SUPREME COURT RULES HEARING

Transcription

1 SUPREME COURT RULES HEARING Sponsor: Supreme Court of Kentucky CLE Credit: 1.5 Wednesday, June 13, :00 a.m. - 10:30 a.m. Heritage East/Center Lexington Convention Center Lexington, Kentucky

2 A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. 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 judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program 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. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio Kentucky Bar Association

3 TABLE OF CONTENTS The Presenters... i 2018 Proposed Amendments to the Rules of Civil Procedure (CR) Proposed Amendments to the Rules of Criminal Procedure (RCr) Proposed Amendments to the Kentucky Rules of Evidence (KRE)... 7

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5 THE PRESENTERS Chief Justice John D. Minton, Jr. Supreme Court of Kentucky Warren County Justice Center 1001 Center Street, Suite 305 Bowling Green, Kentucky CHIEF JUSTICE JOHN D. MINTON, JR. was elected to the Supreme Court of Kentucky in 2006 and re-elected to another eight-year term in His fellow justices elected him for a four-year term as Chief Justice in 2008, 2012 and In July 2017, Chief Justice Minton completed a one-year term as president of the Conference of Chief Justices and chair of the National Center for State Courts Board of Directors. He is also a member of the board of directors for the State Justice Institute, a federal nonprofit corporation that awards grants to improve the quality of justice in state courts. President Obama nominated him to the SJI board and the U.S. Senate confirmed the nomination in December, Chief Justice Minton was in private practice for fifteen years before serving as a circuit judge from 1992 to 2003 and a Kentucky Court of Appeals judge from 2003 to He holds degrees from Western Kentucky University and the University of Kentucky College of Law. Chief Justice Minton previously served on the board of the Council of State Governments and is a 2010 alumnus of the prestigious Toll Fellowship Program, one of the nation's top leadership development programs for state government officials. In 2003, the Kentucky Bar Association honored him with its Outstanding Judge Award. He was named Distinguished Jurist in 2012 by the University of Kentucky College of Law Alumni Association, and was inducted into the Western Kentucky University Hall of Distinguished Alumni in i

6 Justice Bill Cunningham Supreme Court of Kentucky 103 West Court Street Post Office Box 757 Princeton, Kentucky JUSTICE BILL CUNNINGHAM was elected to the Supreme Court of Kentucky in November 2006 to serve the First Supreme Court District. Prior to joining the Supreme Court, Justice Cunningham served as a circuit court judge for fifteen years. He served as the Eddyville City Attorney from 1974 to 1991 and the public defender for the Kentucky State Penitentiary from 1974 to In addition, he served as commonwealth's attorney for the 56th Judicial District from 1976 to During his tenure in that position, he was voted the Outstanding Commonwealth Attorney of Kentucky by his peers. Justice Cunningham also served as a hearing officer for the Kentucky Board of Claims from 1981 to 1985 and as a trial commissioner for Lyon County District Court from 1989 to Justice Cunningham earned his bachelor's degree from Murray State University and his J.D. from the University of Kentucky College of Law. He is a veteran of the U.S. Army, having served in Vietnam, Korea, and Germany. Justice Daniel J. Venters Supreme Court of Kentucky 50 Public Square, Suite 3500 Somerset, Kentucky JUSTICE DANIEL J. VENTERS was appointed to the Supreme Court of Kentucky in August 2008 by Governor Steve Beshear. He was subsequently elected to that office for the term that ends December 31, 2018, serving the Third Supreme Court District. Justice Venters served as a district court judge for Pulaski and Rockcastle counties from 1979 to 1984, and as a circuit court judge for Pulaski, Lincoln and Rockcastle counties from 1984 to In 2003, he retired from the trial court bench and returned to private law practice in his hometown of Somerset, where he practiced until his appointment to the Supreme Court. Prior to his judicial career, Justice Venters served for four years as an assistant commonwealth's attorney. He is admitted to practice before the United States Supreme Court and the United States District Court for the Eastern and Western Districts of Kentucky. Justice Venters has served as a member of Kentucky Board of Bar Examiners, the Kentucky Bar Association Board of Governors, and as president of the Pulaski County Bar Association. He received his bachelor's degree from The Ohio State University and his J.D. from the University of Kentucky College of Law. ii

7 Deputy Chief Justice Lisabeth T. Hughes Supreme Court of Kentucky Jefferson County Judicial Center 700 West Jefferson Street, Suite 1000 Louisville, Kentucky DEPUTY CHIEF JUSTICE LISABETH T. HUGHES serves Jefferson County, which is the Fourth Supreme Court District. In February 2017, Chief Justice of Kentucky John D. Minton, Jr. named her deputy chief justice of the Supreme Court. Justice Hughes has served on the Kentucky Supreme Court for ten years and has been a judge for twenty years. She was appointed as a justice in 2007 to fill the vacancy created by the retirement of the late Justice William E. McAnulty, Jr. In November 2008, the voters of Jefferson County elected her to serve as the justice from their district. She was reelected in November Prior to taking the Supreme Court bench, Justice Hughes served as a Kentucky Court of Appeals judge from and a Jefferson County Circuit Court judge from She was reappointed to the Court of Appeals in 2006 and later elected to the court, where she was serving when she was appointed to the Supreme Court. After earning her bachelor s degree with highest honors from the University of Louisville, Justice Hughes graduated magna cum laude from the University of Louisville Louis D. Brandeis School of Law, where she was named Outstanding Graduate of her law school class. Before serving as a judge, she practiced law for fifteen years, concentrating on business and commercial litigation. Justice Hughes is a past president of the Louis D. Brandeis Inn of Court. She is chair of the Supreme Court s Civil Rules Committee and is the Supreme Court representative on the board of the Kentucky IOLTA Fund. She is past president of the alumni council for the University of Louisville Louis D. Brandeis School of Law and served as a trustee for the Kentucky Judicial Form Retirement System Board from She is a past Louisville Bar Association Judge of the Year and was the U of L Law Alumni Fellow in She is a frequent lecturer for the Kentucky Circuit Judges College and is a 2007 graduate of Leadership Louisville. iii

8 Justice Laurance B. VanMeter Supreme Court of Kentucky 1999 Richmond Road, Suite 2B Lexington, Kentucky JUSTICE LAURANCE B. VANMETER was elected to the Supreme Court of Kentucky in November 2016 from the Fifth Appellate District. Upon taking office on January 2, 2017, he became just the third justice to have served at all four levels of the Kentucky unified court system. Prior to being elected to the Supreme Court, Justice VanMeter served thirteen years as a judge of the Kentucky Court of Appeals, having been elected in November 2003, and being re-elected unopposed in 2006 and Justice VanMeter currently serves as the chair of the Judicial Retirement Fund Investment Committee, having served two terms as chair of Board of Trustees of the Kentucky Judicial Form Retirement Systems ( ), with an intervening term as chair of the Judicial Retirement Fund Investment Committee ( ). Justice VanMeter is the Supreme Court's liaison to the Kentucky Bar Association's Continuing Legal Education Commission. He served the Court of Appeals as acting Chief Judge during 2010 and as Chief Judge Pro Tempore from 2007 to 2010, and served as the Court of Appeals representative on the Ethics Committee of the Kentucky Judiciary from 2004 to 2012 and as its alternate member on the Kentucky Judicial Conduct Commission from 2012 to In addition, Justice VanMeter has served on the Probate and Trust Legislative Committee of the Kentucky Bar Association, the Family Court Rules and the Civil Rules Committees of the Supreme Court of Kentucky, the Chief Justice s Fayette County Family Court Task Force, and is a frequent speaker for continuing legal education. Justice VanMeter received his undergraduate degree from Vanderbilt University, and his law degree from the University of Kentucky College of Law, where he was a member of the Order of the Coif and the Kentucky Law Journal. Justice VanMeter practiced law with Stoll, Keenon & Park from 1983 to 1994, where his practice areas included equine law, business planning and organizations, real estate, taxation, estate planning, trusts and probate. He has been admitted to the bar of the Supreme Court of the United States, and is a member of the Kentucky and Fayette County Bar Associations. From 1994 to 1999, he served as district judge for Fayette County, Division 1 of the 22nd Judicial District. Justice VanMeter was appointed to the Fayette Circuit Court bench in 1999 and served there until his election to the Court of Appeals. Justice VanMeter has been actively involved in a number of community organizations, including Little League Baseball, Lexington Youth Soccer, Boys' and Girls' Clubs of America, and Parents' Place, the University of Kentucky Libraries National Advisory Board, and has served on the vestry of Christ Church Cathedral, on the Vanderbilt University Alumni Board of Directors, and on the Sayre School Board of Trustees. He is a Fellow of the University of Kentucky, a Life Fellow of the Kentucky Bar Foundation, and a Founding Fellow of the Fayette County Bar Foundation. iv

9 Justice Michelle M. Keller Supreme Court of Kentucky Kenton County Justice Center 230 Madison Avenue Covington, Kentucky JUSTICE MICHELLE M. KELLER was appointed to the Kentucky Supreme Court in April, 2013, by Governor Steven Beshear, and elected to her second full term on the bench in November, Prior to her service on the Supreme Court, she was elected as judge on the Kentucky Court of Appeals in November, Justice Keller has served as the Court of Appeals representative on the Judicial Conduct Commission, chair of the Court of Justice's Technology Governance Committee, and is currently serving as chair of the Kentucky Access to Justice Commission. Prior to taking the bench, she practiced law for 17 years, concentrating in the areas of criminal defense, administrative law, family and personal injury law, as well as medical negligence and products liability defense. Justice Keller also served as an assistant county attorney for Kenton County. She is Chairwoman Emeritus of the Kentucky Personnel Board and has served as a hearing officer and member of that board. Justice Keller is licensed to practice law in Kentucky, the U.S. District Court for the Eastern District of Kentucky, and the United States Supreme Court. She has twice been commended by the Kentucky House of Representatives for her service to the Commonwealth. Justice Keller attended Northern Kentucky University's Chase College of Law while working as a licensed registered nurse in critical care. At Chase she was an IOLTA Scholar, earning her J.D. in Chase presented her with the Chase Excellence Award in 2007 and the Chase Exceptional Service Award in Additionally, Justice Keller was named a 2012 Outstanding Woman of Northern Kentucky for her commitment to public service and community involvement. She was honored on Law Day 2013 with the Richard D. Lawrence Lifetime Achievement Award presented by the Northern Kentucky Bar Association. After delivering the 2014 Law Day address, Justice Keller was presented with the Liberty Bell Award for her service to the Court of Justice. In December, 2017, she was honored to be the first woman presented with the Distinguished Lawyer of the Year Award by the Northern Kentucky Bar Association. Justice Keller has served in various positions for the Northern Kentucky, Kentucky and American Bar Associations. In 2009, she received the KBA's Donated Legal Services Award for her commitment to pro bono service and support of Kentucky's legal services organizations. She is a Master in the Salmon P. Chase Inn of Court and served as president of the Inn from Justice Keller is also a Fellow of both the American and Kentucky Bar Foundations. v

10 Justice Samuel J.T. Wright III Supreme Court of Kentucky Post Office Box 64 Mayking, Kentucky JUSTICE SAMUEL J.T. WRIGHT III was elected to the Supreme Court in November 2015 and serves as the justice from the Seventh Supreme Court District. He previously worked as a trial judge for more than 23 years in Letcher County, where he was born and raised. Justice Wright was serving in his fourth term as Letcher County Circuit Court judge when he was elected to the Supreme Court. He was first appointed to fill a vacancy on the Circuit Court by Governor Brereton Jones in 1993 and was then elected. Prior to taking the Circuit Court bench, Justice Wright was the District Court judge for Letcher County for a year. Governor Jones appointed him to the district judgeship and he was then elected to the office. While serving as a trial judge, Justice Wright established the first parent education clinic in Eastern Kentucky to help reduce the emotional harm children suffer in divorce. In 2004, he started the Letcher County Drug Court program with a grant to provide treatment and support for people with substance abuse problems who committed crimes associated with their addictions. Justice Wright obtained a grant in 2015 to expand the program. Prior to becoming a judge, he was practicing law as an attorney. He received an associate's degree from Hazard Community College and his bachelor's degree from the University of Kentucky. After earning his J.D. from the University of Kentucky College of Law in Lexington, he returned to Eastern Kentucky to join the law firm of Cook and Wright. He went on to open his own law practice in vi

11 2018 PROPOSED AMENDMENTS TO THE RULES OF CIVIL PROCEDURE (CR) I. CR Certification of record on appeal The proposed amendments to CR shall read: The record on appeal as constituted under Rule 75 or Rule 76 shall be prepared and certified by the clerk of the court from which the appeal is taken within 10 days after the filing of the transcript of evidence by the court reporter. If the proceedings were taken exclusively by video recording, if there are no proceedings to transcribe, or if the appeal is from a Circuit Court order determining paternity, dependency, abuse, neglect, domestic violence, [or] juvenile status offense, or involuntary termination of parental rights, then the record on appeal shall be certified by the clerk within 30 days after the date of filing the first notice of appeal. In Forma Pauperis cases, the time for certifying the record on appeal in cases taken exclusively by video recording or where there are no proceedings to transcribe shall run from the date the Motion to Proceed In Forma Pauperis is granted. If CR applies to the appeal, the time for certifying the record shall begin to run as provided in CR The appellate court, in its discretion, may extend the time for certification of the record upon motion and a showing of good cause. II. CR 76.03(1) Prehearing conference The proposed amendments to CR 76.03(1) shall read: (1) This Rule, 76.03, applies to all civil actions appealed to the Court of Appeals, except prisoner applications seeking relief relating to confinement or conditions of confinement and appeals from Circuit Court orders determining paternity, dependency, abuse, neglect, domestic violence, [or] juvenile status offense, or involuntary termination of parental rights. III. CR 76.12(2) Briefs The proposed amendments to CR 76.12(2) shall read: (2) Time for filing. (a) Civil cases. In civil cases, including workers' compensation appeals and excluding [except] appeals from Circuit Court orders determining paternity, dependency, abuse, neglect, domestic violence, [or] juvenile status offense, or involuntary termination of parental rights, the appellant's brief shall be filed with the clerk of the appellate court within 60 days after the date of the notation on the docket of the notification required by Rule 75.07(6). The appellee's brief (or combined briefs, if the appellee is also a cross-appellant) shall be so filed within 60 days after the date on which the appellant's brief was filed. The appellant's reply brief shall be filed within 15 days after the date on which the last appellee's brief was filed or due to be filed. If the appellant is also a cross-appellee, a 1

12 combined brief may be filed within 60 days after the date on which the last appellee's brief is filed or due to be filed. When a motion for discretionary review has been granted by the Supreme Court, the time in which the movant's brief must be filed shall be computed from the date of entry of the order granting review. (b)[(i)] Civil appeals from Circuit Court orders determining paternity, dependency, abuse, neglect, domestic violence, [or] juvenile status offense, or involuntary termination of parental rights. Appeals in these cases shall be expedited. The appellant's brief shall be filed with the clerk of the appellate court within 30 days after the date of the notation on the docket of the notification required by Rule 75.07(6). The appellee's brief shall be filed within 30 days after the date of filing of the appellant's brief. The appellant's reply brief shall be filed within 10 days after the date of filing of the appellee's brief. Motions for extension of time will not be considered except under extraordinary circumstances. (c)[(b)] Criminal cases. The times in which briefs are required to be filed in criminal cases shall be the same as in civil cases, except as follows: (i) If counsel for the appellant is the Public Advocate of the Commonwealth or the Attorney General of the Commonwealth, or designee, the appellant's brief shall be filed within 60 days after the date on which the record on appeal was received by the clerk of the appellate court (notice of which shall be sent); and (ii) If counsel for the appellant is someone other than the Public Advocate of the Commonwealth or the Attorney General of the Commonwealth, or designee, the appellee's brief shall be filed within 60 days after the date on which the appellant's brief was filed or within 60 days after the date on which the record on appeal was received by the clerk of the appellate court, whichever is the later. 2

13 2018 PROPOSED AMENDMENTS TO THE RULES OF CRIMINAL PROCEDURE (RCr) A. RCr 4.50 Exoneration of bond at the request of surety; Surrender the Defendant The proposed new rule RCr 4.50 shall replace the current RCr 4.50 and shall read: (1) At any time before forfeiture, any surety or any party acting at the request of the surety, may move the court before which the defendant has been held to answer, for exoneration from liability on the bond or recognizance and that any money or bonds that have been deposited as bail be returned to the surety. The motion must be in writing and served upon all parties. (2) After a hearing upon the motion, for good cause shown, the court may exonerate the surety or sureties, subject to the interests of any valid lienholder, from liability on the bond or recognizance. Any money or bonds that have been deposited as bail shall be returned to the surety or sureties once the defendant is remanded to custody or released on such conditions required by the court. [RCr 4.50 Surrender of defendant; exoneration (1) At any time before forfeiture, any surety may procure a certified copy of the bail bond which shall authorize any peace officer to whom it is presented to arrest the defendant in any county within the Commonwealth and to deliver the defendant and the certified copy of the bail bond to the jailer in the county in which the prosecution is pending. The jailer shall acknowledge the surrender in writing. (2) Upon presentation of the writing executed by the jailer, the court before which the defendant has been held to answer shall, after five (5) days notice to the county attorney, order that the surety or sureties be exonerated from liability on the bond or recognizance and that any money or bonds that have been deposited as bail be returned to the person making the deposit.] B. RCr 9.28 Court Contact With Jurors After Trial The proposed new rule RCr 9.28 shall read: After the conclusion of a jury trial, the court may engage in discussions with the jurors provided that, if any juror s entire term of jury service is not yet completed, such discussion may occur only on the record and in open court with counsel having the opportunity to be present. This rule does not prohibit incidental contact between the court and jurors after the conclusion of the trial. 3

14 C. RCr Search Warrant: who may issue The proposed amendments to RCr shall read: (1) Upon affidavit sufficient under Section 10 of the Kentucky Constitution and sworn, either in the presence of or through reliable electronic means, [to] before an official [officer] authorized to administer oaths as provided in Rule 2.02 for the swearing of complaints, a search warrant may be issued by a judge, trial commissioner, or other official [officer] authorized by statute to issue search warrants. (2) Where a reliable electronic means is being used in lieu of actual presence before an official authorized to administer oaths, the official administering the oath must be in oral communication with the person completing the affidavit, so that the official administering the oath may comply with the requirements for administering oaths. The official administering the oath shall certify on the affidavit or an accompanying document that the oath was taken while in oral communication, and shall state the name and title of the official administering the oath and the time the affidavit was sworn. [(A copy of the search warrant and supporting affidavit shall be retained by the issuing officer and filed by such officer with the clerk of the court to which the warrant is returnable.] (3) A copy of the search warrant and supporting affidavit shall be retained by the judge or other official issuing the warrant and promptly filed with the clerk of the court to which the warrant is returnable. [The officer executing a search warrant shall make return thereof to the appropriate court within a reasonable time of its execution. The return shall show the date and hour of service.] (4) The officer authorized to execute a search warrant shall make return thereof to the appropriate court within a reasonable time of its execution. The return shall show the date and hour of service. D. RCr Biological [and chemical] Evidence The proposed amendments to RCr shall read: (1) The custodial agency holding [of] evidence involved in a criminal prosecution of a defendant where the penalty of death, life, life without parole or life without parole for 25 years is imposed [death penalty criminal prosecution] shall preserve all biological [and chemical] evidence for as long as the defendant remains incarcerated under the [a death] sentence. 4

15 (2) Upon request, all biological [and chemical] evidence shall be made available to defendants enumerated in subsection (1) [sentenced to death] and said defendants may seek appropriate relief notwithstanding any other provision of the law. (3) "Biological [and chemical] evidence" includes the content of sexual assault examination kits, and any item that contains blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or other identifiable biological material that is collected as part of a criminal investigation which may reasonably be used to incriminate or exculpate any person for a criminal offense [which may carry a penalty of death]. 5

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17 2018 PROPOSED AMENDMENTS TO THE KENTUCKY RULES OF EVIDENCE (KRE) A new Rule of Evidence, KRE 807, has been proposed to the Supreme Court of Kentucky for adoption following appropriate review by the Kentucky Evidence Rules Review Commission pursuant to KRE 1102 and public comment. The proposed new rule KRE 807 of the Kentucky Rules of Evidence shall read: (a) An out-of-court statement made by a child with a physical, mental, emotional, or developmental age of twelve (12) years or less at the time of trial or hearing describing any sexual act performed by, with, or on the child or describing any act of physical violence directed against the child is not excluded as hearsay under KRE 802 if all of the following apply: (1) The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness. In making its determination of the reliability of the statement, the court shall consider all of the circumstances surrounding the making of the statement, including but not limited to spontaneity, the internal consistency of the statement, the mental state of the child, the child s motive or lack of motive to fabricate, the child s use of terminology unexpected of a child of similar age, the means by which the statement was elicited, and the lapse of time between the act and the statement; (2) Either: (A) (B) The child testifies but his or her testimony does not include information contained in the out-of-court statement; or The child's testimony is not reasonably obtainable by the proponent of the statement and there is corroborative evidence of the act that is the subject of the statement; (3) The primary purpose of the child's statement was not to create an out-of court substitute for trial testimony; and (4) At least ten (10) days before the trial or hearing, a proponent of the statement has notified all other parties in writing of the content of the statement, the time and place at which the statement was made, the identity of the witness who is to testify about the statement, and the circumstances surrounding the statement that are claimed to indicate its trustworthiness. 7

18 (b) (1) The child s testimony is "not reasonably obtainable by the proponent of the statement" under subsection (a)(2)(b) of this rule if one (1) or more of the following apply: (A) (B) The child claims a lack of memory of the subject matter of the statement; The court finds: (i) (ii) (iii) The child is absent from the trial or hearing; The proponent of the statement has been unable to procure the child s attendance or testimony by process or other reasonable means despite a good-faith effort to do so; and It is probable that the proponent would be unable to procure the child s testimony or attendance if the trial or hearing were delayed for a reasonable time; or (C) The court finds: (i) (ii) The child is unable to testify at the trial or hearing because of: a. Death; b. Physical or mental illness; or c. Infirmity, including the child's inability to communicate about the offense because of fear or a similar reason; and The illness or infirmity would not improve sufficiently to permit the child to testify if the trial or hearing were delayed for a reasonable time. (2) The proponent of the statement has not established that the child s testimony or attendance is not reasonably obtainable if the child s claim of lack of memory, absence, or inability is due to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the child from attending or testifying. (c) (d) The court shall make the findings required by this rule on the basis of a hearing conducted outside the presence of the jury and shall make findings of fact, on the record, as to the bases for its ruling. If any provision of this rule should conflict with Article VIII of these rules, this rule shall prevail. 8