to sue collectively, and those who do sign individual arbitration agreements are not.” b. In Aldrich v. University of Phoenix, Inc., 661 Fed.Appx. 384 (6th Cir. 2016), the Sixth Circuit held that under Kentucky law, merely continuing to work for an employer constitutes assent to an arbitration agreement when that agreement is a condition of employment – even if the employee has not signed an acknowledgement form.

437 In this case, two former employees brought claims against the employer for wrongful termination and wage and hour violations. During their employment, all employees received an email informing them that the employee handbook had been updated and requesting that they electronically sign forms acknowledging receipt and acceptance. The acknowledgement included a statement “that the signatory understood and affirmed that both the signatory and the company ‘would arbitrate employment-related legal claims.’” The handbook separately detailed the arbitration terms and included a class action waiver. Notably, it also stated that acceptance of the agreement was a condition of employment. As such, the employer filed a motion to dismiss the case and compel arbitration.

Despite the plaintiffs contending they never electronically signed the acknowledgment forms, the Sixth Circuit affirmed W.D. of Kentucky’s decision to grant the employer’s motion to dismiss the case and compel arbitration. Applying Kentucky law, the court reasoned that “an employee can be bound by an arbitration agreement, even without a signature, when he or she demonstrates acceptance of the agreement by continuing to work for the employer.” In this case, the employees continued to work for the employer after they had notice of the arbitration agreement, thereby accepting the agreement.

The Sixth Circuit emphasized that whether the employees signed the acknowledgement forms was irrelevant, because Kentucky law provides that an employee can be bound by an arbitration agreement, even without a signature, when he or she continues to work for the employer.

4. Enforceability of arbitration agreements in collective bargaining agreements.

In Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), the Supreme Court held that a union could not waive an employee’s statutory rights in spite of a mandatory arbitration clause in a collective bargaining agreement (“CBA”). More recently, in Wright v. Universal Maritime Service Corporation, 525 U.S. 70 (1998), the Court readdressed the issue of the enforceability of a mandatory arbitration agreement in a CBA. The Court, however, was prevented from deciding the issue due to a successful challenge to the validity of the arbitration agreement itself.

In Safrit v. Cone Mills Corp., 248 F.3d 306 (4th Cir. 2001), the Fourth Circuit Court of Appeals held that a provision in a CBA requiring arbitration of statutory claims was enforceable. The Court relied upon language in Wright, which stated that an employee could be compelled to arbitrate statutory claims as long as the waiver of the

438 employee’s right to adjudicate such claims in a federal forum is done in a “clear and unmistakable” manner. See Wright, 525 U.S. at 80.

In light of the decisions briefly discussed above, employers should be aware that a court may allow an employee to assert his/her statutory claims in a judicial forum in spite of an arbitration agreement in a CBA. Regardless of whether a court will enforce an arbitration agreement in a CBA, however, an employer should make sure that the waiver of its employees’ right to sue is “clear and unmistakable.”

5. EEOC’s authority to bring suit against an employer on behalf of employees – the Waffle House decision.

Prior to January 15, 2002, lower courts consistently ruled that the EEOC was not bound by an arbitration agreement in seeking injunctive relief (e.g., reinstatement), but the courts were split on the issue of the EEOC’s authority to seek money damages on behalf of an employee who has signed an arbitration agreement.

On January 15, 2002, the Supreme Court addressed these issues in the Waffle House decision cited above. The Court held that an agreement – between an employer and employee to arbitrate any employment-related dispute or claim – did not bar the Equal Employment Opportunity Commission (EEOC) from pursuing victim-specific judicial relief on behalf of employees in an enforcement action under an Americans with Disabilities Act claim. The facts of Waffle House are straightforward. Waffle House required all of its employees to sign an agreement referring employment disputes to binding arbitration. After the Plaintiff, Eric Baker, suffered a seizure and was fired by Waffle House, he filed a timely discrimination charge with the EEOC.

The EEOC alleged that his discharge violated Title I of the Americans with Disabilities Act of 1990 (ADA). The EEOC subsequently filed an enforcement suit, to which the Plaintiff was not a party. The EEOC’s suit against Waffle House alleged that the company’s employment practices, including Baker’s discharge “because of his disability,” violated the ADA, and that the violation was intentional and done with malice or reckless indifference. The complaint requested injunctive relief to “eradicate the effects of [respondent’s] past and present unlawful employment practices”; specific relief designed to make Baker whole (including backpay, reinstatement, and compensatory damages); and punitive damages for malicious and reckless conduct.

Waffle House petitioned under the Federal Arbitration Act to stay the EEOC’s suit and compel arbitration, or to dismiss the action, but the District Court denied relief. The Fourth Circuit concluded that:

439 1) The arbitration agreement between Baker and Waffle House did not foreclose the enforcement action because the EEOC was not a party to the contract, but had independent statutory authority to bring suit in any U.S. District Court where venue was proper; and

2) The EEOC was not prevented from seeking victim-specific relief in court.

The Supreme Court granted certiorari to resolve this matter. The Supreme Court determined that an agreement between employer and employee – to arbitrate any employment-related dispute or claim – did not bar the EEOC from pursuing victim-specific judicial relief on behalf of an employee in an enforcement action under the ADA. The employee had not engaged in any conduct, such as seeking arbitration of his claim, or entering into settlement negotiations with an employer, that might have the effect of limiting any relief that the EEOC might obtain in court.

The Court based its decision on the fact that the ADA directs the EEOC to exercise the same enforcement powers, remedies, and procedures that are set forth in Title VII of the Civil Rights Act of 1964 when enforcing the ADA's prohibitions against employment discrimination on the basis of disability. Following the 1991 amendments to Title VII, the EEOC was given the authority to bring suit to enjoin an employer from engaging in unlawful employment practices, and to pursue reinstatement, backpay, and compensatory or punitive damages, in both Title VII and ADA actions. Thus, these statutes unambiguously authorize the EEOC to obtain the relief that it sought if it could prove its case against Waffle House.

The Court opined that “[n]either the statutes nor this Court’s cases suggest that the existence of an arbitration agreement between private parties materially changes the EEOC’s statutory function or the remedies otherwise available,” and that “[d]espite the FAA policy favoring arbitration agreements, nothing in the FAA authorizes a court to compel arbitration of any issues, or by any parties, that are not already covered in the agreement. The FAA does not mention enforcement by public agencies; it ensures the enforceability of private agreements to arbitrate, but otherwise does not purport to place any restriction on a nonparty's choice of a judicial forum."

E. Beyond Arbitration – Internal ADR Programs

1. The programs described below are examples of internal, or “in- house,” ADR programs that are suggested by the American Arbitration Association (AAA). See American Arbitration Association, Resolving Employment Disputes: A Practical Guide (2003). The employer, however, is not limited to these suggestions.

440 It is important that any in-house ADR program that an employer chooses to implement (1) has the agreement of its employees, (2) will meet the needs identified within its workplace, and (3) operates fairly. An employer may be creative in designing an ADR program so long as those three concerns are reflected in its development and implementation.

a. Open door policies.

With open door policies, a chain of command is established to deal with employees’ reports of employment-related problems. The chain of command consists of various levels of employees who are trained to deal with sensitive issues that arise in the employment context, such as sexual harassment. Employees are made aware of these designated individuals and the employer’s procedure for addressing an employee’s complaint once it is made.

b. Ombuds person (ombuds).

An ombuds person is a neutral third party from within the company who is charged with the responsibility of investigating employment-related grievances brought by employees. Once a grievance has been investigated, an ombuds recommends a way to settle the grievance.

c. Peer review.

Peer review involves a panel of persons from within the company that work together to address the employment- related complaints of their peers.

d. Internal mediation.

A neutral third person from within the company, trained in mediation techniques, is assigned to help the parties to a workplace dispute discuss and resolve their differences to a mutually agreeable resolution.

2. Benefits of implementing internal ADR programs.

a. Avoids timely and costly litigation.

In-house ADR programs can resolve a vast majority of workplace disputes; thus, the need to resort to litigation is significantly decreased.

b. Privacy.

The potential for public exposure of alleged or actual workplace problems, information and practices is increased

441 when an employment-related dispute is litigated. If disputes are submitted to in-house ADR programs, the likelihood of public exposure is reduced significantly (confidentiality can be a requirement of internal resolution).

c. Addresses the specific needs of the company.

Employment-related problems arise in many different forms and contexts. Contrary to external sources of dispute resolution such as litigation, in-house ADR programs can be tailored to address the variety of workplace disputes that arise in a given employment setting.

d. Early resolution of disputes.

Early resolution can avoid the escalation of disputes that results in litigation and the problems associated with it, including high costs, emotional resistance to compromise, and public exposure.

3. Implementing an internal ADR program.

a. Design.

Employers should utilize legal counsel and/or agencies that work with employers to implement in-house ADR programs. For guidance, employment law practitioners and agencies like the AAA have models and examples of in-house ADR programs that have been used by other employers.

b. Training.

Employers should properly train persons within the company who will help facilitate the ADR program. They should be trained to properly address the types of issues they will be confronted with when workplace disputes are presented to them.

c. Fairness.

Proper implementation of, and training for, an in-house ADR program is essential to its appearance of neutrality and fair operation. If employees do not trust the ADR program, they will not agree to submit their grievances to it for resolution. An in-house ADR program obviously must be readily utilized to generate a reduction in employee lawsuits.

F. External ADR Programs

If internal ADR programs have been exhausted without resolving a dispute, or an employer decides that its company experience or culture does not

442 lend itself to an internal ADR program, employers should consider using external ADR programs like mediation and arbitration to resolve employment-related disputes.

Courts have generally upheld the use of external mediation and arbitration as long as the programs are fair in appearance and operation. The Due Process Protocol and the National Rules for the Resolution of Employment Disputes (NRRED) — which were developed by the AAA and a host of representatives from organizations and agencies that provide, endorse, and/or use ADR programs — provide guidance for employers to ensure that their ADR programs comply with these fairness concerns.

Finally, employers should be aware that their advocates must prepare for mediation and arbitration hearings in similar fashion to trial preparation. For example, informal discovery should be conducted, a strategy should be developed, recent case law on the issue of dispute should be consulted, and document production may be required.

G. Mediation

Mediation involves an impartial third person, external to the company, who facilitates discussion between disputing parties and makes suggestions about how to resolve the dispute. The mediator, however, does not impose any decision upon the parties. The goal of successful mediation is for the parties to reach a mutually agreeable solution to their dispute.

1. Considering mediation.

An employer should consider the following factors when it is deciding whether to implement an external mediation program to deal with disputes that cannot be resolved through the in-house ADR procedures.

a. Costs and time.

Mediation is often much less costly and time-consuming than litigating workplace disputes.

b. Opportunity for creative resolutions.

Disputes that are litigated or arbitrated are resolved through an imposed determination or judgment. Mediators, on the other hand, cannot impose a particular resolution to a problem. Therefore, more flexibility is afforded to the parties as they attempt to develop an amicable resolution to their dispute.

c. Confidentiality.

Most states have laws that govern mediation confidentiality. Generally, these laws prohibit the disclosure of written and

443 oral communications of mediation sessions in a subsequent court or administrative proceeding. An employer should, however, consult the state laws for the jurisdiction where the mediation session will take place to be certain about the confidentiality of the process. Employers should also be aware of the changes that may occur in mediation confidentiality as a result of the Uniform Mediation Act, which is discussed below.

d. Likelihood of obtaining a mutually agreeable resolution.

Mediation should not be used to resolve an employment dispute when it is clear that there is no chance that the dispute will come to a resolution that is amicable to both parties. In addition, mediation should be avoided if an employer knows that it is not willing to offer settlement to an employee.

e. Respecting the process.

Employers must ensure that the person who is sent to represent it in mediation is authorized to resolve the dispute. In addition, the person who is sent to represent the employer should expect to stay with the mediation process through its end, whether settlement is reached or not.

2. Implementing a mediation program.

It is important that an employer’s mediation program reflects fairness concerns. To this end, an employer is encouraged to include the following items in its mediation program policy and make employees aware of the policy. The list, however, is not exhaustive.

a. Careful, fair selection of a neutral mediator.

An employer’s mediation program policies should detail the process for the selection of an external mediator. Employers should consult established, reputable agencies that recommend and/or provide mediators that are experienced and trained in dealing with various workplace disputes.

b. Location of mediation sessions.

The policy should allow mediation sessions to be held at a neutral location.

c. Right to representation.

Employees should be made aware of their right to be represented at a mediation session. The policy should indicate the categories and quantity of persons that are

444 eligible to accompany either party at a session (e.g., one attorney for each party).

d. Allocation offers.

The policy should include how the costs associated with mediation (e.g., mediator’s hourly rate) will be divided (though not necessarily evenly) between the parties. Employers are cautioned to ensure that the choice of mediating a workplace dispute is a financially feasible one for employees.

3. Developments in mediation: Uniform Mediation Act.

The Uniform Mediation Act (UMA) is an effort to universalize the various state laws regulating the confidentiality of mediation. The drafters were representatives of the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Bar Association Uniform Mediation Act Drafting Committee.

The UMA was adopted in August 2001, and its goal is to make mediation communications (e.g., written and oral statements) confidential, but qualifies confidentiality by stating that mediation communications are not subject to discovery or admissible in evidence in a court or administrative proceeding if they are privileged.

Mediation communications are not privileged and may be disclosed when, for instance, they are used to commit a crime or sought to prove certain, limited claims in a future proceeding.

The state laws that currently govern mediation confidentiality vary in the scope of confidentiality afforded to mediation communi- cations. In Ohio, for example, mediation communications are confidential and the exceptions to that confidentiality are limited. The UMA is broader than Ohio’s default rule of confidentiality. Provisions in the UMA change Ohio’s rule from that of a broad non- disclosure policy to disclosure premised upon whether the communications are privileged.

Confidentiality is one, if not the main, value of mediation that has made it the ADR process of choice for the resolution of workplace disputes outside of the courts. If a reasonable amount of confidentiality cannot be guaranteed to the parties entering mediation, the process will not be as effective at resolving disputes.

4. EEOC Mediation Program.

Mediation can be an option even after an employee pursues traditional routes to address his/her employment-related dispute.

445 The Equal Employment Opportunity Commission (EEOC) Mediation Program is one example of this option. See www.eeoc.gov for further information about the EEOC Mediation Program.

Absent a mandatory arbitration clause in an employment contract, an employee who believes he/she has been the victim of employment discrimination may pursue his/her grievance by filing a charge with the EEOC. Before the charge is investigated, however, the parties have the option of mediating their dispute with the EEOC. Either EEOC employees or private mediators facilitate the mediation sessions.

The EEOC Mediation Program has had success avoiding litigation of employment discrimination claims. The source of its success includes all of the advantages of mediation listed above. In addition, the EEOC Mediation Program allows the resolution of many different disputes at one time. For example, if an employee files a charge with the EEOC that alleges more than employment discrimination, the EEOC has the authority to address the employment discrimination charge only. Mediation gives the parties the opportunity to resolve both the employment discrimination charge and the other allegations.

H. Conclusion

An employer should consider the issues listed below when contemplating whether to implement any ADR program and whether internal and/or external resources will be used to facilitate the process.

1. Costs.

Employment disputes constitute one of the largest sources of litigation in the courts today. Litigation is generally expensive and the increase in employment-related disputes will only increase the costs associated with it. ADR is a less costly and time-consuming way to resolve workplace disputes.

2. Privacy.

Unlike the process of litigation, internal and external ADR programs are designed to resolve disputes privately. The private nature of ADR lessens the likelihood of an employer’s reputation being tarnished through public knowledge of its workplace disputes.

3. Variety.

Not all employment disputes are alike; thus, the method of resolution for disputes should accommodate for these differences. The different forms of ADR offer the opportunity for an employer to

446 be creative about the means by which it will attempt to resolve workplace disputes.

4. Potential for more grievances.

The lower costs, decrease in time, and informality of ADR when compared to litigation make it easier for employees to report workplace disputes. Therefore, more employees may be willing to seek remedy for workplace disputes. The increase in grievances, however, may not be as costly to an employer as a few resource- exhausting lawsuits.

5. Fairness (real and perceived).

Once an employer has decided to implement an ADR program, the program must appear and operate in a fair manner, ensuring that employees’ due process rights are realized despite the fact that their grievances are pursued outside of the courts. Employers are encouraged to seek assistance from professionals with experience in ADR in the development of their ADR programs to ensure that their program complies with the law and are best suited to address the employment-related disputes that arise in their workplace.

III. HAVING OUR COLLABORATIVE SAY, THE KENTUCKY WAY

This is an article written by Bonnie M. Brown. It can be found here.

IV. ADDITIONAL COLLABORATIVE INFORMATION/RESOURCES

Collaborative practice is a problem-solving process, not an adversarial one. Successful completion of a collaborative matter requires a corresponding paradigm shift on the part of the team members (parties, counsel, coaches, neutrals.) Dissolution of marriage is the most familiar context in which this type of ADR is used. There is potential application in general civil and commercial matters, especially when maintaining post-dispute relationships is an important value: probate, trusts and estates, healthcare conflicts, employment disputes, construction claims.

• KBA E-425 qualifiedly approved collaborative practice as a type of limited representation. This Ethics Opinion addressed Supreme Court Rules indicated and requires adherence. See also, Persels & Associates, LLC v. Capital One Bank, NA, 481 S.W.3d 501, 508 (Ky. 2016), “…In addition to being reasonable under the circumstances, all agreements which limit representation must be in writing, require the informed consent of the client(s), and must comport with our rules, including the rules of professional conduct.”

• Uniform Collaborative Law Rules and Uniform Collaborative Law Act is available here. It is enacted in several jurisdictions (not Kentucky).

447 • Tesler, Pauline H., M.A., J.D., and Thompson, Peggy, Ph.D., Collaborative Divorce, The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life, Harper Collins Publishers, Inc., 10 East 53rd Street, New York, N.Y. 10022, (2006).

• Webb, Stuart G., Founder, Collaborative Law, and Ousky, Ronald D., The Collaborative Way to Divorce, The Revolutionary Method That Results in Less Stress, Lower Costs, and Happier Kids – Without Going to Court, Hudson Street Press, Penguin Group (USA) 375 Hudson Street, New York, New York 10014, USA, May 2006.

• International Academy of Collaborative Professionals, https://www.collaborativepractice.com/.

448 KENTUCKY CRIMINAL LAW UPDATE B. Scott West

I. SUPPRESSION ISSUES

A. Fourth Amendment Search and Seizure: “Standing” to Assert a Privacy Interest: Dog Sniffs

Warick v. Commonwealth, 592 S.W.3d 276 (Ky. 2019)

The most recent case in the Kentucky Supreme Court’s pack of dog sniff cases is a case which examined the issue of “standing.” By a narrow 4-3 margin and with two vigorous dissents, the Kentucky Supreme Court found that a driver had expectation of privacy sufficient to assert that the officers’ actions infringed upon his Fourth Amendment rights when a K-9 unit was called to check for drugs due to marijuana and a needle being found on a passenger in the vehicle.

Warick and two passengers, Brian and Jessica Bertram, ordered at the drive-thru window at Dairy Queen in Prestonsburg, Floyd County, Kentucky, on June 5, 2014, around lunch time. When Warick pulled to the side to wait for the order, he backed into a parking space with the rear of his vehicle near a grassy area. Meanwhile, a Dairy Queen employee, having seen an open container of beer in Warick’s car, called the Prestonsburg police to report a possible DUI.

At that point a barrage of police force arrived on the scene. Officers had Warick exit the vehicle, and field sobriety tests were performed, which he passed. However, passenger Brian was observed to be fidgety in the car, and thus was removed from the vehicle and searched. He was found to have a marijuana cigarette and a hypodermic needle. Officer Tussey called for a K-9 unit. As it approached the car to do a sniff search, the dog alerted to the grassy area behind Warick’s car, where the officers discovered a baggie of marijuana and a pill bottle about 10-15 feet away from the vehicle. The pill bottle, labeled as containing an antibiotic for Warick, actually contained seven oxycodone pills.

Based upon the contents of the pill bottle, the officers then obtained and executed a search warrant for the car, which revealed a napkin that the officers said appeared to be a drug ledger. Warick was arrested. Based on this, a warrant for a search of his home was obtained, where the police discovered drug paraphernalia, marijuana, marijuana seeds, and marijuana plants.

Warick moved to have the evidence against him suppressed, alleging the items were discovered because the police unduly prolonged the DUI stop. The trial court denied suppression, and the Court of Appeals affirmed, on the grounds that Warick did not have standing (1) to challenge the discovery of the marijuana and pill bottle containing oxycodone in the

449 grassy area at the Dairy Queen, or (2) to raise a constitutional challenge concerning the police actions towards Brian.

The Kentucky Supreme Court reversed the trial court and the Court of Appeals, holding that Warick properly asserted that the officer’s actions infringed upon his Fourth Amendment rights:

A criminal defendant “may only claim the benefits of the exclusionary rule [or the ‘fruit of the poisonous tree doctrine’], if [his] own Fourth Amendment rights have in fact been violated.” U.S. v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Although the aforementioned principle is often referred to as Fourth Amendment “standing,” the United States Supreme Court held in Rakas v. Illinois that whether a defendant can show a violation of his own Fourth Amendment rights “is more properly placed within the purview of substantive Fourth Amendment law than within that of standing,” 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (citations omitted)… Without performing an extensive review, it is safe to say that use of the “standing” concept and terminology continues in Kentucky’s Fourth Amendment jurisprudence. ...

Nevertheless, in a recent unpublished opinion, Schmuck v. Commonwealth, this Court again recognized Rakas’s authority when considering the Commonwealth’s suppression motion argument that the defendant lacked standing to assert an expectation of privacy. 2015-SC- 000511-MR, 2016 WL 5247755, at *4 (Ky. Sept. 22, 2016) (“Nearly forty years ago, the Supreme Court of the United States rejected using the standing doctrine to analyze whether a defendant had a legitimate expectation of privacy.”). Consequently, we identified a three-step analysis for the trial court to conduct on remand to determine whether to suppress the evidence at issue, the first step being to determine whether the defendant had a reasonable expectation of privacy. Id. [Emphasis added.]

With that, the Kentucky Supreme Court ended the antiquated practice of looking for the procedural “standing” to assert a Fourth Amendment right in favor of the current and proper practice of determining whether there exists a reasonable expectation of privacy. The case was remanded for a proper determination whether Warick had a privacy interest which persisted after the police had determined that there was, in fact, no DUI, and that the open beer container had in fact not been drunk by the driver.

450 B. Fourth Amendment Search and Seizure: DUI: Blood Tests

Whitlow v. Commonwealth, 575 S.W.3d 663 (Ky. 2019)

A court order was the equivalent of a search warrant for purposes of seizing a sample of the defendant’s blood, under KRS 189A.105(2)(b), in a DUI related crash involving the death of two pedestrians. The statute expressly states that “[n]othing in this subsection shall be construed to prohibit a judge of a court of competent jurisdiction from issuing a search warrant or other court order requiring a blood or urine test…of a defendant charged [with a DUI]… when a person is killed or suffers physical injury.” However, the statute later provides that in the event of a fatality, the officer shall seek a search warrant for blood or urine testing unless already given by consent.

The Court found that while a court order and a search warrant were not synonymous, in this case there was an affidavit in support of the court order which included numerous facts and observations establishing probable cause to justify the blood test, that none of it was false or misleading, and that probable cause was not contested by the parties. The Supreme Court stated: “The officer obtained a valid search warrant, even though it was labeled as a court order, before the blood test was administered.”

C. Fifth Amendment Miranda Warnings: Suppression of Defendant’s Statements

Easterling v. Commonwealth, 580 S.W.3d 496 (Ky. 2019)

Defendant was a 16 year-old youthful offender charged with the murder of a 17 year-old boy, who was found dead at a vacant house with three gunshot wounds. Easterling was the last known person seen with the victim alive, so the Kentucky State Police and a sheriff’s deputy brought Easterling to the sheriff’s office with his mother. There, Easterling confessed he shot the victim three times, but the confession was later suppressed because the officers did not read Easterling his Miranda rights prior to questioning him. Once he confessed, his mother ended the interview by asking for an attorney, whereupon the police ceased questioning. However, Easterling’s grandfather then joined Easterling and his mother in the interview room, and in a response to a question by his grandfather, Easterling again acknowledged he had shot the victim. What Easterling and his family did not know at the time was that a tape recorder was running.

Easterling moved in limine to suppress the tape, urging two theories. First, that the police violated the eavesdropping statute, KRS 526.020, which provides that a person is guilty of a Class D felony when he intentionally uses any device to eavesdrop, which includes tape recording of someone without the consent of a party present, whether or not he is present at the time. Second, the playing of the statement violated constitutional protections, as Easterling had an expectation of privacy talking to his family alone, and that the acknowledgement to his grandfather was fruit of the poisonous tree, that is, fruit of the interrogation that was suppressed.

451 As to the first issue, the Supreme Court held that a violation of a statute does not give rise to exclusion of a statement unless the statute violated includes the exclusionary rule within the statute; there must be a constitutional violation. As to the second issue, the Court found that being handcuffed in a police station in an interrogation room with a camera mounted on the wall did not raise a reasonable expectation of privacy. His subjective belief was not enough. Quoting a Virginia case, “[h]e had no reason to believe this interrogation room was a ‘sanctuary for private discussions.’”

Also, the statement was not fruit of the poisonous tree because the statement did not flow from repeated police action. Easterling contended that had he not already confessed to the police, he would not have acknowledged the killing to his grandfather. However, under the attenuation doctrine, “if the connection between the illegal police conduct and the discovery and seizure of the evidence is ‘so attenuated as to dissipate the taint [imposed by the original illegality]’ the evidence is not excluded, Segura [v. United States], 468 U.S. at 796, 805 (quoting Nardone v. United States, 308 U.S. 338, 341 (1939)).” An attenuated connection occurs “when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance.” Utah v. Strieff, 136 S.Ct. 2056, 2061 (2016). Here, the intervening circumstance was the termination of the interview by the mother, and the exit of the police. The entry of the grandfather was not furthering the questioning of the police but was a complete change of circumstances.

D. Fifth Amendment Miranda Warnings: Request that Questioning Cease

Bullitt v. Commonwealth, 595 S.W.3d 106 (Ky. 2019)

Defendant, charged with various sex offenses against a minor, was Mirandized and gave an interview in which he did not confess. However, the statements were played in court and painted him in a bad light, e.g., it recorded statements about what he thought about the victim. The Defendant claimed that the interrogation continued after he had invoked his right to remain silent about 20 minutes into the interrogation, and again later. The statements he made were:

Bullitt: “[I]f I'm going to jail, I'm saying, let’s go, you know, that’s all I'm saying, sir. I'm innocent, I'm innocent,”

and

Bullitt: “I’m done talking…whatever y’all got to do man, y’all do it.”

As to the first statement, the Court said that it was ambiguous, and that “a suspect must clearly articulate his desire to remain silent in a manner that a reasonable police officer in the situation would understand that the suspect wished for questioning to cease,” quoting Meskimen v.

452 Commonwealth, 435 S.W.3d 526, 531 (Ky. 2013) (emphasis supplied by the court).

As to the second statement, the Court acknowledged that the statement, viewed on its own, could be viewed as an invocation of the right to remain silent. However, after he said he was done talking, Bullitt continued to talk spontaneously about the case, saying “if I was the rapist…” An invocation may be nullified when the defendant initiates further discussion about the incident. Oregon v. Bradshaw, 462 U.S. 1039 (1983).

Hence, there was no clear invocation of the right to remain silent.

II. COURT PROCEDURES

A. Sixth Amendment Fast and Speedy Trial

McLemore v. Commonwealth, 590 S.W.3d 229 (Ky. 2019)

Defendant was one of two persons tried for a murder, with two others having pled guilty and agreeing to testify against the two who went to trial. Defendant was originally indicted on September 11, 2014 and was re- indicted so that other defendants could be added in May 2015. He ultimately was tried in February 2017, more than 29 months after his initial arrest and indictment. In deciding whether his constitutional right to a fast and speedy trial had been violated, the Court applied the four-factor test of Barker v. Wingo, 407 U.S. 514, 515 (1972):

1. Length of delay: Twenty-nine (29) months; while no precise amount of time is presumptively prejudicial, the Court held that 29 months amounted to presumptive prejudice in this case.

2. Reasons for the delay: This was a “complex case.” The delays in this case were due to the reindictment of the defendant, along with other co-defendants, and the length of time it took for the Commonwealth to complete discovery. However, there was no evidence that the Commonwealth was purposefully delaying its investigation and production of discovery in this case, and was not a deliberate attempt that should be heavily weighted against the Commonwealth. They held that the delay in a complex murder case with many co-defendants and witnesses was valid and justifiable. Another reason for the delay was the Commonwealth had elected to sever one of the defendants and try him separately and first, a decision with which McLemore agreed. The Court said that this was an acquiescence to the delay and was attributable to both parties.

3. Defendant’s assertion of his FST right: McLemore asserted a fast and speedy trial right numerous times. “However, this Court has previously found that where a defendant agreed to an order delaying his trial by as little as one month, it ‘cast doubt on the sincerity of his demand for a speedy trial.’” Stacy v. Commonwealth, 396 S.W.3d 787, 798 (Ky. 2013). Again, the Court

453 pointed to McLemore’s agreement that Dunn be tried first, without a date certain being set for his own trial. This was not a “vigorous” assertion of his FST right.

4. Actual prejudice: Although McLemore was unable to make bail, and unable to assist in his own defense, there was no evidence that he was actually prejudiced by the delay, or that his defense was impaired. He asserted that the delay allowed the Commonwealth to strategically improve its own case, but he could not point to anything that was evidence of an inability to prepare for his case. Again, for the third time, the Court pointed to the fact that he agreed to delay his own case so that a co-defendant might be tried first. (In actuality, that defendant did not try his case, but pled guilty and testified at McLemore’s trial).

Thus, three of the four factors weighed against the defendant, and his FST right was deemed not violated. It would appear that to properly preserve a FST right, the defendant needs to assert his right, repeatedly, and take no position contrary to that right, no matter how reasonable it might be to agree to any delay, however slight.

B. In Camera Testimony

Howard v. Commonwealth, 595 S.W.3d 462 (Ky. 2020)

Jury instructions; unanimous verdict; invited error: Defendant was charged with first-degree unlawful transaction with a minor, first-degree sodomy, and first-degree sexual abuse. In the course of the defense, Howard’s defense counsel, who was able to see that the victims had juvenile records but was unable to see what was in those cases, wanted a juvenile specialist to look at the juvenile’s records to see if they contained any exculpatory evidence or information. However, the argument was vague regarding how the dispositions in those cases were relevant to the defense or exculpatory, and the court denied the motion. “In the case before us, the trial judge found that Howard did not make the preliminary showing of a reasonable belief that the juvenile court records contained exculpatory evidence. Therefore, he never proceeded to the second step and did not review the requested records in camera.” The Supreme Court found that the trial court had not abused his discretion in denying in camera review.

During the trial, two of the juvenile victims were allowed to testify in camera in chambers, outside the presence of the Defendant. The Commonwealth cited to KRS 421.350, which applies only to sexual offenses, for the most part, where the sexual act is alleged to have occurred when the child was 12 or younger. A discussion was held at the bench, with the “white noise” machine turned on and Mr. Howard seated at the defense table, unable to hear. The defense attorney at the bench conference did not object to the taking of testimony in this manner, and the testimony was telecast to the jury. The Supreme Court found that this was not palpable error, as any objection to a Confrontation Clause violation was waived by the attorney, and “[w]hen, as here, a party not only forfeits an error by failing to object to

454 the admission of evidence, but specifically waives any objection, the party cannot complain on appeal that the court erroneously admitted that evidence,” citing Tackett v. Commonwealth, 445 S.W.3d 20, 29 (Ky. 2014).

C. Death Penalty Trials: “Roper-Extension” for 21 Year-Olds Not Justiciable Commonwealth v. Bredhold, 2020 WL 1847082 (Ky. Mar. 26, 2020) The Kentucky Supreme Court declined to extend the holding in Roper v. Simmons, 543 U.S. 551 (2005), the U.S. Supreme Court opinion that proscribes the execution of juvenile offenders over 15 but under 18 years of age based upon science which shows that the brain had not fully formed, to a case involving a defendant who was 18 years and five months old at the time of the murders of which he was charged. The Court held that the case was not justiciable, and the defendant had no standing to assert the claim, because he had not yet been convicted, much less sentenced, and thus it was impossible to prove in advance that the judicial system would lead to any particular result.

D. Death Penalty Trials: Intellectual Disability White v. Commonwealth, 2020 WL 1847086 (Ky. Mar. 26, 2020) Defendant who had been given the death penalty attempted, pro se, to waive a pending evidentiary hearing to determine whether he suffered from an intellectual disability sufficient to preclude him from being given the death penalty. The Supreme Court held that Atkins v. Virginia, 536 U.S. 304 (2002), and its progeny – extending to Moore v. Texas, 137 S.Ct. 1039 (2017) – create an absolute, unwaivable bar against imposing the death penalty on the intellectually disabled.

III. JURY ISSUES

A. Jury Selection: Exercise of Jury Strikes for Cause

1. Floyd v. Neal, 590 S.W.3d 245 (Ky. 2019).

A civil medical malpractice case has changed the way that we now preserve error in criminal cases whenever there is a claim that the judge has failed to properly strike a juror for cause. The Kentucky Supreme Court had previously held that the procedure is the same in civil and criminal matters, and in fact, this case overruled a criminal case, Sluss v. Commonwealth, 450 S.W.3d 279 (Ky. 2014).

Prospectively (because the case does not have retroactive application), if you move to strike a juror for cause and the motion is denied, you are required to do the following to preserve the issue:

a. Strike that juror using a peremptory strike on the strike sheet;

455 b. Exhaust all peremptory challenges on other jurors;

c. Identify on the strike sheet the juror that would have been struck had you not had to use the peremptory to remove the juror that you believed should have been stricken for cause. (Note: This is the process for every juror for which a strike for cause was denied. If you think the judge should have stricken three people for cause, but did not, then you have to designate three different individual jurors which would have been struck but for the denial of a these strikes for cause.);

d. This must be done on the strike sheet before the strikes are submitted. You can no longer put it on the record orally, as the Court had permitted in Sluss;

e. Finally, you cannot designate more additional strikes than there were for cause challenges that were denied.

The Court’s reasoning is that you are only entitled to relief in a jury selection error if it would have made a difference in the composition of the jury. Assuming three strikes for cause were denied that should have been granted, and you had to use three peremptories to get rid of those jurors, it will only be reversible error if one of the persons that you would have stricken with a peremptory strike actually ends up on the jury. If those three were not drawn (or happened to have been struck by the prosecutor), then it is “no harm, no foul.”

As for why you must identify on the strike sheet those you would have stuck – rather than identify them by speaking their names on the record – there is no way an attorney can “change his mind” after the fact to pick someone who did end up on the jury. This method ensures that you identify those you would have struck in advance.

2. Ward v. Commonwealth, 587 S.W.3d 312 (Ky. 2019).

This case involves convictions of multiple counts of third-degree rape and sodomy, and first-degree sexual abuse. Defendant was sentenced to 70 years. During voir dire, one of the prospective jurors answered in response to a question that she had been raped between 2000 and 2001, when she was 17 years old. When asked why the perpetrator had never been charged, she began to cry and stated that she had never reported the rape because she was only 17 and was not supposed to be at the place where the crime occurred.

When the prosecutor asked her if she would be able to put aside her own experiences and focus only on the facts of the case, she made the following statement: “I would really like to think, that as a mother and as a woman that it would be an honor and a duty to do

456 that, knowing the statistics of unreported abuse and rape, that’s what I am sitting back in my bench evaluating.” In response to further questioning as to whether she could be a neutral juror and not form any opinions until the case was over, she said – after a 16 second pause and fighting back tears – “I believe so, I believe I can do it.”

The Supreme Court held that the juror should have been struck for cause:

Though we acknowledge that the decision to strike a juror for cause in the face of the juror’s claims that she could look objectively at the case is a difficult one, this Court is constrained to conclude that the trial court nevertheless abused its discretion in not striking Juror 277 for cause. The totality of the circumstances indicates that there was reasonable ground to believe that Juror 277 could not render a fair and impartial verdict on the evidence. Despite the rape occurring some sixteen years before this case and the fact that she had “moved on with [her] life,” it was apparent from Juror 277’s demeanor in answering defense counsel and the Common- wealth’s questions that she had suffered a significant degree of trauma. Juror 277 initially stated that she “would really like to think” that she would be able to set aside her experiences and focus only on the facts of the case, but she then stated that she was still “evaluating” that. And, even though she eventually told the prosecutor that she “believe[d]” that she could be a neutral juror, it was only after a significant pause and sigh and several moments of holding back tears.

Of special note is the court’s reliance upon the juror’s demeanor, which can only be assessed if the voir dire is on the video record for the appellate court(s) to see. This case illustrates that it is best, in close cases, for a juror to be struck for cause rather than try to keep rehabilitating an obviously reluctant juror.

B. Juror Removal

1. Eversole v. Commonwealth, 2020 WL 2091860 (Ky. Apr. 30, 2020)

This was a first-degree fleeing and evading, first-degree wanton endangerment and first-degree PFO case, where the jury sentenced the defendant to 20 years. During the trial and prior to deliberations, one of the jurors approached the bench and asked to speak with the judge. In a bench conference that was neither heard nor attended by the defendant, his counsel, or the Commonwealth, the juror informed the judge that she had been approached by a

457 man with a beard in an orange shirt, who offered her $50 to change her “jury selection,” but did not otherwise indicate if he wanted her to vote guilty or not guilty. The juror was not admonished not to talk with the other jurors about the incident and was not told to not consider what had happened during deliberations. Nothing more was said.

The Supreme Court ruled that since the defendant was not afforded the opportunity to question the juror to determine whether her interaction with the man in the parking lot had biased her for or against either party, structural error existed as the Sixth Amendment right to an impartial jury was denied. “Regardless of whether the information ultimately proved insignificant, based on what it appeared the bailiff related to the trial court, counsel should have been included in the conversation from the outset.”

2. Wright v. Commonwealth, 590 S.W.3d 255 (Ky. 2019)

In this case, the defendant was charged with molesting a five-year old girl, which the Court calls “Tammy,” not her real name. The Court sat a jury, including an alternate. After the testimony of the first witness, which was Tammy’s father, the Court recessed for lunch. After lunch, defense counsel reported that several persons had raised issues concerning “Juror C,” that (1) at lunch, Juror C had expressed she knew the defendant, Wright, (2) she had sat with the victim’s family at lunch at Subway, and (3) she hugged the victim’s father on the way out the door. The judge, outside the presence of the jury, then asked Juror C about the allegations. Juror C said she did not know Wright, but she knew Wright’s sister-in-law. In response to being asked why she didn’t speak up during voir dire, she said she was going to, but counsel moved on with another question before she could. In any event, defense counsel agreed that knowing the Defendant’s sister-in-law would not have been enough to exclude her for cause during voir dire. As for sitting at the same table, she stated that she did, but that three tables had been pushed together, and when Tammy’s father sat down at the other end, she did not object. They otherwise did not talk to each other. Finally, Juror C stated that it was another woman she did not know that Tammy’s father had hugged, not her. Based on all of this, the defense counsel moved for a mistrial. The judge then called the rest of the jury together and asked them if they had received any improper information from Juror C, and they all expressed they did not. The Court then, without making any factual findings, denied the mistrial, declared Juror C an alternate, and dismissed her, leaving enough jurors to finish the case.

On appeal, the defendant asserted that a mistrial should have been granted. The Supreme Court noted first that any complaint that Juror C should have been dismissed for cause based upon her knowing the defendant’s sister-in-law was waived, and in any event cured by the dismissal of the juror. Second, the trial court did not

458 commit reversible error by dismissing the juror instead of granting a mistrial. A court has very broad discretion when granting a mistrial, and “abuses its discretion only when it acts arbitrarily, unreasonably, unfairly or in a way that is unsupported by sound legal principals.” Mistrial is an extreme remedy that should be resorted to only when “the prejudicial effect can be removed in no other way.” Given that the other jurors – who are presumed to have testified truthfully in the absence of any evidence that they did not – stated they had not learned any inappropriate information from Juror C, there was no reason to grant such an extreme remedy, and that dismissal of her from the jury cured any defect.

C. Jury Deliberations/Allen Charge Issue

Wright v. Commonwealth, 590 S.W.3d 255 (Ky. 2019)

The Court also held that where the trial court had read the Allen charge to a deadlocked jury, twice, the trial court did not “coerce” the jury into a verdict. There is a difference between forcing deliberations and forcing a verdict. In this case, after the jury reported it was deadlocked for a second time, the foreperson stated that he believed further deliberations would be beneficial. The response to the jury by the court – which included a statement that “none of us is asking for an arm twisting” – could not be considered coercive.

IV. EVIDENCE

A. Evidence of Extreme Emotional Disturbance

Posey v. Commonwealth, 595 S.W.3d 81 (Ky. 2019)

Posey was convicted of murder for killing PJ, a former friend, who had gotten involved in a relationship with Posey’s girlfriend by whom Posey had fathered two children. Prior to the murder, on March 28, 2016, Posey had actually called a circuit judge, stating that he did not care if he went to the penitentiary or the graveyard, but he refused to let someone keep disrespecting him. The judge tried to reason with Posey, arranged immediately counseling for him and called the sheriff. As a result, the sheriff monitored Posey’s Facebook account and observed threatening comments throughout the past year toward PJ, where Posey posted things like “you can’t hide forever,” swearing on his life that PJ was going to die, and that he would get PJ before PJ got him. On July 24, Posey finally found PJ in a game room playing dice, where he entered in and shot PJ five times.

At trial, Posey asked for an instruction on extreme emotional disturbance, which if granted and found by a jury would have reduced the murder charge to first degree manslaughter. Among the evidence in support of an EED instruction, Posey pointed to his knowledge that his girlfriend had become pregnant by PJ, and that this was the “triggering event.” The Commonwealth argued that the evidence showed that he thought she was pregnant in March, several months before the murder, and that in fact, the

459 child was born in February 2017 meaning it was impossible that she was pregnant in March.

In holding that EED was unavailable as a mitigator, the Supreme Court held:

To summarize, to be entitled to an EED instruction, Posey must prove there was a sudden and uninterrupted triggering event, he was extremely emotionally disturbed as a result, and he acted under the influence of that disturbance. The reasonableness of a claim of EED is evaluated subjectively from the defendant’s point of view. Holland v. Commonwealth, 466 S.W.3d 493, 503 (Ky. 2015) (citing Spears v. Commonwealth, 30 S.W.3d 152, 154 (Ky. 2000))…

This March 28, 2016 conversation indicates that four months prior to the murder Posey had considered taking action against either PJ or Chelsea that could cause him to end up in jail. This phone conversation clearly undercuts the idea that Chelsea and PJ’s relationship and the pregnancy were so sudden or shocking as to override his judgment and compel him to kill PJ. He expressly considered taking extreme action well before Chelsea became pregnant or he knew of her pregnancy.

Further, there is nothing indicating that Posey’s state of mind was temporary. The Commonwealth introduced Facebook posts and text messages from Posey to PJ that involved numerous threats on PJ’s life. In a June 2015 reply to PJ’s mother identifying PJ in a photo, Posey commented “look good in a casket…”

Posey did not present sufficient evidence of the circumstances surrounding this situation to merit an EED instruction, and accordingly, the trial court properly denied the request to instruct the jury on first-degree manslaughter.

B. Evidence of Wantonness in Fleeing and Evading/Wanton Endangerment

Culver v. Commonwealth, 590 S.W.3d 810 (Ky. 2019)

It is evidence sufficient to avoid a directed verdict of not guilty on charges of first-degree fleeing or evading police in a vehicle and first-degree wanton endangerment where the person is speeding, but otherwise not driving recklessly, on a curvy road in the dark.

C. Tampering with Evidence

Commonwealth v. James, 586 S.W.3d 717 (Ky. 2019)

In a case of first impression, under KRS 524.100, a person is guilty of tampering with physical evidence if, among other things, that person “conceals” or “removes” physical evidence which that person believes is

460 about to be produced or used in an official proceeding with the intent to impair its verity or availability in the official proceeding. The Supreme Court granted discretionary review in this case to determine whether sufficient evidence of concealment or removal exists where a defendant, in the presence of an officer, drops or tosses physical evidence of a possessory crime. In this case, an officer had issued a verbal warning to stop to the defendant, who was walking away from an officer. As he was walking, the officer observed several items falling from the defendant’s waistline area, including a black cylindrical item which ultimately would prove to be a diabetic strip canister owned by the defendant. Also, in the area was a glass pipe with meth residue. The Court found that the result of finding this to be tampering would impose too harsh a result:

While it could be argued that the terms remove and conceal are so broad on their face as to include a person’s act in dropping or tossing evidence with their back turned to an officer, such a reading would “lead to results that are inexplicably harsh.” The General Assembly chose to make the tampering with physical evidence a Class D felony. And if the words conceal or remove are interpreted so broadly, “then minor possessory offenses would often be converted to felonies with little reason.” While James’s initial possessory charges could hardly be considered minor, it is not difficult to imagine a case where a person under 21 who is in possession of alcohol drops the alcohol when he is approached by an officer. In such a case, that person’s Class B misdemeanor could readily be converted into a Class D felony for tampering with physical evidence. Considering our long-held rule that “[d]oubts in the construction of a penal statute will be resolved in favor of lenity and against a construction that would produce extremely harsh or incongruous results or impose punishments totally disproportionate to the gravity of the offense,” we cannot conclude that the General Assembly intended the tampering statute to be read as broadly as the Commonwealth contends.

D. KRE 403 More Prejudicial than Probative Evidence: Images of Child Pornography

Helton v. Commonwealth, 595 S.W.3d 128 (Ky. 2020)

In this child pornography case, the defendant was charged and convicted of downloading child pornography. Though the case gives an explicit description of five videos, suffice it here to say that the events depicted were beyond unspeakable. Though the videos were longer, the trial judge allowed the jury to see 20 seconds combined TOTAL from the five videos. These videos were shown to the jury in spite of the defense’s offer to stipulate that they were illegal child pornography. Pursuant to Hall v. Commonwealth, 468 S.W.3d 814, 824 (Ky. 2015) “[w]hen there is already overwhelming evidence tending to prove a particular fact, any additional

461 evidence introduced to prove the same fact necessarily has lower probative worth, regardless of how much persuasive force it might otherwise have by itself.” However, the Commonwealth is not obligated to accept a stipulation, and in the absence of the stipulation, the videos were highly probative of the fact that they did contain child pornography, an element necessary for the Commonwealth to prove. While still subject to KRE 403 analysis, the Court found that the trial court’s reduction of the five videos to 20 seconds was not an abuse of discretion.

E. KRE 404(b) Evidence

Roberts v. Commonwealth, 2020 WL 1846881 (Ky. Mar. 26, 2020)

In this murder case, the Supreme Court held that the trial court abused its discretion in not granting a mistrial, but instead allowing into evidence some recordings of police interviews with the defendant, wherein there were repeated references to a prior assault the defendant had committed 14 years prior to the victim’s death. In the instant case, as in the prior assault, she had stabbed her then-boyfriend with a steak knife after the two had been involved in an argument. The trial court found that this was evidence of absence of accident, motive and intent under the exceptions contained in KRE 401(b)(1). However, the trial court instructed the Commonwealth that it had to use non-hearsay evidence to establish the prior conviction, and the Commonwealth responded by saying that it would have an officer from Fulton County present to testify to the prior assault.

However, the Supreme Court held that similarity is not enough when dealing with assaults of persons other than the present victim:

While the trial court was correct that the facts surrounding Roberts’s former stabbing of a boyfriend were somewhat similar to those in her stabbing of Pinion, it erred in determining those similarities made the evidence admissible. We addressed this issue in Driver v. Commonwealth, 361 S.W.3d 877 (Ky. 2012). In Driver’s trial for charges arising from the assault of his current-wife, the Commonwealth sought to introduce evidence that he had assaulted his former wife twelve years earlier. Id. at 885. In that case, we noted that “[b]ecause prior acts of violence or threats of violence against persons other than the victim in the case on trial have significantly less probative value than similar prior acts and threats against the same victim, as a general rule ‘specific threats directed against third parties are inadmissible.’” Id. at 885-86 (quoting Sherroan v. Commonwealth, 142 S.W.3d 7, 18 (Ky. 2004)).

While an abuse of discretion, that alone did not prejudice Roberts. But the tape continued to be played with multiple references to the prior assault made, some muted, some not, and some objected to and some not. The court gave some admonitions to the jury to disregard the testimony. A total of four motions for a mistrial were made. At one point, the trial court

462 responded to an objection by saying that it had missed the testimony of the prior assault, and if he had, then the jury probably had also. However, a question was submitted by the jury during deliberations which asked if they could consider the portions of the tape referring to the prior assault which were not muted, not objected to, and for which there was no admonition to disregard. All of this combined to prejudice Roberts’ right to a fair trial.

F. Evidence of Domestic Violence

Roberts v. Commonwealth, 2020 WL 1846881 (Ky. Mar. 26, 2020)

After conviction of murder, at sentencing Roberts sought application of the domestic violence exemption for parole eligibility pursuant to KRS 403.720. The trial court held a hearing on the motion, reviewed the evidence from the trial of domestic violence, and ultimately ruled that there was an insufficient nexus between the domestic abuse perpetrated by the victim upon the defendant, and the murder of the victim. The evidence of domestic violence included (1) being struck with a folding knife, hard enough to permanently damage her hearing, and (2) being hit and slapped by the victim on occasion, (3) withholding of medicine from Roberts, and (4) controlling Roberts’ spending by taking control of her money.

In finding that the exemption should be applied, the Court found that the long history of domestic violence was not enough to trigger the exemption, but the events which occurred on the night of the murder – which included the taking of Robert’s money by the victim – were:

Pinion taking Roberts’s money was, itself, an act of domestic violence – it was a means through which he exacted control. If Pinion were trying to take Roberts’s money from her again when she stabbed him, this would have been a further act of domestic violence – and could have potentially amounted to robbery. The trial court’s ruling that the dispute over money was not domestic violence was erroneous.

G. Evidence of Trafficking

McGuire v. Commonwealth, 595 S.W.3d 90 (Ky. 2019)

In a drug trafficking case, where the defendant was found in possession of eight unused small plastic baggies, money in small denominations, two baggies containing marijuana and over 2.6 grams of meth, it was not error to allow the apprehending officer to testify that, in his opinion, such amounts of drugs were inconsistent with personal use, and the lack of any spoon or needle on the person of the defendant was consistent with someone trafficking in drugs. This was not testimony as to an “ultimate issue,” which would have invaded the province of the jury, because it was testimony that was consistent with a fact, not a belief in the guilt of the person of that offense.

463 H. “Testimonial” Evidence under Sixth Amendment Confrontation Clause

Beard v. Commonwealth, 581 S.W.3d 537 (Ky. 2019)

In this first-degree burglary, second-degree assault case, two pieces of evidence came into trial for which no objection was made, and the Supreme Court engaged in “palpable error” analysis to determine whether reversal was warranted. The first evidence was admitted when the police played an interrogation tape of the defendant, and within the tape the police stated that four witnesses had made statements against Beard, and all would testify against him. However, one of the witnesses did not actually testify, and thus was not subject to cross-examination, in violation of the confrontation clause as interpreted by Crawford v. Washington, 541 U.S. 36 (2004). The Commonwealth argued that the statements were not “testimonial” because they were not offered for the truth of the matter asserted. The Supreme Court disagreed; however, the Court found no palpable error in admitting the statement of two witnesses. Reversal due to palpable error can occur when the reviewing court “believes there is a substantial possibility that the result in the case would have been different without the error, or the error is so fundamental as to threaten a defendant’s entitlement to due process of law.” Taken in context with all the other evidence, which includes three other witnesses who did testify, the Court could not conclude that the admission of the evidence constituted the necessary prejudice to constitute manifest injustice.

The second piece of evidence that came in was the prosecutor’s statements during closing arguments in the penalty phase concerning parole eligibility. The prosecution did not actually call a probation officer as a witness, but nevertheless described, incorrectly, the parole eligibility guidelines for a first-degree burglary conviction. In essence, the prosecutor falsely described the parole eligibility as “non-violent,” and that the defendant would be parole eligible after serving only 20 percent of his sentence. Defendant did not object. In the overall case, the jury was told that he would be parole eligible after six years, when in fact it would be 17 years. Since Beard got the maximum sentence of 30 years, the Court believed that the jury was in fact influenced by the false parole eligibility testimony of the prosecutor. Hence, palpable error was found, and the case was remanded for a new penalty phase only.

V. EXPERT TESTIMONY

A. DUI Field Sobriety Tests

Iraola-Lovaco v. Commonwealth, 586 S.W.3d 241 (Ky. 2019)

In DUI cases, it is well established that testimony regarding field sobriety tests (FSTs) is admissible. However, in this case, where the police testified that the defendant had “failed” the “tests,” the defendant argued on appeal that use of the terms “test,” “pass” and “fail” lent the police officer’s lay witness testimony an “aura of scientific validity” implying reliability and transforming the testimony into expert witness testimony. Unfortunately,

464 the defendant did not object to this at trial, nor challenge the ability of the officer to properly administer the test. The Supreme Court adopted the language of a Kansas opinion and held that:

[W]here officer testimony does not link test performance with a specific level of intoxication, the mere use of the term “test” or an indication by the officer that the defendant failed to perform the tests adequately and, therefore, “failed” the test does not lend scientific credibility to the test results. There is only a semantic difference between “field sobriety test” and “field sobriety exercise”… [citing State v. Shadden, 290 Kan. 803, 235 P.3d 436, 453-54 (2010) (citation omitted)].

Here, Officer Bellamy did not equate a level of certainty or probability to his opinion that Iraola-Lovaco was intoxicated, or correlate Iraola-Lovaco’s performance on the FSTs with a specific BAC level. Rather, Officer Bellamy testified that based on his training, experience, and personal observations, Iraola-Lovaco’s performance on the FSTs led Officer Bellamy to opine that he was intoxicated.

The upshot of the case is that if the officer testifies that the failure of the FSTs are linked to a particular blood alcohol concentration, and if the attorney objects, the result would be that the testimony should be excluded at trial (absent qualifying the police officer as an expert).

B. Independent Expert Assistance on Mental Issues/Insanity Defense

Conley v. Commonwealth, 2019 WL 3503785 (Ky. Jul. 5, 2019)

(This case is listed on Westlaw as not final, and not to be cited as authority; however, on the Court’s online step sheet, finality occurred on July 25, 2019.) This was a homicide and a public defender case, and the public defender sought funds for an independent mental health expert under KRS 31.185. Conley had no memory of the events of the evening in question, when Conley had stabbed her mother to death, and had a lengthy history of various mental illnesses, including bipolar disorder, disassociation, depression, PTSD, anxiety and panic attacks. Plus, the nature of the murder (77 stab wounds, 27 incise wounds, and bite marks) raised clear indications that there were potentially significant mental health issues involved. In fact, insanity would prove to be the defense in the case.

The trial judge denied the motion for funds, and instead ordered the patient to Kentucky Correctional Psychiatric Center (KCPC). The judge “repurposed” KCPC doctor, Dr. Trivette, to assist the defense. However, the doctor “changed sides,” and became a witness against Conley. Thereafter, the judge changed her mind, and allowed Conley’s public defender to hire Dr. Ed. Conner as an expert. Although initially denying the Commonwealth access to Dr. Trivette’s report, to rebut Dr. Conner’s report, ultimately the judge allowed the Commonwealth to have a copy, thereby switching Dr. Trivette from Conley’s side to the Commonwealth’s side.

465 The Supreme Court found reversible error both in the denial of the expert funds for an independent expert, and in allowing the Commonwealth to have Dr. Trivette’s report, when she had been “repurposed” as a Commonwealth’s witness: “A person of means would not now be in this side-switching predicament.”

As for the judge’s rulings, the Supreme Court took ownership of the mistakes that were made, noting that the trial court’s rulings “perhaps were understandable due to the lack of clearer guidance from the appellate courts concerning how situations such as this should be approached.” The Court then expounded upon the difference between a defendant being sent to KCPC for a competency to stand trial examination (in which case it is the court’s expert) and the need for independent expert assistance asserting a mental defense.

C. Cell Tower Testimony

Torrence v. Commonwealth, 2020 WL 1303912 (Ky. Feb. 20, 2020)

A police officer who presents testimony and evidence of historical cell- phone tower pingings, and shows them on a Google map, but who does not otherwise interpret them or testify that they mean the defendant was in a certain location or not, is not giving scientific or technical evidence, and need not be qualified as an expert. This testimony is proper as lay opinion testimony. If the defense believes that the historical cell-tower data is flawed or leads to a conclusion that is counter-intuitive to what the cell- tower data shows, he may call his own expert for that.

In summary three neighboring states, Ohio, Tennessee and Indiana permit lay testimony for marking maps with data from cell phone records. The defense can cross examine the witness as to the reports and underlying data as well as contest the maps. The defense can call expert witnesses that arrive at different conclusions based on the same data …

All three state courts were clear that analyzing data from the records and explaining what it means beyond simply marking coordinates on a map, requires an expert. We agree with our sister states’ conclusions: marking points on a graph – in these cases a map – based on a cell phone report including latitude and longitude of cell towers, does not require an expert.

We emphasize that this new rule with respect to the use of lay testimony to present historical cell-tower data is limited in its application. Our holding today is that lay testimony may be used to present historical cell-tower data so long as the testimony does not go beyond simply marking coordinates on a map. If the witness seeks to offer an opinion about inferences that may be drawn from that information, that

466 witness must be presented as an expert witness under KRE 702 (for example, if a witness seeks to provide an opinion as to the location of the cell phone during the relevant time based on the plotted coordinates).

VI. JURY VERDICT ISSUES

A. Unanimous Verdict: Invited Error

Rudd v. Commonwealth, 584 S.W.3d 742 (Ky. 2019)

Rudd was charged with only one count of first-degree sexual abuse. However, at trial, the victim testified to two events, one which occurred at 4:00 a.m. on March 19 and the other at 6:00 a.m. on March 19, either of which would constitute sexual abuse first-degree. The instruction given by the court allowed the jury to find sexual abuse first if they found that Rudd had subjected the victim to sexual contact on March 19, without making the jury specify whether it was at 4:00 or 6:00 a.m. Rudd not only did not object to this instruction for lack of unanimous verdict, but in fact tendered the exact same instruction for use by the court. Thus, the objection was waived because the defendant “invited the error.”

B. Double Jeopardy

Breazeale v. Commonwealth, 2020 WL 2091814 (Ky. Apr. 30, 2020)

Convictions for first-degree assault and first-degree criminal abuse did not violate the double jeopardy prohibition, where, at the hands of the defendant, a child sustained life-threatening injuries including injuries on his face and body and a bleeding abdomen. Each crime contains an element that the other does not have. First-degree assault, as defined in the instructions, required a finding that the defendant used a dangerous instrument in causing the injuries to the child, and there is no requirement that the person injured be of any certain age. First-degree criminal abuse does not require a finding that a dangerous instrument was used, but does require that the victim be aged 12 years or younger. Since each crime had a required element that the other did not have, the test of Blockburger v. U.S., 284 U.S. 299 (1932) was satisfied, and the defendant was not placed in double jeopardy.

VII. POST-CONVICTION ISSUES

A. Parole Revocation Hearings: Right to Counsel

Jones v. Bailey, 576 S.W.3d 128 (Ky. 2019)

Due process rights of a person whose parole was revoked were violated where he was not provided notice of the time and place of the final revocation hearing, did not have counsel to represent him at that hearing, and was not able to present witnesses or further testimony on the alleged violations of the five-year period of post-incarceration supervision attendant

467 to his first degree sexual abuse conviction. Bailey had been terminated from the Sex Offender Treatment Program for allegedly not making efforts to accept responsibility for his sexual conviction and for disrupting his therapy group. Bailey, however, contended that he was terminated for his anti-abortion views, which his clinician supposedly did not share.

Following a preliminary hearing before an ALJ, at which he was allowed to present witnesses and evidence, probable cause was found and his case was sent to the Parole Board for a final determination. This final determination, however, was not after a hearing, but was a summary proceeding for which only the review of the file is taken before an adjudication is issued. Citing Morrissey v. Brewer, 408 U.S. 471 (1972) and Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court found that the Parole Board’s process fell short of minimum due process standards because Bailey was not afforded an evidentiary final revocation hearing where he could present evidence and confront witnesses.

Other holdings by the Court included that preponderance of the evidence was a sufficient standard with which to find facts supportive of revoking parole, and that assistance of counsel requests must be considered by the Parole Board on a case-by-case basis. The Parole Board should find a right to counsel exists when “the offender might be expected to encounter difficulty in presenting his version of a disputed set of facts.” A decision not to grant a right to counsel should be in writing.

B. Expungement: “Single Incident” Rule

Adams v. Commonwealth, 2019 WL 3024469 (Ky. Jul. 9, 2019)

(This case is listed on Westlaw as not final, and not to be cited as authority; however, on the Court’s online step sheet, finality occurred on July 9, 2019.) Judge Comb’s opinion in the Court of Appeals was affirmed and adopted by the Supreme Court. KRS 431.073, the felony expungement statute, provides in pertinent part that “[a]ny person who has been convicted of a Class D felony violation of [a list of statutes that includes KRS 514.030-theft by unlawful taking], or a series of Class D felony violations of one (1) or more statutes enumerated in this section arising from a single incident ... may file with the court in which he or she was convicted an application to have the judgment vacated.” Where Adams’ four theft offenses – cattle rustling of Holstein heifers from Sunny View Farms in Daviess County, which were committed on four different days spanning a six-month period in 1995-96 – were found not to have arisen from a “single incident,” even though there was only one victim:

Based on the common meaning of “single incident” and our past precedent, we conclude that the phrase “a series of Class D felony violations ... arising from a single incident” in KRS 431.073(1) refers to criminal offenses that were performed in the furtherance of an individual criminal episode and that were closely compressed in terms of time.

468 KENTUCKY NONPROFITS – WHAT YOU NEED TO KNOW ABOUT TAXES Rachael H. Chamberlain1

As Kentucky attorneys, it is almost certain you will encounter questions regarding nonprofits in some capacity, whether as volunteer, board member, or advisor. Nonprofit practice can be a complex area of the law. There are numerous areas of the law that nonprofits must consider, but surprisingly, tax implications of nonprofit status are often overlooked. While most people understand, at a high-level, that nonprofits are exempt from federal income tax, the reality is more complicated. Furthermore, the state and local tax treatment of nonprofits is varied and often complex.

This material will discuss some of the tax issues a nonprofit needs to be aware of on both the federal and state levels. Importantly, this is merely an overview. Not every nonprofit model is covered, nor is every potentially applicable tax. Thus, a nonprofit should consult a tax advisor to determine what its obligations may be.

I. FEDERAL TAX-EXEMPT STATUS

When an organization is described as “nonprofit” or “tax exempt,” this typically refers to a federal income tax classification. This federal classification forms the basis of entity classification for state tax purposes as well, although as you will see, there are sometimes important differences. But what exactly does this mean?

Generally speaking, there are two common ways for an entity to be classified as tax exempt on the federal level. The first way is to be classified as one of the entities listed in the Internal Revenue Code (IRC) under Section 115. This section provides an exemption for state governments and any political subdivision thereof. The most common way in which an organization becomes classified as tax-exempt on the federal level, however, is to meet the criteria of IRC §501.

There are numerous entities that qualify as tax-exempt under IRC §501, ranging from hospitals to recreational clubs. Some of the most common are 501(c)(3) organizations, social welfare organizations exempt under IRC §501(c)(4), business leagues, chambers of commerce, real estate boards and boards of trade exempt under IRC §501(c)(6), and social and recreational clubs exempt under IRC §501(c)(7). By far, the most common exemptions are found under IRC §501(c)(3).

A 501(c)(3) organizations include organizations organized and operated exclusively for religious, charitable, scientific testing for public safety, literary or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals. No part of the net earnings may insure to the benefit of any private shareholder or individual. No substantial part of the activities of the organization may carry on

1 Rachael H. Chamberlain is a Managing Associate in the Lexington office of Frost Brown Todd LLC. Rachael specializes in state and local tax issues, with an additional focus on various aspects of nonprofit formation and compliance. She would like to extend a special thanks to Elizabeth Mosley for her assistance with these materials. Rachael can be reached at (859) 244-3249 or [email protected].

469 propaganda, or otherwise attempt, to influence legislation (except as otherwise provided), and may not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.

This code section provides a number of requirements that must be met for tax exemption. While a review of these requirements is beyond the scope of these materials, the IRS provides useful guidance on these requirements, and an attorney with nonprofit experience can be an invaluable resource.

Most organizations claiming exemption under §501(c)(3) must apply for an exemption. This often occurs using a Form 1023-EZ (online only), Form 1023 or Form 1024, depending on the exact exemption being claimed and on the anticipated gross receipts and assets of the organization. However, many organizations, including churches and their integrated auxiliaries, and small organizations that bring in less than $5,000 per year, are not required to file for an exemption. Other organizations must simply notify the IRS of the intent to operate in an exempt manner.

II. FEDERAL INCOME TAXES

An entity exempt from taxation under IRC §501 is generally exempt from federal income tax on its income. However, it is important to note that this is not absolute.

First, a nonprofit, even one operating appropriately, is required to file information returns on one of the Form 990 series.2 Failure to file these returns for three consecutive years results in automatic revocation of exempt status. If the organization does not obtain a reinstatement from the IRS, its income becomes subject to the then current corporate tax rate. Depending on the exact circumstances, the IRS may deny the reinstatement or may grant it retroactively or prospectively.

Second, an otherwise exempt organization may have unrelated business income, which is taxable. IRC §511. Unrelated business taxable income (UBTI) is gross income from an organization's unrelated trades or businesses, less deductions for business expenses, losses, depreciation, and similar items “directly connected with the carrying on of such trade or business.” IRC §512(a)(1). This can include certain income from investments or programs operated by nonprofits. The tax rate depends on the type of legal organization the nonprofit is classified as.

The presence of UBTI alone does not jeopardize an organization’s exempt status, although the organization must file a separate tax return and remit the appropriate tax. However, if the majority of an organization’s income consists of UBTI, the IRS may view the organization as one operated for profit and may revoke the organization’s exemption.

2 Note that religious institutions and their integrated auxiliaries which do not hold an independent 501(c)(3) designation are not required to file information returns with the IRS.

470 III. FEDERAL EXCISE TAXES

While many organizations are aware, to some extent, of potential income taxes that may apply to their organization despite its exempt status, few consider the potential impact of federal excise taxes.

Before discussing the most common excise taxes, it is important to note that with respect to 501(c)(3) organizations, the IRS uses two broad categories to classify organizations. These categories are public charities and private foundations.3 While there are subcategories of each, each with its own set of rules and regulations, in general federal excise taxes are more likely to apply to private foundations than to public charities.

Two common excise taxes potentially apply to both private foundations and public charities. These include the tax on excess benefits found in IRC §4958 and the tax on excess tax-exempt organization executive compensation found in IRC §4960.

The excise tax on excess benefits is designed to penalize individuals, not organizations themselves, who receive more benefit from an exempt organization than they should receive based on services rendered. This excise tax is commonly applied in the case of compensation, for example when an officer is paid significantly in excess of the value of their services, or when the organization purchases property or enters into a transaction that is particularly lopsided in favor of the other party. In the event a person meets the definition of “disqualified person,”4 and that person engages in an excess benefit transaction,5 the

3 The IRS automatically classifies organizations under Section 501(c)(3) as private foundations unless an organization can demonstrate that it is a public charity. Generally speaking, private foundations receive their funding from a small number of donors, although they may still conduct fundraising from the general public. Public charities, however, often receive the majority of their funding from the general public, other nonprofits, or government agencies, or actively solicit donations from these groups on a regular basis. Public charities are also limited in the amount of investment income they may receive, while private foundations traditionally rely heavily on investment income.

4 The term “disqualified person” means, with respect to any transaction, (A) any person who was, at any time during the five-year period ending on the date of such transaction, in a position to exercise substantial influence over the affairs of the organization, (B) a member of the family of an individual described in subparagraph (A), (C) a 35 percent controlled entity, (D) any person who is described in subparagraph (A), (B), or (C) with respect to an organization described in section 509(a)(3) and organized and operated exclusively for the benefit of, to perform the functions of, or to carry out the purposes of the applicable tax-exempt organization, (E) which involves a donor advised fund (as defined in section 4966(d)(2)), any person who is described in paragraph (7) with respect to such donor advised fund (as so defined), and (F) which involves a sponsoring organization (as defined in section 4966(d)(1)), any person who is described in paragraph (8) with respect to such sponsoring organization (as so defined). IRC §4958(f)(1).

5 The term “excess benefit transaction” means any transaction in which an economic benefit is provided by an applicable tax-exempt organization directly or indirectly to or for the use of any disqualified person if the value of the economic benefit provided exceeds the value of the consideration (including the performance of services) received for providing such benefit. For purposes of the preceding sentence, an economic benefit shall not be treated as consideration for

471 disqualified person is subject to an excise tax of 25 percent of the excess benefit. IRC §4958(a)(1). If not returned to the organization within the taxable period identified in the statute, the tax balloons to 200 percent of the excess benefit. IRC §4958(b). Additionally, if the management of the organization agree to the transaction while knowing it is an excess benefit transaction, the management is subject to a 10 percent excise tax. IRC §4958(a)(2).

The excise tax on excess executive compensation, unlike the excess benefit transaction tax, does apply to the organizations themselves. This tax was added to the IRC as part of the major tax reform efforts of late 2017. The tax provides that the corporate tax rate will apply to the amount of remuneration, as defined by the statute, paid by an applicable tax-exempt organization to any covered employee in excess of one million dollars. IRC §4960. While few organizations will ever be large enough for this tax to potentially apply, it should be noted that the tax does apply to governmental organizations in addition to traditional nonprofits.

Other excise taxes typically apply only to private foundations. These include an excise tax based on investment income, which applies to most foundations that generate investment income, equal to 1.39 percent of the net investment income for the taxable year. IRC §4940.

In the event a private foundation engages in a self-dealing transaction, the self- dealer (disqualified person) is subject to a tax equal to 10 percent of the amount involved in the transaction, which increases to 200 percent if not returned within the taxable period. IRC §4941. Foundation managers who knowingly agree to such a transaction are also subject to a five percent excise tax, which increases to 50 percent if the manager refuses to agree to part or all of the correction of the transaction. Id.

Foundations can also be subject to a tax equal to 30 percent of their undistributed income, if such income is not distributed within a set period of time. This tax increases to 100 percent of the undistributed income if the income is not distributed within the taxable period set by statute. IRC §4942. While public charities are not subject to an equivalent tax, it should be noted that failure to spend a sufficient amount on exempt activities can lead to a revocation of status.

Foundations must also avoid excess business holdings.6 In the event a foundation has excess business holdings, the foundation must pay an excise tax equal to 10 percent of the excess holdings. IRC §4943. This tax increases to 200 percent if the holdings are not divested within the statutory time period. Id.

The IRS views some private foundation investments as those that may jeopardize the organization’s charitable purpose. These are generally considered to be risky

the performance of services unless such organization clearly indicated its intent to so treat such benefit. IRC §4958(c)(1).

6 The term “excess business holdings” means, with respect to the holdings of any private foundation in any business enterprise, the amount of stock or other interest in the enterprise which the foundation would have to dispose of to a person other than a disqualified person in order for the remaining holdings of the foundation in such enterprise to be permitted holdings. IRC §4943(c).

472 or non-diverse investments, with the risk determined as of the time the investment is made. In the event such an investment is made, the private foundation is subject to an excise tax equal to 10 percent of the amount so invested for each year of the taxable period, which increases to 25 percent if not corrected. IRC §4944. There is also a 10 percent tax on management that knowingly participates in such an investment. An additional 5 percent tax will be imposed in the event management does not support correction. Id.

Foundations are also not allowed to make certain expenditures, including certain expenditures to influence legislation or elections, certain types of travel grants, and grants to most other foundations. In the event these prohibited expenditures are made, the foundation is subject to an excise tax of 20 percent of the amount of the expenditure, which increases to 100 percent if the transaction is not corrected. IRC §4945. There is also a 5 percent tax on the foundation’s management if the management knowingly agrees to such expenditure. This tax rises to 50 percent if the management refuses to correct the transaction. Id.

IV. FEDERAL EMPLOYMENT TAXES

While nonprofit organizations are generally exempt from paying income taxes, these organizations are not exempt from collecting and remitting employment taxes. If the organization has employees, the organization must collect federal income tax withholding from the employee and must also ensure FICA taxes (Social Security and Medicare) are collected and paid. In this sense, exempt organizations are no different than for-profit employers.

Some exempt organizations are also required to pay federal unemployment taxes. Generally speaking, 501(c)(3) organizations are exempt from federal unemploy- ment taxes, but exempt organizations under other sections of the IRC are not.

Special considerations apply to exempt governmental employers. Such entities may, depending on the circumstances, only need to withhold federal income taxes and Medicare, while some long-term employees may not need to have Medicare withheld at all.

For all exempt organizations, it is important that those performing services for the organization, which are compensated for those services, are properly classified as either an employee or an independent contractor. The IRS uses many factors to determine an individual’s correct classification, based significantly on the amount of control exerted by the organization. It is particularly important that the organization not treat two individuals performing substantially similar services differently for employment tax purposes, unless there is clear justification, as doing so may make it harder for the organization to avoid penalties in the event the IRS reclassifies a worker.

V. KENTUCKY TAX EXEMPT STATUS

The discussion thus far has involved some potentially applicable taxes on the federal level. While some of the general principles apply at the state level, it is important to note that Kentucky does not automatically exempt nonprofits from tax. Part of this complexity is due to the fact that Kentucky has multiple taxes that are

473 simply not in place at the federal level. However, some of this complexity also comes from the fact that Kentucky utilizes additional criteria for exempt organizations that is similar, but not identical, to the federal exemption standards.

Because Kentucky has multiple taxes, each with its own standards for exemption, each tax will be discussed separately. However, there are several common variations that are utilized.

The first of these standards comes from the Kentucky Constitution. Section 170 of the Kentucky Constitution provides a number of categories of property that are exempt from Kentucky property taxes. The types of generally exempt organizations based upon this list include public entities (i.e., governmental entities), nonprofit cemeteries, institutions of religion, institutions of purely public charity, institutions of education not used or employed for gain by any person or corporation, and the income of which is solely devoted to the cause of education, and public libraries.

This list clearly encompasses many of the organizations that are eligible for exemption from federal taxes. However, “institutions of purely public charity” is not as broad as is the exemption in Section 501(c)(3).

Another standard utilized in Kentucky taxes is an exemption for “corporations or other entities exempt under Section 501 of the Internal Revenue Code.”7 This is a broad exemption that is consistent with federal law, and would capture all exempt organizations under Section 501, including entities such as chambers of commerce and recreational clubs.

Another common standard utilized in Kentucky is an exemption for “religious, educational, charitable, or like corporations not organized or conducted for pecuniary profit.”8 This exemption is even broader than that listed above, as it would include organizations that may not, for whatever reason, be organized under Section 501, or that would be but that have not yet had an application for exemption approved. It could also potentially cover organizations that had been exempt under Section 501, but that lost the exemption for failure to file proper information returns.

Regardless, it is important that an organization evaluate its liability for taxes based on the specific taxes at issue, rather than assuming that federal exempt status conveys a Kentucky exemption as well.

VI. KENTUCKY CORPORATE INCOME TAXES AND THE LIMITED LIABILITY ENTITY TAX

Most nonprofits, if formally organized, are organized as corporations or limited liability companies. As a result, these organizations will be subject to Kentucky’s corporate income tax and limited liability entity tax (“LLET”) unless an exemption applies.

7 See KRS 141.040(1)(a)(6).

8 See KRS 141.040(1)(a)(7).

474 KRS 141.040 provides the exemptions from the corporate income tax. Currently, the relevant exemptions are for:

6. Corporations or other entities exempt under Section 501 of the Internal Revenue Code;

7. Religious, educational, charitable, or like corporations not organized or conducted for pecuniary profit.

KRS 141.040(1)(a).

Thus, the corporate income tax utilizes two of the standards discussed above and would encompass both organizations that have received an exemption under Section 501 from the IRS and those organizations performing similar functions that do not have a determination letter from the IRS.9 These exemptions would also cover municipal corporations. Beginning in 2021, the exemptions in the statute will change. However, the exemptions for nonprofit entities will remain the same.

Kentucky’s LLET is provided for in KRS 141.0401. This statute provides for a tax on every corporation and limited liability pass-through entity doing business in Kentucky on all Kentucky gross receipts or Kentucky gross profits unless an exception applies. The LLET statute utilizes the same exemptions for nonprofits as does the corporate income tax, providing an exemption for:

6. Corporations or other entities exempt under Section 501 of the Internal Revenue Code;

7. Religious, educational, charitable, or like corporations not organized or conducted for pecuniary profit.

KRS 141.0401(6)(a).10

Generally speaking, an organization does not need to file a form or an exemption application to claim the above exemptions, particularly if the organization is organized as a nonprofit with the Secretary of State. However, when the organization files its Form 990 each year, it must submit a copy to the Kentucky Attorney General.

However, if an organization has UBTI, that income may be taxable for Kentucky purposes as well unless another exemption can be found. Kentucky has not specifically addressed this issue.

9 It is important to note, however, that if an organization is not listed with the Kentucky Secretary of State as a non-profit entity, the Kentucky Department of Revenue is likely to assume no exemption applies. As a result, it is important to properly register new nonprofit organizations.

10 As with the corporate income tax, these exemptions will remain in place when the law changes in 2021. KRS 141.0401(6)(b).

475 VII. KENTUCKY SALES AND USE TAX

Kentucky sales and use tax issues can be particularly confusing for nonprofits, in part because there are two areas that generally must be examined. First, an organization that purchases tangible personal property must consider whether it is exempt from such tax and be able to provide appropriate exemption certificates. Additionally, an organization that makes sales must assess its requirement to register for a sales tax permit and to collect and remit Kentucky sales tax.

KRS 139.495(1) specifically provides that the sales and use tax statutes apply to 501(c)(3) organizations, as well as resident single member limited liability companies that are wholly owned and controlled by a resident 501(c)(3) organization and disregarded under federal income . Thus, unless an exception applies, nonprofits must pay, collect, and remit such taxes as the situation dictates.

For organizations making purchases of tangible property rather than selling, KRS 139.495(2) provides a number of transactions which would not incur sales tax. With respect to purchases by organizations, KRS 139.495(2)(a)(1) provides that nonprofits and their disregarded single member limited liability companies are not subject to sales tax when the taxable product or service is used solely in Kentucky for educational, charitable or religious purposes. Foreign exempt entities may also be eligible for an exemption on purchases. KRS 139.470(8).

In order to claim this purchase exemption, which requires either a 501(c)(3) determination letter or being a disregarded subsidiary of such an organization, a nonprofit should file Form 51A125 – Application for Purchase Exemption Sales and Use Tax with the Department of Revenue. This form notes that the Department views numerous entities as eligible for a sales tax exemption, including governmental entities, historical sites, charitable, educational and religious organizations, and cemeteries. Specific attachments are required for each entity type. For charitable, educational and religious institutions, a copy of the Articles of Incorporation and a detailed schedule of receipts and disbursements must be attached to the application, as well as the IRS determination letter. Once the Department approves the application, the organization can issue an exemption certificate to vendors. Importantly, if the organization makes any purchases that are not exempt under statute, it is still responsible for sales tax.

KRS 139.495(2) also addresses situations in which a 501(c)(3) organization and its disregarded subsidiaries are not required to collect sales tax from its customers. Specifically, the statute provides:

(2) (a) Tax does not apply to: …

2. Sales of food to students in school cafeterias or lunchrooms;

3. Sales by school bookstores of textbooks, workbooks, and other course materials;

476 4. Sales by nonprofit, school sponsored clubs and organizations, provided such sales do not include tickets for athletic events;

5. Sales of admissions by nonprofit educa- tional, charitable, or religious institutions described in subsection (1) of this section; or

6. a. Fundraising event sales made by nonprofit educational, charitable, or religious institutions and limited liability companied described in subsection (1) of this section.

b. For the purposes of this sub- paragraph, “fundraising event sales” does not include sales related to the operation of a retail business, including but not limited to thrift stores, bookstores, surplus property auctions, recycle and reuse stores, or any ongoing operations in competition with for-profit retailers.

(b) The exemptions provided in subparagraphs 5. and 6. of paragraph (a) of this subsection shall not apply to sales generated by or arising at a tourism development project approved under KRS 148.851 to 148.860.

KRS 139.495(2).

Additional sales by nonprofits are also exempt. These include:

(1) Sales by elementary or secondary schools or nonprofit elementary or secondary school-sponsored clubs and organizations or any nonprofit, elementary, or secondary school-affiliated groups such as parent-teacher organizations and booster clubs, whose membership may be composed of individuals other than students, provided the net proceeds from the sales are used solely for the benefit of the elementary or secondary school or its students. Nontaxable sales shall include sales resulting from agreements or contracts entered into with resident or nonresident organizations to participate in fund-raising campaigns for a percentage of the gross receipts where students act as agents or salesmen for the organizations by selling or taking orders for the sale of tangible personal property, and no one shall be required to pay sales or use taxes on such sales;

477 (2) Sales made by nonprofit educational youth programs affiliated with a land grant university cooperative extension service, if the net proceeds from the sales are used solely for the benefit of the affiliated programs; or

(3) (a) Sales of tangible personal property made by a federally chartered corporation11 at the corporation's annual national convention held in the Commonwealth.

KRS 139.497.

The exemption for convention related sales is currently scheduled to sunset on January 1, 2022. KRS 139.497 (c).

As a result of these statutes, many sales by small organizations are exempt. However, any sale not covered by this exemption is subject to sales tax collection requirements, and an organization must register for a sales tax permit in the event the organization has three or more sales in a 12-month period. Once registered, an organization generally must submit monthly sales and use tax returns. However, a nonprofit organization can petition for the ability to file quarterly instead. KRS 139.590.

For organizations that sell donated goods, the organization is eligible for a refund of 25 percent of the tax collected on the sale of the donated goods, provided that the refund is used exclusively as reimbursement for capital construction costs of additional retail locations in Kentucky. The institution must meet several requirements in order to qualify for the refund. KRS 139.495(3).

In Kentucky, use tax typically applies when a purchase is not subject to sales tax, and is paid directly by the buyer. The same exemptions for sales tax apply to use tax. However, for many years there was no imposition of the use tax on purchases by a number of organizations. However, in Commonwealth v. Interstate Gas Supply, Inc., 554 S.W.3d 831 (Ky. 2018), the Kentucky Supreme Court held that Section 170 of the Kentucky Constitution exempting taxation of organizations of “purely public charity” applies only to property taxes. This overruled Commonwealth ex. rel. Luckett v. City of Elizabethtown, 435 S.W.2d 78 (Ky. 1968), which held the use tax was in effect a property tax, and thus exempted nonprofits from use tax under the state Constitution.

The Interstate Gas case became particularly important to nonprofits in 2018, when two tax reform bills were introduced. Due to the lack of explicit exemptions for nonprofits, the Department relied on Interstate Gas to interpret the new statutory language as requiring all nonprofits to collect sales tax on admissions beginning in July 2018. This resulted in sales tax being owed on entry into children’s athletic events and fundraising galas, among others. The Department recognized that this

11 “As used in this subsection, ‘federally chartered corporation’ means a corporation federally chartered under Title 36 of the United States Code and whose stated purpose is to serve students and former students of vocational agriculture in middle and secondary schools to develop character, train for useful citizenship, and foster patriotism.” KRS 139.497(3)(b).

478 was problematic and encouraged the General Assembly to clarify this position. In March 2019, KRS 139.495(2) was amended to explicitly exempt sales of admissions by certain nonprofits. Additionally, KRS 139.498 was added to further clarify the exemption. These amendments were effective on March 26, 2019. However, nonprofits technically remain liable for sales taxes on admissions from July 2018 until March 2019.

The exemptions discussed in this section are not all inclusive, and an organization may qualify for a number of other exemptions. It is particularly important that an organization that is making sales verify the taxability of those sales, as failure to remit sales tax in Kentucky can lead to personal liability for the organization’s officers. KRS 139.185.

VIII. KENTUCKY PROPERTY TAX

Many nonprofits do not consider the property taxes they may owe, particularly if they do not own real property. However, many nonprofits are subject to some form of property tax.

Section 170 of the Kentucky Constitution is a major source of exemptions for nonprofits with respect to property tax. It provides in relevant part:

There shall be exempt from taxation public property used for public purposes; places of burial not held for private or corporate profit; real property owned and occupied by, and personal property both tangible and intangible owned by, institutions of religion; institutions of purely public charity, and institutions of education not used or employed for gain by any person or corporation, and the income of which is devoted solely to the cause of education, public libraries, their endowments, and the income of such property as is used exclusively for their maintenance…

Ky. Const. §170.

The language and punctuation of this section can be somewhat confusing. Broken down, this section provides an exemption for:

A. Public property used for public purposes. This generally exempts government property which is open to the public or otherwise serves the public.

B. Nonprofit cemeteries.

C. Real property owned and occupied by religious institutions.12

12 While the “owned and occupied” language appears initially to apply only to institutions of religion, case law suggests this might not be the case. The Kentucky Supreme Court has interpreted the “owned and occupied by” provision of Section 170, finding that the exemption extends only to real property that is both owned and occupied, not simply owned, by an exempt organization. Freeman v. St. Andrew Orthodox Church, Inc., 294 S.W.3d 425 (Ky. 2009). While that case involved a religious institution, the Court went on to state that, with respect to the phrase “owned and

479 D. Personal property, both tangible and intangible, of religious institutions.

E. Property of purely public charities.13

F. Property of institutions of education not used or employed for profit, the income of which is devoted solely to the cause of education, public libraries, and endowments, provided the income from which is used exclusively for the institution’s maintenance.

An organization that believes some, or all, of its property is exempt must apply for an exemption with the property valuation administrator (“PVA”) in the county where the property is located. The form (Revenue Form 62A023) and all supporting documentation must be submitted for property the organization owned on January 1 of the taxable year. The application form will ask various questions regarding the name and contact information of the exempt organization, the purpose and major activity of the organization, the owner of the property (if other than the applicant), and the property itself. Several attachments are required, including a copy of the deed and the property record card (if available), interior and exterior pictures of the property and buildings, the organization’s IRS determination letter, compensation statements for a number of individuals associated with the organization, lists of employees, detailed financial statements, and organizational documents. This form is fairly detailed and will take some time to complete.

In many cases, the PVA may be comfortable making the determination regarding the applicability of the tax exemption, in which case the final determination will be handled at the county level. However, if the PVA is unsure if the applicant qualifies for an exemption, the application will be forwarded to the Kentucky Department of Revenue for review. The Department may request additional information from the applicant as part of its review. Once the Department makes a determination, the Department will notify the PVA, and the PVA will send a final determination letter to the applicant.

occupied,” and the term “occupied” specifically, “our ruling here today in defining this term is restricted to ‘institutions of religion’ and other entities qualifying for tax exemption under Section 170 of our state Constitution.” Id. at 429 (emphasis added). Recently, the Kentucky Court of Appeals examined a situation involving non-religious exempt organizations and third parties and held that “the purely public charity must both own and occupy the real property to be entitled to the tax exemption afforded under the Section 170.” Grand Lodge of Kentucky Free and Accepted Masons v. City of Taylor Mill, No. 2015-CA-001617-MR, 2017 WL 541077 (Ky. App. Feb. 10, 2017) (unpublished). Thus, a court may determine that an eligible organization must both own and occupy the property to claim the exemption, even if the organization is not religious in nature.

13 “Public charity” is not currently defined in Kentucky statutes, although that was not always the case. In the early 1990s, KRS 132.011 provided, “Every organization which has qualified for exemption under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and whose charitable activities constitute more than an incidental part of the organization's overall activities, shall be, for Kentucky tax purposes, an institution of purely public charity and its property shall be exempt from all state, county, district, city and school taxes.” This statute was ultimately repealed.

480 The Jefferson County PVA’s website provides some illustrations of these rules in action:

In order to qualify for the current tax year, the applicant must own the property as of January 1 of the year in which application is made.

All organizations seeking exemption must meet the required qualifications in order to receive exemption. For example, real property must be owned and occupied or used by the organization seeking exemption. Examples of real property both owned and occupied by religious organizations are:

• Minister Occupied Parsonages

• Land & Improvements (buildings) used for Church Camps

• Church Meeting Halls or Social Centers used by its Members

• Outdoor Recreation Areas Held for Use by its Members

Personal property such as motor vehicles, office equipment, furniture, etc. owned and used by nonprofit organizations also qualify as exempt, once qualifications are met. However, a vacant church building, unoccupied educational facility, or an unoccupied facility under renovation owned but not currently in use by a nonprofit group does not qualify for exemption. Exemption cannot be granted based on the future use of a property. However, some exceptions apply such as an unoccupied public property facility (or government property) under renovation which is automatically exempt. Any such property would become taxable should ownership transfer to a private ownership.

Nonprofit organizations seeking exemption must submit an application to PVA. PVA will notify the applicant once the application is processed. If an organization holds an approved exemption on property and an additional property is acquired, an addendum application may be all that is required to be filed with PVA. All applications for exemption must list the current property use. Once exemption is approved, should the property use change, the property owner must notify PVA. If PVA is not notified, the property owner may be subject to delinquent taxes on any years the property was not legally qualified to receive exemption.

Jefferson County PVA, Nonprofit & Religious Organization Exemptions.14

14 Available at https://jeffersonpva.ky.gov/property-assessment/exemptions/nonprofit-religious- organization-exemptions/ (last visited May 5, 2020).

481 It is important to note that otherwise exempt property can become taxable if certain transactions are undertaken. In particular, when otherwise exempt property is transferred to an individual or other entity for for-profit use, even though the title to the property remains with the exempt organization, the possessory interest in the property becomes subject to property tax. KRS 132.195. Thus, the lessee or person in possession becomes responsible for the tax. There are several exceptions to this rule, but these exceptions are fairly specific and would not apply to most exempt organizations.

The terms of a lease can also have other impacts on the taxation of property. Under Section 170 of the Constitution, if property is leased for an initial term in excess of 98 years, the lessee is considered to be the equitable owner of the property, and the taxability of the property is determined accordingly. Thus, if an exempt organization enters into a long-term lease with a non-exempt entity, the property can lose its exempt status, even without the operation of KRS 132.195. Conversely, if a for-profit entity enters into a long-term lease with a nonprofit entity that would otherwise be exempt, the nonprofit will be considered the equitable owner.

IX. KENTUCKY TRANSFER TAX

KRS 142.050 provides that a tax must be paid upon the recording of a deed or other transfer document for transfers of Kentucky real property. Unlike most Kentucky taxes, there is no generally applicable exemption for transactions with nonprofits, unless those transactions meet other exemptions. However, when one of the parties is a governmental entity, an exemption may apply. In particular, there is an exemption for transfers of title “[t]o, in the event of a deed of gift or deed with nominal consideration, or from the United States of America, this state, any city or county within this state, or any instrumentality, agency, or subdivision hereof.” Thus, if a nonprofit transfers property to a governmental entity, the tax will still apply upon recordation if the transfer is for more than a nominal consideration.

X. KENTUCKY EMPLOYMENT TAXES

Much like federal employment taxes, there is no exemption for nonprofits with respect to withholding Kentucky income taxes from employee wages. KRS 141.310. Thus, withholding must occur unless the employee presents a proper exemption certificate to the nonprofit employer.

Whether a nonprofit is liable for Kentucky unemployment taxes depends on the type of organization and the number of employees the organization has, as well as the time worked by those employees.

A detailed listing of the liability for unemployment taxes can be found in Kentucky Career Center’s Unemployment Insurance Employer Guide.15 A 501(c)(3) organization will be liable for unemployment insurance taxes if it has at least four workers in the United States in any part of 20 weeks out of a calendar year. They do not have to be the same four workers in each week, and the weeks do not have

15 Available at https://kewes.ky.gov/Documents/EMPLOYER_GUIDE.pdf (last visited May 6, 2020).

482 to be consecutive. Church employees are exempt, but independent businesses conducted on church property, such as a daycare center, may be covered unless they are also part of the church ministry. State and local government employers are liable for unemployment taxes for any employment except for elected officials and certain other exclusions.

XI. LOCAL KENTUCKY OCCUPATIONAL TAXES

Kentucky’s occupational license taxes have two components – an employee portion paid through withholding, and an employer portion paid on the employer’s income or net profit. In cities that impose an occupational license tax, nonprofits are generally required to withhold from employee’s wages and remit them appropriately. However, many localities exempt nonprofits from the employer portion of the tax. For example, the Lexington-Fayette Urban County Government provides via regulation:

No net profits license fee is imposed on and no filing is required of the usual activities of boards of trade, chambers of commerce, trade associations or unions, community chest funds or foundations; corporations or associations organized and operated exclusively for religious, charitable, scientific, literary, educational, or civic purposes, or for the prevention of cruelty to children or animals; or clubs or fraternal organizations operated exclusively for social, literary, educational, or fraternal purposes where no part of the income or receipts of such units, groups, or associations inures to the benefit of any private shareholder or individual. To qualify for this exemption, the organization must submit satisfactory proof of their exempt status for federal income tax purposes.

LFUCG Regulation 13.4, Section 3.4(D).

A nonprofit should review the requirements of its home locality or any location where it makes sales to determine if it has an occupational license requirement.

XII. CONCLUSION

Numerous situations exist in which a nonprofit organization may having a filing requirement, a payment requirement, or a collection requirement. Federal tax exempt status alone does not mean that state and local taxes will not apply to an organization. An organization should consult a tax advisor with any questions regarding potential compliance issues.

483 MINDFULNESS, RESILIENCE, ETHICS, AND CIVILITY IN THE LAW Zachary A. Horn

I. WHAT IS MINDFULNESS?

A. What Mindfulness Is

1. Mindfulness is being inclined to be aware.

2. Mindfulness is not taking things for granted.

3. Mindfulness means returning to the present moment.

4. Mindfulness is the self-regulation of attention with an attitude of curiosity, openness, and acceptance.

B. Mindfulness Is Not Mindless

1. Mindlessness is being inclined to be unaware.

2. Mindlessness is taking things for granted.

3. Mindlessness means being lost in regrets about the past and worries about the future.

4. Mindlessness is unregulated attention with an attitude of apathy, reactivity, and/or denial.

C. Mindfulness is a Choice

1. Mindfulness does not simply mean to live in the present moment.

2. Mindfulness is a meta-awareness that allows us to choose if we want to be present or allow our minds to wander.

3. Mindfulness is an awareness of our inner and outer world that gives us the opportunity to choose our responses rather than react on autopilot.

4. In order to cultivate an awareness of the workings of the mind, one must first stabilize the mind through contemplative practices so one can observe its contents.

5. Once attention is stabilized, practitioners open their awareness to cultivate insight into the true nature of their experience while maintaining compassion for themselves and others.

484 II. ARE YOU A MINDFUL OR A MINDLESS LAWYER?

A. Mindfulness is a Spectrum

1. We all exist on a spectrum of mindfulness, with different degrees of awareness, presence, curiosity, openness, and acceptance.

2. Our innate capacity for mindfulness is a result of heredity, life experiences, and lifestyle choices.

3. Our baseline capacity to be mindful can be improved through contemplative practices and positive lifestyle choices.

B. Mindless Lawyers

1. The voice in your head.

a. Lawyers are particularly susceptible to being slaves to the voice in our heads.

b. Lawyers are often planners, doers, and worriers.

c. Lawyers are taught to plan for the worst-case scenario.

d. Many lawyers come to regard their constant state of anxiety and never-ending to-do list as a professional necessity and ally.

e. Yet studies show that around 70 percent of our mental chatter consists of negative, repetitive and useless thoughts that only exacerbate unhappiness.1

2. The cost of mindlessness.

a. Irritability.

b. Lack of focus.

c. Avoidant behavior.

d. Poor stress management.

III. EXPERIENCING MINDFULNESS

A. Sit Still

B. Close Your Eyes

1 https://www.psychologytoday.com/us/blog/sapient-nature/201310/how-negative-is-your-mental- chatter.

485 C. Take a Deep Breath

D. Wait for a Thought to Arise

E. How Did You Do?

IV. LEVELS OF AWARENESS

A. Conscious Mind

In Sigmund Freud’s psychoanalytic theory of personality, the conscious mind consists of everything inside of our awareness. This is the aspect of our mental processing that we can think and talk about in a rational way. Things that are in the unconscious are only available to the conscious mind in disguised form.

B. Subconscious Mind

Includes things that we might not be presently aware of but that we can pull into conscious awareness when needed. A reservoir of feelings, thoughts, urges, and memories that are outside of our conscious awareness.

C. Witnessing Awareness

The witness is your awareness of your own thoughts, feelings, and emotions. Witnessing is like waking up in the morning and then looking in the mirror and noticing yourself – not judging or criticizing, just neutrally observing the quality of being awake.

Conscious Mind

Subconscious Mind

Witnessing Awareness

486 V. BECOMING MINDFUL

A. Becoming mindful is a lifelong practice that involves a gradual calming of the conscious and subconscious mind, that allows us to increasingly exist in a state witnessing awareness.

B. The conscious and unconscious mind are calmed over time by engaging in contemplative practices.

C. Contemplative practices include any activity that enables you to move from identification with the conscious mind toward interior silence and peace, such as meditation, contemplative prayer, yoga, and time in nature.

VI. MINDFULNESS TAKES PRACTICE

A. Being mindful is simply the act of being more aware and present in the here and now.

B. However, mindfulness is to being aware as running a marathon is to running. Most people are capable of being aware, just as most of us can run at least a few steps. But just as you cannot run a marathon without training, you cannot be mindful on a regular basis without actively cultivating your witnessing awareness.

C. That means doing practices that enable you to live less and less from your conscious and subconscious mind, and more from a state of witnessing.

D. Breath awareness: The simplest and easiest way to start calming the conscious and unconscious mind and becoming more mindful is to engage in a daily practice of breath awareness.

1. Sit upright in a comfortable position.

2. Close your eyes.

3. Move your awareness to your breath.

4. Follow the rise and fall of air as it fills your stomach and lungs.

VII. MAKING MINDFULNESS A HABIT

A. Mindfulness is a product of having a habit of doing contemplative practices.

B. Begin by developing a habit of having mindful minutes throughout the day.

C. Set aside a few minutes each day to cultivate interior silence.

D. Whenever you find yourself stressed or agitated, move your awareness to your breath and seek interior silence.

487 E. Work towards a daily meditation practice (i.e. breath awareness) of at least 20 minutes each day.

VIII. TECHNOLOGY AND MINDFULNESS

A. Continuous Partial Attention (CPA)

1. Coined by tech writer and former Microsoft and Apple executive, Linda Sone, in 1998 to describe the modern adaptive behavior of continuously dividing one’s attention. Stone has clarified that continuous partial attention is not the same as multi-tasking. Where multi-tasking is driven by a conscious desire to be productive and efficient, CPA is an automatic process motivated only by “a desire to be a live node on the network” or by the willingness to connect and stay connected, scanning and optimizing opportunities, activities and contacts in an effort to not miss anything that is going on.

2. Results in increased stress and decreased ability to focus and concentrate on the present moment, prohibiting reflection, contemplation, and thoughtful decision making.

3. When we’re always on, constantly scanning, and on high alert, it produces an “artificial sense of constant crisis.”

4. For those of us who grew up with computers, smart phones, and tablets, CPA may be the only state of awareness we know.

B. Right Use of Technology

1. Constant stimulation from technology makes it easy to never need to worry about being bored.

2. However, the state of continuous partial attention resulting from the constant use of technology makes it difficult for lawyers to focus on complex issues, think ahead, and work in thoughtful and creative ways.

3. In order to avoid continuous partial attention, we must be more mindful with our use of technology and engage in periods of voluntary abstention from its use.

C. Combating Continuous Partial Attention

In addition to mindful minutes, set aside time for technology fasts:

1. Leave your phone in the car or in a different room when eating. Focus on the meal and your company.

2. When in court waiting to be heard, try putting your phone away and focus on the rise and fall of your breath.

488 3. Allow yourself to experience being bored.

IX. ETHICS, COURTESY, AND MINDFULNESS

Mindful Lawyers Are Ethical and Courteous:

• Ethical and courteous behavior arises as a byproduct of a state of awareness that is self-regulating, open, and accepting.

• Unethical and rude behavior arises as a byproduct of a lack of awareness and attitude of apathy, reactivity, and/or denial.

• Mindfulness practices increase our capacity to behave in ethical and courteous ways because they increase awareness.2

2 https://link.springer.com/article/10.1007/s10551-011-0796-y.

489 REASONABLE EFFORTS IN DNA CASES: REVIVAL AND REFOCUS UNDER THE FFPSA Nathaniel H. Goins

I. SUMMARY OF THE FAMILY FIRST PREVENTION SERVICES ACT OF 2018 (FFPSA)

Overview: The Family First Prevention Services Act of 2018 was included in the Bipartisan Budget Act of 2018 ( 115 Feb. 9, 2018). The act constituted a philosophy shift for federal reimbursement to states under Title IV-E of the Social Security Act authorizing reimbursement for programs to prevent children from entering into foster care. It also made several changes to funding and reimbursement related to foster care. Each section is detailed below.

A. Part I – Prevention Activities under Title IV-E

1. Allows Title IV-E funds to be used to prevent the placement of children into foster care.

2. Applies for any child who is deemed a “candidate for foster care,” children under guardianship of a kin caregiver, pregnant or parenting foster youth, and their families.

3. Reimbursement is limited to 12 months of services, which must involve:

a. In-home parent skill-based programs.

b. Mental health services and substance use disorder prevention and treatment services.

4. Requires that the service meet certain quality standard requirements.

5. Requires states to monitor and report on its efforts to implement and maintain prevention services.

B. Part II – Enhanced Support under Title IV-B

1. Provides funding for electronic processing system for interstate placements of children.

2. Extends funding to regional interstate work through Substance Abuse Partnership Grants.

C. Part III – Miscellaneous

1. Requires states to adopt and follow model licensing standards for kinship care homes.

490 2. Requires states to track and prevent child maltreatment deaths.

D. Part IV – Ensuring the Necessity of a Placement that is not in a Foster Family Home

1. Restricts funding reimbursement for children placed somewhere other than in a foster family home.

2. Prohibits reimbursement for the long-term costs of placing a child into any private or public child-serving institution unless the placement:

a. Is a setting for prenatal, postpartum, or parenting services for teen mothers.

b. Is a supervised setting for children age 18 or older.

c. Provides high-quality residential activities for youth who have been victims of human trafficking or are at risk of being trafficked.

d. Is part of the juvenile justice system.

e. Is a “qualified residential treatment program” (QRTP).

3. Establishes minimum requirements for child-serving institutions to be deemed a QRTP.

a. Requires child welfare agencies to prepare and submit a report to courts that justifies the child’s placement in a QRTP within 30 days of the placement.

b. Requires courts to review each placement of a child into a QRTP within 60 days of the placement and determine whether placement is appropriate.

c. If the court does not approve the placement, then federal reimbursement ends after 30 days.

4. Requires states to develop and implement a plan to prevent an increase in children entering the juvenile justice system.

5. Requires criminal history and child abuse and neglect registry checks on all adults working in any childcare institution.

E. Part V – Continuing Support for Child and Family Services

1. Creates grants for recruiting and retaining high-quality foster families.

491 2. Extends the John H. Chafee Foster Care Independence Program eligibility age from 21 to 23.

3. Extends education and training voucher eligibility age from 23 to 26 and limits voucher use to five years.

F. Part VI – Continuing Incentives to States to Promote Adoption and Legal Guardianship

Reauthorizes the Adoption and Legal Guardianship Incentive Payment Program, which pays states for actions taken to transition children out of foster care, through 2022.

G. Part VII – Technical Corrections

Requires states to develop and implement a plan for reducing the time that children under age five spend in foster care and for addressing developmental needs of all vulnerable children under age five.

H. Part VIII – Ensuring States Reinvest Savings Resulting for Increases in Adoption Assistance

1. Suspends a provision that would make children with special needs under age two ineligible for adoption assistance reimbursement.

2. Requires states track and report how they used the adoption assistance funds that are reimbursed.

II. NEW FAMILY COURT RULES RELATED TO CHILD WELFARE PROCEDURE AND PRACTICE

A. FCRPP 28 Reviews

(3) Qualified Residential Treatment Program Review.

(a) CHFS shall file a notice and request for a review hearing with the court within 5 days of placing a child into a qualified residential treatment program (QRTP) stating the date of placement, the name of the provider, and the location of the placement.

(b) Within 30 days of a child's placement in a QRTP, CHFS shall file with the court an assessment of the appropriateness and necessity of the child's placement in the QRTP. The assessment shall include all information required by Family First Prevention Services Act of 2018.

(c) The court shall review every placement of a child in a QRTP and make findings within 60 days of the placement regarding the appropriateness and necessity of the placement. The findings shall include:

492 (i) A review of the assessment required in paragraph (b) of this section.

(ii) A determination whether the needs of the child can be met through placement in a foster family home or, if not, whether placement of the child in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment and whether that placement is consistent with the short- and long- term goals for the child, as specified in the permanency plan for the child; and

(iii) An approval or disapproval the placement.

B. Court-Appointed Counsel

1. FCRPP 35 Standards for Court-Appointed Counsel

(1) Rules 35 through 38 shall apply to the appointment and conduct of court appointed counsel, including guardians ad litem and those representing adults, in any action under KRS Chapters 199, 620, and 625.

(2) In addition to Rules 35 through 38, court-appointed counsel shall follow the Statewide Standards of Expected Conduct for Court-Appointed Counsel (the Statewide Standards) set forth in Appendix D. Each Circuit or District may deviate from the Statewide Standards by way of local rule, if approved by the Chief Justice.

(3) Proposed local standards for court-appointed counsel shall set forth the conduct expected of court-appointed counsel. Local standards should incorporate American Bar Association and/or National Council of Juvenile and Family Court Judges best practices standards.

2. FCRPP 36 Appointment and Retention

(1) Each judge shall keep a list of approved court-appointed attorneys. The attorney list shall include each attorney's phone number, physical address, and electronic mail address. Attorneys shall be responsible for updating the judge with any changes to required information.

(2) Each judge's list should be open to any attorney who is in good standing, satisfies the requirements of these rules, and requests to serve. No attorney shall be appointed exclusively as guardian ad litem or as an attorney representing an adult.

493 (3) Courts may impose sanctions, including removal from the appointment list and any active cases, on any attorney who does not comply with these rules. The court shall not remove an attorney from an active case if doing so would harm the client.

(4) Except for guardians ad litem, courts shall not appoint counsel unless the file contains a completed AOC-DNA-11 (Financial Statement, Affidavit of Indigence, Request for Counsel, and Order (ONA/TPR Cases)), and the court has reviewed the form. An exception to this rule shall be if the court takes sworn proof on the record regarding the party's alleged indigency and makes a specific written finding that the party seeking counsel is indigent. In that event, the party must complete the AOC-DNA-11 form and file that form into the record within five business days following the appointment or the appointment shall be vacated. This rule is not applicable to warning order attorney service under Civil Rule 17.

(5) Judges shall review their attorney lists at least every four years.

(6) Each judge shall make his/her attorney list available to the public upon verbal request.

(7) Judges, or their designated clerk, shall appoint counsel sequentially from the list unless:

(a) Another attorney has previously represented that person;

(b) Appointing the attorney would create a conflict; or

(c) The specific and unique circumstances of a party requires, in the interest of justice, that a non- sequential attorney be appointed who has specific and identifiable attributes which would best fit the party's circumstances.

Commentary

Any proceeding with multiple children pending with a common parent(s) with concurrent actions pending should be considered one case, which also includes situations in which there have been multiple petitions adjudicated and disposed of simultaneously involving the same child or children. A proceeding shall be considered active for purposes of this rule from the filing of the petition until permanency is achieved.

494 FCRPP 36(4) is not intended to prevent courts from coordinating potential representation to appear at the initial hearing as potential appointees.

FCRPP 36(7)(c) is not intended as a mechanism for unnecessary selective appointments. It is intended to be a mechanism for appointing attorneys in certain rare circumstances in which the client's interests could be harmed by the appointment of the next sequential attorney. For instance, the provision might be applicable for appointing an attorney of the same sex to represent a child who was sexually assaulted by someone of the opposite sex.

3. FCRPP 37 Required Training

(1) Each attorney seeking appointment in an action under KRS Chapters 199, 620, and 625 shall have completed the required dependency, neglect and abuse training provided by the Administrative Office of the Courts.

(2) Each attorney shall complete a minimum of four hours of relevant legal or multi disciplinary training every two years. Relevant legal education must include instruction on improved practice and current law regarding dependency, neglect and abuse, termination of parental rights, or related proceedings. Multi-disciplinary training must include instruction on child development, trauma-informed care and approaches, substance abuse disorder, child welfare forensics, impact of the Americans with Disabilities Act, or other matters related to practice in actions under KRS Chapters 199, 600, and 625. Court appointed counsel shall provide proof that he or she has completed the required training to the appointing authority in each Circuit or District to remain eligible for appointments.

4. FCRPP 38 Duties Regarding Representation and Repayment

(1) Each indigent party or child is entitled to court appointed counsel to file or defend an appeal brought from a decision of the Circuit or District Court. Once an appeal is filed, the appeal will be a new case requiring a new appointment; however, efforts should be made to appoint the same counsel from the prior case unless there is a conflict of interest or a new appointment is requested by the attorney, the child, or the adult parent or caregiver who is entitled to appointed counsel.

(2) To reduce administrative costs, Courts shall not approve multiple payments to court-appointed counsel for work on the same case except for good cause shown.

495 Commentary

FCRPP 38(2) is intended to apply to multiple payment requests made in the same case. It does not prohibit a single payment request that does not meet the maximum allowable fee. Also, it does not prohibit multiple payments for the same client, provided that the payments are requested for different actions (i.e., multiple trailers, appeals).

IV. APPENDIX D – STATEWIDE STANDARDS OF EXPECTED CONDUCT FOR COURT-APPOINTED COUNSEL

The standards below are the default standards for attorneys appointed to represent an adult or child in dependency, abuse, neglect, termination of parental rights, and adoptions. However, local courts may have adopted alternative standards by way of local rule. Please consult your court's local rules to find whether alternative standards have been approved and adopted.

A. Scope

These Statewide Standards apply to all court-appointed counsel who represent children, parents, persons exercising custodial control, or any other person entitled to representation in adoption, dependency, neglect and abuse, and termination of parental rights actions. Each court- appointed counsel shall follow these standards, as well as the Kentucky Rules of Professional Conduct (SCR 3.130 through SCR 3.995). Should the Kentucky Rules of Professional Conduct impose a different duty than these Statewide Standards, the higher standard controls.

B. Essential Practices for All Court-Appointed Attorneys

All appointed attorneys, including guardians ad litem and those appointed to represent adults, should:

1. Zealously advocate for his or her client;

2. Communicate with his or her client(s) regularly, including minor children, where practical, based upon the child's age and ability to communicate;

3. Explain the child welfare legal process and the client(s)'s rights and duties in a manner that best facilitates the client(s)'s understanding of the same;

4. Have knowledge and understanding of current federal and state child welfare laws;

5. Prepare for and attend court hearings and reviews;

496 6. Discuss and understand the client's life circumstances, including strengths, needs, and the client(s)'s available resources; and assist them with accessing such resources when possible;

7. Understand trauma and client's specific trauma history, how the client's trauma history impacts client's experience with the child welfare system and ability to engage in child welfare services, and how trauma impacts the attorney/client relationship;

8. Build a relationship of trust and ensure the client experiences fairness;

9. Seek court accommodations that promote equal access and full participation in proceedings;

10. Prepare his or her client and the client's witnesses for court;

11. Maintain a reasonable caseload and devote sufficient time for advocacy;

12. Conduct an independent investigation at every state of the proceeding, before and after the jurisdictional/dispositional phase of the proceedings, which should include obtaining and reviewing on an ongoing basis and to the extent allowable under state law (including via subpoena, discovery, or court order), child welfare agency records, service provider records, and all other relevant records for parents and children;

13. Provide ethical legal representation;

14. Confirm his or her client receives proper notice and understands, to the best of the client's ability, the duties and restrictions imposed by court orders;

15. Actively engage in conflict resolution and negotiation;

16. Proactively move the case forward if it is in the client's interests, including reducing case continuances and timely filing any necessary pleadings, motions, or briefs;

17. File motions and appeals necessary to protect his or her client rights and interests;

18. Understand how cultural, social, and economic differences affect the attorney client relationship sufficiently to ensure that all clients receive the same quality of representation;

19. Understand how racial, cultural, social, and economic differences may impact the attorney/client relationship, avoid imposing personal values upon clients, and take these factors into account

497 when working with clients to achieve their case goals, including identifying and accessing services;

20. Understand and recognize the impact of personal and system bias stemming from race, gender identity, sexual orientation and expression, ethnicity, culture, country-of-origin, disability, and socioeconomic status, and develop strategies, including legal strategies, to mitigate the negative impact of personal and system bias on clients' case goals; and

21. Identify and use to clients' advantage their individual, familial, cultural, and community strengths.

C. Standards for Guardians Ad Litem

The guardian ad litem’s role is to advance the child(ren)'s interests in court, provide legal counsel, help the child understand the legal process, and empower the child to participate. To achieve this, the guardian ad litem should:

1. Explain to the child that he or she represents the child and advocates in the child's best interest;

2. Understand the child's wishes in regard to the outcome of the case;

3. Ensure the client's voice is heard in the proceedings, which includes informing the court, upon permission of the child, of any wishes the child has that differ from the child's best interest;

4. Ensure the child has an opportunity to attend and participate in court hearings;

5. Advocate for the child to maintain contact with parents, siblings, and kin through visitation, placement, and permanency planning, when appropriate;

6. Communicate with any person or agency who has relevant information to the case, including teachers, foster parents, and service providers;

7. Promote tailored and specific case plans and services; and

8. Advocate for the child's access to education and community supports.

D. Standards for Attorneys Representing Adults

The role of an attorney appointed to represent an adult is to protect the client's legal rights, advance the client's interests in court, and help the client understand the legal process. To achieve this, the court-appointed

498 attorney, in addition to the Essential Practices for All Court-Appointed Attorneys, should:

1. Diligently pursue the clients' case goals and as needed and when consistent with client's interests and objectives;

2. Ensure the client's voice is heard in the proceedings;

3. Help the client problem-solve and meet case goals;

4. Advocate parent-child contact through visitation and permanency planning; and

5. Identify potential ancillary legal issues that could impact client's dependency case, refer client to legal resources to address issues, and communicate regularly with client's other legal service providers with the goal of ensuring that dependency proceedings and other legal proceedings benefit client.

499 SMALL FIRM PRACTICE MANAGEMENT IN A BRAVE NEW WORLD Stephen Embry, Michael M. Losavio, and Jeffery L. Sallee

I. INTRODUCTION

By the time we present this CLE at the 2020 Kentucky Law Update sessions, we hope that the pandemic has become manageable. The economy will take time to recover. It seems likely that the large and medium size firms will be more likely to weather this storm than the smaller firms and solo practitioners. Even without the pandemic, the larger firms have been reducing the number of attorneys on staff. Computers increase the productivity of attorneys, and the larger firms have been adopting and expanding their use of computer systems, both on premise and in the cloud, much faster than smaller firms.

The practice of law is business. As a small firm or solo practitioner, you will have lower overhead than the larger firms, but you have the same need to be productive. If anything, your needs are greater than those of the larger firms. Because the number of jobs at the larger law firms are diminishing, many attorneys have little choice but to “hang their own shingle” if they want to practice law. This CLE session will provide you with some of the basic information you need to know in order to take this step. It is also for the attorney who is with another firm and in considering starting a small practice.

The first thing you must consider is that the actual practice of law is not your only role in a small firm. You will not have the money to hire a staff to deal with the minutiae of running your own business. However, you should consider a few roles that someone else will perform more efficiently than you. If you are not great with numbers, you may want an accountant to review your books on a weekly or monthly basis and have them do your taxes. Even if you feel comfortable with computers, having someone with a security background to set up your office network will prevent potential bar complaints coming from data breaches. It is likely that you will still need to be your own office manager, custodian, and PR firm.

The Bureau of Labor Statistics keeps track of the survival rate for small businesses and reports it on their Business Deployment Dynamics site. For small businesses, the numbers from 20191 indicate that only 55.5 percent of small businesses survive five years. That said, 20.9 percent of small businesses do not even make it one year. With the pandemic in full swing this year, I expect we will see these survival rates drop significantly. With the advice from this CLE session, we hope to help you be survivors.

Practicing law in a small firm can be very rewarding, even with all the additional roles you probably did not consider in law school. You set your own hours and your own rates. You choose which cases to take. You can make a difference. This is why we went to law school. This is why we studied so hard to pass the bar. Do not let the mundane tasks associated with running a business distract you, if you truly have a passion to practice law.

1 Bureau of Labor Statistics, Business Employment Dynamics for small businesses: https://www.bls.gov/bdm/us_age_naics_00_table7.txt.

500 II. BUSINESS PLAN

My favorite Benjamin Franklin quote is, “If you fail to plan, you are planning to fail.” There is a lot of truth in that statement. Your first step in deciding to start your own law practice is to create a business plan. It helps you organize your business ideas and determine if you have a path to success. You should put your business plan into writing so that you can review it and remind yourself of your goals and success measures.

If you need help developing a business plan, check out one of these sites for help:

• ABA – Developing a Business Plan for Your Practice2

• Lexicata (by Clio) – Law Firm Business Plan Template [Free Download]3

• U.S. Chamber of Commerce – 5 Business Plan Templates to Help You Plan for Success4

• ABA Bookstore – The Lawyer's Guide to Creating a Business Plan, Sixth Edition A Step-by-Step Software Package5 ($142-$190)

This document is the map for a new business. You will need one if you need to borrow money to start your business. Entrepreneur magazine6 suggests your business plan needs six items:

A. Your Basic Business Concept

How are you going to differentiate yourself from other lawyers? What are you going to do that will bring you success?

2 Cindy Albracht-Crogan, Developing a Business Plan for Your Practice, ABA Litigation Section, Practice Points, posted Aug. 14, 2012. Located at https://www.americanbar.org/ groups/litigation/committees/solo-small-firm/practice/2012/developing-business-plan-for-your- practice/, last followed on April 19, 2020.

3 Aaron George, Law Firm Business Plan Template [Free Download], Lexicata blog, posted Aug. 24, 2018. Located at https://lexicata.com/blog/law-firm-business-plan-template-free-download/, last followed on April 19, 2020.

4 Sean Peek, 5 Business Plan Templates to Help You Plan for Success, CO Site, U.S. Chamber of Commerce. Located at https://www.uschamber.com/co/start/startup/business-plan-templates, last followed on April 19, 2020.

5 Linda Pinson, The Lawyer's Guide to Creating a Business Plan, Sixth Edition, A Step-by-Step Software Package, ABA’s online store, https://www.americanbar.org/products/inv/cdr/137050908/, last followed on April 19, 2020.

6 Entrepreneur staff, What to Include in Your Business Plan, Business Plans section, Entrepreneur.com, published December 9, 2014, located at https://www.entrepreneur.com/ article/239407, last followed on April 19, 2020.

501 B. Your Strategy

Document your specific plans and goals, and then explain how you will achieve them.

C. Your Competitive Advantages

What do you have to provide that will make people seek you to be their lawyer?

D. Your Target Market

Whom will you have as clients? Are there enough of them for you to make a profit?

E. Your Background

Consider this a very short resume. The reader needs to know who will be leading this company.

F. Your Financing Needs

If you are going to need money, you need to know how much you will need. You also need to include projected financial statements. How many clients will you have? How many billable hours do you anticipate? What is your rate?

You really need to be realistic about your plans. If you plan on practicing employment law in a town with few industries and several established attorneys practicing that area of law already, your dream may not be realistic. If you think you will have 100 clients within the first quarter and they will pay $500/hour for a new attorney in a small town, readers will discount the rest of your business plan.

Starting a business requires starting capital. If you plan to practice law while holding a second job, will you have the flexibility to meet with clients and be in court? Don’t forget to consider any existing debt you have, such as outstanding student loans. Be certain that you have enough money on hand to resist the temptation to comingle funds. That is the fastest way to professional discipline and the end of your business.

III. LEGAL FORM AND NAME OF THE FIRM

While preparing the business plan, a decision on the legal form for the new business must be made. Every kind of business entity has both benefits and detriments. A sole proprietorship is easy, but limits growth. A partnership is fine, as long as the partnership and friendship can withstand the strains of the start-up period. A limited liability company is still relatively easy to create and offers more protection and separation between the business and your personal assets. A corporation offers great protection but adds cost and overhead that may be difficult for a solo to manage.

502 Once the legal form of the firm is determined, a name is the next step on the checklist. Both the Kentucky Bar Association's Advertising and Ethics Commissions as well as the Kentucky Supreme Court Rules have restrictions on the naming of a firm. The underlying rule is quite simple: the name of the firm cannot be misleading. A solo practitioner cannot claim to be affiliated with others, if that is not the case (e.g., Jeff Sallee and Associates implies there are associates in the solo's firm). A firm cannot indicate it is a different legal form than it really is. (partnerships cannot call themselves a PLLC.)

The last step in the naming process is to verify that the name is not already taken. Not only would this be an issue from a trademark perspective, it can be considered misleading. Even if the name is not an existing legal firm, you can run into trouble. An attorney named Kimberly Clark, or a partnership of Procter & Gamble will receive immediate and unwanted attention.

If the firm is planning to practice across state lines, be certain that the name meets the requirements of all the jurisdictions involved. Practicing under a trade name can be problematic and you need to ensure you can do it in all the states where you practice.

IV. PHYSICAL LOCATION OF THE FIRM

You need to have a place where clients can meet you. The key things to consider from a new lawyer perspective is that you need an office, a place for clients to park, and a place for clients to wait while you are discussing legal matters with another client. You do not need a conference room, a kitchen, or spare rooms for future associates.

One thing lawyers often overlook is the need for their office to be ADA accessible. Your clients may have mobility issues and you do not want to have a client decide to fire you simply because they cannot get through your front door.

Starting out, many attorneys choose to rent an office in a complex owned by another lawyer. This can be positive in many ways. These offices can be much less expensive than opening an office on your own, but they can also be problematic. You may be required to share the salary of a shared office manager or other business costs that you are not financially prepared to pay as a new lawyer. Additionally, you have to be careful that people do not consider everyone in the office is in the same firm. The last thing you need is the bad publicity, and potential bar complaint for actions of someone else at your office.

V. TAXATION, ACCOUNTING, AND INSURANCE

Before you can start practicing law, you must become an official business. Your law license allows you to practice law, but if you expect to do this in your own firm, you need to have a business license as well. You also need to have state and federal tax IDs.

There are also many taxes that you will pay as a business that you did not pay as an employee. One example is that an employee only pays half of the Social Security (FICA) tax. As the employer, you pay a matching amount for every

503 employee. Most employees have tax withheld every pay period, but firms have to pay taxes quarterly. Failure to do so will not only result in a tax penalty from the IRS, but you may not be able to pay all your federal taxes at the end of the year.

You will also need to purchase insurance. Some insurance is optional, such as business disruption insurance, but other insurance is mandatory, such as worker’s compensation insurance. Depending how you set up your business, you will likely be required to have professional liability insurance. The rates differ based on the practice areas and years of practice. With the Affordable Care Act, you need to have health insurance. This can be through the firm, or through another company. Health insurance is something that most employees look for in a law firm. If you do not provide it, you may need to pay your employees more so they can buy the required insurance elsewhere. You should consider renter's insurance to cover items in your office. If you are renting an office, the owner probably has insurance to cover the building itself, but not your contents.

VI. LEAVING A FIRM TO START A NEW ONE

Sometimes an attorney decides that leaving a firm to start a practice is a good idea. In cases like this, KBA Ethics Opinion E-424 makes it clear that the decision to stay with the firm or the attorney who represented them at that firm is one the client must make. Both the firm and the attorney have a duty to protect the client's interest. It is best for both the attorney and the firm to contact the client and provide the option. The client needs to realize that even if the client leaves the firm to follow the attorney to a new firm, the original firm may need to keep a copy of the records. There are also ethical considerations surrounding unpaid work and unbilled hours.

The attorney who is leaving does need to have enough client data to perform client conflict checks. This does not mean that the attorney should be able to take the firm's entire client database.

VII. SETTING UP THE OFFICE

Starting out, a new attorney does not need a mahogany desk, oak bookcases full of law books, and fancy chairs for clients in the waiting area. Starting out, you just need the minimal set up: desk, chairs, lighting, etc. If you are a well-established attorney and need to have a more up-scale office, you will know what kind of budget you have to accommodate those needs. Always consider the clients when setting up your office. If you will be practicing juvenile law or family law, you may need some smaller chairs. If your clients are mostly blue-collar workers, a richly appointed office can make the client reconsider their decision to select you as their attorney.

One thing you absolutely need in today’s workplace is a functional laptop. You can do your legal research online, store files on a server or in the cloud, create and file your own documents, and be able to practice from home or when away from the office.

The decision on the "right" computer to buy or the "right" software is somewhat personal. The essential decisions come down to budget and to the level of comfort with the systems. In addition to a computer, you need an internet connection, a

504 black and white multifunction printer/scanner, and perhaps a color printer for a few documents. You may want to have a dedicated phone line, but it does not need to be an old desk phone. You can have an internet phone at the office and forward those calls to your cell phone when out of the office.

Practice management software is essential for keeping track of your cases, filing deadlines, and tracking billable hours. Be certain to spend a little time and money for training on your software. This is money well spent. It will help you be more productive and justify the expense of the software. If you go without the training, you will likely miss features and be less productive. For a solo practitioner or attorney at a small firm, your productivity can be a key advantage over your counterpart at a larger firm where they are required to use the software the firm decides to implement.

Attorneys often want to use operating systems and software long past their end of life dates. This means that you will no longer have security updates, which can wreak havoc on your firm. It can also be problematic when exchanging files with clients and attorneys who use systems that are more modern. Sometimes the format changes so much that they will be able to read your documents in the older format, but you will not be able to read their documents.

The KBA provides access to Casemaker7 for legal research. Although Westlaw and LexisNexis were great legal research tools in law school, the cost may be prohibitive in a small practice. Many larger firms will reject legal research line items on an invoice, and your personal clients do not appreciate it either.

VIII. MAKING MONEY

You will not be in business long without clients. Closely related to a business plan is a marketing plan. You need to find clients, and new firms do not attract clients with word-of-mouth. You need to advertise. The market research you should have done in creating your business plan helps here. You should have identified what the customary rates for legal services are for your practice area and geographical location. For very new firms with limited capital for a cushion, contingency fee cases can be risky. You may need to focus on flat fees and simpler cases that can bring in revenue quickly.

Court-appointed work is one way to gain experience and maintain a steady revenue stream. This work helps many attorneys make ends meet. If you do a good job with this work, these clients will also bring in referrals from friends and acquaintances.

Another consideration for expanding business is to contract with other firms in the area to provide assistance with legal services they are too busy to handle. This work is not usually client-facing, so you will not receive a full fee. You’ll need to conduct conflict checks and keep track of these clients and the kind of work you provide. The contract attorney is not the attorney of record and the client relationship remains with the hiring lawyer.

7 To learn more about the Casemaker KBA benefit, check out the KBA website.

505 "Of counsel" arrangements are another option. If you do a good job at the contract work for an attorney or a firm, you can develop an “of counsel” arrangement. These arrangements can eventually lead to more prestige and you may be permitted to be listed as an “of counsel” attorney on the firm's letterhead or even an offer to join the firm.

IX. CLIENT DOCUMENTATION

When dealing with clients, it is important to recall what you learned in your legal ethics class. You must collect enough information to do a conflict check before you decide to represent the client. Require prospective clients to complete an intake form with the details you need. Do this before you meet with the prospective client to discuss the case’s details. Failure to do this could not only lose you the prospective client, but also prevent you from representing a current client in a matter that conflicts with the prospective client. Ensure you have law practice management software that includes conflict check capabilities or keep a very good list of your clients that you can quickly review when considering a new client.

Do not provide any legal advice without an engagement letter that specifies the scope of the engagement. The scope of the engagement can be that you decline the case. You should have templates of both an engagement letter and rejection letter that you can complete at your first meeting with the client. Even with your first meeting with a prospective client, you need to be clear that your initial meeting is just to determine if you and the client are a good fit for the particular case.

After the initial meeting, if you decide not to take the case, then you must be very clear that you decided not to be their attorney for the matter, and that they should consult another attorney soon because laws have statutes of limitations that can prevent them from pursuing a case in court if too much time has passed.

If the meeting goes well and you decide to take the case, send the client a letter confirming the scope of the engagement and your rate structure. Be clear about what you expect the client to do (e.g., update you on events related to the case, not to speak about the case without you present, etc.). Let the client know what they should expect from you (e.g., monthly billing, updates at least once a month, returned calls and emails within two business days, etc.) The engagement letter is also an important place to let the client know what would cause you to dissolve the attorney-client relationship (e.g., failure to pay, evidence the client lied to you or to the court, etc.)

Once the case is over, it is important to send the client a disengagement letter. This letter thanks the client for choosing you as their attorney. It clearly indicates that your legal representation has concluded. It is time to settle accounts, returning any money you owe the client and requesting any money still owed to you. Be sure to encourage the client to return if they need legal services in the future.

The first financial rule for dealing with clients is to request a retainer up front, if it is legal to do so. Place these funds in a client trust account until you earn them. Only then do you move them to your operating account, memorializing the act in a billing statement. The quickest way to bankruptcy for attorneys is for them to work without payment. The quickest way to receive professional discipline is to mix client

506 and firm funds. The engagement letter should have been clear about your rates, any retainer, when payments were due, etc.

If you decide to hire an accountant to maintain your books, be certain not to give too much information to the accountant regarding the actual matters. You must remain diligent in protecting client confidentiality.

Most attorneys bill on a monthly basis. This bill not only documents the money you charged for representing them, but also identifies any expenses, court fees, and payments received during the month. Monthly billing also reminds you of slow- moving cases. It is a good practice to bill for pro bono work. Even if you received no fee for the representation, a bill shows the client the value of the representation. It also reminds them that future work may require actual payment.

Monthly billing improves your cash flow, helps determine if you need a larger retainer, and prevents client sticker shock that comes with longer billing cycles. Monthly billing also makes it easier to identify clients who will not pay. Most clients do not understand the expenses related to practicing law. Your bill will always seem too high for too little work. You should avoid situations where you have to sue clients for payment. It looks bad from a PR perspective. One practice tip for helping ensure your client pays you is to have any settlement check include your name as a payee. This means you both have to sign the check and you can take any unpaid fee at that time.

X. MARKETING AND BUSINESS DEVELOPMENT

In Kentucky, law firms must adhere to the rules of the Attorney Advertising Commission as defined in SCR 3.130(7.01) through 3.130(7.60). Advertising is only one aspect of marketing. Before going forward with an advertising plan, attorneys must ensure that they are meeting the advertising requirements.

Consider where your advertising is most likely to reach your intended clients. Few people read the newspaper or even open a “yellow pages” these days. Unless your area of practice is elder law, advertising in these avenues is a waste of money.

Most people now look for attorneys on the internet. Having an internet presence is becoming an essential tool for advertising. This requires some work because you want it to look professional and you want it to be secure. You should probably hire someone to do this instead of creating your own site. You also want your site to be accurate and the content to be fresh. If you have not updated you site in months, the average person visiting your site may think that you have stopped practicing law, or that you are too busy to deal with their case.

Many lawyers join professional and charitable organizations to obtain new business leads. Being a member of the local bar can give you access to the lawyer referral service as well as contacts with other local attorneys. Participation in a KBA Section or Division can give you additional exposure, which can also lead to referrals.

507 The basics of marketing are simple:8

A. People Need to Know They Need an Attorney

B. Advertising Needs to Point Them to You as the Attorney They Need

C. Clients Need to Feel that You Care and are Acting in Their Interest

D. Client Tell Others about Their Experience with You as an Attorney

XI. HIRING STAFF

Starting out, you are not likely to have the clientele or income to hire staff. Your business plan should have included a timeframe and prerequisites to justify when an admin or paralegal made sense. Before you hire anyone, you need to know that you have the revenue stream in place to handle the additional expenses related to new staff.

This is another point where you need outside help. Hire a business consultant to help set up the processes you do not have experience to cover. The consultant can help you learn how to interview as an employer, how to set up an employee handbook, and educate you on the employment processes you may not have experienced, e.g., completing IRS I-9 forms for new employees.

XII. ADDITIONAL RESOURCES

• Alexandra Lozano, Be the CEO of Your Law Firm: Gain Control, Turn a Profit, and Reclaim Your Life, 2018

• Aaron Street, Sam Glover, Stephanie Everett, and Marshall Lichty, The Small Firm Roadmap: A Survival Guide to the Future of Your Law Practice, 2019

• Jay G. Foonberg, How to Get and Keep Good Clients, 3rd Edition, 2008

• The ABA's How to Build and Manage a Practice series, ABA

8 For a concise article on this topic, see Heidi Cohen, "Marketing, The 4 Moments of Truth," Heidi Cohen's Actionable Marketing Guide, Jun. 27, 2013, http://heidicohen.com/marketing-the-4- moments-of-truth-chart/.

508 THE VARYING ROLES OF THE LEGAL INTERPRETER IN JUDICIAL SETTINGS IN KENTUCKY Joshua C. Elliott

I. WHAT IS COURT INTERPRETING

Court interpretation is the act of orally transferring meaning from one language to another in a variety of judicial proceedings through the use of various interpreting modes. Court interpreters are expected to convey every element of meaning of the source-language message, without adding, omitting, editing, simplifying, or embellishing.

In other words, court interpreters must maintain the tone and register of the original message, even if it is inappropriate, offensive, or unintelligible. An accurate interpretation is true to the actual MEANING of what is being said. Words are merely symbols that convey ideas, and our interpretation is to convey the idea stated in the original language in the very same style, tone and intent used by the speaker.

If the defendant is an illiterate and hails from a geographically isolated region of a distant and remote country, he/she should understand as much of the message as an illiterate and geographically isolated resident of the United States.

The interpreter's job is to place the non-English speaker on an equal footing with, not at an advantage relative to, an average layperson who understands ordinary English. The interpreter's task is not to ensure that the defendant understands the proceedings! A non-English speaker should be able to understand only as much of the message as an English speaker with the same level of education and intelligence.

II. WHAT’S THE DIFFERENCE BETWEEN INTERPRETATION AND TRANSLATION?

A. Interpretation always deals with the transfer of word meaning via the “spoken” word.

B. Interpretation is purely oral in its practice and generally done on the fly!

C. Interpreting in the U.S. is mostly performed from English to another language (e.g. English to Spanish).

D. “Meaning” is what matters most!

E. Translation deals with the transfer of one language into another via the “written” word.

F. Translation always involves some type of text.

G. Translation typically allows for more time to study the text in question.

509 H. Although meaning is paramount, great care must be taken to preserve the structure of the original text.

III. INTERPRETER ROLES IN JUDICIAL SETTINGS IN KENTUCKY

A. Sworn Proceedings Interpreter

B. Court Interpreter

C. Private Linguistic Expert

1. Table Interpreter.

2. Check Interpreter.

3. Monitor Interpreter.

4. Party Interpreter.

5. Defense/Prosecution Interpreter.

IV. SWORN PROCEEDINGS INTERPRETER

A. Under Oath

B. Officer of the Court

C. Extension of the Bench – Primary function is to provide assistance to the Court in communications.

D. Evidentiary Considerations – Bound by the Rules of Evidence.

E. As defined in the KCOJ Language Access Plan and Procedures:

1. Has taken an oath to provide complete, unbiased, and accurate interpretation between English speakers and defendants, litigants, victims, or witnesses with limited English proficiency or who are deaf or hard of hearing during court proceedings or direct services.

2. Is an impartial officer of the court and may not participate in the facilitation of private and/or privileged communication between non- Court of Justice entities and individuals with limited English proficiency or who are deaf or hard of hearing.

V. OFFICER OF THE COURT

A person who is charged with upholding the law and administering the judicial system.

A. Judges

510 B. Attorneys

C. Clerks

D. Bailiffs and Sheriffs

E. Sworn Proceedings Interpreters

VI. PRIVATE LINGUISTIC EXPERT

A. Not Under Oath

B. Not an Officer of the Court

C. Provides Constitutional Access to Counsel

D. Interprets Privileged and/or Private Communication

E. Monitors the Sworn Proceedings Interpreter

F. As defined in the KCOJ Language Access Plan and Procedures:

1. Interpreter or other language professional hired by a non-Court of Justice entity to facilitate private and/or privileged communication between a party with limited English proficiency and the non-Court of Justice entity.

2. Role may include monitoring the accuracy of the Sworn Proceedings Interpreter.

3. Not an Officer of the Court.

4. May participate in the facilitation of private and/or privileged communication.

VII. WHY DO WE HAVE SPOKEN LANGUAGE INTERPRETERS?1

A. Reason #1: Due Process

The right to be present has been interpreted to mean that the defendant has a right to hear proceedings in a language that he/she understands, thus providing equal footing with an English speaker.

B. Reason #2: Every criminal defendant has a right to aid in his/her own defense.

An LEP speaker cannot communicate effectively with legal counsel unless an interpreter is provided.

1 You can read the Executive Order on The United States Department of Justice Website. https://www.justice.gov/crt/executive-order-13166.

511 C. Reason #3

Title VI, as interpreted by Executive Order 13166, mandates linguistic access for any recipient of federal funds.

VIII. LAWS RELATED TO COURT INTERPRETING SERVICES

A. Amendments 6 & 14 of the U.S. Constitution

B. Title VI of the Civil Rights Act of 1964

C. Title II of the Americans with Disabilities Act

D. KRS 30A.400-.435

E. Rules of Administrative Procedures of the Kentucky Court of Justice, Part IX, Kentucky Court of Justice Language Access Plan and Procedures

IX. TITLE VI OF THE CIVIL RIGHTS ACT OF 1964

A. Basics

1. No discrimination based on race, color, or national origin in federally subsidized programs or activities.

2. National origin discrimination = language-based discrimination.

3. Recipients of federal funds must take reasonable steps to ensure meaningful access to programs and activities by limited English proficient persons.

4. Title VI applies regardless of the amount of the federal funds received.

B. Section 601

“No person shall on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”2

C. Section 602

Authorizes and directs federal agencies that are empowered to extend federal financial assistance to any program or activity to effectuate the provisions of section 601 by issuing rules, regulations, or orders of general applicability.3

2 42 U.S.C. §2000d.

3 42 U.S.C. §200d-1.

512 D. Federal financial recipients are forbidden from utilizing criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin.4

E. In Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court stated that Title VI prohibits conduct that has a disproportionate effect on LEP persons because such conduct constitutes national origin discrimination.

F. Recipients of federal financial assistance have a responsibility to ensure meaningful access to their programs and activities by persons with limited English proficiency (LEP).5

G. Executive Order 13166 – Improving Access to Services for Persons with LEP

H. Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition against National Origin Discrimination Affecting LEP Persons6

I. All recipients of federal financial assistance from any federal agency must comply.

J. Coverage extends to a recipient’s entire program or activity.

K. According to the DOJ, those recipients that operate in jurisdictions in which English has been declared the official language are still subject to federal non-discriminatory requirements, including those applicable to the provision of federally assisted services to persons with limited English proficiency.

L. Who is a limited English proficient person?

Individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English.

M. Recipient’s Obligation to Provide LEP Services

28 CFR 42.104(b)(2) requires recipients to take reasonable steps to ensure meaningful access to their programs and activities by LEP individuals.

N. To determine the extent of the language assistance to be provided, recipients must use a four-factor analysis to evaluate their program:

4 28 CFR §42.104(b)(2).

5 28 CFR §42.104(b)(2).

6 67 FR 41455-01, 2002.

513 1. The number of proportion of LEP individuals eligible for service.

2. The frequency of the services used by the LEP individuals.

3. The nature and importance of the program, activity, or service provided by the program.

4. The cost associated with providing language assistance.

X. TITLE II OF THE AMERICANS WITH DISABILITIES ACT

A. General Information

1. Services offered by public entities must be accessible to qualified individuals with disabilities. Discrimination, on the basis of disability, is prohibited.7

2. Individuals with disabilities must have access to all programs, services, and activities of the court system, including the circuit court clerk’s office.

3. Denial of access could lead to a lawsuit or a complaint filed with the Department of Justice and/or the Kentucky Commission on Human Rights.

4. Public entities shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.8

5. Public entities are not required to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.9

B. Qualified Individuals with a Disability

An individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs, or activities provided by a public entity.10,11

7 28 CFR §35.130.

8 28 CFR §35.130(b)(7).

9 28 CFR §35.164.

10 42 U.S.C.A §12131(2).

11 28 CFR §35.104.

514 1. Disability defined:

A physical or mental impairment that substantially limits one or more major life activities of such individual, a record of such an impairment, or being regarded as having such an impairment.12,13

2. Major life activities defined:

Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. A major life activity also includes the operation of a major bodily function, including, but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.14

C. Public Entities Obligation with Regard to Communication

1. A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.

2. A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service program, or activity conducted by a public entity.

3. In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.15

D. Why Should We Worry about Compliance?

1. Complaints.

ADA regulations direct individuals who believe they have been subject to discrimination by a public entity to file a complaint with the Department of Justice, who will then investigate the complaint,

12 42 U.S.C.A §12102.

13 28 CFR §35.104.

14 42 U.S.C.A §12102.

15 28 CFR §35.160.

515 unless the parties reach an agreement in mediation.16,17

2. Lawsuits.

Individuals have a private right of action for violations of the ADA. There is no state immunity for an ADA violation.

A state shall not be immune under the Eleventh Amendment of the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this Act. In any action against a State for a violation of the requirements of this Act, remedies (including remedies both at law and equity) are available for such a violation to the same extent as such remedies are available for such a violation in an action against any public or private entity other than a State.18

XI. WHAT EXPECTATIONS SHOULD YOU HAVE AS AN ATTORNEY?

If you represent a person with limited English proficiency (LEP) or a person who is deaf or hard of hearing, what should you expect of the interpreter?

A. A Private Linguistic Expert (You Hire)

B. A Sworn Proceedings Interpreter (Appointed by the Court)

XII. EXPECTATIONS YOU MAY HAVE WHEN YOU HIRE AN INTERPRETER

A. Interpreter Certification or Other Professional Credentials

B. Education

C. Background/Experience

D. Specialized Knowledge

E. Other Pertinent Qualifications

F. Professional Conduct

G. Adherence to the Assigned Role

Remember that in life, you really do get what you pay for!

16 28 CFR §35.170.

17 28 CFR §35.172.

18 28 CFR §35.178.

516 XIII. EXPECTATIONS THE COURTS HAVE WHEN APPOINTING AN INTERPRETER

Render everything said in court in the source language into the target language:

A. Accurately

B. Without Omissions or Additions

C. Without Any Changes in Style, Tone or Register

D. With as Little Delay or Interference with the Court Proceeding as Possible

E. Impartially

May not perform duties beyond the scope of the role of the Sworn Proceedings Interpreter.

XIV. HOW DOES THE INTERPRETER MAINTAIN ACCURACY

A. Canon 1

Interpreters shall be accurate and Complete.

B. Why should our interpretation be accurate and complete?

C. Remember: We are there to provide equal footing. If the LEP individual spoke English….

XV. ACCURACY AND COMPLETENESS: HOW?

A. Maintain Register

1. Legal.

2. Slang.

3. Acronyms.

B. Best Word Choice

Nuances, Correct vs. Best Option

C. Obscenities = Part of the Job

D. Idioms, Culturally-Bound Terms and Units of Measure

1. Cool as a cucumber.

2. Sushi.

517 3. Meters, gallons, inches, pounds.

XVI. THE INTERPRETER’S CHALLENGE

To render the same MEANING, not the same WORDS.

Sounds easy, right? The interpreter is like a “magic telephone” … just say it in English and you will hear it in…

A. Sight Translation

B. Consecutive Interpretation

C. Simultaneous Interpretation

XVII. WORKING TIPS

A. Clients with Limited English Proficiency

1. How do you establish basic communication?

2. Relevant information about the client: Education, culture, country, etc.

B. Deaf clients, or clients that are hard of hearing:

1. How do you establish basic communication?

2. Notetaking – Ask permission!

3. Lipreading (be aware of limitations).

4. Language assessment.

Remember that it is the attorney’s responsibility to effectively communicate with the client!

XVIII. TIPS FOR WORKING WITH INTERPRETERS

A. Determine the Need

1. Interpreter.

2. Translator.

3. Assistive listening technology.

B. Who Needs the Interpreter?

1. Party.

518 2. Witness.

3. Non-party.

4. Deaf attorney.

C. Specify the Language

1. Determine the target language (country, region, dialect, cultural competency).

2. Remember that the right to an interpreter exists even if a person’s English skills seem “pretty good” or he/she appears to read lips well.

D. Make the Court Aware of Your Need for a Sworn Proceedings Interpreter in a Timely Manner

1. At least two weeks’ notice if possible.

2. Services may be provided remotely.

E. Remember the Role of the Interpreter

1. Sworn Proceedings Interpreter – Works for the court.

2. Private Linguistic Interpreter – Works for you.

F. Conduct a “Pre-session” with Your Private Linguistic Expert to Discuss the Services You Will Need

Bad things happen when interpreters break role!

XIX. RESOURCES

A. Kentucky Court of Justice Language Access Plan and Procedures19

B. Code of Professional Conduct for Sworn Proceedings Interpreters20

C. KCOJ Certification Policy for Spoken Language Interpreters21

D. KCOJ Certification Policy for Interpreters for the Deaf and Hard of Hearing22

19 https://kycourts.gov/courts/supreme/Rules_Procedures/201715.pdf.

20 https://kycourts.gov/courts/supreme/Rules_Procedures/201716.pdf.

21 https://kycourts.gov/courtprograms/CIS/Documents/Spoken.pdf.

22 https://kycourts.gov/courtprograms/CIS/Documents/SignLanguage.pdf.

519