text:
    2218 BRYAN STREET, LTD., Appellant, v. CITY OF DALLAS, Texas and Raj Sharma, Acting in his Official Capacity as the Building Official for the City of Dallas, Texas, Appellees.
    No. 05-04-00064-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 16, 2005.
    Rehearing Overruled Oct. 31, 2005.

      Barry R. Knight, Winstead Sechrest & Minick, P.C., and Jason Clarke Marshall, The Marshall Firm PC, Dallas, for Appellant.
    Christopher D. Bowers and Barbara E. Rosenberg, Asst. City Attys., Dallas, for Appellees.
    Before Justices MORRIS, FRANCIS, and MAZZANT.
   OPINION

Opinion by

Justice MORRIS.

This case arose after the City of Dallas prevented the demolition of a building in downtown Dallas commonly known as the “Old Dallas High School.” We now must examine the applicability of Chapter 245 of the Texas Local Government Code to determine whether appellant 2218 Bryan Street, Ltd. had an absolute right to demolish the buildings on its property. We also must determine whether appellees City of Dallas and Raj Sharma, acting in his official capacity as the building official for the city, violated appellant’s due process rights and whether certain city regulations constituted an impermissible taking of appellant’s property in violation of the Texas Constitution. The trial court granted a partial summary judgment in favor of appellees concluding appellant had no right to a demolition permit pursuant to Chapter 245. And, after a non-jury trial, the trial court rendered a final take-nothing judgment on appellant’s due process and regulatory taking claims. Concluding the trial court was correct, we affirm its judgment for the reasons set forth below.

I.

Appellant purchased a 5.489 acre parcel of land in downtown Dallas. Its purchase, however, was after the city landmark commission instituted proceedings to consider whether the property should be designated a historic district. Under the Dallas City Code, initiation of the procedure to consider historic designation of the property imposed a moratorium prohibiting the city’s acceptance of all applications for permits to alter or demolish any structure on the property. The moratorium was in effect when appellant submitted its first application for a demolition permit on September 13,1999. At that time, the city code listed several events that would end the moratorium. Of particular relevance here is the provision that ends the moratorium on the 180th day after the filing date of a written request for hardship relief that has not been granted.

On September 28, 1999, appellant filed a written request for hardship relief from the moratorium. Appellant’s hardship request was not granted. After the denial, but before the 180-day period expired, the city adopted a new ordinance, Ordinance No. 24163, amending its historic regulations to delete the 180-day provision and adding new standards governing applications for demolition permits for properties with pending historic designations or within historic overlay districts. On April 4, 2000, over 180 days after the date appellant filed its hardship request, appellant demanded a demolition permit relying on its application submitted previously in September. Appellees refused, asserting appellant’s application was incomplete under the newly enacted regulations. On December 13, 2000, the city council passed another ordinance, Ordinance No. 24469, designating 1.13 acres of appellant’s property, containing the 1907 high school building and a 25 foot no-build zone around the high school, as Historic Overlay District No. 101.

Appellant sued appellees for a writ of mandamus ordering the building official to issue a demolition permit and for damages from the city’s alleged regulatory taking and due process violations. Appellant then moved for partial summary judgment asserting that, under Chapter 245 of the Texas Government Code, its right to demolish all buildings on the property after the 180-day waiting period vested as a matter of law when it submitted its September 13, 1999 application for a demolition permit. Appellees filed a cross-motion for partial summary judgment arguing that Chapter 245 did not apply. The trial court denied appellant’s motion and granted appellees’ cross-motion for partial summary judgment concluding both of the newly enacted ordinances were exempted from the provisions of chapter 245. After a trial before the court on appellant’s due process and regulatory taking claims, the trial court rendered its final take-nothing judgment in favor of appellees. This appeal followed.

II.

We first address the trial court’s ruling with respect to the applicability of Chapter 245. Questions of law are appropriate matters for summary judgment. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex.1999). When both parties move for summary judgment and the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both sides, determine all questions presented, and render such judgment as the trial court should have rendered. Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997). We consider all summary judgment grounds the trial court expressly ruled on and the movant preserves for appellate review that are necessary for final disposition of the appeal. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996). In the interest of judicial economy, we may also consider other preserved grounds that the trial court did not rule on. Id.

In its first issue, appellant argues Chapter 245 of the Texas Local Government Code required the city to issue a demolition permit for the building 180 days after appellant filed its written request for hardship relief on September 28,1999 irrespective of the city’s later adoption of Ordinances 24163 and 24469. See Tex. Local Gov’t Code Ann. § 245.001 et seq. (Vernon Supp.2004-05). Section 245.002 provides in part:

(a) Each regulatory agency shall consider the approval, disapproval, or conditional approval of an application for a permit solely on the basis of any orders, regulations, ordinances, rules, expiration dates, or other properly adopted requirements in effect at the time the original application for the permit is filed.

Appellant contends that either its September 13, 1999 application for a demolition permit or its September 28 request for hardship relief triggered the protections of Chapter 245 and, thus, prohibit the city from denying it a demolition permit based on later-adopted ordinances. Appellant further argues that Chapter 245 requires the city to issue a demolition permit in accordance with former city code section 51A-4.501(a)(2)(C), which provided for the end of the moratorium 180 days after the fifing date of a request for hardship relief. Appellees, on the other hand, contend Chapter 245 does not apply because no permit could be filed during the moratorium. And, because the city adopted new demolition standards for properties under consideration for historic designation before the moratorium ended, the newly enacted standards properly applied to any permit later filed by appellees. We agree with appellees.

The event that invokes the protections of Chapter 245 is the filing of an application for a permit. See Tex. Local Gov’t Code Ann. § 245.002(a). Appellant does not challenge the validity of the moratorium that was in place on September 13, 1999 when it attempted to file its application. According to the city code provisions in effect at that time, the city could not accept any applications for demolition permits for appellant’s property. See § 51A-4.501(a)(2). Thus, appellant’s September 13 application was not accepted and therefore not filed as required by Chapter 245. A review of the permit application contained in the summary judgment evidence confirms the application dated September 13 has no “filed” stamp. In fact, the application reflects that it was “On hold for Hist.” Accordingly, the September 13 application did not invoke the provisions of Chapter 245.

Appellant argues that even if its September 13 application did not trigger the application of Chapter 245, its request for hardship relief filed on September 28, 1999, before the city enacted the two new ordinances was a permit as defined by Chapter 245 and, thus, entitled it to consideration under the regulations in effect at the time its request for hardship relief was filed. Chapter 245 defines a permit as follows:

“Permit” means a license, certificate, approval, registration, consent, or other form of authorization required by law, rule, regulation, order, or ordinance that a person must obtain to perform an action or initiate, continue, or complete a project for which the permit is sought.

Tex. Local Gov’t Code Ann. § 245.001(1) (emphasis added). A request for hardship relief is not a request for an “approval” or some “other form of authorization required by law” that appellant “must obtain to perform an action or initiate, continue, or complete a project.” Unlike an application for a demolition permit, a request for hardship relief is merely an available means for expediting the termination of a moratorium otherwise imposed by the initiation of the historic designation process. Appellant was not required to seek hardship relief to eventually proceed with its planned demolition. In fact, its request for hardship relief was denied. The denial itself, however, did not preclude appellant from pursuing its demolition plans. The former city code provided that if hardship relief was not granted, as happened here, the moratorium would end and appellant could proceed with its application for a demolition permit 180 days after the hardship request was initially filed. Accordingly, the filing of a request for hardship relief is not a permit to which Chapter 245 applies.

Because the summary judgment evidence conclusively establishes that appellant did not file an application for a permit before Ordinance 24163 was enacted, Chapter 245 does not apply. Having concluded Chapter 245 is inapplicable because appellant did not file a permit application before Ordinance 24163 was enacted, we need not address appellant’s remaining arguments with respect to whether Ordinances 24163 and 24469 are exempt from the provisions of Chapter 245. The trial court did not err in granting appellees’ motion for partial summary judgment. We resolve appellant’s first issue against it.

In its second issue, appellant asserts the process by which the city established a historic designation on appellant’s property denied it substantive due process under the U.S. and Texas Constitutions. Appellant first asserts the city’s moratorium, which began on March 7, 1995, was in effect for an unreasonably long time because the city took no action relating to the historic designation on appellant’s property after instituting the moratorium until appellant submitted its demolition permit application on September 13, 1999, four and a half years later.

The ultimate determination of whether a moratorium violates due process is a question of law, but we depend on the trial court to resolve disputed facts with respect to the particular circumstances involved in the application of the moratorium. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 932-33 (Tex.1998). The trial court made several specific findings of fact with respect to appellant’s due process claims, including: (1) that the city’s moratoriums on the acceptance of applications for permits concerning the property had a definite end and a property owner could trigger the moratorium’s end for his property; (2) the city took five years to establish a historic overlay district on the property because city staff had a heavy workload and there was no threat to the existence of the high school until appellant purchased the property; (3) the city has taken longer than five years to establish a historic overlay district on several other properties; (4) the city did not complete the establishment of a historic overlay district on the property when the school district owned it because the city had no reason to believe the school district ever planned to demolish the high school; (5) the city completed the establishment of a historic overlay district on the property after appellant purchased the property because appellant’s representatives told the city it intended to demolish the high school.

A court may not strike down a zoning determination for a substantive due process claim unless it is clearly arbitrary and unreasonable. Mayhew, 964 S.W.2d at 938 (quoting Nectow v. City of Cambridge, 277 U.S. 183, 187-88, 48 S.Ct. 447, 72 L.Ed. 842 (1928)). An ordinance will pass constitutional muster if it is designed to accomplish an objective within the government’s police power and a rational relationship exists between the ordinance and its purpose. Id. Here, the trial court’s unchallenged findings of fact support the determination that the imposition and duration of the moratorium in question was reasonable and did not violate appellant’s due process rights. We therefore reject appellant’s argument to the contrary.

Also under its second issue, appellant argues it was denied due process because the city unlawfully delegated legislative authority to the landmark commission. Appellees respond that this claim is barred by the two-year statute of limitations and by appellant’s failure to serve the attorney general with notice of its constitutional challenge as required by section 37.006(b) of the Texas Civil Practice and Remedies Code. The trial court made findings of fact that appellant did not provide any evidence that it gave the Texas Attorney General a reasonable opportunity to enter an appearance and be heard on the issue of unconstitutional delegation of legislative authority. The trial court also found that appellant did not assert its unlawful delegation of legislative authority within two years after the date that those claims arose or that they were discovered or should have been discovered. Appellant did not challenge these findings in its brief. Because the trial court’s rejection of appellant’s unlawful delegation claim can be affirmed on these unchallenged alternative grounds, we need not address the merits of appellant’s argument. See Perez v. Tex. Dept. of Prot. and Reg. Serv., 148 S.W.3d 427, 433-34 (Tex.App.-El Paso 2004, no pet.). To the extent appellant attempts to address these alternate grounds in its reply brief, we note the Texas Rules of Appellate Procedure do not allow appellant to include in a reply brief a new issue in response to a matter raised in appellee’s brief but not raised in appellant’s original brief. See Howell v. Tex. Workers’ Comp. Comm’n, 143 S.W.3d 416, 439 (Tex.App.-Austin Worth 2004, pet. denied). Moreover, a matter is not raised by an appellee where, as here, it merely points out the absence of appellant’s argument on an issue. We resolve appellant’s second issue against it.

In its third issue, appellant asserts the trial court erred in concluding the city’s regulations and denial of a demolition permit did not constitute a taking of property in violation of the Texas Constitution. A regulatory taking occurs when the government regulation either deprives the owner of all economically viable use of the property or totally destroys the property’s value or has a severe enough economic impact and interferes with distinct investment-backed expectations. See Mayhew, 964 S.W.2d at 936-937. The ultimate determination of whether the facts are sufficient to constitute a taking is a question of law that we review de novo. Id. We rely on the trial court, however, to determine disputed facts such as the extent of the governmental intrusion on the property and the diminution in the property’s value in assessing whether the city has taken appellant’s property without just compensation. Id. We review the legal sufficiency of the trial court’s findings viewing the evidence in the light favorable to the verdict, crediting favorable evidence if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 809 (Tex.2005). For a factual sufficiency review, we must determine whether the tidal court’s finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See Dow Chem. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per curiam).

Appellant contends the evidence at trial establishes conclusively a taking under both of the above standards. To support its contentions, appellant relies on the testimony of its expert appraiser Peter Ma-lm. Malin testified the value of the property entirely vacant would be worth $11.9 million or more, while with the regulations requiring adaptive reuse of the high school, the property had no value or a negative value. The negative market value was based upon comparing the costs of renovating the high school with its anticipated income stream and then redistributing the resulting loss to the remaining 4.3 acres where development is unaffected by the regulations. Malin indicated that after making the required renovations, which would cost, at a minimum, $18,000,000, the property as a whole would be worth only $5,100,000. After allocating the resulting loss from the cost of the appellant’s renovation proposals to the remaining vacant land, the effective cost of the remaining site would be $109.00 to $114.00 per square foot. Malin opined that requiring appellant to reuse the high school would effectively mean the cost of the entire property per square foot would be significantly higher than comparable properties. This would render the property as a whole unmarketable and, thus, undevelopable. Because the fair market value of the vacant, excess land would be only $35 to $40 per square foot, Malin stated that resale and development under the city regulations would be prohibitively expensive.

Malin’s value opinion was based on many assumptions. First, he assumed the high school would be converted to either a mixed-use development containing offices and retail or residential lofts. He relied on other experts to determine the cost, scope, and nature of these renovations and the amount of income that would be generated from these uses for ten years.

The trial court was not impressed with Malin’s testimony and made a specific finding of fact that his conclusions were not credible. Among the 31 reasons the trial court listed to support its credibility determination, the court noted that for his feasibility analysis of the property, Ma-lin limited his development plans to renovating the high school, which encompassed only 115,000 or 150,000 square feet of the property, and did not consider development of the remainder of the property in conjunction with the high school restoration. The trial court also indicated Malin failed to consider other development plans and questioned the comparable sales he used in arriving at his value determination. Additionally, the trial court indicated that Malin did not consider the economic value of a facade easement, transfer of development rights, infrastructure cost sharing, a rebate of development fees, a federal low income housing tax credit, or a state sales tax and use exemption when evaluating the financial feasibility of restoring the high school. The trial court also noted that Malin relied on appellant’s other experts whose testimony the court also specifically found not to be credible. If an expert’s opinion is based on certain assumptions about the facts, we cannot disregard evidence showing those assumptions were unfounded. Keller, 48 Tex. Sup.Ct. J. at 852. A fact finder may even disregard uncon-troverted expert testimony unless the subject matter is one for experts alone. Id. at 812-13.

Moreover, there was also evidence that a portion of the property was currently being used as a parking lot which generates $7,500 per month in income. Appellees provided evidence from expert witnesses indicating the high school could be successfully and profitably renovated based on renovations performed on similar historic buildings in Dallas and Fort Worth. There was also evidence that the renovation cost estimates Malin used for his valuation opinion were too high.

Appellant argues that because appellees provided no valuation evidence whatsoever, it was error for the trial court to file findings of fact contradicting appellant’s evidence. Appellant essentially contends that because it provided the exclusive valuation evidence, the trial court was obligated as matter of law to accept this evidence and incorporate it into its findings of fact, irrespective of the trial court’s findings that the testimony of its experts was not credible. Appellant has cited no authority to support its position, and we have found none. And we do not accept appellant’s argument. To accept appellant’s argument would usurp the trial court’s role as the sole judge of the credibility of the witnesses and the weight to give their testimony. We may not impose our own opinions about the credibility of witnesses to the contrary. See Keller, 168 S.W.3d at 817-18.

Although appellant does not specifically attack the trial court’s credibility findings, our review of the record reveals that appellees’ cross-examination and expert witnesses cast serious doubt on Ma-lm’s valuation testimony. After reviewing the record in a light most favorable to the verdict and affording the trial court due deference on credibility issues, we conclude the trial court’s findings that the value of appellant’s property was not entirely destroyed and that there was no significant economic impact or interference with appellant’s reasonable investment backed expectations by the regulations at issue was supported by legally and factually sufficient evidence.

Under this same issue, appellant also complains the trial court’s rejection of appellant’s market value analysis necessarily demonstrates the trial court applied an inappropriate standard for determining whether a taking occurred. We disagree. The trial court found many flaws in Malm’s market value analysis and gave numerous reasons for discrediting his testimony. The evidence was legally and factually sufficient to support the trial court’s determination that Ma-lin’s testimony was not credible. Without Malin’s testimony being credible to the trial court on the value of the property before and after the city regulations, appellant failed to establish a taking under any standard. Based on the record before us, we conclude the trial court did not err in concluding that the city regulations and denial of a demolition permit did not constitute a regulatory taking of appellant’s property.

We conclude the trial court properly granted summary judgment in favor of appellees on appellant’s Chapter 245 claim. We further conclude the trial court did not err in rendering a take nothing judgment on appellant’s due process and regulatory taking claims.

We affirm the trial court’s judgment.

      . Appellant submitted all liability issues on its takings and due process claims to the trial court, reserving for a jury questions of damages. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 932 (Tex.1998).

      . Although appellant notes that another witness also presented evidence on the property’s value, it has not set forth any record citations indicating the location of the relevant testimony. It is not our duty to make an independent search of the record for evidence supporting a party's position. See Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex.App.-Dallas 1987, writ ref'd n.r.e.).


source: Caselaw Access Project

author: Chief Justice LAMBERT. COOPER, Justice, KELLER, Justice,

license: Public Domain

text:
    Victor Dewayne TAYLOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-SC-0018-MR.
    Supreme Court of Kentucky.
    May 19, 2005.
    As Modified on Denial of Rehearing Nov. 23, 2005.

      Margaret F. Case, Thomas M. Ransdell, Assistant Public Advocates, Department of Public Advocacy, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, David A. Smith, Ian G. Sonego, Assistant Attorneys General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee.
   Opinion of the Court by

Chief Justice LAMBERT.

Once again this Court is faced with deciding an issue that arises from one of the most heinous and highly publicized murder cases in Kentucky’s recent history. Victor Taylor was convicted of the murder, kidnap, and robbery of two Trinity High School students as they were on their way to attend a high school football game. Taylor was also convicted of sodomizing one of the students. As a result, he received two death sentences for the murder convictions, two death sentences for the kidnapping convictions, and a total of sixty years imprisonment for the two counts of robbery and one count of sodomy. This appeal comes to this Court upon denial of his CR 60.02 motion for a new trial.

Taylor asserts that he is entitled to a new trial for two reasons, and seeks a declaratory judgment as to the constitutionality of KRS 422.285. First, he claims that the recanted testimony of his co-conspirator, George Wade, suffices to exculpate him from guilt, entitling him to a new trial. Second, Taylor claims that a juror’s false responses to questions about her views on capital punishment during voir dire entitles him to a new trial. Finally, Taylor argues that KRS 422.285 is unconstitutional because it infringes upon the Supreme Court’s rule-making authority under § 116 of the Constitution of Kentucky. We affirm the trial court’s denial of Taylor’s CR 60.02 motion; and we find that KRS 422.285 is an unconstitutional infringement upon the Supreme Court’s rule-making prerogatives, but we extend comity to the statute and will enforce its provisions.

1. Facts

The facts of this case are recorded in detail in this Court’s opinion by Justice Wintersheimer on direct appeal, so we will rely in large part upon that recitation. Therefore, we reiterate only the pertinent facts to the issues currently before us. On Saturday, September 29, 1984, high school students Richard Stephenson and Scott Nelson stopped at a restaurant to ask for directions to a high school football game. While at the restaurant, Taylor and Wade kidnapped the students at gunpoint. Cecil Pepper and Dino Pace testified that they witnessed the abduction and followed the car a few blocks until it turned down a side street. Both Pepper and Pace identified Taylor as the kidnap gunman. After reaching a secluded area, Taylor and Wade forced the students to get out of the car. In an attempt to rob them, Taylor and Wade forced them to take off their clothes and hand over their personal property. After the boys had taken off theft clothes, Taylor sodomized one of them. To avoid being turned in to the police by the victims, Taylor shot each of them in the head. Theft bodies were each found with a gunshot wound to theft temples from pointblank range.

The tattered and partially-clothed bodies of the victims were found early the next morning and an investigation ensued. A few days later the police arrested Taylor and Wade based upon an abundance of evidence both physical and testimonial. Wade was convicted first, and then Taylor was taken to trial partially upon a statement made by Wade to police, which is a subject of this appeal.

II. Wade’s recantation

Taylor’s CR 60.02 motion can be separated into two issues. We take them one at a time. First, Taylor argues that he is entitled to a new trial because Wade recanted his statement to the police that Taylor was with him when he kidnapped, sodomized and killed the boys. Wade made this statement at Taylor’s RCr 11.42 evi-dentiary hearing in 1997, which was more than eleven years after Taylor’s conviction. The trial court ruled that Wade’s new testimony that contradicted his previous testimony was not enough to entitle Taylor to a new trial, and that ruling is reviewed for an abuse of discretion. In denying relief pursuant to CR 60.02, the trial court cited Hensley v. Commonwealth for the proposition that recanted testimony of a trial witness is viewed with suspicion and does not normally warrant a new trial. In Hensley, a “vital witness” testified that the defendant was the only one shooting when the decedent was killed. That “vital witness” later recanted and stated in an affidavit that he was not sure who shot the decedent and that “others were shooting at the time the decedent ... fell.” Justice Palmore, in an opinion rich in brevity, noted that this recantation was to be given little weight, and, as such, was not sufficient to entitle the defendant to a new trial. The truism that recanted testimony is not reliable and should therefore be given little weight is even more relevant to this case. This is so because Wade recanted his statement that Taylor committed the heinous crimes against the Trinity students more than eleven years after Taylor’s conviction, and only after the Parole Board denied him parole and ordered him to serve out the remainder of his sentence. The trial court did not find Wade’s recantation credible. Therefore, we agree with the trial court’s ruling that Taylor is not entitled to a new trial because of the recanted testimony.

However, though not briefed by the parties, we note that Wade’s statement to the police admitted at trial was not subject to cross-examination. And, though this issue was considered on direct appeal, the United States Supreme Court has since held, in Crawford, v. Washington, admission of this type of testimony to be viola-tive of the Sixth Amendment’s Confrontation Clause. Specifically, the Court noted that out-of-court testimonial statements are inadmissible as a violation of the Confrontation Clause “unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Here, though Wade was unavailable under KRE 804(a)(1), Taylor had at no time the ability to cross-examine Wade’s statement to the police. Therefore, if Crawford is applicable, Taylor’s constitutional right to confront witnesses against him was violated. However, that does not end the question, for Taylor is only entitled to a new trial if the error prejudiced him. In other words, if the admission of the statement amounted to harmless error beyond a reasonable doubt, then this Court will not disturb Taylor’s conviction.

To determine whether the admission of Wade’s statement was harmless beyond a reasonable doubt, we must inquire whether excluding this evidence from the jury’s consideration would have changed the result. And since the old trial cannot be recreated, we look to what might have happened upon retrial. In this case, though Wade’s statement could not be used substantively at a new trial due to Crawford, if Wade testified to the contrary it would likely come into play because it would be inconsistent. Therefore, this evidence in and of itself offers very little to Taylor in his attempt to show that using Wade’s statement for substantive reasons is reversible error. But even if this statement were out of the universe of evidence that a jury would be allowed to consider upon a new trial, i.e., not admissible even as a prior inconsistent statement, it would not be enough to turn the verdict in his favor. The other evidence against Taylor is mountainous. And we are convinced that no reasonable jury could acquit Taylor of his deplorable crimes even if half the evidence was stricken from its deliberations. In short, this is the precise type of case for which the harmless error rule exists.

The evidence that led the jury to return a guilty verdict against Taylor is too voluminous to recount in full. What follows is some of the highlights. Dino Pace and Cecil Pepper witnessed the events that took place at the restaurant where the boys were kidnapped, and they both identified Taylor as the man that kidnapped the boys at gunpoint. In fact, Taylor had stood in line next to them as they were ordering food. After the abduction, Pace and Pepper followed the car until it pulled off onto a side street. Pace and Pepper had ample opportunity to view Taylor. And though Taylor was not picked out in a photo line-up, both witnesses identified Taylor at trial as the gunman, and identified Wade in a line-up. Taylor was never placed in a line-up.

Jeffrey Brown, a jailhouse lawyer, testified that Taylor told him what happened as part of an attempt by Taylor to obtain legal advice. Taylor admitted to the shooting in his conversation with Brown, stating that he had to do it after Wade said Taylor’s name as he was sodomizing one of the boys.

Eugene Taylor, Taylor’s cousin, saw Taylor and Wade in a car with the boys on the night of the murder. Later that night Eugene also saw Taylor and Wade with a Trinity High School gym bag at Taylor’s mother’s house. Taylor and Wade were also in possession of a pair of gray tennis shoes, a pair of blue jeans, a Led Zeppelin cassette tape, a watch, a ring, and some firecrackers. Eugene further testified that he overheard Taylor ask his sister whether the news had said anything about two white boys being murdered. Then Eugene heard Taylor tell his sister that he shot the two boys. Eugene further testified that Taylor exchanged pistols and money with his sister, and then divided the money with Wade.

Beverly Shackleford, who had known Taylor for more than ten years, testified that Taylor tried to sell her a Trinity class ring and school jacket on the morning after the murders. Neither the jacket nor ring of one of the boys had been found at the crime scene. The following Monday, three days after the killings, Shackleford again saw Taylor. This time she overheard Taylor admit to killing the boys because “it’s a game. It’s all about beating the system.” Shackleford further testified that she overheard Taylor admit to the murders on two additional occasions.

There was additional evidence at the crime scene where the boys’ bodies were found. Police found a beige shirt under a crawl space of a nearby abandoned house with African American hairs. That beige shirt was found along with one of the boy’s blue jeans. Pace testified that Taylor was wearing a beige shirt at the restaurant when he and Wade kidnapped the boys. It was later determined that the shirt had some microscopic characteristics of Taylor’s pubic and head hair. The bullets that had traveled through the boys’ heads were also found at the crime scene. A firearms expert testified that those bullets were .357 Magnum semi-jacketed hollow point bullets and that they were fired from the same gun.

After an autopsy was performed on the boys, the coroner testified that he found sperm in the anus of one of the victims.

At various times Taylor occupied two homes, one of which was owned by his mother and the other by his sister. At his mother’s house police found several cassette tapes with the initials of one of the boys; twelve packages of firecrackers that matched those found in the boy’s car and the testimony of Eugene Taylor; a Reader’s Digest radio belonging to one of the boys; a pair of gray shoes belonging to one of the boys; a pair of beige suede shoes belonging to the other boy; and a silver clip with brown beads and white feathers, which had hung from the sun visor of the car owned by one of the boys. At Taylor’s other address police found four live .357 magnum rounds manufactured by the same company that had manufactured the bullets that were shot through the boys’ heads. Like the bullets at the crime scene, they were also hollow points. Also found was one of the boy’s blue jeans, which were being worn by Taylor’s brother-in-law, who testified that Taylor had recently given them to him. Those blue jeans had orange stitching on them, and the parents of one of the boys testified that they belonged to their son.

The police also searched the house of Taylor’s girlfriend, Sherry Van Dyke, where they found a jacket that belonged to one of the boys. Ms. Van Dyke testified that Taylor had given her the jacket.

From this evidence no reasonable jury could have acquitted Taylor of murdering the two Trinity High School students even if Wade’s statement were kept from its consideration. Wade’s initial statement incriminating Taylor, though persuasive by itself, was little more than cumulative of other evidence. This is especially true in light of the probability that the prosecution would offer this statement into evidence to rebut Wade’s recantation. However, with or without the statement, the proof that Taylor kidnapped, sodomized, and murdered the two boys was overwhelming and no jury could fail to find guilt beyond a reasonable doubt.

III. The juror’s responses at voir dire

The second part of Taylor’s CR 60.02 motion for a new trial was that a juror answered falsely when questioned during voir dire as to whether she could consider the full range of penalties for one convicted of murder. Specifically, Taylor argues that one particular juror failed to disclose religious beliefs that impaired her ability to consider a penalty other than death. During the post-conviction hearing, the juror in question said that “God’s word does say that the death penalty is appropriate for murderers.” It is Taylor’s contention that because this information about the juror’s belief in the death penalty was not shared with the defense when asked if she had any philosophical, religious or moral beliefs concerning the death penalty, his defense team could not use this information to move to strike her for cause or to use his peremptory challenges against her. It follows, he argues, that he is entitled to a new trial.

While Taylor is correct that the lower court misinterpreted RCr 10.04, he fails to show that a new trial is appropriate due to the juror’s answers during voir dire. RCr 10.04 states that “[a] juror cannot be examined to establish a ground for a new trial, except to establish that the verdict was made by lot.” However, we have not interpreted this rule as the clear-cut exclusionary rule that its text appears to suggest. Indeed, we could not read it in such a way because the rule must give way to various constitutional requirements, such as due process of law. Our predecessor court noted as much in Ne Camp v. Commonwealth when it refused to allow the rigidity of the rule to stifle reversal where “[t]he misconduct [was] obvious.” And later this Court, in an opinion that cited RCr 10.04, noted that a defendant is free to establish that a juror did not truthfully answer on voir dire, but that it could not be established upon evidence of anything that occurred in the jury room. So Taylor is correct that he may challenge the juror’s answers at voir dire with her testimony given during the post-conviction hearing. But he must still meet the burden of proving those answers merit a new trial.

As this Court has recently stated, to merit a reversal because of the juror’s allegedly improper responses (or lack of a response), a defendant “must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” When applying this test to the facts, it is clear that Taylor does not merit a new trial.

Essentially there are three elements a defendant must show to deserve a new trial because of juror mendacity during voir dire. First, a material question must have been asked. Second, the juror must have answered the question dishonestly. And finally, the truthful answer to the material question would have subjected the juror to being stricken for cause. Here, there was a material question asked to the juror. A question about whether a potential juror believes she can consider the full range of penalties upon a conviction for murder is about as material as they come. However, Taylor fails to show that the juror answered the question dishonestly or that she should have been stricken for cause. During voir dire the juror was directly asked by the judge about her beliefs about capital punishment:

Judge: Do you have any belief, religious, philosophical or moral, regarding capital punishment, either for or against?
Juror: Do I need to answer that with a yes or no?
Judge: Any way you wish to.
Juror: I feel that there are circumstances where it is a justified reason for capital punishment but I think the evidence would have to weigh this before I made a decision.
Judge: Would it be fair that in your mind you have no fixed position, that you are neither opposed for moral or religious or whatever reasons or for either way?
Juror: No.
Judge: That your mind is open on that issue?
Juror: Yes sir.

And she was also questioned by the defense counsel.

Counsel: I don’t want to try and lead you or anything but what I would like for you to do if possible is just tell me how you feel about the death penalty in general. What would be your viewpoint on it?
Juror: I think that there are situations where the death penalty is justifiable and I think there again, it goes back to the situation and the evidence presented that would justify whether or not a person’s life should be taken.
Counsel: Do you feel that everybody convicted of murder should get the death penalty?
Juror: Not necessarily.
Counsel: You have heard about aggravating factors, such as robbery or something like that. Do you feel that people who are convicted of murder plus an aggravating factor should automatically get the death penalty?
Juror: No, sir, I don’t think so.

Taylor acknowledges these statements by the juror, but argues that she did not say the complete truth, and that if she had she would have been stricken for cause. We disagree. The statement the juror made at the post-conviction hearing that Taylor bases his argument on is that “God’s word does say that the death penalty is appropriate for murderers.” But this was already stated, albeit in a different way, as a response to both the judge and defense counsel. Taken in context, the juror’s responses indicate that she was willing to take the evidence as it was presented and to reach a conclusion consistent with what the facts would allow. There is no reversible error in that. We hold that the juror answered honestly, and that the trial judge was correct in denying Taylor’s CR 60.02 motion for a new trial based on her answers during voir dire.

IV. The statute

Finally, Taylor challenges KRS 422.285 as unconstitutional because it encroaches upon powers assigned to the judiciary. Specifically, he claims that this statute contravenes the separation of powers provisions located in Sections 27 and 28 of the Kentucky Constitution. It is important to note that Taylor did not move the trial court to grant deoxyribonucleic acid (DNA) testing as provided for in the statute. Instead, he sought a declaratory judgment that the statute was unconstitutional.

Kentucky enacted KRS 422.285 in 2002 to allow a person convicted of and sentenced to death for a capital offense to request DNA testing of any evidence in the possession of the Commonwealth, provided that certain preliminary issues are resolved, e.g., condition of the evidence. There are also notice provisions contained in the statute that require a petitioner to inform the Commonwealth of the testing and grant it access to the laboratory reports.

KRS 422.285 was part of a wave of similar statutes in other states passed in response to a number of death-row inmates who were released from custody as a result of being exonerated by DNA testing nationwide. DNA is the “genetic material present in the nucleus of cells in all living organisms,” and it stores each individual’s inherited traits. Though there are a number of processes by which DNA may be tested, all have essentially four basic steps. First, samples from a known and unknown source are isolated. Second, testing is conducted on each sample. Third, the DNA type is determined by analyzing particular regions of each sample’s DNA. Finally, the results are compared between samples to verify whether the samples originated from a common source. After the testing process one of three results will be reached: that the samples originate from a common donor, that the samples do not originate from a common donor, or that the test is inconclusive.

As noted above, Taylor challenges this statute because he feels it unconstitutionally infringes upon the judiciary’s right to set court procedures in violation of the separation of powers provisions of Kentucky’s Constitution. For support, he cites Foster v. Overstreet and Commonwealth v. Reneer, stating that each case is “directly on point.” In both of those cases we held that the statute in question was unconstitutional as an encroachment on the rule-making prerogative of the judiciary. In holding the statute in Reneer unconstitutional we noted that the statute was procedural in nature, neither adding nor removing elements necessary to convict or alter the penalty for a conviction. Such a procedural enactment invaded this Court’s authority to prescribe rules pursuant to section 116 of our Constitution, and, as such, violated the separation of powers provision enunciated in Section 28 of the Kentucky Constitution.

Likewise, the statute that Taylor challenges is a procedural enactment, which in no way modifies any elements necessary to convict or penalties to be imposed upon conviction. Therefore, we hold that KRS 422.285 infringes a constitutional power properly belonging to the Supreme Court. Nevertheless, not all statutes that unconstitutionally infringe upon the rule-making power of the Supreme Court have been struck down entirely. We retain the right to enforce such statutes by way of comity. In fact, the statutes in the two cases cited by Taylor as being “directly on point” were enforced by the Court by way of comity.

Principles of comity enjoy a strong history in our Commonwealth and in this nation, and remain a sound rule of law. In O’Bryan v. Hedgespeth we expressed it thusly: “Comity, by definition, means the judicial adoption of a rule unconstitutionally enacted by the legislature not as a matter of obligation but out of deference and respect.” But we do not go about deciding whether to grant comity to an otherwise inappropriate statute without cognizable standards. In order for a statute to be extended comity this Court must find that such a statute is a “statutorily acceptable substitute for current judicially mandated procedures” or can be “tolerated in a spirit of comity” because it does not unreasonably interfere with the “orderly functioning of the courts.” It is clear that KRS 422.285 meets the latter standard we use to determine whether comity should be extended. In fact, under prevailing law, without the statutory privileges in KRS 422.285 a defendant who has been convicted of a capital crime and sentenced to death would not have an opportunity to request DNA testing of existing evidence. A statute allowing a death-row inmate to obtain DNA testing furthers the interest of justice by better ensuring that the Commonwealth does not follow through with putting an innocent man to death. In the words of our precedent, such a statute furthers the “orderly functioning of the courts” and is a “statutorily acceptable substitute for current judicially mandated procedures.” Therefore, we uphold, under principles of comity, KRS 422.285 until superseded or modified by this Court.

Accordingly, we affirm the trial court’s decision to deny Taylor’s CR 60.02 motion for a new trial based on the recanted testimony of Wade. We also affirm the trial court’s denial of Taylor’s CR 60.02 motion for a new trial based upon his belief that a juror was dishonest in answering questions during voir dire. Finally, we hold that KRS 422.285 is an unconstitutional encroachment of the Court’s rule-making prerogatives. However, we extend comity to that statute.

GRAVES, SCOTT, and WINTERSHEIMER, JJ., concur.

COOPER, J., files a separate opinion concurring in part and dissenting in part in which JOHNSTONE, J., joins.

KELLER, J., dissents by separate opinion.

COOPER, Justice,

concurring in part and dissenting in part.

I concur in the majority’s analysis of the only issues presented to us by this CR 60.02 motion, i. e., whether Appellant should be granted relief from the final judgment on the basis of newly discovered evidence. I dissent, however, from the majority’s gratuitous suggestion that the admission at trial of George Wade’s “confession” in which he claimed Appellant was the sodomizer and triggerman in these gruesome crimes could be “cumulative evidence” or “harmless error.”

In Taylor v. Commonwealth, 821 S.W.2d 72 (Ky.1990) (“Taylor /”), we upheld the admission of Wade’s statement under the common-law hearsay exception for statements against penal interest because the statement also inculpated Wade as an accomplice, i.e., it was, in fact, a statement against Wade’s penal interest. Id. at 75. See KRE 804(b)(3). When the issue was raised again on appeal from the denial of Appellant’s RCr 11.42 collateral attack, Taylor v. Commonwealth, 63 S.W.3d 151, 166-68 (Ky.2001) (“Taylor II”), the United States Supreme Court had decided Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999), in which a plurality of the Court held that Rule 804(b)(3) was not an available vehicle for admission of an out-of-court statement by a nontestifying codefendant that inculpated the defendant. However, we again upheld the admission of Wade’s statement because the relevant holding in Lilly, as a plurality decision, was not binding precedent, and because Wade’s statement also possessed “adequate indicia of reliability” demonstrated by “particularized guarantees of trustworthiness,” so that its admission was authorized by Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). Taylor II, 63 S.W.3d at 166-67.

Subsequent to our decision in Taylor II, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which not only reaffirmed the plurality opinion in Lilly, id. at 55, 124 S.Ct. at 1367 (“[Accomplices’ confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule.”) (quoting Lilly, 527 U.S. at 134,119 S.Ct. at 1899), this time in the context of a majority opinion, but also overruled Roberts, id. at 69, 124 S.Ct. at 1374, thus removing any remaining underpinning for the admission of such evidence in Taylor. In fact, the Court specifically identified Taylor II as an example of the type of error fostered by Roberts. Id. at 64, 124 S.Ct. at 1371.

We recently recognized the effect of Crawford on our Taylor decisions in Terry v. Commonwealth, 153 S.W.3d 794, 799-800 (Ky.2005). Presumably, that is why the majority of this Court feels compelled to attempt to defend our Taylor decisions on the “newly discovered” basis of “cumulative evidence” and “harmless error.” These issues were not raised in Taylor I or Taylor II and are not raised now. We need not defend our previous Taylor decisions. Both were supported by what appeared to be sound legal principles extant at the time they were decided. The United States Supreme Court subsequently decided otherwise — which is its prerogative when construing the Confrontation Clause of the Sixth Amendment of the United States Constitution. There is no good reason for us to sua sponte attempt to justify our prior decisions by conjuring and decid-mg new issues that are not before us. However, there is a very good reason not to do so. The position of a Court of Justice is that of neutral arbiter, not advocate. Our job is to apply sound legal principles to the facts and issues before us — not to advocate to the federal courts how they should decide an issue that is no longer before us.

Even if that were not so, Wade’s statement inculpating Appellant as the sodomizer and triggerman in this case was either admissible or not, and that decision will ultimately be decided by the federal courts on habeas corpus review. However, the admission of Wade’s statement was neither cumulative nor harmless. The only two people who know who actually committed the sodomy and murders are Appellant and Wade. In his statement to the police, Wade admitted to his participation in the kidnappings and thefts but claimed that he left the scene before Appellant committed the sodomy and murders, and that he heard the gunshots as he was leaving the scene. Appellant exercised his Fifth Amendment right not to testify in his own behalf. Thus, the only evidence of who was the actual sodomizer and triggerman was contained in Wade’s self-serving, out-of-court statement that cast the blame on Appellant.

“The relevant inquiry under the harmless error doctrine ‘is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’” Jarvis v. Commonwealth, 960 S.W.2d 466, 471 (Ky.1998) (emphasis added) (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963)). This same “harmless error” standard was reaffirmed as the basis for evaluating constitutional errors (such as this claimed Confrontation Clause violation) in Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967). “An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy, be conceived of as harmless.” Id. at 23-24, 87 S.Ct. at 828. Obviously, Wade’s out-of-court statement was neither cumulative nor harmless.

But we should not address this issue at all. Appellant filed his CR 60.02 motion seeking relief on the basis of newly discovered evidence and that is the only issue before us. Even though Crawford was decided prior to the filing of Appellant’s brief to this Court (and is cited on page 1 thereof), Appellant has not asked this Court to grant him relief from the judgment on the basis of “change of law.” Nor has the Commonwealth asked us to reaffirm the judgment on the basis of “cumulative evidence” or “harmless error.”

“Intervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6) [federal equivalent of CR 60.02(f) ]....” Agostini v. Felton, 521 U.S. 203, 239, 117 S.Ct. 1997, 2018, 138 L.Ed.2d 391 (1997). That is true even when the intervening change results from a decision of the United States Supreme Court that is directly on point. Consider:

In the previous appeal in this qui tarn action under the False Claims Act (FCA), Garibaldi I [United States ex rel. Garibaldi v. Orleans Parish School Bd., 244 F.3d 486 (5th Cir.2005)], we vacated the plaintiffs’ judgment on the verdict, and rendered judgment for the Orleans Parish School Board holding that the board was not a “person” subject to liability under the FCA. This court’s judgment in that case became final when the Supreme Court denied certiorari. Subsequently, the Supreme Court, in Cook County v. United States ex rel Chandler, [538 U.S. 119, 123 S.Ct. 1239, 155 L.Ed.2d 247 (2003) ] held that local governments are “persons” amenable to qui tam actions under the FCA. Following the Supreme Court’s decision in Chandler, the plaintiffs filed a motion in the district court for relief under Rule 60(b)(6) from this court’s final judgment in Garibaldi I. The district court concluded that Chandler had overruled Garibaldi I, granted plaintiffs’ motion, and re-entered its judgment on the verdict for the plaintiffs against the school board. The school board appealed. We reverse. In the absence of “extraordinary circumstances,” a change in controlling decisional law after the finality of a judgment does not warrant reopening the judgment under Rule 60(b)(6). The circumstances here are not “extraordinary” because this case in [sic] not materially distinguishable from the “ordinary” case in which a subsequent change in controlling law is not held to justify relief from a prior final judgment under Rule 60(b)(6).

United States ex rel. Garibaldi v. Orleans Parish Sch. Bd., 397 F.3d 334, 335-36 (5th Cir.2005) (internal footnotes omitted). See also Morris v. Horn, 187 F.3d 333, 341-42 (3rd Cir.1999). Admittedly, there are cases holding that a particular change in the law created an “exceptional circumstance” warranting Rule 60(b)(6) review. E.g., Marrero Pichardo v. Ashcroft, 374 F.3d 46, 56 (2nd Cir.2004) (change in deportation law). However, it is inappropriate for us to address whether Crawford requires a different result in this case when Appellant has not claimed that it does.

JOHNSTONE, J., joins this opinion.

KELLER, Justice,

dissenting.

I respectfully dissent, primarily for the reasons expressed in my dissent in Taylor’s second appeal of his conviction and death sentence. Though I do not wish to engage in an extended analysis again, I must point out that the trial court committed an error of constitutional magnitude when it allowed George Wade’s statement to be introduced into evidence. The Supreme Court of the United States recognized this error when it overruled Ohio v. Roberts and cited our opinion in Taylor’s second appeal as an example of “[t]he unpardonable vice of ... Roberts ... [i.e.,] its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude.” We also recognized this error when we noted that Crawford “remov[ed] any remaining underpinning for the admission of such evidence in Taylor.”

Given the magnitude of Wade’s testimony, which was the only evidence that identified Taylor as the shooter in these murders, it is inconceivable that we could label its introduction as harmless error. By refusing to reverse Taylor’s conviction a third time, however, we are simply allowing this blatant error to stand, perhaps in the hope that the federal courts will address the issue. While I have no doubt that they will, and that they should, we do not need to wait for the federal courts to provide maid service to clean up the mess created by our flawed evidentiary ruling, especially when this case is already over fifteen years stale. We perform an additional disservice to both the Commonwealth and Appellant by adding further to the staleness and possible loss of the evidence when we once again ignore the law and fail to reverse and remand for a new trial at this time.

      . Taylor’s two death sentences for the kidnapping convictions were reversed on direct appeal in Taylor v. Commonwealth, 821 S.W.2d 72, 77 (Ky.1990).

      . Taylor, 821 S.W.2d 72.

      . E.g., Averitte v. Hutchinson, 420 S.W.2d 581, 582 (Ky.1967).

      . 488 S.W.2d 338 (Ky.1972).

      . Id. at 339.

      . Id.

      . 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      . Id. at 1365.

      . Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

      . KRE 801A(a)(l) allows a statement into evidence that would otherwise be excluded by the hearsay rule because the previous statement is inconsistent with the declarant’s testimony at a trial or hearing in which the defendant has the opportunity to question the witness against him.

      . 311 Ky. 676, 680, 225 S.W.2d 109, 112 (1949).

      . Hicks v. Commonwealth, 670 S.W.2d 837, 839 (Ky.1984).

      . Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky.2003) citing McDonough Power Equip. Co. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984).

      . KRS 422.285.

      . See generally Heidi C. Schmitt, Post-Conviction Remedies Involving the Use of DNA Evidence to Exonerate Wrongfully Convicted Prisoners: Various Approaches Under Federal and State Law, 70 UMKC L.Rev. 1001 (2002).

      . Nat’l Comm’n on the Future of DNA Evidence, U.S. Dep’t of Justice, Pub. No. 177626, Post-conviction DNA Testing: Recommendations for Handling Requests 21 (1999).

      . Supra n. 14.

      . 905 S.W.2d 504 (Ky.1995).

      . 734 S.W.2d 794 (Ky. 1987).

      . Id. at 796.

      . Section 116 of the Kentucky Constitution states that "[t]he Supreme Court shall have the power to prescribe ... rules of practice and procedure for the Court of Justice.”

      . Section 28 of the Kentucky Constitution states that "[n]o person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”

      . In Commonwealth v. Reneer we stated that although the truth in sentencing statute violates constitutional separation-of-powers provision, it would not be held unconstitutional and would be accepted for time being under principle of comity. 734 S.W.2d at 797. In Foster v. Overstreet we held a statute providing review of trial judge's impartiality by Chief Justice unconstitutional, but nevertheless upheld its provisions under principles of comity. 905 S.W.2d at 506.

      . See Key v. Commonwealth, 6 Ky. (3 Bibb) 495 (1814) (discussing "comity among nations”) and Williams v. Jones, 77 Ky. (14 Bush) 418 (1878) (dealing with comity between states).

      . 892 S.W.2d 571, 577 (1995) (citing Black’s Law Dictionary 242 (5th ed.1979)).

      . Drumm v. Commonwealth, 783 S.W.2d 380, 382 (Ky.1990).

      . Reneer, 734 S.W.2d at 797.

      . E.g., O’Bryan v. Commonwealth, 634 S.W.2d 153, 158 (Ky.1982).

      . See Taylor v. Commonwealth, 63 S.W.3d 151, 168 (Ky.2001) (Keller, J., dissenting).

      . 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

      . Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); see also Terry v. Commonwealth, 153 S.W.3d 794, 800 (Ky.2005) (“The [United States Supreme] Court specifically identified Taylor II as an example of the type of error attributable to Roberts.”).

        .Terry, 153 S.W.3d at 800; Bowling v. Commonwealth, 168 S.W.3d 2 (Ky.2004) (recognizing that Crawford abrogated our decision in Taylor v. Commonwealth, 63 S.W.3d 151 (Ky.2001) as to this issue).


author: Justice GRAVES.

text:
    BRASCH-BARRY GENERAL CONTRACTORS Appellant, v. Jeff JONES; Hon. Bonnie Kittinger, ALJ; and Workers’ Compensation Board Appellees.
    No. 2004-SC-1126-WC.
    Supreme Court of Kentucky.
    Oct. 20, 2005.
    Walter E. Harding, Louisville, for Appellant.
    W. Kenneth Nevitt, Nevitt Law Office, Counsel for Appellee-Employee, Jeff Jones, Louisville, Bonnie C. Kittinger, William P. Emrick, Executive Director, Office of Workers’ Claims, Frankfort, for Appel-lees.
   Opinion of the Court by

Justice GRAVES.

Appellant, Brasch-Barry General Contractors, appeals from an order of the Court of Appeals which reverses a decision of the Workers’ Compensation Board (“the Board”). The Court of Appeals found that Appellant did not properly preserve its claim of error for appeal. On direct appeal to this Court, we reverse the Court of Appeals and remand the case for consideration on its merits.

On April 14, 2000, Jeff Jones suffered a back injury in the course of his employment with Appellant. Soon thereafter, Jones sought medical attention and filed for workers’ compensation benefits. During a hearing to determine the extent of these benefits, medical evidence was introduced before Bonnie Kittinger, an administrative law judge (“ALJ”). The medical evidence consisted of testimony and/or reports from three doctors regarding the extent of Jones’ workplace injury. Two of the doctors determined that Jones’ condition qualified as a “DRE lumbar Category III” disability under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition (“AMA Guides”). As a “Category III” disability, Jones’ impairment rating could range between ten and sixteen percent (10-16%). These doctors assessed Jones at ten percent (10%) permanent impairment. One of the doctors, Dr. Gary Rea-sor, determined that Jones’ condition qualified as a “DRE lumbar Category IV” disability under the AMA Guides. A “Category IV” disability would allow an impairment rating for Jones between twenty and twenty-six percent (20-26%). Dr. Reasor assessed Jones at twenty-six percent (26%) permanent impairment.

During cross-examination, Dr. Reasor conceded that Jones did not meet the textbook definition for a “Category IV” disability under the AMA Guides, but rather, his condition fell within the parameters of a “Category III” disability. However, Dr. Reasor maintained his conclusion of twenty-six percent (26%) total impairment for Jones, explaining that the category definitions in the AMA Guides are meant to be used solely as the name of the text implies, as a guide. He further surmised that the category definitions were perhaps flawed or incomplete in this instance. From this testimony, the ALJ made the following finding:

Despite persistent and skillful cross-examination by the Defendant, Dr. Reasor steadfastly maintained that Plaintiffs permanent impairment was 26%. He insisted that the AMA Guides are only that, guidelines, not final authority. The ALJ, as a finder of facts, must depend on interpretation of the Guides by a medical professional. Based on Dr. Reasor’s medical reports and deposition testimony, Plaintiff is found to have a 26% permanent impairment as the result of his work injury on April 14, 2000.

Without filing a petition for rehearing, Appellant appealed directly to the Board pursuant to KRS 342.285. The Board ruled that in order to comply with KRS 342.730(l)(b), impairment ratings must be determined in accordance with the category definitions contained in the AMA Guides. Since Dr. Reasor failed to base his impairment rating on the category definitions contained in the AMA Guides, the Board held that his finding of twenty-six percent (26%) permanent impairment was not, as a matter of statutory law, supported by substantial evidence. Based on this analysis, the ALJ’s finding of twenty-six percent (26%) impairment was reversed and the ease was remanded back to the ALJ for a determination which was consistent with the Board’s opinion.

Pursuant to KRS 342.290, Jones appealed the Board’s decision to the Court of Appeals. Finding “the issue on appeal in this case [to be] of a completely factual nature,” the Court of Appeals reversed the Board’s decision because it determined that the issue was ultimately unpreserved for review. It ruled that pursuant to Eaton Axle Corporation v. Nally, 688 S.W.2d 334 (Ky.1985), the Board could not address the issue unless Appellant timely filed á petition for reconsideration in accordance ■with KRS 342.281. Because we find the Board’s ruling to pertain to a question of law and not fact, we reverse the Court of Appeals’ decision and remand for further proceedings.

The statute which directs the procedure for review in this case is KRS 342.285. KRS 342.285 grants parties the right to appeal ALJ decisions directly to the Workers’ Compensation Board under the following conditions:

An award or order of the administrative law judge as provided in KRS 342.275, if petition for reconsideration is not filed as provided for in KRS 342.281, shall be conclusive and binding as to all questions of fact, but either party may in accordance with administrative regulations promulgated by the commissioner appeal to the Workers’ Compensation Board for the review of the order or award.

Id. (emphasis added). KRS 342.285 goes on to define the Board’s duties on review, which have been summarized by this Court as follows:

No new evidence may be introduced before the Board and the Board may not substitute its judgment for that of the ALJ concerning the weight of evidence on questions of fact. The scope of review of the Board is limited to determining whether the ALJ’s decision was: authorized, not procured by fraud, in conformity with Chapter 342, supported by the evidence, and not arbitrary or capricious.

Smith v. Dixie Fuel Company, 900 S.W.2d 609, 612 (Ky.1995) (emphasis added).

Pursuant to our interpretation of KRS 342.285 and the plain language contained therein, issues regarding questions of law need not be preserved pursuant to a petition for reconsideration, but rather, may be appealed directly to the Board. The decision in Eaton Axle, supra, is completely consistent with the review procedures set forth in KRS 342.285 since it merely requires that a petition for reconsideration be filed in accordance with KRS 342.281 whenever the complaining party wishes to preserve a question of fact for appellate review. Id. at 338 (“The purpose of this rule is to require that all justiciable issues are disposed of before the appellate process begins.”)

In this case, the Court of Appeals classified the Board’s ruling as being “of a completely factual nature.” However, in Whittaker v. Reeder, 30 S.W.3d 138 (Ky. 2000), we reiterated that it is the Board’s province on appeal to ensure that ALJ decisions are in conformity with Chapter 342 (the Workers’ Compensation Act) and that such determinations constitute questions of law, and not fact. Id. at 144. The Board’s decision squarely and appropriately construed the intent of KRS 342.730 and was not based on any factual considerations (such as credibility or weight to be attributed to the evidence) determined by the ALJ. Accordingly, the issue was one of law and did not require Appellant to first file a petition for reconsideration pursuant to KRS 342.281 in order to preserve it for review before the Board. Since the issue was appropriately preserved, the Board did not err in addressing its merit.

The decision of the Court of Appeals is reversed; and the case is remanded for consideration on its merits.

All concur.

WINTERSHEIMER, J., concurs in result only.