author: Justice SCOTT. Justice KELLER.

text:
    Tracy Glass LAMB; Sharon Johnson; and the Estate of Lilian Montgomery Appellants v. Lucy HOLMES, as Next Friend of A.L., A Minor; and Renita Weaterington, as Next Friend of T.W., A Minor Appellees
    No. 2003-SC-000495-DG.
    Supreme Court of Kentucky.
    May 19, 2005.

      Robert L. Chenoweth, Frankfort, Counsel for Appellant.
    David R. Marshall, Lexington, Counsel for Appellee.
   Opinion of the Court by

Justice SCOTT.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Appellees in this case brought five separate counts against the Appellant teachers and administrators of a Kentucky high school. Among these were a claim under 42 U.S.C.A § 1983 for violation of their right to be free from unreasonable searches under the Fourth Amendment of the United States Constitution, a claim under § 2 of the Kentucky Constitution for deprivation of due process and three tort claims for intentional infliction of emotional distress, invasion of privacy and negligence. The claims were based on the following facts:

On November 17, 1998, during a physical education class at Lexington’s Tates Creek Middle School, a student reported missing a pair of shorts. The classroom teachers, Tern Least and Sharon Johnson, told the students they would be given five minutes to return the missing shorts. When the shorts were not returned, Least went to the principal’s office and returned with Tracy Lamb, an administrative intern, who gave the students an additional five minutes to return the shorts. After five minutes passed, Lamb left the class and returned with a security guard and Lillian Montgomery, an assistant principal at the school. They informed the students that they would be searched in an effort to find the shorts. The students were then taken in pairs to a locker room and searched.

The Appellee’s children, A.L., S.W. and T.W., all females, were taken to the girls’ locker room, where A.L. and T.W. were searched. S.W. refused to be searched. There is a factual dispute as to how the search was conducted. A.L. and T.W. allege the girls were required to pull their shorts down beneath their knees and to raise their shirts above their breasts, exposing their underwear to those around them. The teachers/administrators argue they only required each student to turn her waistband down so they could tell if the students were wearing the missing shorts.

At all relevant times, the school board (“Board”) had in effect a policy regarding student searches, which provided: “[i]n no instance shall [a] school official strip search any student.” “Strip search” was not defined anywhere within the Board’s policies.

Appellees filed a complaint against the Board, teachers, assistant principal and administrative intern alleging their wrongful acts caused the students to suffer extreme indignities and humiliation as they had been “held up to ridicule before their peers.”

Following discovery, the school board moved for summary judgment on behalf of all Defendants. In response, Appellees conceded that the Board was immune from suit. They also conceded that the teachers and administrators were immune from suit in their official capacities. However, Ap-pellees contended that the teachers were not entitled to qualified official immunity for the searches in their individual capacities.

In its order granting summary judgment and dismissing the complaint, the trial court concluded the students’ rights had not been violated. In a subsequent order, the trial court clarified its ruling and stated that it was dismissing all of the claims brought by Appellees against all Appellants in their individual capacities.

Lucy Holmes, as next friend of her daughter, A.L., and Renita Weatherington, as next friend of her minor daughters, S.W. and T.W., appealed from the summary dismissal of their complaint. The Court of Appeals concluded the trial court erred in summarily dismissing the § 1983 claim as well as the state claims for violation of the right of privacy and negligence. The Court of Appeals found no error in the dismissal of Appellees’ claims for the tort of outrage or intentional infliction of emotional distress. The Court also affirmed the summary judgment of the trial court as it pertained to the dismissal of claims against Terri Least, whom they agreed did not participate in the searches of the students, and former plaintiff S.W., who had refused to be searched. The Court of Appeals found Appellees’ claim for violation of their substantive due process rights had not been raised in the proceedings, and therefore, would not be considered on appeal. In all other respects, the Court of Appeals vacated and remanded the judgment for further proceedings consistent with its opinion. We granted discretionary review and now reverse the Court of Appeals.

II. Issues

The questions of law before this Court, as stated in the Motion for Discretionary Review, are whether the Court of Appeals (1) correctly found the actions of the teachers/administrators violated the Fourth Amendment; (2) correctly denied qualified immunity to the teachers/administrators; and/or (3) erroneously determined the actions of the teachers/administrators were in the performance of a ministerial duty or to have been clearly violative of a Board policy.

A. Fourth Amendment Rights Violation

The Fourth Amendment to the United States Constitution guarantees all U.S. citizens the right to be free from unreasonable searches. Appellees herein contend their Fourth Amendment rights were violated when they were searched by the Appellant teachers/administrators.

In analyzing the constitutionality of a search conducted within the school setting, we turn to the guidance provided in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), wherein the U.S. Supreme Court determined first that the Fourth Amendment’s protection against unreasonable searches applies to searches performed by public school officials as opposed to exclusively law enforcement officers. Second, the Court outlined that because of the “special needs” of the school environment a standard lesser than probable cause should be utilized to assess the legality of school searches. See Id. at 333, 105 S.Ct. at 738. The Court promulgated a simple “reasonableness standard” in reviewing the circumstances of a school search and quoted from Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968), which requires a two-fold inquiry for interpreting the reasonableness of any search: (1) whether the search was “justified at its inception”, and (2) whether the search was “reasonably related in scope to the circumstances which justified the [search].”

The Court in T.L.O. outlined that a search by a teacher/administrator of a student would be “ ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school” and would be “permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” 469 U.S. at 342, 105 S.Ct. at 743.

Recently, the 6th Circuit Court of Appeals confronted a case factually similar to the case before us. In Beard v. Whitmore Lake School District, 402 F.3d 598 (6th Cir., 2005), the court addressed a § 1983 claim against a police officer and teachers involved in strip searching high school students after another student in the high school gym class reported a theft of money. Approximately 20 boys were taken to the boys’ locker room and individually asked to remove their shuts and lower their pants and underwear, while 5 female students were taken to the girls’ locker room and made to pull up their shirts and pull down them pants while standing in a circle. Neither the boys nor girls were touched during the searches and the girls were not made to remove their underwear. The stolen money was never discovered as was the case here.

The searches in Beard were found to be unconstitutional. The Court of Appeals also found, however, that at the time the searches were performed the law regarding the reasonableness of a strip search under these circumstances was not “clearly established.” Therefore, the court reversed the trial court’s denial of the Defendant’s motion for summary judgment regarding the § 1983 claim.

In determining the searches conducted on the students were unconstitutional in scope, the court was guided by the analysis found in Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), which sets forth the relevant criteria for evaluating searches performed in the absence of individualized suspicion. In Vemonia, the Supreme Court considered three factors to determine if the school searches were reasonable, (1) the student’s legitimate expectation of privacy, (2) the intrusiveness of the search, and (3) the severity of the school system’s needs that were met by the search. Id. at 664-65, 115 S.Ct. 2386.

The 6th Circuit in Beard found the students’ privacy interests were great, quoting from T.L.O., wherein the Supreme Court noted that the “search of a child’s person... is undoubtedly a severe violation of subjective expectations of privacy.” See T.L.O., 469 U.S. at 337-38, 105 S.Ct. at 740-741. The 6th Circuit Court of Appeals, however, found that one’s presence in a locker room lowered one’s privacy expectations so that a child searched within a locker room would not be as deprived of a privacy interest as a child searched within an office, for example. See Beard v. Whitmore Lake School District, 402 F.3d 598, 605 (6th Cir.2005).

The Court of Appeals in Beard found the scope of the search to be determinative as to its constitutionality, as the scope exceeded what a student would normally expect, even in a locker room situation. The court pointed out these students did not voluntarily subject themselves to a degree of regulation as in the Vemonia case where the students were high school athletes being randomly drug tested. The court also noted the character of the intrusion on the student’s privacy interests was greater and would reveal more than the limited information at issue in the Vemo-nia drug testing.

The 6th Circuit Court of Appeals also found the governmental interest in this fact scenario was not as great as in cases like Vemonia dealing with drug issues, even though it could be said there is a valid interest in “maintaining an atmosphere free from theft.” Id. The court elaborated on governmental interests saying a search to find items that pose a threat to the health or safety of students would serve a weightier governmental interest than one merely to find money or stolen property, and a search conducted without “individualized suspicion” also decreases the governmental interest in conducting a search.

The Beard court ruled the male searches were unconstitutional, saying:

[I]n light of the highly intrusive nature of the [male] searches, the fact the searches were undertaken to find missing money, the fact the searches were performed on a substantial number of students, the fact that the searches were performed in the absence of individualized suspicion, and the lack of consent, taken together, demonstrate that the searches were not reasonable, ... [and thereby] under T.L.O. and Vemonia, the searches violated the Fourth Amendment.

Id.

The Court of Appeals then separately analyzed the female searches, concluding they were also unconstitutional for much of the same reasoning. The only difference being the 5 females were not required to remove their underwear, but did undress in front of each other. The court cited Reynolds v. City of Anchorage, 379 F.3d 358, 365 (6th Cir.2004), wherein the 6th Circuit Court of Appeals analyzed the reasonableness of a strip search occurring in a juvenile group home and found it important that the search was “conducted in a way designed to minimize its intrusive effect” and that the search took place “in the presence of only a single staff member.”

In the case at hand, we deal with three girls, one who refused to be searched, and two others who were searched in the girls’ locker room by female teachers. The searches were actually conducted on three classrooms of students, but we only address today two of the girls’ complaints. There is a factual dispute as to what was required of the girls during these searches. The students contend they were required to raise their shirts and lower their shorts, revealing their underwear. The teachers claim the girls were only required to turn their waistbands down, not revealing their underwear.

If the facts are as the students allege, we have almost the exact situation as that analyzed in Beard by the 6th Circuit Court of Appeals. If the facts are as the teachers allege, the searches would appear to be less intrusive than those discussed in Beard, as the girls’ underwear was not revealed, and the searches could hardly be described as “strip searches”.

The searches the students described, which involved removing their clothing to the extent of exposing their underwear to the teachers, would now be considered unconstitutional because (1) the searches were intrusive in nature, (2) the searches were conducted to find a missing pair of shorts, (3) a large number of students were subject to the searches, (4) the searches lacked individualized suspicion, (5) the students did not consent to the searches, and (6) the searches were conducted in front of other students. This analysis mirrors that articulated by the 6th Circuit Court of Appeals in Beard.

If the searches were conducted as the teachers/administrators describe, the searches were not unconstitutional (or didn’t violate the Fourth Amendment) in that the scope of such a search would not exceed what a student would expect in a locker room setting and could not be deemed as intrusive as a search requiring exposure of one’s underwear to others, be they students and/or teachers/administrators.

However, we have concluded we need not remand this case for a factual determination of which search described by the parties actually occurred, because we hold today that the law, at the time these searches were conducted, did not clearly establish searches conducted in either described manner would be unreasonable, and therefore the teachers/administrators are entitled to qualified immunity.

B. Qualiñed Official Immunity

Officials who are sued for monetary relief under § 1983 may assert either an absolute immunity or qualified immunity defense. The Supreme Court has generally limited absolute immunity to officials who perform judicial, prosecutorial and legislative functions, but has allowed qualified immunity to be asserted by school officials. See Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975).

Qualified immunity protects state and local officials who carry out executive and administrative functions from personal liability so long as their actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

The Harlow objective reasonableness standard “is intended to provide government officials with the ability to ‘reasonably anticipate when their conduct may give rise to liability for damages.’ ” Anderson v. Creighton, 483 U.S. 635, 647, 107 S.Ct. 3034, 3043, 97 L.Ed.2d 523 (1987)(quoting Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984)). In Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002), the Supreme Court held the objective reasonableness standard requires a determination as to whether the defendant official had “fair warning” that his/her conduct violated federal law.

The 6th Circuit Court of Appeals in Beard found T.L.O. and Vemonia, while instructive in the area of analyzing school searches, “do not offer the guidance necessary to conclude that the officials were, or should have been, on notice that the searches performed in this case were unreasonable.” Beard v. Whitmore Lake School District, 402 F.3d 598, 607(6th Cir.2005)(internal citations omitted). The court found “[t]he 6th Circuit cases involving strip searches also do not clearly establish the unconstitutionality of the searches in the instant case.” Id. at 607.

The only precedent the Court of Appeals found regarding the constitutionality of strip searches came from the Seventh Circuit, which had held a strip search of a student in particular circumstances was not reasonable. The court, however, cited the applicable rule to follow regarding precedent, discussed in Williams v. Ellington, 936 F.2d 881, 885(6th Cir.1991)(guoting from Ohio Civil Service Employees Ass’n v. Seiter, 858 F.2d at 1171, 1177(6th Cir.1988)), which says:

In the “rare instance” where it is proper to seek guidance from outside this circuit, the law will only be clearly established where the cases outside the circuit “both point unmistakably to the unconstitutionality of the conduct complained of and [are] so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting.”

We agree with the 6th Circuit Court of Appeals that the current law, much less the law in effect when these searches occurred in 1998, did not give “fair warning” to the school teachers/administrators that their actions would be in clear violation of a federal statutory or constitutional right. The 6th Circuit Court of Appeals in Beard examined the available federal precedent and the only state decision available on the issue of strip searching students is Rone v. Daviess County Bd. of Educ., 655 S.W.2d 28 (Ky.App.1983), which held there were reasonable grounds for strip searching a student to determine whether he was carrying drugs and that student was never offensively touched. This available case law could hardly be described as “clearly establishing” the students’ rights as to warn the teachers/administrators herein their actions would be in violation of the Fourth Amendment of the United States Constitution.

C. Ministerial Duties and the Board Policy against Strip Searches

The third issue raised by Appellants in their Motion for Discretionary Review was whether the Court of Appeals erroneously determined the actions of the teaehers/ad-ministrators were in the performance of a ministerial duty or to have been clearly violative of a Board policy.

This issue is critical because the Supreme Court in Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738 (1982), limited the application of a qualified immunity defense to “officials performing discretionary functions.” Harlow left unresolved the immunity applicable, to officials who perform ministerial acts and the lower federal courts are in conflict on this issue.

The Harlow qualified immunity defense, however, does not apply to violations of state law claims. These claims are governed by state immunity law. Kentucky immunity law is discussed in the Kentucky Supreme Court decision, Yanero v. Davis, 65 S.W.3d 510 (Ky.2001), which explains “official immunity” is “immunity from tort liability afforded to public officers and employees for acts performed in the exercise of their discretionary functions.” Id. at 521.

Quoting from 63C Am.Jur.2d, Public Officers and Employees, § 309 (1997), we explained in Yanero, supra, when public officers and employees are sued in their individual capacities, they “enjoy only qualified official immunity...” Id. at 522. The court further explained, quoting from the Restatement (Second) of Torts, § 895D, that qualified official immunity applies to the negligent performance by a public officer or employee of: (1) discretionary acts or functions, i. e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment; (2) in good faith; and (3) within the scope of the employee’s authority. Id.

Appellees in this case argue the written Board policy preempted any claim that appellants’ actions were discretionary. Appellees also contend that in the context of school searches, the term “strip search” contemplates something far less than a nude search, and therefore, the written school policy regarding such searches would apply, and the teachers/administrators are not entitled to qualified immunity against the state claims.

We believe the actions of the teachers/administrators were made in good faith, were discretionary in nature and were within the scope of their authority because the Board policy did not clearly apply to the searches conducted on these female students. The term “strip search” was not defined any where within the school’s policies. This would imply the term should be given its ordinary meaning, that which a reasonable person would interpret the term to mean. The majority of cases using the term “strip search” have defined it as requiring the removal of clothing. (See McGee v. State, 105 S.W.3d 609 (Tex.Crim.App.2003); Craddock v. Com., 40 Va.App. 539, 580 S.E.2d 454 (2003); Roberts v. Rhode Island, 175 F.Supp.2d 176 (D.R.I.2000); State v. Esquivel, 987 S.W.2d 481 (Mo.App. W.D.1999))

If the facts are as the students allege in this case, the searches do not involve removal of the girl’s clothing, but rather lifting their shirts above their bras and lowering their shorts to their knees. Their underwear was never touched or altered in any way, nor was their clothing fully removed from their bodies.

We have issued many decisions expressing the common rule that the “plain meaning” of statutes controls when interpreting statutory language. See Wheeler & Clevenger Oil Co., Inc. v. Washburn, 127 S.W.3d 609, 614 (Ky.2004). And the only time the “plain meaning” rule is not to be applied is when doing so “would constitute an absurd result.” Id. at 614. We think the interpretation of policy language follows this same “plain meaning” rule and therefore, the “plain meaning” of “strip search” should be applied to the Board’s policy as such would not produce an absurd result, but rather the most reasonable outcome.

There were four cases prior to 1998, when these girls were searched, dealing with “strip searches” of students. We think these cases define the term “strip search” as a nude search, or search far more invasive than those endured by the female students in this case.

The Kentucky Court of Appeals case involving “strip searching” a student is Rone v. Daviess County Bd. of Educ., 655 S.W.2d 28 (Ky.App.1983), which describes the involved strip search as:

Although appellant was requested during the search to lower both his trousers and undershorts, those articles of his clothing were never removed. Additionally, the appellant was never offensively touched during any part of the search. The only clothing completely removed from the appellant was his jacket and shoes. The avowed purpose of having the appellant lower his shorts and undershorts to his thighs was to determine if either contained drugs or marijuana, underclothing being a prime hiding place for controlled substances.

Id. at 30.

We believe this description entails a search where clothing and underwear are at least partially removed.

The Supreme Court case, Doe v. Renfrow, 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981), involved a strip search of a 13 year old female student performed after a police dog “alerted” to the presence of drugs on her person. The dissent from this case reads:

Petitioner was met at the nurse’s office by two adult women, one a uniformed police officer. After denying that she had ever used marihuana, petitioner was ordered to strip. She did so, removing her clothing in the presence of the two women. The women then looked over petitioner’s body, inspected her clothing, and touched and examined the hair on her head.

Id. at 1023-1024, 3016, 101 S.Ct. 3015.

This case at least indicates the strip search involved full removal of the girl’s clothing. The opinion later references the “nude search” of the girl’s body, again indicating, a level of search exceeding that performed on the two girls in this case.

The 6th Circuit Court of Appeals case, Williams v. Ellington, 936 F.2d 881 (6th Cir.1991), is the closest case to describe strip searching in a way that would come close to encompassing the alleged searches in this case. In Williams, the opinion reads:

Ellington asked Easley to take Williams into her office and search her person, in the presence of a female secretary. Inside Easley’s office, Williams was asked to empty her pockets which she promptly did. Easley then asked the girl to remove her T-shirt.. .[which she did]. Williams was then required to lower her blue jeans to her knees. In her deposition, Williams testified that Easley pulled on the elastic of her undergarments to see if anything would fall out, but Easley disputes this contention.

Id. at 883.

We believe this description still .exceeds the severity of the searches conducted in this case, and does not clearly define the term “strip search” to mean a search much less intrusive than a nude search.

The remaining 6th Circuit Case, Tarter v. Raybuck, 142, F.2d 977 (6th Cir.1984), involves a student who had been detained and searched by school officials because of suspicion of marijuana possession and possible dealing. The court describes the involved search as, “Pursuant to defendant’s request, David Tarter emptied his pockets, removed his jacket, boots and shirt.Raybuck and Spargur then asked Tarter to remove his pants; Tarter refused, the search ceased, and the police were summoned.” Id. at 979-80. The court later addresses the search saying, “[Tarter’s] eventual refusal to be strip-searched ... ”, id. at 980, which would indicate the court did not feel the search that had occurred was a complete strip search.

Although this case does not involve student strip searches, we believe the 6th Circuit Court of Appeals said it best in Spear v. Sowders, 33 F.3d 576 (6th Cir.1994): “A ‘strip search,’ though an umbrella term, generally refers to an inspection of a naked individual....” Id. at 581.

As the above mentioned cases were the only pre-1998 cases which the Board could refer for the definition of “strip search” within the context of a school setting, we hold the Board’s policy did not apply to the searches alleged in this case as the term “strip search” used within the policy contemplated nothing less than a nude search of the type described in these cases or common language of the day. We also find the acts of the teachers/administrators were made in good faith, were discretionary in nature and within the scope of their authority, and thus, they are also entitled to qualified immunity against the state claims.

The decision of the Court of Appeals is hereby reversed and the judgment of the trial court is reinstated.

LAMBERT, C.J., COOPER, GRAVES, JOHNSTONE, and WINTERSHEIMER, JJ., concur.

KELLER, J., dissents by separate opinion.

Dissenting Opinion by

Justice KELLER.

I respectfully dissent for two reasons.

First, this was a strip-search. The young girls were required to do far more than roll up their shirt sleeves or turn out their pockets. They were required to raise their shirts above their breasts and to drop their pants below their knees, thus moving their clothing so as to expose their underwear. Though they were not required to strip naked, they were still required to move their clothing from its normal position and to expose areas of their bodies usually considered private. That is a strip-search.

Second, in the Fayette County Public Schools, there is no uncertainty about whether a strip-search is permitted. To its credit, the Fayette County Board of Education has adopted a policy against strip-searches. The existence of that policy means that the persons conducting the search knew it was prohibited.

Accordingly, I would affirm the Court of Appeals and remand this case to the trial court for further consideration of the Appellants’ claims.


source: Caselaw Access Project

author: Chief Justice LAMBERT.

license: Public Domain

text:
    Michael WILSON Appellant v. Keith RUSSELL Appellee
    No. 2003-SC-001015-DG.
    Supreme Court of Kentucky.
    May 19, 2005.

      Frank V. Benton, TV, Benton, Benton & Luedeke, Newport, Counsel for Appellant.
    Richard A. Woeste, Bathalter & Woeste, P.S.C., Alexandria, Counsel for Appellee.
   Opinion of the Court by

Chief Justice LAMBERT.

This case began with a remodeling project at the home of Michael Wilson, the Appellant. Wilson called upon the assistance of his longtime friend, Appellee Keith Russell, one experienced in construction and remodeling. Wilson set up the work area and assembled a scaffold on his premises, using for support a wooden ladder that he owned. The ladder was approximately five years old, had never been subjected to maintenance during that time, and had been left outside in the weather a few times. When Russell climbed onto the scaffold, a rung on Wilson’s ladder broke, causing the scaffold to tilt. Russell fell about five feet, fracturing his heel bone. He sued his old friend Wilson for damages.

At trial, the jury returned a verdict in Wilson’s favor. However, Russell moved for judgment notwithstanding the verdict, and the motion was granted in an order dated June 4, 2002. In that order, the trial court granted judgment notwithstanding the verdict, and ordered a new trial on the issues of comparative negligence and damages. Despite the interlocutory character of the June 4, 2002, order, an appeal was taken to the Court of Appeals and that court affirmed on the merits of the case. This Court granted discretionary review and now vacates the opinion of the Court of Appeals and remands to the trial court for further proceedings.

It is fundamental that a court must have jurisdiction before it has authority to decide a case. Jurisdiction is the ubiquitous procedural threshold through which all cases and controversies must pass prior to having their substance examined. So fundamental is jurisdiction that it is the concept on which first-year law students cut their teeth. Here, jurisdiction in the context of appellate procedure is at issue because no final order or judgment has been entered by the trial court. At the outset we note that an appeal may be properly considered only if perfected according to our rules of practice and procedure. Our rules require that there be a final order or judgment from which an appeal is taken.

We begin with CR 73.02. “The notice of appeal shall be filed within 30 days after the date of notation of service of the judgment or order under Rule 77.04.” CR 77.04(2) mandates that the clerk of the court immediately serve a notice of entry of & judgment or final order, among other things, upon every party to the proceeding who is not in default for failure to appear. CR 54.01 defines a final or appealable judgment as a final order “adjudicating all the rights of all the parties in an action or proceeding.” CR 54.02 does provide a limited exception where there are multiple parties or multiple claims. It allows for an appeal when less than all the rights of all the parties have been adjudicated, but only upon a determination that it is final and that there is no just reason for delay. In the absence of such finality and a recitation thereof, the order is interlocutory and subject to modification and correction before becoming a final and appealable judgment or order.

The judgment from which Wilson sought to appeal does not adjudicate all the rights of all the parties. To the contrary, it specifically calls for a new trial as to comparative negligence and damages. Therefore, it was not appealable. And Wilson finds no refuge in CR 54.02 because no part of the order was final and appealable. Despite the foregoing, neither party nor the Court of Appeals identified this issue. However, even though not raised, “jurisdiction may not be waived, and it can not be conferred by consent of the parties. This [C]ourt must determine for itself whether it has jurisdiction.” As there is no final order or judgment from which to appeal, the Court of Appeals was without jurisdiction. And it has long been a fundamental maxim that a court will not assume jurisdiction where it does not exist.

In conclusion, an order granting judgment notwithstanding the verdict and assigning the case for further trial court proceedings is not a final or appealable judgment. No appellate court possesses jurisdiction to undertake review in such a case. Accordingly, we vacate the opinion of the Court of Appeals for want of jurisdiction and remand to the trial court for further proceedings.

COOPER, GRAVES, JOHNSTONE, KELLER, SCOTT, and WINTERSHEIMER, JJ„ concur.

      . KRS 22A.020 grants jurisdiction to the Court of Appeals regarding interlocutory orders of the Circuit Court in civil cases provided that it is authorized by rules promulgated by the Supreme Court. However, CR 65.07, which is the rule promulgated by the Supreme Court allowing for such jurisdiction, deals only with injunctions, which are not at issue in this appeal.

      . CR 54.01.

      . Hubbard v. Hubbard, 303 Ky. 411, 197 S.W.2d 923 (1946). See also Kentucky Bar Foundation, Kentucky Appellate Practice § 21.03 (1985).

        . See American Fidelity & Casualty Co. v. Patterson, 314 Ky. 741, 742-43, 237 S.W.2d 57 (1951) ("Not having a final judgment in the record, we are without jurisdiction of the appeal in this case.”); see also Coomer v. Commonwealth, 309 Ky. 575, 576, 218 S.W.2d 393 (1949) ("[A]s there is no judgment contained in the record there is nothing from which he may prosecute an appeal; therefore, we are without jurisdiction to entertain his motion and it is hereby overruled.”); Christ

        man v. Chess, 102 Ky. 230, 43 S.W. 426 (1897) ("If there was not a final judgment or order in this case, it follows that this court has no jurisdiction of the appeal.”).

      . Cf. Morgan v. Register, 3 Ky. (Hard.) 609, 610 (1808) ("so neither can we consent to assume a jurisdiction in defiance of that instrument by which we are bound, and which we are sworn to support.”).


author: LAMBERT, Chief Justice.

text:
    R. David STENGEL, Commonwealth’s Attorney, 30th Judicial District, et. al., Movant, v. KENTUCKY BAR ASSOCIATION, Respondent, and Richard Boling, Commonwealth’s Attorney 3rd Judicial District, Movant, v. Kentucky Bar Association, Respondent, and Kentucky Medical Association, Movant, v. Kentucky Bar Association, Respondent, and Raymond M. Larson, Commonwealth’s Attorney 22nd Judicial District, Movant, v. Kentucky Bar Association, Respondent, and Irv Maze, in his Official Capacity as Jefferson County Attorney, Movant, v. Kentucky Bar Association, Respondent, and George W. Moore, Commonwealth’s Attorney 21st Judicial District, Movant, v. Kentucky Bar Association, Respondent, and Kenton R. Smith, Commonwealth’s Attorney 46th Judicial District, Movant, v. Kentucky Bar Association, Respondent, and Roy K. Snell, Commonwealth’s Attorney 12th Judicial District, Movant, v. Kentucky Bar Association, Respondent, and Barry Bertram, Commonwealth’s Attorney 11th Judicial District, Movant, v. Kentucky Bar Association, Respondent.
    No. 2004-SC-000305-KB, 2004-SC-000332-KB, 2004-SC-000336-KB, 2004-SC-000347-KB, 2004-SC-000357-KB, 2004-SC-000349-KB, 2004-SC-000350-KB, 2004-SC-000346-KB, 2004-SC-000339-KB.
    Supreme Court of Kentucky.
    May 19, 2005.
    As Amended June 1 and 9, 2005.

      David A. Sexton, Louisville, Kenton R. Smith, Brandenburg, Nikolas M. Fegen-bush, Mt. Sterling, Patrick Michael Malone, Lexington, Roy Kimberly Snell, LaGrange, George Barry Bertram, Campbellsville, Charles J. Cronan, Louisville, Richard Boling, Hopkinsville, Teresa Young, Deborah Jeanne Anderson, Louisville, Counsel for Appellant.
    Linda Gosnell, Kentucky Bar Association, Bruce K. Davis, Kentucky Bar Association, Counsel for Appellee.
    J. David Niehaus, Louisville, Counsel for Amicus Curiae, Louisville Metro Public Defender.
    Jerry J. Cox, Mt. Vernon, William E. Johnson, Frankfort, Phyllis K. Lonneman, Elizabethtown, W. Robert Lutz, Coving-ton, Alec G. Stone, Brandenburg, Kathryn G. Wood, Somerset, Counsel for Amicus Curiae, Kentucky Association of Criminal Defense Lawyers.
   OPINION AND ORDER

LAMBERT, Chief Justice.

On or about, April 15, 2004, Movants, the Honorable R. David Stengel (STENGEL), Richard Boling (BOLING), Barry Bertram (BERTRAM), Roy K. Snell (SNELL), Raymond M. Larson (LARSON), George Moore (MOORE), Kenton R. Smith (SMITH), Irv Maze (MAZE) (seven Commonwealths Attorneys and one County Attorney) and the Kentucky Medical Association (KMA), filed motions under SCR 3.530(5) for review of Ethics Opinion E^23 (OPINION) adopted by the Kentucky Bar Association (KBA) Board of Governors in January 2004 and published in the March 2004 issue of the Kentucky Bench & Bar. Opinion E-423 addresses the use of subpoenas in criminal proceedings, including Grand Jury proceedings, under RCr 5.06 and 7.02. The Opinion was promulgated prior to our January 2005 amendment of RCr 5.06, which added the statement that “RCr 7.02 shall apply to Grand Jury subpoenas.”

INTRODUCTION

The first question posed and answered by the Opinion is “may a lawyer use a subpoena to compel the attendance of a witness at a pretrial court proceeding, and then, after service, invite the witness to make a statement or execute an affidavit in the requesting lawyers’ office without notice to opposing counsel, where required and thereafter relieve the witness of the obligation to appear at the court proceeding?” To this question the Ethics Committee and the Board of Governors answered “NO.”

The second question posed and answered by the Opinion is “may a lawyer issue a subpoena to a person or entity accompanied by a letter (or by other means) inviting that person or entity to ‘certify’ requested documents and provide them directly to the requesting lawyer, in lieu of attending a pretrial hearing or trial, without notice to opposing counsel, or a Grand Jury proceeding where such notice is not required?” The Committee and the Board of Governors again answered this question “NO.”

The Movants contest the validity of the Opinion under SCR 3.530(5), but only insofar as the Opinion deals with pre-indictment Grand Jury investigations. They do not challenge its propriety in any post-indictment settings. Thus, no other parts of the Opinion are before us for approval or disapproval. Unfortunately, the structure of the Opinion does not allow segregating its treatment of these very different types of criminal proceedings.

The Movants’ grounds for challenge are (1) that the Opinion changes well-settled law, (2) that the Opinion is outside the jurisdiction of the Ethics Committee as set out by SCR 3.530(1), since it was not issued in response to a request from an attorney who was in doubt as to the propriety of his contemplated actions, (3) that the Opinion does not differentiate between the subpoena power of a Grand Jury prior to an indictment and the subpoena power of the Court after indictment, (4) that the Opinion places a higher burden on the admission of evidence before the Grand Jury than required for evidence at trial, and (5) that the Opinion impermissi-bly places an overly burdensome strain on public resources, has a “chilling effect” on current practices and procedures and is highly impracticable.

The KMA “asks this Court to either clarify or modify the application of Opinion E-423 in such a way as avoids the necessity of yet another administrative burden being imposed on the offices of physicians by requiring them personal appearance to produce and authenticate medical records subpoenaed by Grand Juries.”

The KBA responds (1) that SCR 3.530(2) “does not require that.. .formal opinions be issued by way of individual requests for rulings,” (2) that RCr 5.06, in dealing with Grand Jury subpoenas, is more restrictive than the use of subpoenas for post-indictment proceedings under RCr 7.02, (3) that Movants’ reliance on the rules and practices of foreign or federal jurisdictions is inappropriate as their rules and procedures (which allow same) differ from Kentucky’s, (4) that the current criminal rules and forms do not authorize an alternative form of subpoenas and (5) that the Opinion does not have an independent disciplinary (chilling) effect since it’s advisory only.

REVIEW OF ETHICS OPINIONS

The Ethics Committee of the KBA may submit to the KBA Board of Governors a formal advisory opinion setting forth what activities constitute the ethical or unethical practice of law. “If the recommended Opinion is approved by three-fourths of the Board of Governors, it carries the weight of an advisory opinion. This Court, however, is not bound by its terms. On proper request by an aggrieved party, we have the authority to evaluate the Opinion and determine whether it accurately states the law.” Countrywide Home Loans v. Kentucky Bar Association, 113 S.W.3d 105, 107 (Ky.2003). The procedure is set out in SCR 3.530(5).

“Inquiring attorneys and ethics committee members tend to think of the opinions as equal in authority to court rules. The result is, that when known, the opinions tend to shape conduct to the same degree as the rules. Attorneys are afraid to engage in conduct when told by the Ethics Committee and Board of Governors that they may not engage in such conduct.” William H. Fortune, The Role of Ethics and Unauthorized Practice Opinions in Regulating the Practice of Law 309 N. Ky. L.Rev. 309, 321 (1998). Thus, this court must always be aware of the potential “chilling effect” ethics opinions can have on our practices and procedures.

THE DISAGREEMENT OVER THE OPINION

Essentially E^423 would bar (as unethical) a Commonwealth’s Attorney, acting on behalf of the Grand Jury, from serving a person or entity with a subpoena duces tecum, then allowing the person or entity served to certify the documents, and deliver them to the Commonwealth’s Attorney, or Grand Jury, without the personal attendance and testimony from the business records custodian or other witnesses.

Moreover, the Opinion suggests subpoenas for the Grand Jury may only be issued by the Circuit Court Judge under RCr 5.06, as opposed to the Clerk of the Court under RCr 7.02.

As was noted by the Movants at the Oral Arguments on this matter, this interpretation is totally at odds with the actual practice which has existed for more years than this Court can remember. With this position in mind, if one looks at RCr 6.24, you would have to ask: “why would you need approval of the Circuit Judge to subpoena an attorney, or his staff, under RCr 6.24, if, as is argued, under RCr 5.06, the Judge is the one who decides whether or not to sign and issue the subpoena for all Grand Jury witnesses?” The answer is amply demonstrated by our history of practice.

RCr 5.06 says the “Circuit Court” shall issue the subpoena, it does not say the “Judge of the Circuit Court.” In fact, the subpoena is issued by the “Circuit Court,” through its clerk, as are all subpoenas. Generally, the Judge of the Circuit Court is not aware of what witnesses are appearing before the Grand Jury, thus the requirement that the Judge’s permission be secured prior to the issuance of a subpoena for the appearance of attorneys, or their staff, under RCr 6.24. This was true even before we made RCr 7.02 applicable to RCr 5.06 by our amendment in January 2005. Thus, except where provided otherwise, as in RCr 6.24, subpoenas are issued by the clerk of the court.

One cannot forget that the Grand Jury is a constitutional body. Ky. Const. § 248. Thus, while it is a part of the Circuit Court and its processes, “this does not mean... that the court ‘controls’ the grand jury’s proceedings. ‘The grand jury’s functional independence from the judicial branch is evident both in the scope of its power to investigate criminal wrongdoing and in the manner in which that power is exercised.” ’ Hoskins v. Maricle, 150 S.W.3d 1, 17 (Ky.2004) (quoting United States v. Williams, 504 U.S. 36, 48, 112 S.Ct. 1735, 1742, 118 L.Ed.2d 352 (1992)). To interpret RCr 5.06 in such a manner as to give the Judge of the Circuit Court the right and power to control who the Grand Jury can subpoena gives away control of who it can effectively investigate. The more concentrated the power, the more dangerous it becomes to our liberties. Thus, our system of checks and balances are very fine-tuned.

For instance, our Grand Jurors are now chosen at random, (Administrative Procedure of the Court of Justice, 2-10, Selection of Petit and Grand Jury), not picked by the Judge. Nor have our predecessors, in their wisdom, seen fit to give the power to control the issuance of subpoenas to any one person. “The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall fill in the blanks before it is served.” RCr 7.02(6) (emphasis added). And when this power is abused, we retain means of redress. See, Bishop v. Caudill, 87 S.W.3d 1 (Ky.2002).

Going further, the Opinion would bar the Commonwealth’s Attorney, or his or her agents, from using their discretion, upon behalf of the Grand Jury, in excusing witnesses from appearances once they’ve been interviewed or given written statements. In essence, the Opinion relies on Anderson v. Commonwealth, 63 S.W.3d 135 (Ky.2002) for the proposition that if a party is subpoenaed before a Grand Jury, he can only comply with the command of the subpoena by actually appearing before the Grand Jury, testifying, and then being released by the Judge of the Circuit Court. Again, this is an interpretation of the rules that is at odds with the practice as has preexisted the memory of the current Justices on this Court.

We have never held that a Grand Jury or the Commonwealth’s Attorney could not waive or excuse full or partial compliance with the command of the subpoena, or subpoena duces tecum. Anderson dealt only with criminal trial subpoenas. It was a case where the Defendant relied upon the availability and presence of a witness subpoenaed by the Commonwealth for trial. The defense felt the witness would be significant for its case. However, unbeknownst to the Defendant, the Commonwealth excused the witness. Very clearly, we held under those circumstances, the witness had “ ‘a continuing obligation.. .to be available as a witness until the case was concluded or until he was dismissed by the court.’ ” Anderson, 63 S.W.3d at 142. (quoting Otis v. Meade, 483 S.W.2d 161, 162 (Ky.1972)). We did not hold that he had to testify for the Commonwealth as he was subpoenaed to do; that was the prerogative of the Commonwealth.

And what a witness does in front of the Grand Jury, or its agent, the Commonwealth’s Attorney, is the prerogative of the Grand Jury. The Grand Jury is “an investigative body ‘acting independently of either (the) prosecuting attorney or judge.’ ” United States v. Dionisio, 410 U.S. 1, 16, 93 S.Ct. 764, 773, 35 L.Ed.2d 67 (1973) (quoting Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960)). And it should remain so.

Fourthly, the Opinion establishes as unethical the issuance of subpoenas to out-of-state parties, whether by fax, mail or otherwise, for the production of records, unless they are served under KRS 421.250. Being a uniform act, KRS 421.250 has been interpreted to authorize subpoenas duces tecum for records. See, 7 A.L.R.4th 836; see also, Ex parte Simmons, 668 So.2d 901 (Ala.Cr.App.1995). The position taken by the Opinion seems to suggest that the Grand Jury may only acquire records through compulsion as opposed to contact and voluntary release.

Processes under KRS 421.250 require motions in the Court convening the Grand Jury along with an order, then a subsequent appearance in the court of record within the county of the other state where the witness or records are found, along with secondary motions and orders therefrom. It is a tedious, time consuming and expensive process. However, as was noted at oral argument, most out-of-state businesses cooperate voluntarily once faxed a copy of the subpoena. E-423 can be read to condemn this voluntary practice.

In particular, the KBA noted in its brief that “the committee’s primary concern was that by altering an official subpoena form to provide for an authorized form of alternative compliance, or causing a subpoena to be transmitted across state lines without compliance with the statutory procedures for out-of-state service, a lawyer violates the ethical rules. Such ‘invitation or alteration’ obfuscates the fact that the subpoena itself had no legal authority; thus, the recipient of the subpoena is misled into believing that it is valid and that he or she is legally obligated to comply or be subject to contempt. Such conduct is dishonest and from an ethical perspective, violates both SCR 3.130-3.4(e) and 8.3(c)....”

The Opinion suggests subpoenas are being sent out of state in a manner that intentionally suggests they are legally binding, yet the language of the Opinion is not limited to this premise.

In their arguments, the Movants acknowledge the availability of KRS 421.250, but suggest the entities are most often experienced and generally aware of KRS 421.250, and ask only for a faxed copy of the subpoena prior to voluntary compliance. They note the savings to the Commonwealth by this voluntary cooperation. For example, Movants argue that “the Jefferson County Grand Jury alone issued over 1,000 subpoenas last year. According to the Opinion, only medical records are exempt from the requirement that the custodian personally attend. Thus, under KRS 421.250, all out of state witnesses must be reimbursed for mileage • and paid $5.00.. .under KRS 421.030, the Commonwealth must reimburse witnesses the necessary expenses for attendance. Our Grand Jury regularly subpoenas records from other states, some as far away as California. Airfare, accommodations, and per diem allowance for a custodian from out of state could cost the Commonwealth hundreds of thousands of dollars each year in Jefferson County alone. All this for a two or three second statement attesting to the authenticity of the already certified records. This is not the way the Commonwealth should spend its precious resources.”

We are simply not asked to approve an Opinion that limits its effect to an intentional misrepresentation of the validity of a subpoena and we decline to approve any Opinion that suggests it is unethical per se for purposes of these investigations: In our opinion, it is not unethical to contact an entity out of state and to fax them a subpoena if requested, or to advise them that KRS 421.250 will be used, if necessary (as long as such use is intended at the time) if compliance is not forthcoming.

“An ‘ethics question’ should only arise if there is a deliberate attempt to circumvent the.. .Rules as written or customarily applied in the particular forum, perhaps with a view to dispensing with notice to an opponent or securing some unfair advantage. In the absence of same, there would seem to be no real question of ‘ethics’ involved, but only a difference of opinion as to the proper interpretation of the...Rules.” KBAE-304.

That the documents received in such manner would be inadmissible at trial is irrelevant; hearsay evidence is admissible before a Grand Jury. See KRE 1101(d)(2); cf. United States v. Barone, 584 F.2d 118 (6th Cir.1978). A Grand Jury can issue an indictment even if the District Court determines a lack of probable cause to support the charges. Commonwealth v. Yelder, 88 S.W.3d 435 (Ky.App.2002). Moreover, in reviewing the various forms of subpoenas contained in the record, we find no alterations as to form that violate our rules.

Recognizing however, that different practitioners in different practices are reading RCr 5.06 and 7.02 in a different light, a majority of this Court, pursuant to RCr 13.08, now “otherwise directs” that RCr 5.06 be, and is, hereby amended, effective as the date of the finality of this Opinion, to read:

RCr 5.06 Attendance of Witnesses before the Grand Jury

The Clerk, upon request of the fore- ■ person of the Grand Jury or of the attorney for the Commonwealth, shall issue subpoenas for witnesses. The attendance of witnesses may be coerced as in other judicial proceedings, unless, and until, excused, or modified, by the requesting party. RCr 7.02 shall apply to Grand Jury subpoenas except that a subpoena issued pursuant to this rule may command the person to whom it is directed to produce the books, papers, documents or other objects designated therein to the foreperson of the Grand Jury or the Commonwealths Attorney or his agent, without requiring the personal appearance of the witness before the Grand Jury.

For the above reasons, we hereby Vacate all portions of KBA Opinion E-423 to the extent it addresses Grand Jury practices and proceedings. Having done so, we will not here address Movants’ argument that Formal Opinions are limited to standards set out in SCR 3.350(1). Tomorrow is another day.

All concur.

      . Not one of the Justices sitting on this case who have served as former Circuit Judges (5) can recall ever having signed or personally issued a subpoena for a Grand Jury.

      . If this position were approved, the testimony of every witness subpoenaed would be immediately available to the defense through the Grand Jury transcripts under RCr 5.16(3), as opposed to witnesses’ statements, which are now due more than 48 hours prior to trial, or sooner, if ordered by the Court, per RCr 7.26.


author: Justice GRAVES. Justice WINTERSHEIMER.

text:
    John T. HILBERT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2002-SC-0095-MR.
    Supreme Court of Kentucky.
    May 19, 2005.

      Thomas M. Ransdell, Department of Public Advocacy, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, Susan Ronearti Lenz, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   Opinion of the Court by

Justice GRAVES.

Appellant, John T. Hilbert, stands convicted of two counts of murder for the shooting deaths of Danny Wayne Elmore and Joe Eddie Stump. The jury fixed the sentence for the murder of Elmore at twenty-seven (27) years. After finding aggravating circumstances in the murder of Stump, the jury fixed Appellant’s sentence for this separate crime at life without the benefit of probation or parole for twenty-five (25) years. The jury recommended that each sentence run consecutively, but following Appellant’s motion that such a sentencing arrangement would exceed the statutory maximum, the trial judge entered an order for the sentences to run concurrently. Appellant now appeals to this Court as a matter of right.

The shootings occurred at the mobile home of Appellant’s estranged girlfriend, Karen Poole. Karen shared the trailer with her sister Tammy, and on the evening of the shootings, Karen asked Appellant to be their “designated driver.” While out, the sisters met Elmore and Stump, and invited them home. Back at the trader, Appellant and the two victims danced with Karen and Tammy, and according to statements Appellant and Karen later gave to police, tensions soon rose.

Appellant did not testify at trial, but following his arrest, Appellant claimed that the victims grabbed him, threw him up against the wall, then pushed him out the doorway, hitting his head against the door. Appellant advised police that he “flipped out,” pulled a gun from his jacket pocket and shot both men. According to Appellant, the victims kept coming and he did not know what to do. After shooting El-more, Appellant said that the “big boy” was coming at him and that is when he killed Stump.

Neither Karen nor Tammy was present when the victims allegedly roughed up Appellant and ejected him from the trailer. Karen testified that she left the room after asking Appellant to retrieve something from her car. While in the bathroom, Karen heard what sounded to her like firecrackers going off outside. Upon returning to the living room, Karen observed Appellant enter the house, pull out a gun, and shoot Stump as the victim walked out of the kitchen. Tammy provided similar testimony, stating that after going to the bedroom to change her clothes, she saw Appellant come in through the front door and fire at Stump. Neither -witness observed the shooting of Elmore, whose body was later found outside on the front porch, dead from a single gunshot fired at close range.

I. Jury Instructions: Self-Defense

Appellant does not dispute that he killed Elmore and Stump. Instead, Appellant hoped to justify the shootings as a matter of self-defense. In fact, during opening statements, defense counsel asserted that Appellant was “not guilty because this was self-defense.” The trial judge, however, found no basis from the evidence introduced at trial to support a self-defense instruction, but did allow the jury to consider whether Appellant acted under the influence of an extreme emotional disturbance.

This issue arose shortly before the close of evidence, in the context of whether or not Appellant’s testimony was required in order to submit instructions on self-defense to the jury. In denying the requested instructions, the trial judge reasoned that the self-defense statute, KRS 503.050 “is based on the subjective belief of the defendant and the defendant is the only one who can testify.” In chambers, the trial judge further explained:

[1]t says the defendant must believe. I’m not saying there is not evidence from which he could believe that. But he’s the only—the jury cannot assume that he believes it because he’s the—it’s subjective and the case law says that it is subjective. It is what he believes.

Appellant claims the trial judge has misinterpreted the relevant law regarding the availability of self-defense instructions for defendants who choose not to testify.

The Kentucky Penal Code allows a defendant to justify the use of deadly physical force upon another person when the defendant believes that such force is necessary as protection against an imminent threat of death or serious physical injury. Specifically, subsections (1) and (2) of KRS 503.050 provide:

(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.
(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, or sexual intercourse compelled by force or threat.

(emphasis added).

In evaluating this statute, the trial judge was correct insofar as “the focus of the penal code is on the defendant’s actual subjective belief in the need for self-protection and not on the objective reasonableness of that belief.” Elliott v. Commonwealth, 976 S.W.2d 416, 419 (Ky.1998). However, the question here is not whether the defense of self-protection is based upon a defendant’s subjective state of mind, but whether a defendant must testify in order to establish such a personally held belief.

Kentucky courts have long held that a defendant need not testify in order to receive an instruction on self-defense. See Hasty v. Commonwealth, 272 S.W.2d 325, 326 (Ky.1954); Benson v. Commonwealth, 290 Ky. 713, 162 S.W.2d 538 (1942); Rutherford v. Commonwealth, 76 Ky. (13 Bush) 608 (1878). In Hasty, supra, the predecessor to this Court opined:

Concerning the question of whether or not the appellant was entitled to an instruction on self-defense, we find that in cases of this character the court is required to give such an instruction where the evidence is wholly circumstantial, there is evidence of a struggle, and the accused fails to testify, or, although he does become a witness, he does not testify as to any facts indicating the manner in which the deceased met death.

Among the evidence we find: Appellant’s statement to police indicating an altercation between the victims and himself; Appellant’s statement that the victims kept coming and he didn’t know what to do; a welt on Appellant’s head, attributable either to the altercation or to an automobile wreck later that evening; and finally, evidence that in an unrelated incident several years earlier, Appellant had been severely beaten during a mugging, after which he bought a gun and became more reserved.

Admittedly, the evidence supporting Appellant’s belief in the need for the use of force was not strong, nor free from contradiction. However, such evidence need only raise the issue, for an instruction on self-defense is necessary once sufficient evidence has been introduced at trial which could justify a reasonable doubt concerning the defendant’s guilt. Estep v. Commonwealth, 64 S.W.3d 805, 811 (Ky.2002); Commonwealth v. Day, 983 S.W.2d 505, 508 (Ky.1999); Jewell v. Commonwealth, 549 S.W.2d 807, 812 (Ky.1977), overruled on other grounds, Payne v. Commonwealth, 623 S.W.2d 867 (Ky.1981), cert. denied, 456 U.S. 909, 102 S.Ct. 1758, 72 L.Ed.2d 167 (1982).

In addition, we hardly need to repeat that a criminal defendant is entitled to jury instructions on any defense supported by the evidence. Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky.1988); Curtis v. Commonwealth, 169 Ky. 727, 184 S.W. 1105, 1107 (1916). In this regard, we note that the evidence which tended to show Appellant’s belief in the need for self-defense may also be interpreted as evidence of a mistaken belief in that need. Therefore, the full range of self-defense instructions, including the wanton- and reckless belief qualifications, as provided by KRS 503.120(1), are appropriate in this matter. See generally Commonwealth v. Hager, 41 S.W.3d 828 (Ky.2001).

Intertwined with Appellant’s argument that he was improperly denied instructions on self-defense, Appellant asserts that the trial judge’s ruling deprived him of his Fifth Amendment right against self-incrimination. Caught in the proverbial “Catch-22,” Appellant claims he was forced to choose between taking the witness stand or forgoing a valid defense.

In general, where circumstantial or indirect evidence fails to raise the issue of self-protection, the fact that a defendant must testify or forgo this defense does not implicate the Fifth Amendment. The defendant’s “choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination.” United States v. Rylander, 460 U.S. 752, 759, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983), quoting Williams v. Florida, 399 U.S. 78, 84, 90 S.Ct. 1893, 1897-98, 26 L.Ed.2d 446 (1970).

Although we are not prepared to say that the trial court’s actions infringed on Appellant’s privilege against self-incrimination, particularly since Appellant chose not to testify, we note that at least one jurisdiction has ruled otherwise. In People v. Hoskins, 403 Mich. 95, 267 N.W.2d 417, 419 (1978), the Michigan Supreme Court stated: “A defendant need not take the stand and testify in order to merit an instruction on self-defense.... A ruling to the contrary compromises a defendant’s privilege against self-incrimination.”

Finally, Appellant contends the trial court erred by denying his requested instruction on the duty to retreat, or more specifically, that Appellant had no duty to retreat. Appellant claims the prosecution raised this issue by repeatedly telling the jury that Appellant could have simply fled instead of shooting the victims. An instruction on retreat, according to Appellant, was necessary to counter the inference that Appellant was under a duty to avoid, if at all possible, the altercation with the victims.

In Gibson v. Commonwealth, 237 Ky. 33, 34 S.W.2d 936 (1936), the High Court stated: “[I]t is the tradition that a Kentuckian never runs. He does not have to.” As professors Lawson and Fortune note, “[a] proposal by the drafters of the Kentucky Penal Code to change this rule was rejected by the General Assembly and the right of a defender to stand his ground against aggression was left intact.” Robert G. Lawson & William H. Fortune, Kentucky Criminal Law § 4—2(d)(2) (1998) (footnotes omitted).

Despite the defiant attitude toward retreat exhibited by the Gibson opinion, Kentucky decisions have generally not adhered to such an absolute interpretation of the “no duty to retreat rule,” nor did our predecessor court require jury instructions describing the same. For example, in Bush v. Commonwealth, 335 S.W.2d 324 (Ky.1960), the Court of Appeals found no error in the failure to give an instruction on retreat, particularly since the jury was otherwise fully instructed on self-defense. “[A]n instruction on self-defense should be in the usual form, leaving the question to be determined by the jury in the light of all the facts and circumstances of the case, rather than in the light of certain particular facts.” Id. at 326. Accord, Crawford v. Commonwealth, 281 Ky. 557, 136 S.W.2d 754 (1940); Greer v. Commonwealth, 164 Ky. 396, 175 S.W. 665 (1915); Connor v. Commonwealth, 118 Ky. 497, 81 S.W. 259 (1904). See also James M. Roberson, New Kentucky Criminal Law and Procedure § 313 (2d ed.1927) (stating that “the rule now is that whether the assailed should stand his ground or give back is a question for the jury, and that he may properly follow that course which is apparently necessary to save himself from death or great bodily harm”).

Appellant argues that when the jury is correctly instructed on the law of self-defense, it should be clear from the instructions that the defendant has no duty to retreat. Furthermore, although some jurisdictions require specific jury instructions detailing a defendant’s right to stand his or her ground when the facts of the ease instead suggest a duty to withdraw, see Cassels v. State, 92 P.3d 951 (Colo.2004); McDonald v. State, 717 So.2d 715 (Miss.1998); People v. Redmond, 150 Wash.2d 489, 78 P.3d 1001 (2003), other jurisdictions, like Kentucky, follow the principle “that when the trial court adequately instructs on self-defense, it need not also give a no duty to retreat instruction.” State v. Ottman, 144 Ariz. 560, 562, 698 P.2d 1279, 1281 (1985). Accord, State v. Brown, 414 So.2d 726 (La.1982).

II. Victim Background Evidence

During the guilt phase of trial, the mothers of each victim briefly described their sons to the jury. The jury learned such information as the victims’ dates of birth, the number and sex of their siblings, and the fact that one victim had a nine-year-old son. One mother softly cried and sniffled as she spoke. Each mother concluded by displaying a single photograph of her son for the jury. Altogether, the combined testimony of both mothers, including the exhibition of photographs, took slightly more than three minutes to complete.

Appellant argues that the mothers’ testimony had no purpose other than to arouse the jurors’ emotions or to evoke sympathy for the victims. Recognizing that our holding in McQueen v. Commonwealth, 669 S.W.2d 519 (Ky.1984), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984), permits at least a measure of such testimony during the guilt phase of trial, Appellant asks this Court to overrule that oft-cited decision and relegate all victim background evidence to the sentencing phase of the trial. We decline.

As Appellant notes, McQueen was decided during a time when bifurcated trials were the exception rather than the norm. Appellant contends that trial courts then were not accustomed to “discretely segregating] sentencing information out of the guilt phase of the trial.” Notwithstanding the changes rendered by the now-common bifurcation of trials into separate guilt and innocence phases, the lessons of McQueen are still applicable today. As stated in Bowling v. Commonwealth, 942 S.W.2d 293 (Ky.1997):

A murder victim can be identified as more than a naked statistic, and statements identifying the victims as individual human beings with personalities and activities does not unduly prejudice the defendant or inflame the jury. Just as the jury visually observes the appellant in the courtroom, the jury may receive an adequate word description of the victim as long as the victim is not glorified or enlarged.

Id. at 302-03 (citing McQueen).

As an alternative, Appellant argues that victim impact evidence should be excluded as irrelevant under the Kentucky Rules of Evidence. KRE 402 provides that “[a]ll relevant evidence is admissible.” Appellant overlooks that this Court has recognized “that a certain amount of background evidence regarding the victim is relevant to understanding the nature of the crime.” Campbell v. Commonwealth, 788 S.W.2d 260, 264 (Ky.1990), citing Sanborn v. Commonwealth, 754 S.W.2d 534, 542 (Ky.1988) (emphasis added).

Of course, victim impact evidence does carry the potential to “inflame the jury,” and a trial court must carefully balance the probative value of such evidence against prejudicial concerns. KRE 403; Clark v. Commonwealth, 833 S.W.2d 793, 797 (Ky.1991). Here, however, we find Appellant’s allegations wholly without merit. The brief display of the victims’ life portraits, and the reserved testimony by each of their mothers, was neither excessive nor overly emotional. We therefore find no error in the introduction of this evidence.

III. Challenge for Cause

During individual voir dire, Juror 40 revealed prior traumatic events in her life that she believed would likely shape her views on the appropriate penalty for Appellant’s alleged crimes. Specifically, Juror 40 informed the trial court of her experiences as a victim of domestic violence, and of the loss of a loved one through an accident. When asked if these events would affect her decision in this case, Juror 40 stated: “I honestly can’t answer that, as to whether it has any bearing as to how I feel about another person.” Defense counsel then asked if this meant the juror would now want to give the death penalty if someone killed another person. Juror 40 replied: “I feel like it might create some prejudice. I’m not saying it would cause me to give him the death penalty. But it does create prejudice, though.”

The trial court denied Appellant’s motion to strike Juror 40 for cause. Appellant not only claims this ruling was in error, but citing Thomas v. Commonwealth, 864 S.W.2d 252 (Ky.1993), Appellant asserts that because he was forced to strike her with one of his own challenges, the trial court’s ruling denied him his full complement of preemptory challenges.

The decision of whether or not to remove a juror for cause rests within the sound discretion of the trial court. Mills v. Commonwealth, 996 S.W.2d 473 (Ky.1999), Foley v. Commonwealth, 953 S.W.2d 924 (Ky.1997). In exercising this discretion, the trial court must keep in mind that a defendant is entitled to an impartial jury that can fairly consider the full range of penalties. Woodall v. Commonwealth, 63 S.W.3d 104 (Ky.2001). A defendant, however, is not guaranteed that a jury be comprised of individuals devoid of life experiences — life experiences which may shape that juror’s views regarding sentencing. See generally, Grooms v. Commonwealth, 756 S.W.2d 131 (Ky.1988).

Simply because Juror 40 used the word “prejudice” in her replies does not necessarily mean she could not fully and fairly consider the evidence at trial. Instead of connoting an inflexible stance, the phrase “it might create some prejudice,” as used by Juror 40, may have simply meant her views toward criminal punishment had changed following her personal experiences. The trial judge asked Juror 40 whether she could consider the full range of penalties, to which she affirmatively replied. Since the trial judge was in the best position to evaluate Juror 40⅛ responses, and because her responses during voir dire can reasonably be considered innocuous, we find no error in this matter.

IV. Unpreserved Errors

Appellant raises two unpreserved claims of error in his appeal. First, Appellant complains the trial court failed to instruct the jury on reasonable doubt as to the degree of the offense, when extreme emotional disturbance is claimed as a mitigating factor. In Carwile v. Commonwealth, 656 S.W.2d 722, 724 (Ky.1983), we noted that RCr 9.56 no longer mandates such an instruction. However, our decisions have not been uniform on this issue. See Edmonds v. Commonwealth, 586 S.W.2d 24, 27 (Ky.1979), overruled on other grounds, Wellman v. Commonwealth, 694 S.W.2d 696 (Ky.1985) (requiring the instruction); Holbrook v. Commonwealth, 813 S.W.2d 811 (Ky.1991), overruled on other grounds, Elliott v. Commonwealth, 976 S.W.2d 416 (Ky.1998). See also 1 Cooper, Kentucky Instructions to Juries § 2.03 (1999).

More recently, in Hager, supra, we included such an instruction among our “Specimen Recommended Instructions.” 41 S.W.3d at 847. Although we do not believe omission of this instruction, when not requested, rises to the level of palpable error, we do adhere to this recent case, and if requested on retrial, this instruction should be submitted to the jury.

As a final matter, Appellant alleges that the prosecutor engaged in misconduct during closing arguments. More precisely, Appellant complains that the prosecutor extolled the jury not to convict Appellant of manslaughter, because such a crime is equivalent to burglary or assault. Although we decline to further address this issue because it was not properly preserved, we note that “sentencing issues must not be raised prior to the penalty phase of trial as a means to impermissibly influence the jury to convict based on the desired penalty rather than on the elements of each given offense.” Norton v. Commonwealth, 37 S.W.3d 750, 753 (Ky.2001).

For the reasons set forth in this opinion, the judgment of conviction and sentence imposed upon Appellant are reversed. This case is remanded to the Nelson Circuit Court for a new trial at which, if the evidence be the same, Appellant shall be entitled to an instruction on the defense of self-protection.

LAMBERT, C.J., COOPER, GRAVES, JOHNSTONE, and SCOTT, J.J., concur.

WINTERSHEIMER, J., dissents in a separate opinion in which KELLER, J., joins.

Dissenting opinion by

Justice WINTERSHEIMER.

I must respectfully dissent from the majority opinion because the trial judge did not err when he declined to instruct on self-defense because there was no evidence to show that the use of deadly physical force against two unarmed individuals was justifiable.

Hilbert argues that the trial judge committed error when he refused to instruct the jury on self-defense because he did not take the stand to testify. He conveniently ignores the fact that there was no evidence presented to the jury to justify the use of deadly physical force under the facts of this case.

The trial judge noted that in this case all that happened was that Hilbert had been thrown out of the house trailer. Thus, because there was no evidence to demonstrate what Hilbert believed, it was necessary for him to testify and tell the jury what he did believe.

Hilbert complains that the fact that he had been mugged seven years previously in an unrelated incident was sufficient to demonstrate that he could have believed that he was in danger of death or serious physical injury. Such evidence only indicated that Hilbert may have been cautious and concerned about being mugged and that he began to carry a gun.

In this case, one of the female witnesses asked Hilbert if it was alright if she and her girlfriend brought two men home with them. She testified that Hilbert exhibited no fear and that he did not seem to care. It is clear that Hilbert only began to care when he believed that he would be excluded from the party in the mobile home and that the two victims would be alone with the two women. If Hilbert had been pushed outside the trailer, he still could have left the scene or called police. Instead, he chose to shoot and kill the first victim at point blank range, and then enter the trailer and shoot the second victim twice and kill him. Hilbert’s intention was to get back into the trailer and not to defend himself.

The facts here do not support a jury instruction in order to justify the use of deadly physical force. There was no evidence of an altercation and the evidence indicated that both of the victims were unarmed. There was no evidence that would permit even a subjective belief that he was facing death or serious physical injury. The defendant was not forced to choose between testifying and foregoing a valid defense of self-protection. A defendant may not have to testify in order to be entitled to a self-defense instruction, but he still has to introduce some evidence which allows a reasonable inference that he had a subjective belief that deadly physical force was justified. Such is not the case here.

I would affirm the conviction in all respects.

KELLER, J., joins this dissenting opinion.


author: JOHNSTONE, Justice.

text:
    KENTUCKY RETIREMENT SYSTEMS, Appellant/Cross-Appellee, v. Joyce Ann LEWIS, Appellee/Cross-Appellant.
    No. 2002-SC-0516-DG, 2003-SC-0730-DG.
    Supreme Court of Kentucky.
    March 17, 2005.
    As Modified on Denial of Rehearing June 16, 2005.

      Robert W. KeUerman and Jennifer A. Jones, Kentucky Retirement Systems, Frankfort, Counsel for' Appellant/Cross-Appellee.
    James P. Benassi, Henderson, Counsel for Appellee/Cross-Appellant.
   JOHNSTONE, Justice.

Appellee/Cross-Appellant, Joyce Ann Lewis, was employed by the Kentucky River District Health Department, a participating agency in the Kentucky Employees Retirement Systems (KERS). Lewis initially applied for disability retirement benefits in December of 1997. That application was denied. She filed a substantial change application in October of 1999, alleging a worsening of the same condition. A medical examiner reviewed the application and determined that there had not been a substantial change in her condition, and denied the application.

A dispute arose as to the proper procedure for evaluating this application. The heart of the matter was one of statutory interpretation: the agency asserted that the substantial change applications were reviewed by only one medical examiner, while Lewis contended that her substantial change application was to be treated as a second application, allowing review by up to three medical examiners. Lewis therefore appealed the denial of her substantial change application and requested either a hearing or further review by additional medical examiners. A hearing was scheduled. The hearing officer conducted a preliminary conference, and entered recommended orders on Lewis’s motions regarding, among other issues, the procedure to be followed by the agency. KERS filed exceptions to the hearing officer’s recommended orders; Lewis did not.

Instead, Lewis petitioned the Franklin Circuit Court for a declaratory judgment directing KERS to process the application according to her interpretation of the statute. The circuit court dismissed for lack of jurisdiction, resulting from Lewis’s failure to exhaust available administrative remedies, as there had been no final administrative decision on the merits of her application.

Lewis appealed the circuit court’s decision. The Court of Appeals reversed, in a 2-1 opinion, finding that KERS had acted ultra vires in handling Lewis’s second application. When Lewis submitted the substantial change application, KERS submitted it to a single medical examiner pursuant to 105 KAR 1:210 § 13 (1998). The application was denied because the examiner did not detect a substantial change in her condition since denial of her first application in 1997. The Court of Appeals opined that 105 KAR 1:210 § 13 (1998) failed to comport with the statutory procedure set forth in KRS 61.665(2)(e). Pursuant to that statute, if a first medical examiner recommends denial of benefits, the application is submitted to a second examiner. If the two disagree, a third medical examiner reviews the application before the matter is set for a hearing. The Court of Appeals concluded that the due process rights established by KRS 61.665 cannot be abridged by agency regulation and, therefore, KERS was acting ultra vires in denying Lewis’s application without submission to a second medical examiner. Relying on Franklin v. Natural Resources & Environmental Protection Cabinet, 799 S.W.2d 1 (Ky.1990), the Court of Appeals concluded that Lewis was not obliged to exhaust all administrative remedies. The case was remanded.

KERS sought discretionary review by this Court; Lewis filed a cross-motion asserting that the agency’s procedural regulations violated existing statutes in several respects. Both motions were granted.

The determinative issue in this matter is whether Lewis is required to pursue administrative remedies to conclusion prior to seeking judicial intervention. We hold that she must.

Exhaustion of administrative remedies is a well-settled rule of judicial administration that has long been applied in this state. See generally Popplewell’s Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d 456, 471-72 (Ky.2004). The exhaustion of remedies doctrine is easily explained: “proper judicial administration mandates judicial deference until after exhaustion of all viable remedies before the agency vested with primary jurisdiction over the matter.” Board of Regents of Murray State University v. Curris, 620 S.W.2d 322, 323 (Ky.App.1981). The doctrine does not preclude judicial review, but rather delays it until after the expert administrative body has compiled a complete record and rendered a final decision. Popplewell’s, 133 S.W.3d at 471. Exceptions to this principle do exist: a party is not required to exhaust all administrative remedies when the statute is alleged to be void on its face. Goodwin v. City of Louisville, 309 Ky. 11, 215 S.W.2d 557, 559 (1948). Exhaustion of remedies is likewise not required when continuation of an administrative process would amount to an exercise in futility. Popplewell’s, 133 S.W.3d at 471. This is the case when a complaint “raises an issue of jurisdiction as a.mere legal question, not dependent upon disputed facts, so that an administrative denial of the relief sought would be clearly arbitrary.” Goodwin, 215 S.W.2d at 559.

Bearing these principles in mind, we turn to the present matter. KRS Chapter 13B governs the Kentucky Retirement Systems’ administrative process. See KRS 61.645(16) and KRS 61.665(3). The Board of Trustees of Kentucky Retirement Systems is responsible for entry of final administrative orders and is the agency head as defined by KRS 13B.010(4). Upon request, claimants are assigned a hearing officer to consider administrative appeals. KRS 13B.030. The hearing officer rules on preliminary motions and enters recommended orders regarding all issues raised during the administrative process. KRS 13B.090; KRS 13B.110. The agency head issues the final order and may adopt, reject or modify the hearing officer’s recommended' order, or remand that matter to the hearing officer for further proceedings. KRS 13B.120. KRS 13B.140(1) provides that all final orders of an agency are subject to judicial review.

The agency head in this matter, the Board of Trustees of Kentucky Retirement Systems, neither considered Lewis’s claim nor entered a final order. In fact, the hearing officer has not yet fully considered Lewis’s claim: the hearing officer had issued recommended orders on only miscellaneous, preliminary issues, but no hearing on the merits of Lewis’s claim has been conducted. The actual hearing on Lewis’s claim was scheduled for October 24, 2000, but was held in abeyance pending resolution of the declaratory judgment action filed by Lewis in the Franklin Circuit Court. It is our conclusion from review of the record that Lewis has not exhausted all administrative remedies available — no final order has been issued and indeed a hearing officer has yet to consider the merits of her claim.

Moreover, none of the exceptions to the exhaustion of remedies doctrine apply. Lewis has not alleged that any applicable statute or regulation is void on its face. Rather, Lewis is complaining about KERS’ prospective application of 105 KAR 1:210: specifically, that KERS’ proposed application of 105 KAR 1:210 to her claim would be in conflict with KRS 61.665(2)(e). This is essentially an assertion that the regulation is unconstitutional as applied, not a constitutional challenge that would otherwise relieve a party of the duty to exhaust administrative remedies. This distinction was explained in Commonwealth v. DLX, Inc., 42 S.W.3d 624 (Ky.2001):

When an administrative agency applies a statute unconstitutionally, it acts beyond the bounds of the constitution, rather than passing on a constitutional question. In other words, until a statute has been applied, there can be no unconstitutional application. This is the basis for the rule that one must first show injury as the result of a statutory application, before that application may be attacked as unconstitutional. Thus, exhaustion of administrative remedies is not futile to an as-applied challenge to a statute. Quite the contrary, it is the administrative action which determines the extent, if any, of the constitutional injury.

Id. at 626 (internal citation omitted). Judge Johnson expressed the same view in his dissent in the present case: “until KERS has finally decided Lewis’ disability claim raised in her second application, it is premature to rule that the agency acted unconstitutionally.”

The Court of Appeals erred in holding that Lewis was relieved of her obligation to exhaust all administrative remedies due to an inconsistency between 105 KAR 1:210 and KRS 61.665(2)(e). Lewis was obliged to obtain a final order from the agency before seeking judicial redress. Therefore, we reverse the Court of Appeals and reinstate the judgment of the Franklin Circuit Court.

All concur.