Taking Stock: A Review of Justice Stevens’s Last Book and an Appreciation of His Extraordinary Service on the Supreme Court

RODGER CITRON

Rodger D. Citron, the Associate Dean for Research and Scholarship and a Professor of Law at Touro College, Jacob D. Fuchsberg Law Center, comments on the late Justice John Paul Stevens’s last book, The Making of a Justice: Reflections on My First 94 Years. Citron laments that, in his view, the memoir is too long yet does not say enough, but he lauds the justice for his outstanding service on the Supreme Court.

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Floyd v. Neal

Docket: 2018-SC-000277-DG

Opinion Date: December 19, 2019

Judge: Lambert

Areas of Law: Civil Procedure, Medical Malpractice

The Supreme Court reversed the court of appeals' opinion concluding that the trial court's alleged error of failing to strike a juror for cause was properly preserved for appellate review, holding that a one-to-one ratio of for cause strikes to would-be peremptory strikes is required to preserve a for cause strike error for review and that Plaintiff failed to preserve the error to strike the juror for cause. After Plaintiff's medical malpractice action was dismissed Plaintiff appealed, arguing that the trial court erred by refusing to strike a juror for cause. The court of appeals held (1) the error was properly preserved, and (2) the trial court committed reversible error by failing to strike the juror for cause. The Supreme Court reversed, holding (1) the holding in Sluss v. Commonwealth, 450 S.W.3d 279 (Ky. 2014), that stating would-be peremptory strikes verbally on the record constitutes substantial compliance with Gabbard v. Commonwealth, 297 S.W.3d 844 (Ky. 2009), is overruled; (2) the number of jurors a litigant identifies on her strike sheet must be the same number of jurors the litigant originally moved to strike for cause, and failure to abide by this rule will render the error unpreserved; and (3) Plaintiff failed to preserve the error to strike the juror for cause.

State of Ohio v. Great Lakes Minerals, LLC

Docket: 2018-SC-000161-TG

Opinion Date: December 19, 2019

Judge: Michelle M. Keller

Areas of Law: Civil Procedure, Tax Law

In this action brought by Great Lakes Minerals, LLC against the State of Ohio and Joseph Testa, the Supreme Court reversed the decision of the circuit court denying Ohio's motion to dismiss, holding that Ohio was protected by sovereign immunity and that Testa was immune from suit in his official capacity as Tax Commissioner of Ohio and that Testa, in his personal capacity, was dismissed based on the principle of comity. Great Lakes sued Defendants seeking a declaratory judgment that it was not subject to Ohio's commercial activity tax, monetary relief for the forced collection of taxes not owed, and a determination that it would be inequitable to require Great Lakes to defend an action in a foreign state. Ohio unsuccessfully moved to dismiss the complaint. The Supreme Court reversed, holding (1) the State of Ohio and Testa in his official capacity were protected by sovereign immunity; and (2) under the principle of comity Testa is dismissed in his personal capacity.

Bullitt v. Commonwealth

Docket: 2018-SC-000190-MR

Opinion Date: December 19, 2019

Judge: Hughes

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed the judgment of the circuit court convicting Defendant of first-degree rape and imposing a twenty-year term of imprisonment, holding that the trial court did not err by denying Defendant's motion for a directed verdict and by denying his motion to suppress his statements to police. Defendant's rape sentence was enhanced pursuant to the jury finding Defendant guilty of being a first-degree persistent felony offender (PFO 1), which was based on an out-of-state statutory rape conviction. Defendant filed a motion for a directed verdict on the PFO 1 charge asserting that the Commonwealth failed to prove Defendant committed a prior sex crime against a minor. The trial court denied the motion. The Supreme Court affirmed, holding (1) while it is better practice to introduce a minor victim's age into evidence as part of the PFO proof, "statutory rape" is commonly understood to be the offense of unlawful sexual intercourse with a minor, and therefore, the trial court did not err in denying Defendant's motion for a directed verdict on the PFO charge; and (2) the trial court did not err in denying Defendant's motion to suppress because Defendant's Fifth Amendment rights were not violated.

Culver v. Commonwealth

Docket: 2017-SC-000568-DG

Opinion Date: December 19, 2019

Judge: Hughes

Areas of Law: Criminal Law

The Supreme Court affirmed the opinion of the court of appeals affirming Defendant's convictions for first-degree fleeing or evading police and first-degree wanton endangerment, holding that the evidence was sufficient to prove Defendant created a substantial risk of serious physical injury or death, the common element to both charges, when the police pursued him in a motor vehicle chase. On appeal, Defendant argued that the evidence was insufficient to prove that, as to both first-degree wanton endangerment and first-degree fleeing or evading, his act of fleeing in a vehicle caused or created substantial risk of serious physical injury or danger of death or serious injury to property. The Supreme Court affirmed, holding that, under the totality of the evidence, it was not clearly unreasonable for a jury to find Defendant guilty of the crimes.

Hernandez v. Commonwealth

Docket: 2018-SC-000492-DG

Opinion Date: December 19, 2019

Judge: Vanmeter

Areas of Law: Criminal Law

The Supreme Court affirmed, albeit on different grounds, the decision of the court of appeals dismissing Appellant's appeal from a trial court order not authorizing payment of the full amount of an interpreter's invoiced bill, holding that statutory obligation for payment made the current proceeding inappropriate for resolution of this matter. The public defender's office requested and received approval from the circuit court for interpreting services with respect to Defendant's interview with the police department. The circuit court initially authorized the interpreting services and subsequent orders approved and/or reduced the interpreter's fee. After Defendant was convicted he filed a motion for reconsideration of expert witness fees challenging the trial court's reduction of the interpreter's fees. The trial court declined to approve additional funds. Defendant appealed the order. The court of appeals dismissed the appeal on grounds that the appeal was not timely filed and that an indispensable party - the interpreter - was not named in the notice of appeal. The Supreme Court affirmed, holding that payment for the interpreter's services was, by statute, a matter between her and the public defender's office, the requesting agency.

McLemore v. Commonwealth

Docket: 2017-SC-000293-MR

Opinion Date: December 19, 2019

Judge: Wright

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the circuit court convicting Defendant of murder, first-degree assault, and first-degree wanton endangerment and sentencing him to thirty-five years' imprisonment for these crimes, holding that Defendant was not entitled to relief on his claims of error. Specifically, the Supreme Court held that the trial court (1) did not abuse its discretion in allowing the Commonwealth to present evidence that one of Defendant's co-defendants had been shot in the months leading up to the murder; (2) did not abuse its discretion in ruling that Defendant could not call a particular impeachment witness on the grounds that the witness had a Fifth Amendment right not to testify; and (3) did not err in denying Defendant's right to a speedy trial.

Wright v. Commonwealth

Docket: 2018-SC-000237-MR

Opinion Date: December 19, 2019

Judge: Lambert

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's conviction of one count of first-degree sodomy, victim under twelve years old, and Defendant's sentence of forty years' imprisonment, holding that the trial court did not commit reversible error. Specifically, the Supreme Court held (1) Defendant's argument that a juror's failure to disclose during voir dire that she went to school with Defendant's sister-in-law entitled Defendant to a new trial was not properly preserved for appellate review; (2) the trial court did not commit reversible error by dismissing a juror as the alternate instead of declaring a mistrial; and (3) the trial court did not coerce the jury into reaching a verdict.

PNC Bank, National Ass'n v. Honorable Edwards

Docket: 2019-SC-000183-MR

Opinion Date: December 19, 2019

Judge: Vanmeter

Areas of Law: Trusts & Estates

The Supreme Court reversed the decision of the Court of Appeals determining that the Jefferson Circuit Court had concurrent jurisdiction over Appellee's breach of trust claims, holding that the Jefferson District Court has exclusive jurisdiction of all breach of trust claims arising out of a Ky. Rev. Stat. 386B.8-180 proceeding. Appellant was trustee of a revocable trust. Pursuant to section 386B.8-180, Appellant filed a petition in Jefferson District Court to approve its statutory notice informing Appellee that a different entity had accepted appointment as the new trustee. Appellee then filed an action in Jefferson Circuit Court alleging several breach of trust claims and filed for removal of the district court action to circuit court. The circuit court denied Appellant's motion for dismissal of the circuit court action. Appellant petitioned for a writ of prohibition, alleging that the circuit court lacked subject matter jurisdiction. The Court of Appeals denied the petition in part, concluding that concurrent jurisdiction existed for the breach of trust claims brought under the separate circuit court action. The Supreme Court reversed, holding that because Appellant followed the proper statutory procedure, any matters within Appellee's circuit court breach of trust action identical to those raised in the section 386B.8-180 proceedings were exclusively within the jurisdiction of the district court.