author: ROACH, Justice.

text:
    Robert POWELL, Appellant, v. Hon. William L. GRAHAM, Judge, Franklin Circuit Court, Appellee, and Commonwealth of Kentucky, Real Party in Interest.
    No. 2005-SC-625-MR.
    Supreme Court of Kentucky.
    Feb. 23, 2006.

      J. Guthrie True, Johnson, True & Guarnieri, LLP, Frankfort, Counsel for Appellant.
    William L. Graham, Franklin Circuit Judge, Frankfort, for Appellee.
    Gregory D. Stumbo, Attorney General, Larry Wayne Cleveland, Commonwealth Attorney, Frankfort, Counsel for Real Party in Interest.
   ROACH, Justice.

Appellant, Robert Powell, sought a writ of prohibition against the enforcement of a trial court order requiring him to submit to a separate mental health examination by the prosecutor’s expert witness. The Court of Appeals denied the writ, opining that the trial court’s order was appropriate because Appellant had placed his mental health in issue. While we hold that the trial court had the authority to compel Appellant to undergo the mental examination, because the trial court’s order failed to prospectively provide appropriate protections for Appellant’s Fifth Amendment rights, a writ should have issued. Therefore, we reverse.

I. Background

On June 3, 2004, Appellant took an early lunch break from work, supposedly to take his wife to a doctor’s appointment. When he got home, he found his wife unresponsive and cold to the touch, and he called 911. Emergency medical personnel soon arrived and found Appellant’s wife dead. She had suffered for many years from lupus, depression, and fibromyalgia, the symptoms of which include chronic severe pain. She took a variety of medications, including morphine and methadone. A postmortem examination revealed that the concentration of morphine in her blood significantly exceeded the therapeutic level, and the Medical Examiner concluded that she had died from “acute opiate intoxication.”

Appellant began to exhibit mental and emotional problems soon after his wife’s death. Early in the morning of June 30, 2004, while drinking alcoholic beverages, Appellant was observed putting fingernail polish remover in his mouth. He was taken to the Frankfort Regional Medical Center and released about seven hours later. Later that day while speaking with his father-in-law, Appellant allegedly confessed to having assaulted and slowly poisoned his wife with rat poison and drain cleaner over the weeks leading up to her death. Appellant then began putting shoe polish in his mouth.

The Kentucky State Police were contacted, and Appellant was taken to the Medical Center again. While there, he was diagnosed as suffering from acute psychosis, and arrangements were made to transfer him to the psychiatric unit at Samaritan Hospital in Lexington. While still at the Medical Center, KSP Detective Dennis Stockton and a Frankfort police officer advised Appellant of his Miranda rights and questioned him regarding his incriminating statements. Appellant again confessed to killing his wife, claiming that he had slowly poisoned her because they had not been sexually intimate for approximately four years. The Franklin County Sheriffs Office then transported Appellant to Samaritan Hospital, where he was to be kept and observed pursuant to a 72-hour commitment order. While at Samaritan, Appellant allegedly claimed to have smothered his wife and prayed, “Please, God, don’t let them find out how I did this.”

On July 2, 2004, Detective Stockton and another KSP Detective, Greg Wolf, went to Samaritan Hospital to question Appellant a second time. After being read his Miranda rights again, Appellant stated that he had not poisoned his wife but instead had smothered her with a pillow. Appellant claimed that he had sought a way of killing his wife that would make her death appear to have been the result of natural causes. He also claimed to have killed her to put her out of her (and his) misery.

Based on his statements to the detectives, Appellant was indicted by a Franklin County Grand Jury for murdering his wife. Appellant’s case was set to be tried in January 2005. On November 12, 2004, Appellant’s lawyer filed a motion requesting a continuance for the approaching trial. The motion indicated that the lawyer was in the process of investigating Appellant’s apparent mental debilitation at the time he made the statements to the KSP detectives. The lawyer also stated that he anticipated seeking suppression of the statements based, at least in part, on Appellant’s mental state at the time the statements were made. The prosecutor in the case filed a motion requesting that the trial court order Appellant to undergo a mental examination pursuant to RCr 7.24(3)(B)(ii) on grounds that Appellant had placed his mental condition in issue by announcing his intent to seek suppression of his statements based on his mental state.

On March 3, 2005, the trial court entered an order granting the prosecutor’s motion. The trial court’s order, however, relied on CR 35.01, which provides:

When the mental ... condition of a party... is in controversy, the court in which the action is pending may order the party to submit to a ... mental examination by a physician ... or appropriate health care expert .... The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

In ordering the mental examination, the trial court expressly found that “[s]uch ‘good cause’ exists under the circumstances of this case.... ”

Appellant promptly sought relief from the Court of Appeals by filing a petition for a writ of prohibition against the trial court. The Court of Appeals denied the writ, claiming that Appellant’s mental health status at the time he made his incriminating statements “directly bears upon the issue of [his] guilt.” Thus, the court noted, RCr 7.24(3)(B)(ii) allowed the trial court to order Appellant to submit to a mental examination.

Appellant subsequently appealed to this Court as a matter of right. Ky. Const. § 115.

II. Analysis

A. Availability of the Writ

We find ourselves once again faced with the task of addressing whether a party is entitled to a writ of prohibition. It was something of an understatement when we recently noted that “[e]xtraordi-nary writs are disfavored....” Buckley v. Wilson, 177 S.W.3d 778, 780 (Ky.2005).

Relief by way of prohibition or mandamus is an extraordinary remedy and we have always been cautious and conservative both in entertaining petitions for and in granting such relief. This careful approach is necessary to prevent short-circuiting normal appeal procedure and to limit so far as possible interference with the proper and efficient operation of our circuit and other courts. If this avenue of relief were open to all who considered themselves aggrieved by an interlocutory court order, we would face an impossible burden of nonappellate matters.

Bender v. Eaton, 343 S.W.2d 799, 800 (Ky.1961). A petitioner must make a significant showing for a writ even to be available in a given case because extraordinary writs inherently intrude into the workings of the lower courts and bypass the normal appellate process. Even in those rare cases when a writ is available as a remedy, the court originally hearing the petition retains its discretion to grant or deny the writ after examining the merits. Ultimately, the higher courts’ power over the extraordinary writs “has no limits except ... judicial discretion, and each case must stand on its own merits.” Buckley, 177 S.W.3d at 780. It is with this understanding in mind that we begin our discussion.

We recently clarified the high standards that must be met before a writ may be granted. See Hoskins v. Mancle, 150 S.W.3d 1 (Ky.2004) (returning to the standards announced in Chamblee v. Rose, 249 S.W.2d 775 (Ky.1952) and Bender v. Eaton, 343 S.W.2d 799, 800 (Ky.1961)). In the short time since then, we have repeatedly been called on to elaborate on the minutiae of these standards and their application. See Fritsch v. Caudill, 146 S.W.3d 926 (Ky.2004); Grange Mut. Ins. Co. v. Trade, 151 S.W.3d 803 (Ky.2004); Russell County, Kentucky Hosp. Dist. Health Facilities Corp. v. Ephraim McDowell Health Inc., 152 S.W.3d 230 (Ky.2004); Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750 (Ky.2005); The St. Luke Hospitals, Inc. v. Kopowski, 160 S.W.3d 771 (Ky.2005); Independent Order of Foresters v. Chauvin, 175 S.W.3d 610 (Ky.2005); Buckley v. Wilson, 177 S.W.3d 778 (Ky.2005). Despite the recent deluge of discussion of the law of writs, it is necessary to reiterate at least a summary of that law, if only to aid in framing our analysis. This is especially true in a case such as this one where the Court of Appeals failed even to cite Hoskins, the now seminal writ case.

Our cases contemplate two categories or “classes” of cases where a writ of prohibition might be appropriate: (1) where the lower court is acting outside its jurisdiction, and (2) where the lower court is acting erroneously but within its jurisdiction. The standards for evaluating a petition for a writ under each class were succinctly stated in Hoskins:

A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

150 S.W.3d at 10. Appellant claims that both classes of writs apply in this case.

1. No Jurisdiction

Appellant claims that the trial court was without jurisdiction to compel his participation in a mental health examination in this case because no statute or rule authorizes the examination of a criminal defendant in order to assist the prosecutor in responding to a motion to suppress. On this count, we disagree with Appellant. There is little question that the trial court had jurisdiction over this matter. Appellant was indicted by the Franklin County Grand Jury, and is now being prosecuted in the Franklin Circuit Court. This is sufficient to give the Franklin Circuit Court jurisdiction over the matter. Appellant’s claim that there is no statute, rule, or other source of authority that allows the trial court to order such an examination is better understood as a claim that the trial court is acting in error.

2. Acting Erroneously

Appellant’s second claim, that the trial court acted erroneously in making the order, is built on the claim of error discussed above. This claim is more persuasive. In addressing this aspect of the Appellant’s claims, we first note that the trial court’s order contained no requirement that affirmative steps be taken to protect Appellant’s Fifth Amendment rights. No doubt, the Commonwealth would argue that because the trial court’s order was made pursuant to a request under RCr 7.24(3)(B)(ii), which contains express protections relating to a defendant’s Fifth Amendment rights, no such express requirement in the order is necessary. But the trial court expressly entered its order under the authority of CR 35.01, not RCr 7.24(3)(B)(ii), and, as developed further below, we are of the opinion that RCr 7.24(3)(B)(ii) is inapplicable in this case. Thus, we must confine our analysis as to the availability of the writ to the trial court’s actual order, which provided no ex ante protection of Appellant’s Fifth Amendment rights.

Appellant claims that he has no adequate remedy by appeal because once he has been compelled to submit to the mental examination, any statements he has made cannot subsequently be unmade by an appellate court. In essence, Appellant claims that a mental examination will inevitably lead to Fifth Amendment violations, and that no appellate remedy is sufficient. While we note that there are traditional remedies for such violations, e.g., suppression of the offending statements, there is little guarantee that such remedies will be entirely effective in this case. Suppression is often employed after the fact, but it is an imperfect remedy; preventing the violation from occurring in the first place is preferable where possible. On this point, we have previously held that “[c]ompelling someone accused of a crime to submit against his or her will to a psychological examination could likely produce testimony, the effect of which could not be obliterated by appellate remedies.” Bishop v. Caudill, 118 S.W.3d 159, 163 (Ky.2003). The nature of the potential constitutional violation in this setting requires more than an after-the-fact, ad hoc appellate fix. This is why, for example, in the one instance where our Criminal Rules expressly authorize a compelled mental examination by the prosecutor’s expert, the rule also includes specific protections aimed at preserving the criminal defendant’s rights. See RCr 7.24(3)(B)(ii) (“No statement made by the defendant in the course of any examination provided for by this rule, whether the examination be with or without the consent of the defendant, shall be admissible into evidence against the defendant in any criminal proceeding. No testimony by the expert based upon such statement, and no fruits of the statement shall be admissible into evidence against the defendant in any criminal proceeding except upon an issue regarding mental condition on which the defendant has introduced testimony.”).

The gravity of these concerns and the nature of the constitutional right involved lead us to the conclusion that the harm caused by the compelled mental examination satisfies the “great injustice and irreparable injury” prong required under the proceeding-erroneously writ standard. We have described “irreparable injury” in various ways, including “something of a ruinous nature,” Bender, 343 S.W.2d at 801, and “incalculable damage to the applicant ... either to the liberty of his person, or to his property rights, or other far-reaching and conjectural consequences.” Litteral v. Woods, 223 Ky. 582, 4 S.W.2d 395, 397 (1928) (emphasis added). But this standard requires more than mere, or even great, injury. As our predecessor court noted:

An impression has arisen that the mere loss of valuable rights or property through an error of the court constitutes great and irreparable injury entitling the loser automatically to relief from the error. However, a careful analysis of the cases dealing with the supervisory power of the Court ... under Section 110 of the Kentucky Constitution will disclose that in addition to the element of great and irreparable injury there must be some aspect of injustice. There must be something in the nature of usurpation or abuse of power by the lower court, such as to demand that the Court ... step in to maintain a proper control over the lower court. The object of the supervisory power of the Court ... is to prevent miscarriage of justice.

Schaetzley v. Wright, 271 S.W.2d 885, 886-87 (Ky.1954) (citations omitted). Forcing a criminal defendant to undergo a mental examination by an agent of the prosecution immediately brings up core Fifth Amendment concerns. This is what drove our decision in Bishop, where even though we did not engage in such explicit analysis of the availability of a writ, we nonetheless granted one. That decision was based, at least in part, on the danger that the Commonwealth would glean insights into defense strategies or would obtain a further confession from the defendant. Similarly, a compelled mental examination in these circumstances, ordered without any prospective protection for incriminating statements that such an examination might produce, presents such a large potential for abuse of a criminal defendant’s Fifth Amendment rights that we must also conclude the great injustice and irreparable injury prong has been met.

Thus, Appellant, like the petitioner in Bishop, has met the prerequisites for the availability of the writ he seeks.

B. Whether the Trial Court Erred

This, of course, leaves us to evaluate whether the trial court acted incorrectly, and, if so, whether the Court of Appeals abused its discretion by denying the writ. We begin by noting that the prosecutor and the Court of Appeals invoked RCr 7.24(3)(B)(ii) as justification for the trial court’s action. The Commonwealth continues to press this argument on appeal. RCr 7.24(3)(B)(i) discusses the notice requirements where a defendant “intends to introduce expert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing upon the issue of his or her guilt or punishment _” In turn, RCr 7.24(3)(B)(ii) states:

When a defendant has filed the notice required by paragraph (B)(i) of this rule, the court may, upon motion of the attorney for the Commonwealth, order the defendant to submit to a mental examination. No statement made by the defendant in the course of any examination provided for by this rule, whether the examination be with or without the consent of the defendant, shall be admissible into evidence against the defendant in any criminal proceeding. No testimony by the expert based upon such statement, and no fruits of the statement shall be admissible into evidence against the defendant in any criminal proceeding except upon an issue regarding mental condition on which the defendant has introduced testimony. If the examination ordered under this rule pertains to the issue of punishment (excluding a pretrial hearing under KRS 532.135), the court shall enter an order prohibiting disclosure to the attorneys for either party of any self-incriminating information divulged by the defendant until the defendant is found guilty of a felony offense, unless the parties otherwise enter into an agreement regulating disclosure.

The Court of Appeals’ holding that RCr 7.24(3)(B)(ii) applies in this case because Appellant’s mental status directly bears upon the issue of his guilt is simply incorrect. As Appellant has raised and framed the issue, his mental status goes only to whether the incriminatory statements he made should be suppressed at his trial. To read RCr 7.24(3)(B) in an expansive manner so as to include this dispute, as the Court of Appeals did in this case, would make the rule applicable to almost any criminal proceeding where a defendant’s mental status is in question. But the rule clearly contemplates psychological evidence that is to be used during trial, for example, to prove a lack of guilt due to mental illness at the time of the crime or to show mitigating factors to reduce the punishment. In essence, the rule is applicable only when a defendant intends to offer evidence that directly bears on the issues of guilt or punishment, not in a situation such as this where evidence of the defendant’s mental instability relates to whether other evidence is to be barred from trial and, therefore, has only a tangential bearing on guilt. Such evidence is significantly removed from any ultimate decision as to guilt or punishment — this is likely why the trial court based its order ón CR 35.01 rather than RCr 7.24(3)(B)(ii).

Appellant, however, argues that CR 35.01 is inapplicable and claims that the only justification for the rule’s application in a criminal case is the concurring opinion of a single justice in an earlier case. See Bishop v. Caudill, 118 S.W.3d 159, 165-167 (Ky.2003) (Keller, J., concurring) (arguing that CR 35.01 is applicable in criminal cases). This is simply incorrect. The Bishop majority did not address CR 35.01 because the issue in controversy in that case, whether the defendant was competent to stand trial, was expressly covered by a criminal rule. Moreover, Justice Keller was correct about the applicability of CR 35.01 to criminal proceedings. RCr 13.04 provides that “[t]he Rules of Civil Procedure shall be applicable in criminal proceedings to the extent not superseded by or inconsistent with these Rules of Criminal Procedure.” Where there is no specific criminal rule addressing the availability (or non-availability) of a mental examination, as is the case here, RCr 13.04 would appear to require the application of Cr 35.01. Thus, as we have noted specifically in a recent case, “CR 35.01 ... is applicable to criminal proceedings by virtue of RCr 13.04.... ” St. Clair v. Commonwealth, 140 S.W.3d 510, 542 (Ky.2004).

Appellant argues that this interpretation conflicts with our holding in Bishop v. Caudill. Bishop involved a criminal defendant who challenged his competency to stand trial. The defendant moved for an examination to be paid for by the Commonwealth, presumably pursuant to RCr 8.06 and KRS 504.100, both of which require the trial court to appoint a mental health professional to examine any criminal defendant who the court has “reasonable grounds to believe” is incompetent to stand trial. Subsequently, the prosecution moved for a separate evaluation of the defendant by its own expert. The trial court granted this motion, and ordered the criminal defendant to submit to a separate mental examination by an agent of the Commonwealth. The defendant petitioned the Court of Appeals for a writ of prohibition, which was denied. We reversed on appeal.

In reversing, we focused on the fact that a compelled mental examination created far too great a risk, bordering on a certainty, that the defendant’s Fifth Amendment rights would be violated. Though we have already quoted some of Bishop ⅛ language on this point, it bears repeating, though with additional context:

The policy reasons behind prohibiting the Commonwealth from obtaining its own competency evaluation are clear. Compelling someone accused of a crime to submit against his or her will to a psychological examination could likely produce testimony, the effect of which could not be obliterated by appellate remedies. That is, an unauthorized psychological examination by the Commonwealth’s agent could result in the disclosure of prior conduct that would not otherwise be accessible to the prosecution. For example, the prosecution’s mental health examiner may learn that a defendant engaged in the commission of crimes for which he had never been charged.

Bishop, 118 S.W.3d at 163. This language weighs heavily in favor of disallowing all separate mental examinations by the Commonwealth except those expressly allowed by RCr 7.24(3)(B)(ii). ■

However, Bishop ultimately took a subtler tack. We went to great pains to point out that “[t]he inquiry into a defendant’s competency to stand trial is very different and distinct from an inquiry into whether the defendant is criminally responsible for the acts with which he is charged.” Id. at 162. This is because a competency examination is initiated by the court, and “[a] competency examiner is working for the court, not necessarily the defense or the Commonwealth.” Id. at 163. On the other hand, we noted that a “criminal responsibility evaluation, even if performed by the Commonwealth’s examiner, is not a compelled examination as it is initiated by the defendant,” id. at 164, and that because criminal responsibility is an issue for the jury to decide, “the Commonwealth must have the right to rebut this position, a right which necessarily includes obtaining its own independent examination of the defendant.” Id. Thus, we noted: “we are persuaded by the Legislature’s plain inclusion of the Commonwealth’s right to an independent examination when evidence of mental health at the time of the offense is to be introduced, and its plain exclusion of a similar right when only competency to stand trial is at issue.”

While it is clear that the issue Appellant seeks to raise before the trial court— namely, the impact of his mental state on the voluntariness of his incriminating statements — has no direct bearing on his guilt or punishment, it is equally clear that this issue is distinct from an inquiry into his competence to stand trial. In a sense, Appellant seeks to have the trial court make a factual determination as to whether he was competent to confess to the police, but unlike a determination as to his competence to stand trial, this is not an issue that the trial court is charged with raising, or even has the power to raise, independently. Thus, the specific issue Appellant is now raising is something of a hybrid issue, falling somewhere between competency to stand trial and criminal responsibility. Given the differences between the issue Appellant has raised and that presented in the competency setting, we conclude that Bishop, with its blanket prohibition on independent mental examinations by the Commonwealth in the course of trial competency determinations, is of limited applicability outside that limited setting.

One aspect of this issue’s similarity to criminal responsibility — that the defendant, rather than the trial court, raises this issue — requires that the Commonwealth have a chance to “rebut th[e] position-” Id. at 164. Though this differs slightly from the dicta in Bishop that indicated that this right of rebuttal arises from the fact that criminal responsibility is a jury issue, it is not a significant departure from that case. The prosecution’s right of rebuttal more properly derives from the fact that the issue in question is one that the defendant has raised. Though we often speak of fundamental fairness in trial procedures as a principle to protect a defendant’s rights, the principle is no less applicable to the prosecution. Even if it is only an attempt at parity between the prosecution and the defense, fundamental fairness demands that a defendant’s decision to place an issue in controversy subjects that claim to the rigors of the adversarial process. To hold otherwise would give criminal defendants a distinct and undeserved advantage when raising issues of mental health outside of the area of competency to stand trial.

The hybrid nature of Appellant’s underlying claim is precisely why CR 35.01 is the applicable rule in this case. Neither the competency procedures, RCr 8.06 and KRS 504.100, nor the criminal responsibility procedures, RCr 7.24(3)(B), are a perfect fit. The trial court correctly perceived that the Appellant’s claimed issue fell in this gap. While it may seem odd to some to apply a rule of civil procedure in a criminal case, in some situations, it is necessary. The criminal rules simply do not dictate the trial procedure to be followed in all cases. Whether this is due to inadvertent omission in some cases or an explicit refusal to enact a rule that merely repeats standard trial practice as provided in the civil rules is unimportant. What is clear, however, is that RCr 13.04 was clearly drafted with this gap-filling function in mind.

This is not to say, however, that the trial court’s order in this case was not in error. The civil rules were not drafted with the complicating constitutional factors of criminal cases in mind. Not surprisingly, rote application of a civil rule to a criminal case like this one can have unintended consequences of a constitutional dimension as discussed above. The risk of a defendant revealing incriminating details or disclosing valuable defense strategies during a compelled mental examination is significantly increased over that inherent in the average police interrogation because such an examination is, by its nature, significantly more intrusive than police questioning. The mental examination authorized by CR 85.01 in the context of a criminal case will inevitably infringe on a criminal defendant’s Fifth Amendment rights without some additional protection, yet the rule contains no default mechanism for safeguarding those rights. This is not surprising, since CR 35.01 is a civil rule. But to complicate matters, the trial court’s order in this case also fails to provide prospective protection for Appellant’s Fifth Amendment rights. Thus, we conclude that while the trial court had the authority to order Appellant to undergo a mental examination by the prosecution’s expert, its order, as written, provides insufficient protection for Appellant’s Fifth Amendment rights. As such, the trial court’s order, insofar as it faded to provide such protection, was in error.

The mere fact the CR 35.01 does not require prospective protection of a defendant’s Fifth Amendment rights does not preclude the use of the civil rule in criminal cases. This option is unworkable because there is no clearly applicable criminal rule and because we are presented with a factual scenario that demands that the Commonwealth have an adequate opportunity to rebut assertions by the Defendant. Were we to hold CR 35.01 inapplicable, the gap in the criminal rules would still exist. That gap must be somehow filled — preferably by a stable, predictable rule that is already in place. CR 35.01 fits that bill. Nonetheless, where the application of a civil rule creates tension with— and possibly violation of — a constitutional guarantee, the civil rule cannot be applied blindly. Instead, it must be applied with an eye toward preserving the constitutional order, perhaps by requiring that the trial court exercise its discretion under the rule in a certain way or that additional protections be added whenever a civil rule is to be applied in a criminal case.

The easiest way to apply CR 35.01 in a fair manner is simply to impose on it the protective template from the criminal rule that it most resembles, RCr 7.24(3)(B)(ii). That rule reasonably restricts the scope and use of evidence obtained from the independent mental examination in a way that protects a defendant’s privilege against self incrimination. Not only would such restrictions provide prospective protection for Appellant’s Fifth Amendment rights, it would also allow him to retain his option not to use that evidence or further pursue the issue after the examinations had taken place. See Bishop, 118 S.W.3d at 164 (“Since the results of the Commonwealth’s examination are admissible only to rebut the mental health evidence introduced by the defense, Appellant can preclude introduction of the Commonwealth’s evidence by declining to assert such evidence on his own behalf.”).

We hesitate only slightly in this approach, because, as we noted in Bishop, prospective Fifth Amendment protections like those in RCr 7.24(3)(B)(ii) might not be sufficient. In the context of a mental examination “ordered against a defendant’s wishes ... the Commonwealth would [still] gain the inherent and unfair advantage of gleaning insight as to the defense strategy.” Id. However, we read that language as limited to the unique context of competency determinations, which the defendant has little ultimate control over instigating. This is especially true given that our concern in this area in Bishop was elevated by the defendant’s active opposition to his trial attorneys. Id. at 163-64. Certainly the rule’s protections are sufficient when criminal responsibility is at issue. Similarly, in the context of other potential compelled mental examinations, the overlay of the RCr 7.24(3)(B)(ii) protections provides the best balance between a defendant’s constitutional rights and the basic demands of fairness toward the prosecution.

While we are cognizant of the Court of Appeals’ broad discretion when considering a petition for a writ of prohibition, we think that the danger posed to Appellant’s Fifth Amendment rights by the trial court’s current order requires intervention. Therefore, the judgment of Court of Appeals is hereby reversed, and this matter is remanded and the Court of Appeals is instructed to enter a writ of prohibition in conformity with this opinion.

All concur.

      . Though it is somewhat premature, given that Appellant so far appears to have focused solely on whether he was mentally ill when he made his incriminating statements, we note that the admissibility of those statements hinges on more than just a factual finding of mental illness. Although a defendant’s mental health condition at the time of a confession is an important consideration, see Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960), the primary factor in such a case is whether the police engaged in coercion. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986) ("We hold that coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.”).


source: Caselaw Access Project

author: SCOTT, Justice.

license: Public Domain

text:
    Jamin ROBERSON Appellant, v. COMMONWEALTH OF KENTUCKY Appellee.
    No. 2004-SC-001026-MR.
    Supreme Court of Kentucky.
    Feb. 23, 2006.

      Shelly R. Fears, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, George G. Seelig, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, Counsel for Appellee.
   SCOTT, Justice.

I. INTRODUCTION

Appellant, Jamin Roberson, entered a conditional plea of guilty to Murder and Burglary in the First Degree. As a condition to his plea, Appellant reserved the right to appeal the Warren Circuit Court’s denial of his motion to suppress statements made to officers of the Bowling Green Police Department subsequent to his arrest and issuance of Miranda warnings. Appellant was then given a sentence of imprisonment for life. Appellant now appeals to this Court as a matter of right pursuant to Ky. Const. § 110(2)(b), arguing that the trial court committed reversible error in denying his motion to suppress statements made to police after having been read his Miranda warnings and requesting assistance of counsel. Having reviewed the record, we affirm the trial court.

II. FACTS

On February 24, 2003, Appellant was arrested at a residence on Highland Way in Bowling Green, Kentucky, during the early morning hours by Detective Barry Railey and Detective Bragg of the Bowling Green Police Department for the February 21, 2003, murder of Hal Dajuan Holder during the burglary of the victim’s residence. A co-defendant, Shannon, was also arrested at this time, but is not a party to this appeal. At the time of the arrest, Det. Bragg advised Appellant of his Miranda rights and Appellant responded by unequivocally stating that he desired to have a lawyer. Rita Taylor, Appellant’s mother, was also at the residence on Highland Way and was advised that her son was being arrested for murder and that she might want to secure an attorney for the Appellant. The arresting officers also advised Ms. Taylor that Appellant would be taken to the police station and that she could meet them there if she so desired. Ms. Taylor responded that she could not afford an attorney to act on behalf of Appellant.

During a suppression hearing on August 8, 2003 testimony revealed that, upon arriving at the police station, Det. Railey told Ms. Taylor that there was blood evidence against Appellant, that it was a death penalty case, and that there was nothing she could do for her son. In response, Ms. Taylor stated that she knew “from TV” that if Appellant spoke to the police, he might receive more favorable treatment. She then requested to speak with Appellant and was allowed to do so. Det. Railey testified that he told Ms. Taylor she could not be asked to act on behalf of the police in speaking with her son. Additionally, Appellant asked to speak with his pastor, which he was also allowed. After speaking with Appellant, Ms. Taylor informed Det. Railey that Appellant desired to speak with the detectives concerning the robbery and murder. Prior to taking any statements from Appellant, the police again read Appellant his Miranda rights after which he gave the incriminating statement which formed the basis for his motion to suppress. Then-Judge Tom Lewis apparently denied the motion to suppress although no order in the record reflects that ruling.

Upon retirement of Judge Lewis, former Commonwealth’s Attorney Steve Wilson was elevated to the Warren Circuit Court bench. The case ultimately arrived in the division of Warren Circuit Court Judge John Grise because Wilson had been involved in Appellant’s arrest and interrogation. Appellant then filed a motion to reconsider his earlier motion to suppress due to the change in court personnel. In denying the motion to reconsider, Judge Grise indicated he had some evidentiary questions that were left unanswered from the August 8, 2003, hearing. In particular, Judge Grise asked why Appellant was taken to the police station and not the jail, why his mother was asked to go to the police station, and why the Department of Public Advocacy (DPA) was not called during the Appellant’s custody at the police station between 2:00 and 3:00 A.M. Subsequently, a supplemental suppression hearing was held on August 31, 2004, to address the questions raised by Judge Grise.

During the supplemental suppression hearing, now-Judge Steve Wilson testified on behalf of the Commonwealth and explained that Appellant and co-defendant Shannon were taken to the police station because Shannon desired to make a confession. Wilson also testified that Appellant’s mother was asked to come to the police station because of Appellant’s age at the time of the arrest (he was 19 at that time). Wilson stated that he agreed to let Ms. Taylor speak with Appellant, but told her there were no promises given concerning her discussion with the Appellant.

Det. Railey also testified at the supplemental hearing that it was not uncommon to take suspects to the police station for processing and further paperwork although he admitted that Appellant did not have to be taken to the police station to complete the paperwork. Det. Railey also stated he did not know why the DPA was not called. Further, Det. Railey testified that there had been no “plan” to get the Appellant to talk by allowing his mother and pastor to speak with him. Testimony by Det. Railey also revealed that the police had planned prior to the arrest to take both men to the police station to facilitate administrative processing of the investigation.

On September 13, 2004, Judge Grise denied the supplemental motion to suppress and found that Appellant had knowingly, intelligently and voluntarily waived his right to counsel and right to remain silent prior to his confession and that Appellant, not the police, reinitiated communication after Appellant’s previous request for counsel. In its order, the trial court noted that there was no evidence of any scheme or covert attempt to use Ms. Taylor as a conduit for the police to interrogate Appellant. Rather, the trial court found that Ms. Taylor was asked to go to the police station because she appeared interested in her son’s fate and as a courtesy was allowed to go to the police station if she wished. Ms. Taylor’s testimony showed that now-Judge Steve Wilson told her at the police station that there was nothing she could do and she should go home. Furthermore, the trial court found that Ms. Taylor had asked to speak to Appellant, and there was no evidence Det. Railey and the other detectives asked her to speak with Appellant for them. The trial court found that the detectives explicitly told Ms. Taylor she could not be asked to speak with Appellant on behalf of the State.

Finally, in addressing the fact that the DPA was never called, the trial court found that there was no duty on behalf of the police officers or the Commonwealth’s Attorney to contact the DPA in order to secure an attorney for Appellant. Testimony showed that Wilson did not feel it was necessary to do so because he “expected no further interrogation of the defendant and an attorney ... would only have told the defendant not to talk with the police,” and the police never intended to speak with Appellant anyway in light of his request for an attorney.

Appellant then entered a conditional plea of guilty to the charges on September 16, 2004, preserving for appeal the suppression issues. He was subsequently sentenced to life in prison with parole eligibility.

III. ANALYSIS

A. Standard of Review

This Court has held that RCr 9.78 provides the standard for appellate review of a trial court’s determination regarding suppression motions. “If supported by substantial evidence the factual findings of the trial court shall be conclusive.” RCr 9.78. See also Davis v. Commonwealth, 795 S.W.2d 942 (Ky.1990). “When the findings of fact are supported by substantial evidence ... the question necessarily becomes, “whether the rule of law as applied to the established facts is or is not violated.’” Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky.1998) (quoting Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996)). Our Court of Appeals had held that “[t]he second prong involves a de novo review to determine whether the court’s decision is correct as a matter of law.” Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky.App.2000) (citing Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky.1998); Commonwealth v. Opell, 3 S.W.3d 747, 751 (Ky.App.1999)). It should be pointed out, however, that “a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Ornelas v. United States, 517 U.S. at 699, 116 S.Ct. at 1663.

B. Trial Court Properly Denied Appellant’s Motion to Suppress

1. Denial of Motion to Suppress was based on substantial evidence.

Having again enunciated the standard of appellate review for a trial court’s determination regarding a motion to suppress, this Court must first decide if the Warren Circuit Court’s denial of Appellant’s motion to suppress is supported by substantial evidence. We believe it is.

In this case, Appellant unequivocally invoked his right to have counsel present at his interrogation and to remain silent until a lawyer was provided to him. Testimony revealed, however, that his mother convinced him to speak to the police without the assistance of an attorney. Furthermore, the record shows that the police in no way coerced Ms. Taylor to speak with Appellant and likewise made no promises to her in allowing her to speak with him. Det. Railey testified that, when Ms. Taylor requested to speak with Appellant, he told her that she could not be asked to act on behalf of the police in speaking with Appellant. Moreover, now-Judge Steve Wilson testified that he told Ms. Taylor there was nothing she could do, and she should go home. However, despite these statements, Ms. Taylor spoke to Appellant, noting that she had seen these types of cases “on TV” and felt that if she could get Appellant to talk to the police, it would inure to his benefit.

After speaking with Appellant, Ms. Taylor informed the police that he wished to make a statement. Testimony presented at the supplemental suppression hearing shows that the police again read the Appellant his Miranda rights, which Appellant waived in making the incriminating statements to the police.

Further testimony, highlighted in the order of the Warren Circuit Court denying Appellant’s supplemental suppression motion, revealed no scheme or covert attempt on the part of the police to obtain a confession from Appellant in taking him to the police station or in allowing his mother to speak with him. Appellant failed to convince the trial court otherwise.

Finally, it could hardly be surmised that Appellant did not knowingly, voluntarily and intelligently waive his right to remain silent and to have counsel present at his interrogation as evidence shows that the police read Appellant his Miranda rights immediately prior to taking Appellant’s incriminating statements. Appellant presented no evidence to the contrary.

2. Trial court properly denied Appellant’s motion to suppress as a matter of law.

Having found the trial court’s denial of the motion to suppress was supported by substantial evidence, this Court must now determine de novo whether the trial court correctly applied the rule of law to the facts of this case. Finding no error in its application, we believe the trial court correctly applied the law as it exists today.

The warnings of Miranda are “not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.” Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2364, 41 L.Ed.2d 182 (1974). In further protecting this right, the United States Supreme Court addressed the issue of waiver in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). There the Supreme Court held that

when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further com munication, exchanges, or conversations with the police.

Id. at 484-85, 101 S.Ct. 1880 (emphasis added).

In a footnote, the Supreme Court in Edwards, supra, noted that several decisions of the Courts of Appeals have recognized that a valid waiver of an accused’s previously asserted Fifth Amendment right to counsel is possible.

See e.g., White v. Finkbeiner, 611 F.2d 186, 191 (7th Cir.1979) (“in certain instances, for various reasons, a person in custody who has previously requested counsel may knowingly and voluntarily decide that he no longer wishes to be represented by counsel”); Kennedy v. Fairman, 618 F.2d 1242 (7th Cir.1980); United States v. Rodriguez-Gastelum, 569 F.2d 482, 486 (9th Cir.1978) (en banc) (stating that it makes no sense to hold that once an accused has requested counsel, “[he] may never, until he has actually talked with counsel, change his mind and decide to speak with the police without an attorney being present”) cert. denied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978). See generally Cobbs v. Robinson, 528 F.2d 1331, 1342 (2d Cir.1975); United States v. Grant, 549 F.2d 942 (4th Cir.1977), vacated on other grounds sub nom. Whitehead v. United States, 435 U.S. 912, 98 S.Ct. 1463, 55 L.Ed.2d 502 (1978); United States v. Hart, 619 F.2d 325 (4th Cir.1980); United States v. Hauck, 586 F.2d 1296 (8th Cir.1978). The rule in the Fifth Circuit is that a knowing and intelligent waiver cannot be found once the Fifth Amendment right to counsel has been clearly invoked unless the accused initiates the renewed contact. See e.g., United States v. Massey, 550 F.2d 300 (5th Cir.1977); United States v. Priest, 409 F.2d 491 (5th Cir.1969). Waiver is possible, however, when the request for counsel is equivocal. Nash v. Estelle, 597 F.2d 513 (5th Cir.1979) (en banc). See Thompson v. Wainwright, 601 F.2d 768 (5th Cir.1979).

Id. at 486, 101 S.Ct. 1880.

While it is true that Appellant did request the services of an attorney, there is no law to support any notion that the police or the Commonwealth’s Attorney was responsible for securing such services, although they routinely do. The United States Supreme Court has also addressed this issue. “Miranda does not require that attorneys be producible on call, but only that the suspect be informed ... that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one.” Duckworth v. Eagan, 492 U.S. 195, 204, 109 S.Ct. 2875, 2881,106 L.Ed.2d 166 (1989);

Although case law certainly supports Appellant’s right to be free from interrogation once' he asserts his right to counsel and right to remain silent, waiver of this right can and did occur in this case when Appellant reinitiated conversation with the police, albeit at the suggestion of his mother. On this point, we note several cases where an accused’s relative speaks with him prior to his waiving the rights addressed herein.

In Adkins v. Commonwealth, 96 S.W.3d 779 (Ky.2003), the defendant’s brother asked the police if he could speak to the defendant so that he may be able to encourage him to confess, thereby gaining a more favorable plea bargain. There, as here, the Appellant urged this Court to find that the relative was an agent of the police in encouraging him to confess to his crime. In that case, this Court stated that “[i]t is well-established that only ‘state action’ implicates a defendant’s rights under the Fifth and Sixth Amendments of the United States Constitution and Section Eleven of the Constitution of Kentucky.” Id. at 790 (citing Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 520, 93 L.Ed.2d 473 (1986)). This “state action” was further construed to apply to situations where private individuals are used to facilitate “custodial interrogation” on behalf of the police. This Court has previously described two circumstances where such would be the case.

In the first, the private entity is acting in accordance with a court order or governmental regulation and is thus viewed as a “state actor.” See Adkins, 96 S.W.3d at 791. “The second circumstance occurs when the government otherwise ‘exercised such coercive power or such significant encouragement that it is responsible for [the private party’s] conduct.” ’ Id. (quoting United States v. Garlock, 19 F.3d 441, 443 (8th Cir.1994)). Finding the second circumstance applicable in Adkins, this Court found that it was immaterial that the police knew the brother’s intentions to encourage the defendant to confess.

[The officer] was not required to bar the jailhouse doors simply because he knew that a member of Appellant’s family intended to induce him to confess. And, when [the brother] expressed his desire to share information relevant to the murder investigation, [the officer] was not required to refuse to listen. If any coercion occurred here, it was applied by Appellant’s own brother, not the police.

Id. at 791-92.

Similarly, in Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987), the United States Supreme Court found no “functional equivalent” of custodial interrogation when, in the presence of two officers, a wife was allowed to speak with her husband following his arrest and the giving of Miranda rights. Despite the fact the officers knew that the defendant might incriminate himself, the Court found the statements admissible and held that under both Miranda and Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the defendant in that case was not interrogated. See Mauro, 481 U.S. at 527, 107 S.Ct. at 1935.

This Court believes Adkins and Mauro, supra, applicable to the case at bar. Testimony has shown the Appellant’s mother freely volunteered to speak with her son to encourage him to confess in order to gain more favorable treatment. No evidence was offered to rebut such a claim; the officers testified they gave her no promises and reiterated that she could not be asked to speak with Appellant on behalf of the state. The statement was admissible and the trial court properly ruled as such. Accordingly, this Court finds the Appellant was not subjected to custodial interrogation or its functional equivalent when his mother asked to speak with him, thereby prompting his waiving of his Miranda rights and giving of the incriminating statement, and we hold that Appellant voluntarily, knowingly, and intelligently waived his right to have counsel present at his interrogation and his right to remain silent when he reinitiated communication with the police.

For the reasons stated above, we affirm the judgment of the Warren Circuit Court.

All concur.


text:
    Paul RAYBORN, Appellant, v. Exie RAYBORN, Appellee.
    No. 2005-SC-0357-DG.
    Supreme Court of Kentucky.
    Feb. 23, 2006.

      Luther C. Conner, Jr., Albany, Counsel for Appellant.
    Gary A. Little, Albany, Counsel for Ap-pellee.
   ROACH, Justice.

Paul Rayborn appeals from a decision by the Court of Appeals reversing a trial court order terminating his maintenance obligation to his ex-wife, Exie Rayborn. The Court of Appeals held that the trial court’s decision to terminate the support obligation was in error because the trial court’s conclusion that the parties’ circumstances had not changed enough to make the original maintenance obligation unconscionable was not supported by its findings of fact, and, moreover, that the court had applied the wrong legal standard in reaching its decision. Because we agree that there was no change in circumstances sufficient to warrant a modification of the maintenance obligation, we affirm.

Paul and Exie Rayborn were married in 1966. In 1991, Exie filed a petition for dissolution of marriage. Paul did not respond, and the trial court entered a default decree. Under the terms of the decree, Exie received most of the personal marital property, including the parties’ mobile home, and Paul was ordered to pay the marital debt, except for the then remaining debt on the mobile home. The parties also owned a one-half interest in a 44-acre farm, where the mobile home was located, but the divorce decree did not dispose of the real estate. When the decree was entered, Paul was 44 years old, and Exie was 47. Paul was a self-employed truck driver, and Exie was disabled. The trial court found that because Exie was disabled, she would be unable to obtain gainful employment. Based on that finding, and the fact that the parties had been married for 25 years, the court awarded Exie permanent maintenance in the amount of $500.00 per month.

After the divorce, Paul purchased the other half interest in the farm from a third party. In 2002, the farm was sold for $336,075. After paying off taxes and the remaining debt, the balance was $208,115.15. Since half the interest in the farm was part of the marital estate, the parties agreed to split the proceeds of the sale, with Exie receiving approximately one quarter of the balance. Her share consisted of $47,000 and the one acre where her mobile home was located, the acre having been repurchased from the farm’s buyer with $7500 from the proceeds of the sale. Paul, in turn, received the remaining $153,615.51.

Later that same year, Paul moved the trial court to terminate his maintenance obligation under KRS 403.250. The court held a hearing where the parties presented evidence in the form of witness testimony and exhibits. Following the hearing, the court entered a ten-page Findings of Fact, Conclusions of Law, and Order that terminated Paul’s maintenance obligation on the ground that there had “been a showing of changed circumstances so substantial and continuing as to make the provisions and terms of the 1991 decree respecting maintenance unconscionable.”

On appeal, the Court of Appeals noted that the trial court’s ruling was based, at least in part, on a finding that the initial decree did not include sufficient findings of fact and that, had sufficient findings been made, the award of maintenance would have been unconscionable when the decree was entered. The Court of Appeals went on to hold that although the trial court purported to have found a change in circumstances sufficient to modify the maintenance award, the finding was merely conclusory and was not supported by the findings of fact. Ultimately, the Court of Appeals reversed, holding: “The circuit court erroneously believed that a maintenance award could be modified if it found that the original award was unconscionable. This is not the standard set forth in KRS 403.250(1).”

We then granted discretionary review. Appellant’s motion for .discretionary review presented the broad legal question of what legal and evidentiary standards should be applied in determining whether a movant has shown sufficiently changed circumstances to allow modification of a maintenance award under KRS 403.250 when the decree of dissolution creating the modification obligation did not dispose of the entire marital estate and did not include the statutorily required factual findings as to the parties’ incomes and the obligated spouse’s ability to pay the maintenance. After examining the record, we conclude that we need not address the legal issues in such a broad fashion.

The trial court claimed to have found changed circumstances because of an apparent improvement in Exie’s standard of living following the dissolution of her marriage. The full paragraph in the trial court’s order on this point reads:

The standard of living established during the marriage was very conservative and modest. The parties’ average income from 1988 through 1991 was approximately $9,000.00 from Paul Ray-born’s earnings and $4,692.00 from Exie Rayborn’s social security benefits. As a result of the additional $6,000.00 per year in maintenance received by Exie Rayborn, and the payment of all of the parties’ debts by Paul Rayborn, Exie Rayborn’s standard of living was enhanced substantially over what it was during the marriage. Since 1991 Exie Rayborn has continued to live in the mobile home, and Paul Rayborn lived in a barn until the farm was sold.

However, the “changes” noted in the paragraph were actually the product of the divorce decree and its included maintenance obligation and were not the result of a material change in Exie’s circumstances after the marriage was ended. These changes alone were cited to support the trial court’s claim that “Exie Rayborn’s standard of living was enhanced substantially over what it was in the marriage.”

KRS 403.250, the statute that allows for the modification of maintenance awards, states: “[T]he provision of any decree respecting maintenance may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.” KRS 403.250(1) (emphasis added). The statute requires that the changed circumstances occur after the divorce decree and maintenance obligation become effective. Implicit in this requirement is the understanding that the circumstances of the parties brought about by the entry of the divorce decree and maintenance obligation cannot serve as the basis of the “changed circumstances” required by the statute. Rather, the parties’ circumstances at the time of the decree and maintenance obligation are the status quo against which the changed circumstances requirement of KRS 403.250(1) is to be measured. Were we to conclude otherwise, every maintenance obligation could immediately be modified under the statute. That simply is not the purpose of KRS 403.250 — it allows a modification only where there has been a change in circumstances subsequent to the immediate effects of the divorce decree.

In addition to the trial court’s contention that Exie’s standard of living was substantially enhanced after the marriage, Paul Rayborn claims an apparent change in his circumstances, namely, that his income has decreased significantly since the divorce. In evaluating the parties’ incomes, the trial court relied on the adjusted gross income (AGI) as listed on the parties’ tax returns. Paul’s average income from 1989-1991, the years immediately leading up to and including the year of the divorce, was $10,024.66. The trial court noted in its findings that Paul’s average annual income from 1998 to 2000 was just $4,517.00. At first glance, this would appear to satisfy the significant change in circumstances requirement, so long as Paul was not intentionally underemployed. Considered alone, however, these figures are quite misleading because they only reflect the AGI. While this can be an appropriate income figure to use in many situations, it is not helpful in this case because Paul’s AGI, as calculated in his post-divorce tax returns, reflects a deduction of the full amount of the maintenance payments he made each year to Exie. Thus, the apparent large decrease in income was due to Paul’s maintenance obligation and not to any other external factor. Put another way, the decrease in Paul’s income was the direct result of the effect of the divorce decree — not some change in circumstances that arose after the maintenance obligation came into effect. In fact, if one adds Paul’s maintenance payments to his AGI, it appears that his average income actually increased after the divorce, at least in the three years leading up to the trial court’s modification of the maintenance obligation. An apparent reduction in a party’s income that is the direct result of a deduction from income of the amount of maintenance simply is not a change in circumstances subsequent to the divorce decree. As such, it cannot support a maintenance modification under KRS 403.250.

The trial court also implied that changed circumstances existed because of the sale of the farm, half of which was part of the marital estate. But the sale of the farm, including the subsequent payment to Exie of her portion of the proceeds, was nothing more than a distribution of property that should have occurred as part of the divorce decree. Indeed, Kentucky law treats marital property not disposed of in the divorce decree as though it had already been distributed. See Kidwell v. Mason, 564 S.W.2d 534 (Ky.1978) (holding that even though decree dissolving marriage made no provision for assignment of marital property, decree had same effect as if trial judge had specifically written therein that husband and wife each owned an undivided one-half interest in marital property).

Even if this were not the law in Kentucky, the actual distribution of the remaining marital property in this case did not result in the sort of substantial change in the parties’ relative financial positions that could render the present maintenance obligation unconscionable. Both Paul and Exie received approximately half of the proceeds of the sale of the portion of the property that was part of the marital estate. That transfer improved the parties’ relative financial positions by approximately the same amount. Moreover, because Paul also received proceeds from the sale of the non-marital half of the property, which he sold at a substantial premium, his overall financial position improved significantly relative to Exie’s.

In addition to its claim of changed circumstances, the trial court discussed the fact that the initial divorce decree was done incorrectly, and that, as a result, the maintenance obligation was unconscionable when it was created. While it is true that the original decree did not include the requisite findings of fact and did not dispose of the entire marital estate, those failures do not provide an adequate justification for the trial court’s decision to revisit the original maintenance order. Those sorts of defects are properly raised only in the context of a direct appeal of the decree; they cannot serve as the basis for a later action to modify the maintenance obligation.

We have repeatedly held that “domestic cases require a greater degree of deference to the determinations made by trial courts.” Marcum v. Marcum, 779 S.W.2d 209, 212 (Ky.1989); see also Combs v. Combs, 787 S.W.2d 260, 262 (Ky.1990) (“As an appellate court, neither the Court of Appeals nor this Court is authorized to substitute its own judgment for that of the trial court on the weight of the evidence, where the trial court’s decision is supported by substantial evidence.”). But in this case, the evidence simply does not support the trial court’s decision. The claimed change in circumstances was merely illusory. There was, in fact, no significant change in the parties’ circumstances other than the distribution of the remainder of the marital estate. Thus, we conclude that the decision of the Court of Appeals was correct and that this is one of those rare domestic cases where deference to the trial court’s judgment is unwarranted.

For the forgoing reasons, the decision of the Court of Appeals is affirmed and the case is remanded to the Clinton Circuit Court for proceedings consistent with this opinion.

All concur.

      . The trial court discussed a slightly longer pre-divorce period, 1988-1991, noting an average income of $9,034.75. This income figure, however, is for both parties since it includes some income from Exie Rayborn's employment in 1988. None of these figures take into account Exie Rayborn's disability benefits, which, though the record does not disclose, presumably began sometime in 1989.


text:
    David OSBORNE, et al., Appellants, v. COMMONWEALTH OF KENTUCKY, Appellee.
    No. 2004-SC-000566-DG.
    Supreme Court of Kentucky.
    Feb. 23, 2006.

      C. Thomas Hectus, Randall S. Strause, Hectus & Strause PLLC, Louisville, Counsel for Appellants.
    Patrick McGee, General Counsel, David E. Fleenor, John Hunter Walker, Wesley R. Butler, Office of General Counsel, Cabinet for Health Services, Frankfort, Counsel for Appellees.
   SCOTT, Justice.

This case comes to us on discretionary review of the Court of Appeals’ opinion, which held that county jails, not the Commonwealth, are responsible for paying the cost of providing psychotropic medications to inmates incarcerated at those county jails pursuant to KRS § 441.045(3). In so ruling, the Court of Appeals affirmed the decision of the Franklin Circuit Court granting a sua sponte motion for summary judgment in favor of Appellee, Commonwealth of Kentucky. For the reasons set forth herein, we affirm the decision of the Court of Appeals.

I. FACTS

This case arose over a dispute between the jailer at the Daviess County Detention Center (“DCDC”) and the Cabinet for Health Services (“CHS”) regarding the financial responsibility for providing psychotropic medications to indigent inmates incarcerated at the DCDC. The Appellant, David Osborne, is currently jailer for the Daviess County Detention Center (“DCDC”). Prior to Osborne taking the position, his predecessor, Harold Taylor, initiated a suit in Franklin Circuit Court, arguing that KRS § 441.047(1) places the financial responsibility on the Commonwealth to provide indigent prisoners with psychotropic medications. Appellants also argued that since KRS § 441.047 was enacted later in time and is more specific than KRS § 441.045, it is the controlling statute and repeals the latter by implication. Appellees, Cabinet for Health Services and the Department of Finance, in turn argued that KRS § 441.045(3) directs county jails to cover the costs of providing “necessary medical, dental and psychological care” for indigent inmates. Appellants’ motion for summary judgment was denied, and the Franklin Circuit Court, Critten-den, J., granted a sua sponte summary judgment in favor of Appellees.

In its opinion and order, the Franklin Circuit Court, utilizing statutory construction, held that the two statutes could, and should, be harmonized so as to give effect to both. Further, the court noted that if the General Assembly had intended for KRS § 441.047 to repeal KRS § 441.045, it would have done so explicitly. Notably, the court found that KRS § 441.047 was enacted to save taxpayers’ money by utilizing state-operated or state-supported psychiatric facilities as opposed to facilities in the private sector. KRS § 441.045, on the other hand, specifically requires the county jail to cover the cost of providing “necessary medical, dental and psychological care to indigent inmates in the jail.” The eir-cuit court held that the term “psychological care” encompasses psychotropic medications, and as such,, the jailer remains responsible for paying the costs of administering these medicines to indigent inmates while they are incarcerated in the jail.

The Court of Appeals agreed, finding that the circuit court properly construed KRS § 441.045 to require the county jails to cover the costs of psychotropic medications as part of necessary psychological care.

II. ANALYSIS

A. Statutory Construction

Because the outcome of this appeal turns on whether the lower courts properly construed the statutes at issue, this Court feels compelled to reiterate the means by which courts in the Commonwealth must resolve apparent conflicts between statutory provisions.

Because the construction and application of statutes is a question of law, it is subject to de novo review on appeal. See Bob Hook Chevrolet Isuzu v. Com., Transportation Cabinet, 983 S.W.2d 488, 490 (Ky.1998). Furthermore, the Legislature’s intention in enacting a statute must be justified by the language, and no unjustifiable intention may be read into the statute. See Gateway Const. Co. v. Wallbaum, 356 S.W.2d 247, 249 (Ky.1962).

The primary rule is to ascertain the intention from the words employed in enacting the statute and not to guess what the Legislature may have intended but did not express. Resort must be had first to the words, which are decisive if they are clear. The words of the statute are to be given their usual, ordinary, and everyday meaning.

Id. (citations omitted).

Although this Court and the Court of Appeals have held that a later enacted statute generally controls, see e.g., Brown v. Hoblitzell, 307 S.W.2d 739 (Ky.1956); Williams v. Commonwealth, 829 S.W.2d 942, 944 (Ky.App.1992), this Court has also recognized that “[w]here there is an apparent conflict between statutes or sections thereof, it is the duty of the court to try to harmonize the interpretation of the law so as to give effect to both sections or statutes if possible.” Ledford v. Faulkner, 661 S.W.2d 475, 476 (Ky.1983). Furthermore, this Court presumes that the Legislature knew of pre-existing statutes when it enacted a later statute on the same subject matter. See Shewmaker v. Commonwealth, 30 S.W.3d 807 (Ky.App.2000). Although repeal by implication is recognized, there is also a presumption that if the Legislature.intended a subsequent act to repeal a former one, it will express itself to that end so as to leave no doubt about its purpose. See Tipton v. Brown, 277 Ky. 625, 126 S.W.2d 1067 (Ky.1939). In short, courts must use repeal by implication as a last resort when the repugnancy of the conflict can admit no other reasonable construction. See Kentucky Off-Track Betting, Inc. v. McBurney, 993 S.W.2d 946 (Ky.1999).

B. The Court of Appeals properly held that county jails remain responsible for the costs of providing psychotropic medications to indigent prisoners.

Having thoroughly addressed the rules regarding statutory construction, we now turn to the issue of whether or not the Court of Appeals was correct in affirming the circuit court’s determination that the county jails are responsible for the costs of providing psychotropic medications to indigent inmates in the jail.

KRS § 441.045(3) provides, in pertinent part, that “the cost of providing necessary medical, dental, and psychological care for indigent prisoners in the jail shall be paid from the jail budget.” (Emphasis added). Clearly this statute places the financial responsibility for covering all aspects of an inmate’s psychological care on the county jail. As the lower courts have found, psychotropic medications must necessarily fall within the rubric of psychological care. It is our opinion that there can be very little else that this portion of the statute would otherwise address.

In contrast, KRS § 441.047(1) provides that

[wjhenever a prisoner confined in the county jail is in need of psychiatric or similar evaluation, treatment, or services, it shall be the responsibility of the Commonwealth to provide such evaluation, treatment, or services at the expense of the Commonwealth at the nearest state-operated or state-supported facility suitable for the provision of the required evaluation, treatment, or services at no cost to the county.

Although Appellees are correct in that KRS § 441.047 has traditionally been cited in competency evaluations for criminal defendants, such a conclusion is irrelevant as to whether or not subsection (1) requires reversal of the Court of Appeals. The plain language of KRS § 441.047(1) reveals that this portion of the statute clearly applies to those situations where an indigent inmate receives “psychiatric evaluations, treatment or services” at a nearby state-supported or state-operated psychiatric facility. It is only when this “in-house” treatment is rendered that the Commonwealth is responsible for the costs associated with such services. By “in-house” we mean any treatment rendered at a state-supported or state-operated facility or other suitable private facility outside the confines of the county jail.

As we have stated on previous occasions, this Court believes that if the Legislature intended for a later-enacted statute to repeal a former one, it will express itself to that end. We find no indication the Legislature, in enacting KRS § 441.047, in any way intended to repeal KRS § 441.045. In fact, KRS § 441.047(4) refers back to KRS § 441.045 for the terms and conditions of payment. Although Appellants would have this Court find the two statutes at issue to be in conflict so that we might then have to find the later-enacted and more specific statute controlling, we find no conflict between the statutes.

It is the opinion of this Court that KRS § 441.047 was enacted to curtail the costs to taxpayers associated with “psychiatric evaluations, treatment or services” provided to indigent inmates and criminal defendants by rendering these services “in-house” at state-operated or state-supported facilities. If the Legislature intended for county jails to be absolved of the financial responsibility of psychological care for indigent inmates, including the rendering of psychotropic medications while they are incarcerated in the county jail, it would have expressed itself definitively to that conclusion, and it would have done so by expressly repealing KRS § 441.045.

Finally, we should address any lingering questions as to whether the trial court was correct in disposing of this case by summary judgment. The standard for summary judgment in Kentucky is well-settled. In Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 483 (Ky.1991), this Court announced that summary judgment “should only be used ‘to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.’ ” (Citation omitted). A trial court may also grant summary judgment in favor of a non-moving party “where overruling the [movant’s] motion for summary judgment necessarily would require a determination that the [non-moving party was] entitled to the relief asked, [and] a motion for summary judgment by the [non-moving party] would have been a useless formality.” Collins v. Duff, 283 S.W.2d 179, 183 (Ky.1955). This also requires that the trial judge have all pertinent issues before him at the time the case is submitted. See Green v. Bourbon County Joint Planning Commission, 637 S.W.2d 626, 630 (Ky.1982).

In reviewing the record before us, the majority of this Court believes that the trial court correctly applied the law on summary judgments. We do not believe the Appellants in this case were in any way prejudiced by the court’s granting a sua sponte summary judgment. The circuit court had but one issue to decide, and the outcome hinged upon a matter of law. The circuit court also had all pertinent issues before it prior to ruling in favor of Appellees. Furthermore, in denying Appellants’ motion for summary judgment, the trial court needed only to consider the plain meaning of the statutes at issue and find that, as a matter of law, Daviess County Detention Center was responsible for covering the costs of psychotropic medications rendered to indigent inmates incarcerated in that facility.

For these reasons, the decision of the Court of Appeals is affirmed.

All concur, except WINTERSHEIMER, J., who concurs in result only.

      . Following a reorganization of executive branch cabinets, the Cabinet for Health Services was renamed the Cabinet for Health and Family Services.

      . The other named Appellant in this case is Daviess County, Kentucky.

      . KRS § 441.047(2) deals specifically with psychiatric evaluations of criminal defendants and the language of this subsection is nearly identical to that found in subsection (1) cited and addressed in this opinion.

      . Appellant's argument KRS § 441.047 does not apply solely to "in-house” treatment due to the language of subsection (3) is in error. A logical understanding of the clear language of subsection (3) reveals that the first sentence provides only for the psychiatric evaluation of criminal defendants at county jails (or other suitable facilities) in connection with criminal proceedings when no state-operated or state-supported facility is within a reasonable distance from the jail. However, the second sentence of subsection (3) does apply to evaluations, treatments, or services but requires the county jail to first make a request for CHS to provide the evaluation, treatment or services before CHS has any obligation to provide such services. KRS § 441.047(4) also requires the reasonable costs of providing psychiatric evaluations, treatment, or services to be paid from the State Treasury when local resources are utilized because it is either an emergency situation or the Cabinet for Health Services cannot provide such services.


author: BUCKINGHAM, Judge.

text:
    DAVIESS COUNTY PUBLIC LIBRARY TAXING DISTRICT, Appellant, v. Gary M. BOSWELL; William Kuegel; Daniel F. Ebelhar; and Charlotte Burdette, Appellees, and J. Michael Libs, Daviess County Clerk, Appellant, v. Gary M. Boswell; William Kuegel; Daniel F. Ebelhar; and Charlotte Burdette, Appellees.
    Nos. 2004-CA-002624-MR, 2005-CA-000004-MR.
    Court of Appeals of Kentucky.
    Dec. 16, 2005.
    Rehearing Denied Feb. 10, 2006.

      Allen W. Holbrook, Owensboro, KY, for appellant/Daviess County Public Library Taxing District.
    Robert M. Kirtley, Owensboro, KY, for appellant/Daviess County Clerk, J. Michael Libs.

      Steven S. Crone, Owensboro, KY, for appellees.
    Before BARBER, BUCKINGHAM, and JOHNSON, Judges.
   OPINION

BUCKINGHAM, Judge.

The Daviess County Public Library Taxing District and Daviess County Clerk J. Michael Libs appeal from an amended order and judgment of the Daviess Circuit Court instructing Libs to accept the tax protest petitions sought to be filed by the appellees and to follow the procedures set forth in KRS182.017. The petitions challenged the Library’s increase on ad valo-rem property taxes that would produce in excess of 4% over the revenue produced by the compensating tax rate as defined in KRS 182.010(6). The appellees are taxpayers and real property owners in the library taxing district.

The appellants argue that the petitions were not timely filed, failed to specify “that portion” of the rate subject to recall election, and specified an incorrect tax rate. They ask this court to reverse and remand the circuit court judgment with instructions that the appellees’ complaint be dismissed and the Library’s increased tax rate be reinstated retroactive to September 7, 2004. We conclude the circuit court ruled correctly, and we thus affirm.

The Library is an independent taxing district authorized by statute. Beginning in April 2002, it held public meetings to discuss the adequacy of the McCreary Avenue library facility in Owensboro. On July 16, 2003, it proposed a project that would improve the facility according to state library standards. That project was estimated to cost $19 million and required an ad valorem real property tax increase of 64% over the compensating rate.

The Library later reduced the scope of the project so that the revised project’s cost was $14 million. On January 21, 2004, the Library announced the project and its cost in the Owensboro Messenger Inquirer, which is the primary newspaper circulated in the area. The revised project required an ad valorem real property tax increase of nearly 27%.

KRS 132.023(3)(a) states:

That portion of a tax rate levied by an action of a tax district, other than the state, counties, school districts, cities, consolidated local governments, and urban-county governments which will produce revenue from real property, exclusive of revenue from new property, more than four percent (4%) over the amount of revenue produced by the compensating tax rate defined in KRS 132.010 shall be subject to a recall vote or reconsideration by the taxing district, as provided for in KRS 132.017, and shall be advertised as provided for in paragraph (b) of this subsection.

KRS 133.185 provides, in pertinent part, that “no tax rate for any taxing district imposing a levy upon the county assessment shall be determined before the assessment is certified by the Revenue Cabinet to the county clerk[J” Because the Revenue Cabinet had not certified the assessment when the Library announced the project and its cost in January 2004, the Library could not formally announce the new rate at that time.

Between January and July 2004, numerous articles were published about the project and the increased tax rate necessary to fund it. The Library held meetings to discuss the project and the anticipated tax rate. In early July 2004, the Library began publishing notices that it was going to hold a public meeting concerning the proposed tax rate. However, the meeting held on July 21, 2004, resulted in no action being taken because the assessments had not yet been certified under KRS 133.185. The Revenue Cabinet did not certify the assessment until July 29, 2004.

On July 31 and August 1, 2004, the Library published legal notice pursuant to KRS 132.023 that a public hearing was scheduled for August 9, 2004. At that hearing the Library passed the 7.1 cents per $100 rate. The Library published another public notice on August 14, 2004, that announced the 7.1 cents per $100 rate had passed and that the rate would produce over 4% more revenue than that produced by the compensating rate.

At a press conference on September 3, 2004, the Library announced it was planning to lower the rate because of a reduced interest rate, deferring purchases, use of inmate labor, and other cost reductions. After a public meeting on September 7, 2004, notice of which was published two days prior, the Library set the new rate at 6.6 cents per $100. The new rate was published in the newspaper on September 8, 2004. On September 11 and 12, the Library published notice of a public hearing scheduled for September 22, 2004. At the hearing the Library formally adopted the 6.6 cents per $100 rate. The new rate was published in the newspaper on September 25, 2004. That notice informed the public that the rate would produce more than 4% over the amount of revenue produced by the compensating rate and that the rate was subject to a recall vote.

The appellees tendered recall petitions to County Clerk Libs on September 21, 2004. The petitions sought suspension of the 7.1 cents per $100 rate until it could be placed on the ballot and submitted to the voters. The appellees believed they had met the requirements of the statute by gathering the signatures of at least 10% of the voters who participated in the last presidential election.

Citing KRS 118.365(7), Libs refused to accept the petitions. He claimed that pursuant to the statute the petitions had to be delivered to him by the second Tuesday in August, which was August 10, 2004. Since the petitions were delivered to him on September 21, 2004, Libs claimed he could not accept them or place them on the ballot during the November 2, 2004 regular election.

The petitions made no mention of either the 4% requirement or “that portion” of the rate that was greater than 4% more revenue than the previous year’s rate. See KRS 132.023(3)(a). Further, the petitions referred to the 7.1 cents per $100 rate passed on August 9, 2004, not the 6.6 cents per $100 rate passed on September 22, 2004.

On October 1, 2004, the appellees filed a civil complaint in the Daviess Circuit Court pursuant to KRS 418.040 for a declaration of their rights under KRS 132.017 and for injunctive relief. The parties thereafter filed cross-motions for summary judgment. On December 2, 2004, the circuit court entered an order and judgment denying the Library’s motions and directing Libs to accept the petitions and proceed pursuant to KRS 132.017.

The Library then filed a motion to alter, amend, or vacate the previous order, stating that the court had omitted reference to the 15-day provision for the Library to adjust the tax rate under' KRS 132.017(l)(b). The court granted that motion and entered an amended order fully reflecting the requirements of the statute. Separate appeals by the Library and by Libs followed.

KRS Chapter 132 is entitled “Levy and Assessment of Property Taxes.” Prior to its 2005 amendment KRS 132.017 provided in pertinent part as follows:

(1) (a) That portion of a tax rate levied by an ordinance, order, resolution, or motion of a county fiscal court, district board of education, or legislative body of a city, urban-county government, consolidated local government, or other taxing district subject to recall as provided for in KRS 68.245, 132.023, 132.027, and 160.470, shall go into effect forty-five (45) days after its passage. If during the forty-five (45) days next following the passage of the order, resolution, or motion, a petition signed by a number of registered and qualified voters equal to ten percent (10%) of the voters voting in the last presidential election is presented to the county clerk or his authorized deputy protesting against passage of the ordinance, order, resolution, or motion, the ordinance, order, resolution, or motion shall be suspended from going into effect until after the election referred to in subsection (2) of this section.... The county clerk shall make the conclusive determination of whether the petition contains enough signatures of qualified voters to suspend the effect of the order or resolution.
(b) The county fiscal court, district board of education, or legislative body of a city, urban-county government, consolidated local government, or other taxing district may cause the cancellation of the election by reconsidering the ordinance, order, resolution, or motion and amending the ordinance, order, resolution, or motion to levy a tax rate which will produce no more revenue from real property, exclusive of revenue from new property as defined in KRS 132.010, than four percent (4%) over the amount of revenue produced by the compensating tax rate defined in KRS 132.010 from real property. The action by the county fiscal court, district board of education, legislative body of a city, urban-county government, consolidated local government, or other taxing district shall be valid only if taken within fifteen (15) days following the date of the presentation of the petition.
(2) (a) If an election is necessary under the provisions of subsection (1) of this section, the county fiscal court, legislative body of a city, urban-county government, consolidated local government, or other taxing district shall cause to be submitted to the voters of the county, district, consolidated local government, or urban-county at the next regular election, the question as to whether the property tax rate shall be levied. The question shall be" submitted to the county clerk not later than the second Tuesday in August preceding the regular election. The question shall be so framed that the voter may by his vote answer “for” or “against.” If a majority of the votes cast upon the question oppose its passage, the order, resolution, or motion shall not go into effect. If a majority of the votes cast upon the question favor its passage, the order, resolution, or motion shall go into effect.

KRS 118.365(7) states that “[Petitions for recall elections or elections on public questions shall be filed as required with the county clerk not later than the second Tuesday in August preceding the day fixed by law for holding a general election.”

The appellants allege three main errors on the part of the circuit court. Each argument involves a matter of statutory interpretation. “The interpretation of a statute is a matter of law.” Commonwealth v. Gaitherwright, 70 S.W.3d 411, 413 (Ky.2002). The construction and application of statutes is interpreted de novo without deference to the interpretations adopted by the lower courts. Wheeler & Clevenger Oil Co., Inc. v. Washburn, 127 S.W.3d 609, 612 (Ky.2004).

“The proper standard of review of a question of law does not require the adoption of the decision of the trial court as to the matter of law, but does involve the interpretation of a statute according to its plain meaning and its legislative intent.” Hardin County Schools v. Foster, 40 S.W.3d 865, 868 (Ky.2001).

The appellants’ first argument is that the court erred by ordering County Clerk Libs to accept the petitions because Libs incorrectly applied the second Tuesday in August deadline rather than the 45-day deadline. In connection with this argument, the appellants assert that the court ignored KRS 118.365(7) altogether, that the court created a non-existent conflict within KRS 132.017, and that the court wrongly assumed the petition efforts could only start after the passage of the tax rate. We will address the three sub-arguments.

Concerning the appellants’ assertion that the court ignored KRS 118.365(7), the appellants argue that the statute plainly provides that petitions for recall elections must be filed not later than the second Tuesday in August preceding the day fixed by law for holding a general election. Since the petitions in this case were not filed until September 21, 2004, the appellants maintain that the petitions were not timely tendered for filing. While the appellants correctly read KRS 118.365(7), a statute within the chapter concerning the conduct of elections, they overlook the specific statutory provisions concerning recall elections involving the levy and assessment of property taxes that are set forth in KRS 132.017. The provisions of that statute clearly provide that the new tax rate shall not go into effect until after a recall election when a petition has been filed within 45 days following the passage of the tax. See KRS 132.017(l)(a). We conclude that this more specific statute governing the levy and assessment of property taxes controls over the general statute in KRS 118.365(7). See Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 361 (Ky.2005).

The appellants’ second argument concerning the timeliness of the petitions is that the court created a non-existent conflict within KRS 132.017. The court determined that there was a conflict between KRS 132.017(l)(a) and KRS 132.017(2)(a). The court noted that KRS 132.017(2)(a) requires that the question as to whether the property tax rate shall be levied shall be submitted by the taxing authority to the county clerk not later than the second Tuesday in August preceding the regular election. The court stated that this portion of the statute conflicted with the appellees’ right under KRS 132.017(l)(a) to submit protest petitions within 45 days after passage of the tax rate because the rate was approved only one day prior to the August 10 deadline for the Library to submit the question to the clerk. The court concluded that the only duty imposed upon the appellants was to present their petitions within 45 days after passage of the tax and that the appellants had apparently complied with that requirement.

KRS 132.017(l)(a) allows 45 days following the passage of the tax for a recall petition to be filed. That portion of the statute also requires the county clerk to make the conclusive determination of whether the petition contains enough signatures of qualified voters to suspend the effect of the tax until an election can be held. Id. KRS 132.017(2)(a) provides in part that, if an election is necessary, then the taxing authority shall cause the question as to whether the property tax rate shall be levied to be submitted to the county clerk not later than the second Tuesday in August preceding the regular election.

The tax was passed on August 9, 2004, and the second Tuesday in August preceding the next regular election was the following day, August 10, 2004. The appel-lees had 45 days from August 9, 2004, in which to file petitions. Their petitions were filed on September 21, 2004, 43 days after August 9, 2004. Thus, the petitions were timely filed.

Once the petitions were filed, the county clerk was required to determine whether they contained enough signatures of qualified voters to suspend the effect of the tax until an election could be held. See KRS 132.017(l)(a). Thereafter, it was incumbent upon the taxing district (Library) to submit the question to the county clerk not later than the second Tuesday in August preceding the next regular election. See KRS 132.017(2)(a). Because that date had passed, the circuit court correctly determined that the second Tuesday in August preceding a regular election that will occur after the protest petitions were presented to the clerk is August 8, 2006. As the court noted, the “next regular election,” as applied to the facts of this case, is the November 2006 election. In short, we conclude the circuit court correctly ruled that the appellees had 45 days following August 9, 2004, in which to file their petitions and that the petitions were timely filed.

The appellants’ third sub-argument is that the court wrongly assumed the petition efforts could only start after the passage of the tax rate. They maintain the appellees knew that a new tax rate would be passed and that nothing stopped them from preparing the petitions to be ready for filing on the day after the tax was passed. While this may be true, it overlooks the fact that the appellees had 45 days following the passage of the tax in which to file their petitions. See KRS 132.017(l)(a).

The appellants’ second argument is that the petitions were invalid on their face. The petition form stated in pertinent part as follows:

Pursuant to KRS 132.017, the undersigned protest the property tax increase passed by the Daviess County Library Board/Daviess County Library Taxing District on or about August 9, 2004, whereby the tax rate was increased to 7.1 cents per $100.00 of assessed value. We ask that an election be held to determine whether that property tax rate should be levied.

The appellants correctly note that the right of recall is limited only to that portion of the rate that produces 4% more revenue than the previous year’s rate. They argue that the recall petitions here identified the entire rate of 7.1 cents per $100 and did not identify the fact that the recall was only limited to “that portion” of the rate over 4%. See KRS 132.023(3)(a).

KRS 132.017 places few specific requirements on the form of the petition. It requires only that the petition protest “against passage of the ordinance, order, resolution, or motion” that increased the tax rate. Here, the appellees specified the taxing authority and the tax increase passed by that authority. We conclude the petition was not invalid on its face even though it did not specify “that portion” of the rate subject to recall.

The appellants’ final argument is that the recall petitions were defective and moot because they identified the old rate of 7.1 cents per $100 rather than the amended rate of 6.6 cents per $100. They argue that once the Library changed the rate, the appellees’ petition became moot. The circuit court ruled that the petitions were not rendered moot by the lowering of the rate because “such an interpretation would lead to absurd results with one tax levy followed by a protest petition, a second tax levy with yet another protest petition, etcetera.” We agree.

To accept the appellants’ argument would allow taxing districts to evade recall elections by chicanery. Such would defeat legislative intent to allow citizen challenges to tax increases of this nature. “All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature[.]” Unless directed otherwise, courts interpret election statutes liberally in favor of citizens whose right to vote they tend to restrict. See Queenan v. Mimms, 283 S.W.2d 380, 382 (Ky.1955), and Greene v. Slusher, 300 Ky. 715, 722, 190 S.W.2d 29, 33 (1945). Thus, we agree with the court that the petitions complied with the statute and did not become moot when the Library lowered its rate to 6.6 cents per $100.

The judgment of the Daviess Circuit Court is affirmed.

ALL CONCUR.

      . Kentucky Revised Statutes.

      . The compensating rate was 5.6 cents per $100 of assessed property value. The new rate would have been 9.1 cents per $100.

      .The Library set the property tax rate at 7.1 cents per $100 of assessed property value.

      . The new rate was 1.0 cent higher than the previous year’s rate and constituted an 18% increase.

      . The two appeals have been consolidated for our review.