text:
    FORD MOTOR COMPANY, Appellant, v. Hanan BUTNARU, Gil Butnaru, and Motor Vehicle Board of the Texas Department of Transportation, Appellees.
    No. 03-04-00084-CV.
    Court of Appeals of Texas, Austin.
    Jan. 21, 2005.

      Billy M. Donley, Glen Shu, Baker & Hostetler, L.L.P., Houston, for appellant.
    Douglas Fraser, Assistant Attorney General, Natural Resources Division, Austin, for appellee Motor Vehicle Board.
    Daniel O. Kustoff, Sylvan S. Lang, Melanie H. Phipps, Lang & Kustoff, L.L.P., San Antonio, for appellees Hanan and Gil Butnaru.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
   OPINION

BOB PEMBERTON, Justice.

In this case, we must consider the effect of the Texas Supreme Court’s opinion in Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex.2002) (“Butnaru”), on related proceedings in the Motor Vehicle Board of the Texas Department of Transportation that predate the opinion. The Board dismissed with prejudice the Butnarus’ complaints against Ford concerning possible violations of the motor vehicle commission code. The Butnarus appealed to Travis County district court. While the appeal was pending, the supreme court issued Butnaru. Thereafter, in the administrative appeal, the district court relied on Butnaru and remanded the Butnarus’ complaints for further proceedings before the Board.

Ford appeals the district court’s order in six issues, arguing that the court erred in remanding issues to the Board because primary jurisdiction does not mandate any Board action and that the order is over-broad and intrudes upon matters within the Board’s discretion. We will affirm the Travis County district court’s order remanding the Butnaru, issues to the Board under the Board’s primary jurisdiction. However, we agree with Ford that the district court’s order is overbroad in some respects and modify it accordingly. We affirm the order as modified.

BACKGROUND

The facts underlying this case are not in dispute and have been described in detail in Butnaru, 84 S.W.3d 198, 201-03.

The dealership agreement

Martin Graf is the sole shareholder of Graf Ford, Lincoln, Mercury, Inc., a car dealership in Del Rio, Texas. Grafs dealership agreement with Ford provided that Ford had a “right of first refusal” to purchase the dealership if Graf Ford proposed to sell the dealership to a third party. According to that agreement, Ford had the right to purchase the dealership on the same terms and conditions that Graf Ford had negotiated with the proposed buyer, “regardless of whether the proposed buyer is qualified to be a dealer.”

In 1999, the Butnarus entered into a written agreement with Graf to buy Graf Ford. Separately, the Butnarus entered into an agreement to buy the real property, owned by Graf and J.M. Barton, upon which the dealership was located. Graf told the Butnarus about Ford’s right of first refusal, and both agreements were “expressly conditioned upon approval by Ford of Hanan Butnaru as a[sic] authorized sales and service dealer” and warranted that neither agreement conflicted with any prior agreement to which Graf or Barton were parties.

In September 1999, Graf informed Ford that he intended to sell the dealership to the Butnarus. See Tex. Occ.Code Ann. § 2301.359 (West 2004). The Butnarus then filed a Prospective Dealer Application with Ford, seeking approval as an authorized dealer. A month later, Ford informed Graf that it intended to exercise its right of first refusal and offered to pay the Butnarus’ reasonable expenses incurred in negotiating the purchase and sale agreements. On the same day, Ford assigned its right of first refusal to an existing Ford dealer, Clarence Kahlig. Ford and Graf agreed that Ford would indemnify Graf against damages arising from Ford’s exercising its right of first refusal and that Graf would cooperate with Ford in defending any action arising from its exercise of the right.

The Val Verde County lawsuit

The Butnarus sued Graf, Graf Ford, and Barton in Val Verde County district court for breach of the agreements. They also sued Ford for tortiously interfering with the agreements, alleging that Ford’s right of first refusal violates a motor vehicle commission code provision that prohibits a manufacturer from denying or preventing a dealership transfer to a qualified applicant. See id. § 2301.476. Thus, the Butna-rus sought a declaration that Ford’s right of first refusal was unenforceable and a declaration regarding the parties’ rights and obligations under the agreements. Finally, the Butnarus requested a temporary injunction to prevent Ford or its assignees from exercising its right of first refusal during the pendency of the suit. Ford opposed this request and filed a plea to the jurisdiction. Ford argued that the Motor Vehicle Board has exclusive jurisdiction to determine whether a manufacturer has violated the code’s provisions. The Val Verde district court denied Ford’s plea and granted the injunction.

Ford sought interlocutory review of the trial court’s temporary injunction with the San Antonio court of appeals. See Ford Motor Co. v. Butnaru, 18 S.W.3d 762, 762 (Tex.App.-San Antonio 2000) (“Ford Motor Co.”). That court dissolved the temporary injunction and also found that the Board had exclusive jurisdiction to decide issues based on possible violations of the Code. See id. at 769-70. The Butnarus then appealed to the supreme court. See Tex. Gov’t Code Ann. § 22.225(b)(4), (c) (West 2004); see also Butnaru v. Ford Motor Co., 84 S.W.3d at 202.

These proceedings initiated

On June 6, 2000, after having filed their petition for review with the supreme court, but before the supreme court announced its decision, the Butnarus filed a complaint with the Board against Ford; Graf; the Graf Ford dealership; Kahlig; and Del Rio Ford, Lincoln, Mercury, Ltd., a partnership formed by Kahlig to purchase Graf Ford. In their complaint, the Butnarus alleged that Ford’s exercise of the right of first refusal and Ford’s indemnity agreement with Graf and Graf Ford violated the Code. They also challenged Ford’s denial of the dealership transfer to them. In response, Ford filed a plea to the jurisdiction arguing that the Butnarus lacked standing to file a complaint before the Board. On November 16, the Board granted the plea and dismissed the Butna-rus’ complaint with prejudice.

The Texas Supreme Court’s decision in the Val Verde County case

On June 27, 2002, the supreme court decided that the Board had primary, rather than exclusive, jurisdiction to decide code-based issues on the Butnarus’ tor-tious interference and declaratory-judgment claims in Val Verde County. Butnaru, 84 S.W.3d at 208; see also Tex. Occ.Code Ann. § 2301.476. The application of the primary-jurisdiction doctrine thus required the trial court in Val Verde County to abate its proceedings to allow the Board “a reasonable opportunity” to determine whether a contractual right of first refusal violates the code’s prohibition on manufacturer ownership of dealerships. Id. at 208-09.

These proceedings continue

On March 21, 2001, while the appeal of the Val Verde County litigation was pending in the supreme court, the Butnarus filed a petition for judicial review of the Board’s order. Following the supreme court’s opinion, on October 17, 2003, the district court in Travis County heard arguments on the still-pending appeal of the Board’s order. On January 9, 2004, the district court affirmed the Board’s decision that the Butnarus lacked standing to prosecute a protest under section 2301.476. But, in the third and fourth paragraphs of the order, the court also stated

that the [Board’s] Final Order is reversed and remanded for further proceedings on issues raised by [the Butnarus] in their Original Complaint [before the Board] arising under [Tex. Occ.Code Ann. §§ 2301.001, .003, .203, .351, and .458], which issues were not addressed by the Board, which issues [the Butna-rus] have standing to raise and obtain a decision from the Board on these code construction issues and any further issues raised pursuant to the Supreme Court’s holdings in Butnaru v. Ford, 84 S.W.3d [198] (Tex.2002).
It is further ordered, adjudged and decreed that to the extent necessary to implement the terms of this Order and the Texas Supreme Court’s holdings in Butnaru v. Ford, the Board is ordered to conduct such investigation and hold such proceedings as necessary, in aceor-dance with [Tex. Oce.Code Ann. § 2301.203], in order to specifically respond to the code construction issues raised in this Order.

This appeal followed.

DISCUSSION

In six issues on appeal, Ford argues that the district court erred in remanding the Butnarus’ complaint to the Board. Ford’s issues can be classified into two categories. First, Ford contends that, notwithstanding Butnaru’s references to allowing the Board a “reasonable opportunity” to act, see 84 S.W.3d at 208-09, 212, there is in essence nothing remaining for the Board to do with regard to the Butnarus’ code-based complaints because the Butnarus lack standing to pursue any of them. Instead, Ford urges, the district court should simply have affirmed the Board’s order dismissing the Butnarus’ claims. Second, Ford complains more specifically that the district court exceeded its authority to the extent it ordered the Board to investigate alleged code violations or purported to hold that the Butnarus had standing to pursue specific code-based claims before the Board. Neither the Board nor the Butnarus have challenged any aspects of the district court’s order.

Standards of review

Because the Board is a quasi-judicial body, we review determinations regarding standing before the Board by the same standard of review by which we review the issue of standing in a trial court. See Tex. Occ.Code Ann. § 2301.751 (West 2004); Board of Adjustment of City of Corpus Christi v. Flores, 860 S.W.2d 622, 625 (Tex.App.-Corpus Christi, 1993, writ denied). Standing is a component of subject-matter jurisdiction, and so we review the issue of standing de novo. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); see Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

Ford characterizes the standing issues in this case as turning on statutory construction. Statutory construction is a question of law, which we also review de novo. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989). The primary rule of statutory interpretation is to discern the intent of the legislature and construe the statute to give effect to that intent. National Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000); Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994). Texas courts are to consider, among other factors, the language of the statute, legislative history, the nature and object to be obtained, and the consequences that would follow from alternative constructions, even when a statute is not ambiguous on its face. Tex. Gov’t Code Ann. § 311.023 (West 1998); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001); Union Bankers Ins. Co., 889 S.W.2d at 280.

The Texas Supreme Court’s opinion

Because the supreme court’s opinion in Butnaru is central to our disposition of this appeal, we start by briefly summarizing its holdings. In Butnaru, the supreme court decided that the Butnarus’ tortious-interference and declaratory-judgment claims raise motor vehicle commission code construction claims that fall outside the Board’s exclusive jurisdiction. Butnaru, 84 S.W.3d at 207. Nothing in the motor vehicle commission code indicates that the legislature intended to replace prospective transferees’ common-law remedies in the code. Id. at 208. Thus, the Butnarus, as prospective transferees, do not need to exhaust administrative remedies before bringing suit in court. Id.

However, the supreme court also determined that the Butnarus’ claims raise issues within the Board’s special competence and expertise. Id. In particular, the legislature authorized the Board to resolve disputes between a manufacturer and a dealer when a dealer alleges that a manufacturer unreasonably withheld consent to transfer a dealership. Id.; see also Tex.Occ.Code Ann. § 2301.360. Although the code does not establish any procedure for resolving the claim of a prospective transferee under the same scenario, the State has an interest in the uniform interpretation of the code provision concerning dealership transfers. Butnaru, 84 S.W.3d at 208-09. Thus, the Board has primary, rather than exclusive, jurisdiction. Id. Accordingly, the supreme court ordered that “the trial court should abate the claims pending the Board having an opportunity to exercise its primary jurisdiction to determine, at least in the first instance, whether a right of first refusal violates the Code.” Id. at 209. In other words, “the primary jurisdiction doctrine requires the trial court to abate the claims pending the Board having a reasonable opportunity to determine whether a right of first refusal violates the Code.” Id.

Need for remand

In light of the supreme court’s opinion in Butnaru, we must reject Ford’s arguments that the Travis County district court erred in remanding the case to the Board. Ford suggests that the Board somehow has already had the “reasonable opportunity” to act on the Butnarus’ claims that the supreme court envisioned. It clearly has not. The Board dismissed with prejudice the Butnarus’ complaint on November 16, 2000, relying on the sole ground that the Butnarus lack standing to file a protest with the Board. Nineteen months later, the supreme court issued its opinion describing the Board’s primary jurisdiction to decide the issues in this case and ordered the Val Verde district court to abate its proceedings on the merits until the Board had “a reasonable opportunity” to determine the code-based issues. Id. The Board has not yet had an opportunity to consider the Butnaru directives in the aftermath of the supreme court’s opinion. We believe that it must be given that opportunity if we are to be faithful to the supreme court’s directive.

The Board’s final order dismissing the Butnarus’ claims is binding until a court sets it aside. Vestal v. Texas Employers’ Ins. Ass’n, 285 S.W. 1041, 1044 (Tex.1926) (agency functions are quasi-judicial; orders are given force of finality and cannot be collaterally attacked); Whitmarsh v. Buckley, 324 S.W.2d 298, 802 (Tex.Civ.App.-Houston 1959, no writ). Because the Board issued its order without the benefit of the supreme court’s eventual guidance on the very matters before it, it must now have a “reasonable opportunity” to pass upon these matters. See Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex.2002); Butnaru, 84 S.W.3d at 208-09; Gregg v. Delhi-Taylor Oil Corp., 162 Tex. 26, 344 S.W.2d 411, 413 (1961); see also J. Bruce Bennett, Primary Jurisdiction in Texas: Has the Texas Supreme Court Clarified or Confused It?, 5 Tex. Tech. J. Tex. Admin. L. 177,180 (2004). The Board cannot exercise its primary jurisdiction as directed to by the supreme court until a court reverses its order and remands the case. After the Board either has acted or has had “a reasonable opportunity” to act, the district court in Val Verde County can then proceed on the merits of the Butnarus’ cause of action.

Ford suggests that there would be nothing remaining for the Board to do on remand because, as a matter of law, the Butnarus lack standing to assert their remaining claims before the Board. In essence, Ford believes that the Butnarus’ claims are merely derivative of their protest under section 2301.359. Moreover, seeking to refute an alternative potential basis for jurisdiction, Ford asserted during oral argument that the Butnarus’ claims cannot be characterized as a complaint seeking to invoke the Board’s enforcement powers because the Butnarus did not utilize a complaint form the Board purportedly provides. See Tex. Occ.Code Ann. §§ 2301.151, .153, .202, .203; Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Comm’n of the Tex. Dep’t of Transp., 156 S.W.3d 91, 101 (Tex.App.-Austin 2004, no pet. h.). Exactly what type of procedure the Texas Supreme Court contemplated in Butnaru and Subaru — and whether it is a procedure distinct from the protest and enforcement procedures already provided under the code — remains somewhat unclear. See Bennett, supra, at 180, 184-85. Although the supreme court has decided that the board must have a “reasonable opportunity” to exercise its primary jurisdiction on the matter even though it is powerless to grant the relief sought, see Bennett, supra, at 180, it has not clarified what procedures the Board may use to exercise such jurisdiction. But the supreme court’s directive is clear that resolution of these issues must begin in the Board. Butnaru, 84 S.W.3d at 208-09, 212.

We accordingly hold that the Travis County district court properly reversed the Board’s order and remanded for the Board to have an opportunity to act in light of Butnaru. We overrule Ford’s issues asserting that the Travis County district court erred in reversing the Board’s order and remanding for further proceedings.

Action required of the Board

On the other hand, we agree with Ford that certain aspects of the Travis County district court’s order exceeded its authority and infringed upon the Board’s primary jurisdiction.

First, Ford argues that the Travis County district court erred in requiring the Board to conduct an investigation of the Butnarus’ complaint because the proper exercise of primary jurisdiction, as described in Butnaru, is discretionary rather than mandatory. We agree.

The primary jurisdiction doctrine operates to allocate power between courts and agencies when both have authority to make initial determinations in a dispute. Subaru of Am., 84 S.W.3d at 221. In such cases, the agency must have “a reasonable opportunity” to determine, “at least in the first instance,” code-based issues. Butnaru, 84 S.W.3d at 209. A court retains authority to also decide the issue and may do so after the time period for the agency’s “reasonable opportunity” passed without agency action on the matter. See Subaru of Am., 84 S.W.3d at 221; Butnaru, 84 S.W.3d at 209. The agency is not mandated to act; rather, trial courts must abate only to afford the agency a “reasonable opportunity” to act. See Subaru of Am., 84 S.W.3d at 220-21; Butnaru, 84 S.W.3d at 207-09.

The Travis County district court’s order in this case, however, purports to require the Board to act — “the Board is ordered to conduct such investigation.” This language does not comport with the supreme court’s directives in Butnaru. We sustain Ford’s argument that the error requires a modification of the Board’s order, and we substitute the phrase “is ordered to conduct such investigation and” with the word “may” so that the order reads, in relevant part:

the Board may hold such proceedings as necessary, in accordance with [Tex. Occ. Code Ann. § 2301.203], in order to specifically respond to the code construction issues raised in this Order.

Next, Ford argues that the order of the Travis County district court erroneously purports to give the Butnarus standing to pursue claims under sections 2301.001, 2301.003, 2301.203, 2301.351, and 2301.458 of the occupations code. We agree.

In a suit for judicial review of an agency action, the reviewing court is empowered to issue only a general remand when it finds error that prejudices an appellant’s substantial rights. See Tex. Gov’t Code Ann. § 2001.174 (West 2000); BFI Waste Sys. of N. Am., Inc. v. Martinez Envtl. Group, 93 S.W.3d 570, 579 n. 9 (Tex.App.-Austin 2002, pet. denied). Although courts have authority to hold that an agency erred and must correct its error, courts cannot dictate how to correct the error if, by doing so, the court effectively usurps the authority and discretion delegated to the agency by the legislature. Texas Dep’t of Transp. v. T. Brown Constructors, Inc., 947 S.W.2d 655, 659 (Tex.App.-Austin 1997, pet. denied).

The Board ought to be afforded the opportunity to consider questions of procedure and rights under the Butnaru opinion before a district court reviews those same issues. See Gregg, 344 S.W.2d at 413. However, the Board has not yet had the opportunity to implement the Butnaru ruling because the Board issued its order in this ease before the supreme court issued its opinion. The district court therefore erred by specifying the code provisions the Board ought to address or under which provisions the Butnarus might have standing on remand. We therefore sustain Ford’s arguments that the Travis County district court erred in purporting to grant the Butnarus standing before the Board and in delineating code provisions for review; we modify the district court’s order to remove such language.

CONCLUSION

In light of the supreme court’s opinion in Butnaru and the Motor Vehicle Board’s previous order dismissing the Butnarus’ claims with prejudice, we affirm the order of the district court remanding the Board’s order for further proceedings. However, we sustain Ford’s assertions that the supreme court did not require the Board to act on the Butnarus’ complaints. We also sustain Ford’s complaint that the Travis County district court erred in including language in its order purporting to grant the Butnarus standing before the Board and delineating code provisions for review. Therefore, we modify the Travis County district court’s order so that the third and fourth paragraphs read as follows:

It is ordered, adjudged and decreed that the Board’s Final Order is reversed and remanded for further proceedings on issues raised by the Butnarus in their Original Complaint which were not addressed by the Board and any further issues raised pursuant to the Supreme Court’s holdings in Butnaru v. Ford, 84 S.W.3d 198 (Tex.2002).
It is further ordered, adjudged and decreed that to the extent necessary to implement the terms of this Order and the Texas Supreme Court’s holdings in Butnaru v. Ford, the Board may hold such proceedings as necessary in order to specifically respond to the code construction issues raised in this Order.

We affirm the district court’s order as modified.

      . Before June 1, 2003, the relevant statutory provisions were contained in article 4413(36) of the revised civil statutes and were titled the "Texas Motor Vehicle Commission Code.” See former Tex.Rev.Stat. Ann. art. 4413(36) (West 1976). In their briefs, the parties cite to the former versions of the provisions. The legislature intended no substantive changes during the codification process, and the parties do not suggest that any changes relevant to our analysis occurred, so we will cite the codified versions for convenience. See Act of May 22, 2001, 77th Leg., R.S., ch. 1421, §§ 5, 13-14, 2001 Tex. Gen. Laws 4570, 4920-5006, 5020.

      . Ford revoked the exercise of its right of first refusal on March 14, 2002. It then gave the Butnarus applications to begin the process for the purchase of the dealership. On May 16, the district court in Val Verde dissolved the temporary injunction on Ford’s motion, on the condition that all parties agree that the Butnarus could purchase the dealership and that the Butnarus release Ford, Graf, and Kahlig from all claims. No party claims that the revocation renders this case moot, and it does not appear to do so with regard to the Butnarus’ damages claims.

      . The supreme court issued an initial opinion on June 7, 2001. See Butnaru v. Ford Motor Co., 44 Tex. Sup.Ct. J. 808, 2001 WL 618149, 2001 Tex. LEXIS 50 (Tex. June 7, 2001). In that opinion, the supreme court reversed the opinion of the San Antonio Court of Appeals and remanded the case to the trial court for further proceedings on the tortious-interference and declaratory-judgment actions. Because of statutory changes that went into effect before the supreme court issued that opinion, but about which the court was unaware, it withdrew its initial opinion on Ford's motion for rehearing and substituted a new opinion on June 27, 2002, describing the Board’s primary jurisdiction in this case. See generally Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex.2002).

      .The supreme court also reversed the order of the court of appeals dissolving the temporary injunction. Butnaru, 84 S.W.3d at 211-12.

      . The Travis County district court first issued an order on October 28, 2003. On motion for new trial, it amended that order on January 9, 2004. This appeal arises from the amended order.

      . In its order, the trial court cited the former versions of these provisions. Section 2301.001 is the general purpose and construction section of the motor vehicle commission code. Section 2301.003 mandates that franchises are subject to the code and the code’s terms may not waived. Section 2301.203 describes the Board's enforcement powers. Section 2301.351 generally prohibits dealerships from certain activities. Finally, section 2301.458 prohibits manufacturers from preventing the sale of dealerships.

      .Ford argues its six issues concurrently in its brief, and its arguments overlap multiple issues.

      . In contrast, the code provides a procedure for adjudicating the claims of a current dealer. See Tex. Occ.Code Ann. § 2301.360.

      . The Butnarus styled their filing a "complaint” but did not cite any particular code provision establishing the Board’s jurisdiction to consider the questions presented.


source: Caselaw Access Project

author: JOHNSTONE, Justice,

license: Public Domain

text:
    Larry RAMSEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2002-SC-0842-MR.
    Supreme Court of Kentucky.
    Jan. 20, 2005.

      John Palombi, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, Connie Vance Malone, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Perry T. Ryan, Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   OPINION OF THE COURT

A Pulaski Circuit Court jury convicted Larry Ramsey of first-degree wanton endangerment, DUI (4th offense), and driving with a suspended license (3rd offense). He was also found guilty of being a first-degree persistent felony offender. He was sentenced to ten years’ imprisonment on each of the counts, with two of the sentences to run consecutively, for a total of twenty years’ imprisonment. He therefore appeals as a matter of right, arguing that (1) the evidence was insufficient to support the conviction of first-degree wanton endangerment; and (2) the trial court erred in admitting evidence of “prior bad acts.” We affirm Appellant’s convictions in full.

FACTS

We begin with a brief description of the events that led to Appellant’s convictions. On the evening of January 15, 2001, Appellant was embroiled in a heated argument with his girlfriend, Tammy Sullivan. He eventually left in his pickup truck with their ten-year-old son, Larry Lee Sullivan, as a passenger. Ms. Sullivan went to a nearby store to call the police. She told the police that Appellant had been drinking that day and was out driving with their son. Sergeant Cross of the Pulaski County Sheriffs Department responded to the call and began searching for Appellant’s truck. At a four-way intersection, he observed a pickup truck that matched Ms. Sullivan’s description. The vehicle stopped at the stop sign and then suddenly took off at a high rate of speed. As Sergeant Cross attempted to catch up with it, the truck slowed down, turned its headlights off and eventually stopped on the side of the road near a fence. Both Appellant and his son were in the truck.

After being pulled over, Appellant explained that he had been arguing with Ms. Sullivan and that he “was trying to get away from her for a while.” When asked whether he had been drinking, Appellant indicated that he had drunk some beer earlier in the day. Some beer cans were found on the floor of the vehicle. Sergeant Cross also testified that Appellant appeared drunk, smelled of alcohol, had bloodshot eyes and his speech was slurred. Appellant was placed under arrest.

ANALYSIS

I. First-Degree Wanton Endangerment

Appellant first claims that he was entitled to a directed verdict as to the wanton endangerment charge, alleging that the evidence was insufficient to support the jury’s verdict. This issue is preserved by his trial counsel’s motion for a directed verdict at the close of the Commonwealth’s case in chief and again at the end of the defense case. In Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991), this Court states the rule as follows:

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.

On appellate review of the denial of a directed verdict, the test is whether, “under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.” Commonwealth v. Sawhill, Ky., 660 S.W.2d 3, 4-5 (1983) (quoting Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977)).

This appeal requires us to examine whether the jury, based on the evidence presented in the case, could reasonably believe beyond a reasonable doubt that Appellant is guilty of first-degree wanton endangerment, as defined by KRS § 508.060. “A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.” KRS 508.060(1). After carefully examining the evidence in this case, we find ample evidence to support the jury verdict.

A. Wanton Conduct

A person acts wantonly “when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists.” KRS 501.020(3). And a person who creates such a substantial and unjustifiable risk but “is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.” Id.

As discussed hereafter, drunk driving with a ten-year-old child as a passenger, under the particular circumstances in the present case, creates a substantial and unjustifiable risk to that child. Thus, in so doing, Appellant’s behavior falls within the meaning of wanton conduct as framed in the statute.

B. Substantial and Unjustifiable Danger

“Drunk driving is a reckless act that often results in injury, and the risks of driving while intoxicated are well-known.” United States v. Rutherford, 54 F.3d 370, 376 (7th Cir.1995). In 2002, alcohol-related crashes accounted for 17,419 traffic fatalities on our nation’s highways, an average of one alcohol-related fatality every 30 minutes. U.S. Department of Transportation, National Highway Traffic Safety Administration, Traffic Safety Facts 2002, http://www-nrd.nhtsa.dot.gov /pdf/nrd-30/NCSA/TSF2002/2002alcfacts.pdf. Additionally, in 2002, “one alcohol-related injury [occurred] approximately every two minutes.” Id. In Kentucky, thirty-three (33%) percent of the 915 traffic fatalities in 2002 involved alcohol. Id. at 8, table 6. It should also be noted that an estimated 35% of all convicted jail inmates reported that they had used alcohol at the time of the offense in 2002. U.S. Department of Justice, Profile of Jail Inmates, 2002, http://www.ojp.us-doj.gov/bjs/pub/pdf/pji02.pdf (2002).

In this case, Appellant substantially endangered his son by driving under the influence. Alcohol apparently and adversely impacted his ability to operate the vehicle. He was driving in an irregular and unreasonable manner: he suddenly started the truck at a higher than normal speed; he even turned off the headlights before pulling it over. The risk of endangering his ten-year-old son is far more than speculative or minimal. Thus, considering the totality of the evidence and the surrounding circumstances of this case, we safely conclude that Appellant’s ongoing intoxication created a situation which put his minor child at substantial risk of suffering serious physical harm or death.

C. Extreme Indifference to Human Life

The key issue in the present case, as conceded by Appellant, is whether Appellant’s wanton conduct manifests “extreme indifference to human life.” This is a question to be decided by the trier of fact. Brown v. Commonwealth, Ky., 975 S.W.2d 922, 924 (1998). If the jury determines that, under the given circumstances, a defendant’s conduct rises to the level of aggravated wantonness, then the jury could find “extreme indifference to human life” as required by the statute. Id. at 925.

Appellant contends that his one careless act — taking control of a vehicle while intoxicated — was not manifestly extremely dangerous compared to the acts of reckless driving that would typically lead to convictions of wanton endangerment. In other words, he asserts that first-degree wanton endangerment cannot be proved solely by the fact of drunk driving, absent of evidence indicating much more dangerous physical driving. This argument must fail because: (1) by so arguing, Appellant turned a blind eye to his other dangerous driving behavior, as we will discuss shortly hereinafter; (2) this Court, in Walden and Estep, clearly stated that intoxication alone either sufficed to establish aggravated wantonness or it was the circumstance that raised the defendant’s conduct to the level of aggravated wantonness; and (3) in ruling on a motion for directed verdict, the test is not how Appellant’s behavior compares with previous defendants, but whether a jury could reasonably conclude, viewing the evidence in the light most favorable to the State, that Appellant was driving so wantonly as to manifest extreme indifference to human life.

Appellant relies heavily on Matthews v. Commonwealth, Ky., 44 S.W.3d 361 (2001), arguing that, a conviction for aggravated vehicular wanton endangerment must involve behavior which is more egregious than that of Appellant, such as driving at a high-speed or on the wrong side of a road. He concludes that drunk driving alone is not sufficient to warrant a conviction of wanton endangerment. This reliance is misplaced. In Matthews, supra, the defendant was driving down the interstate at a high rate of speed on the wrong side of the road, and an accident followed. The defendant was charged with wantonly endangering the driver of a car that was located near the accident scene and was hit by the debris resulting from the accident. We reversed his conviction of wanton endangerment, reasoning that it was not supported by sufficient evidence. We could find no evidence that the driver of the car was endangered by the defendant’s wanton conduct because there was no testimony to establish that the car was occupied at the time it was hit by the debris and because the individual alleged to be endangered was “never connected to the car or named in any witness’ testimony.” Id. at 364-365.

By contrast, in the case at bar, Appellant’s wanton conduct endangered his 10-year-old son, who was sitting in the passenger seat of the vehicle that he was driving while intoxicated. Although admittedly, Appellant was not driving at a high rate of speed on the wrong side of the road, wanton behavior manifesting extreme indifference to human life is not limited to that type of conduct. Here, Appellant was not simply driving under the influence as he tried to argue. Actually, his physical acts of driving included more than one reported lapses: it was his third time of operating a motor vehicle despite a license suspension for DUI; he was driving while intoxicated; he suddenly accelerated the vehicle at a speed noticeably higher than the normal; and he turned off the vehicle’s headlights while still on the road.

More importantly, he was driving, while in a drunken condition, with his minor child as a passenger. Unlike an adult who has the capability of deciding for himself whether to sit next to a drunken driver, a ten-year-old boy is powerless and has no control of himself when his drunken father wants to take him for a risky ride. We cannot expect a child at the age of ten to perceive the dangerous nature of drunk driving.

Thus, the State was not relying merely on the effect of intoxication to establish the aggravated wantonness. As a matter of fact, our reading of the totality of circumstances in this particular case leads to the conclusion that Appellant was operating a vehicle in an improper manner far below the standard that a reasonable person would observe, thus manifesting extreme indifference to the grave risk of death or serious physical injury imposed on his ten-year-old son.

Finally, one thing worthy of noting is that this opinion should not be read as authorization of a wanton endangerment prosecution in every DUI violation. It is true that the immediate public is placed at risk whenever an intoxicated driver enters the roadways and the crime of DUI is always to be denounced, however, the offense of DUI is separate and distinct from the offense of wanton endangerment. The sole fact of intoxication is not enough to sustain a conviction of wanton endangerment. As stated above, however, the facts in this case are so egregious as to warrant conviction of wanton endangerment.

II. Testimony of Prior Bad Acts

As his second claim of error, Appellant contends that the trial court erroneously allowed evidence in when the State’s witnesses testified about his prior bad acts absent any notice, as required by KRE 404(c). Specifically, Appellant cites six statements, which he argues should have been excluded as impermissible KRE 404(b) evidence.

Because Appellant failed to object at trial to any of the six statements, he failed to preserve the issue for our review. RCr 9.22. Nevertheless, Appellant urges us to review the alleged error under the palpable error rule pursuant to RCr 10.26 and KRE 103(e). “A palpable error is one which affects the substantial rights of a party and relief may be granted for palpable errors only upon a determination that a manifest injustice has resulted from the error”. Partin v. Commonwealth, Ky., 918 S.W.2d 219, 224 (1996). To show manifest injustice, the reviewing court must find, upon a consideration of the whole case, a substantial possibility that the result would have been different but for the alleged error. Id. The parties have stipulated to the conclusive evidence of Appellant’s suspended license; therefore, our concerns regarding this issue are Appellant’s Wanton Endangerment charge as well as DUI charge. After consideration of the entire record we find that admission of these statements did not reach the level of palpable error as required for reversal.

The evidence of Appellant’s intoxication at the time of his arrest is overwhelming. Appellant does not dispute that on the day in question he had drunk some beers. An open beer can and several additional beer cans were found on the floor of his truck at the time of his arrest. Ms. Sullivan also testified that Appellant was drunk when he left the house with their son. The officer on the scene described Appellant as reeking of alcohol and slurring in speech. When asked as to his destination, Appellant replied that he was heading to the bootlegger’s. In the opinion of Sergeant Cross, Appellant was intoxicated. Moreover, his testimony describing Appellant’s belligerent conduct after arrest and use of abusive language at the detention center to which he was transported immediately thereafter was also evidence from which the jury could reasonably infer Appellant’s state of intoxication.

Given the overwhelming nature of the evidence as to the issue of intoxication, it is clearly beyond a reasonable doubt that, without the statements, Appellant would have still been found intoxicated while driving. Even if we agreed with Appellant that these six statements constitute KRE 404(b) evidence, the admission of these statements does not rise to the level of “palpable error” and no manifest injustice occurred.

For the reasons set forth in this opinion, the convictions and sentences imposed by the Pulaski Circuit Court in this case are affirmed.

LAMBERT, C.J.; GRAVES, KELLER, and WINTERSHEIMER, JJ., concur.

JOHNSTONE, J., dissents by separate opinion in which COOPER and SCOTT, JJ., join.

JOHNSTONE, Justice,

dissenting.

Because I believe that Appellant was entitled to a directed verdict as to the wanton endangerment charge, I must respectfully dissent.

As noted in the majority opinion, a person is guilty of wanton endangerment when he “engages in conduct which creates a substantial danger of death or serious physical injury to another person. KRS 508.060(1).” Op. at 196. However, it seems that the majority has wholly disregarded the term “substantial” as employed in the statute. “Substantial” is defined by Webster’s Dictionary as “considerable in quantity” or “significantly large.” In other words, the risk created by the defendant must be real, considerable and certain, not merely possible; the danger must be palpable, not simply theoretical in a set of circumstances that could potentially come to pass. While deplorable to say the least, Appellant’s conduct in this case cannot be construed as creating the requisite “substantial” risk of death or serious physical injury; I find the connection between Appellant’s actual conduct and the potential for death or injury to be far too tenuous.

The majority concedes that the sole fact of Appellant’s intoxication is insufficient to support a charge of wanton endangerment, and relies in addition on the following behavior: the manner in which Appellant drove the vehicle and the fact that his minor child was in the vehicle. At a stop light moments before he was pulled over, Appellant accelerated his truck at a higher than normal rate of speed. As he pulled his truck over to the shoulder upon request of the police officer, Appellant turned off his headlights. These sloppy driving habits, committed by thousands of drivers on a daily basis, simply do not create a substantial risk of death or injury, nor do they indicate the requisite extreme indifference to human life. The result might be different if Appellant had been speeding down an interstate on the wrong side of the road or engaging in a high-speed car chase — this type of behavior coupled with intoxication rises to the level of egregiousness contemplated by the wanton endangerment statute, not prematurely turning off one’s headlights.

The majority also underscores the fact that Appellant’s passenger was a minor as a circumstance that raises driving while intoxicated to wanton endangerment. I believe the child’s age is entirely irrelevant to a determination of the sufficiency of the evidence in this case. The majority states that a child of ten cannot be expected “to perceive the dangerous nature of drunk driving.” There is nothing in the wanton endangerment statute stating that the endangered person must perceive or be aware of the risk created. Nor do I believe that the child’s age should be considered to render Appellant’s conduct any more or less wanton. Would the Appellant here be less culpable if the child were sixteen years old, able to perceive the danger, though still a minor?

The majority opinion cautions that the holding herein should not be considered as “authorization of a wanton endangerment prosecution in every DUI violation.” Op. at 198. I find this warning empty, as the facts of this case demonstrate that even the slightest driving infraction will raise a DUI violation to a wanton endangerment charge. The holding today, I believe, distorts the intent of the legislature in their definitions of DUI and wanton endangerment. I believe establishing penalties for criminal offenses is a legislative function.

COOPER and SCOTT, JJ., join this dissent.

      . Sergeant Cross testified at trial that he saw an open can of beer at Appellant’s feet and there was a partial 12-pack of beer at his feet as well.

      . Walden v. Commonwealth, Ky., 805 S.W.2d 102, 105 (1991) (holding that the extreme nature of the intoxication was sufficient evidence from which a jury could infer wantonness so extreme as to manifest extreme indifference to human life), (overruled on other grounds by Commonwealth v. Burge, Ky., 947 S.W.2d 805 (1996)).

      . Estep v. Commonwealth, Ky., 957 S.W.2d 191, 192 (1997) ("Depending on the situation, drunk driving may be ... a circumstance [manifesting indifference to human life].”).

      . Sergeant Cross testified that he observed Appellant hitting or beating his head on the back window of the patrol car. He also described Appellant's belligerent behavior as "refusing to cooperate, continually cussing me, yelling.”

      . Testimony shows that Appellant shouted at Sergeant Cross that "it would not take much for him to kick my a-.”

      . The majority also cites as further evidence of Appellant’s wanton behavior that this was his third DUI conviction. Op. at 198. I find this fact wholly irrelevant to a determination of whether his behavior on the night in question rises to the level of wanton endangerment. If the majority believes that Appellant's conduct is wanton, then the conduct would not be any less wanton if committed by a person with no criminal history.


author: Justice COOPER.

text:
    GRAYSON COUNTY BOARD OF EDUCATION, Appellant, v. Joseph W. CASEY, Appellee.
    No. 2003-SC-0208-DG.
    Supreme Court of Kentucky.
    Feb. 17, 2005.
    As Modified March 8, 2005.

      Eric Allen Hamilton, Coleman, Lochmil-ler & Bond, Elizabethtown, Counsel for Appellant.
    Max S. Hartz, McCarroll, Nunley <& Hartz, Owensboro, Counsel for Appellee.
   Opinion of the Court by

Justice COOPER.

Appellee, Joseph W. Casey, is “self-employed ... in the flea market business,” i.e., he buys used chattels and resells them at a profit. In December 1998, the Gray-son County Board of Education (Board) held an auction of its surplus property. Although Casey did not attend the auction, an unidentified person notified him that he could obtain two used air conditioners simply by coming to Grayson County High School and removing them. On December 29, 1998, Casey drove his flat bed truck to the high school to pick up the air conditioners. When he arrived, one of the Board’s maintenance employees, not further identified, advised Casey that he could also have four surplus steel doors if he would agree to take them. Casey agreed, and the maintenance employee undertook to load the air conditioners and doors onto Casey’s truck by use of a forklift. Unfortunately, one of the doors slid off the forklift and struck Casey, injuring his neck, back and legs. He filed a civil action in the Grayson Circuit Court solely against the Board seeking to hold it liable for the damages he sustained as a result of the negligent operation of the forklift by the Board’s employee. The Grayson Circuit Court entered summary judgment in favor of the Board. The Court of Appeals reversed and we granted discretionary review. We now reverse the Court of Appeals and reinstate the judgment of the Grayson Circuit Court.

A board of education is an agency of state government and is cloaked with governmental immunity; thus, it can only be sued in a judicial court for damages caused by its tortious performance of a proprietary function, but not its tortious performance of a governmental function, unless the General Assembly has waived its immunity by statute. Schwindel v. Meade County, 113 S.W.3d 159, 168 (Ky.2003); Yanero v. Davis, 65 S.W.3d 510, 526-27 (Ky.2001). Although an employee of a board of education can be sued in a judicial court for damages caused by the negligent performance of a ministerial duty, Schwindel, 113 S.W.3d at 169; Williams v. Ky. Dep’t. of Educ., 113 S.W.3d 145, 155 (Ky.2003); Yanero, 65 S.W.3d at 529, the board cannot be held vicariously hable in a judicial court because of the employee’s negligence. Williams, 113 S.W.3d at 154; Yanero, 65 S.W.3d at 527. The Board of Claims Act is a partial waiver of immunity that permits a person damaged by a board of education’s negligent performance of a governmental function to file a claim for damages in the Board of Claims, including a claim premised upon vicarious liability for the torts of the board of education’s employees. KRS 44.070(1); KRS 44.072; KRS 44.073(2); Williams, 113 S.W.3d at 154-56. Since Casey’s action was brought in a judicial court and not in the Board of Claims, the Grayson Circuit Court properly dismissed it unless (1) the sale or disposal of surplus property by the Board was a proprietary function, in which case the Board would not be immune; or (2) the General Assembly has statutorily waived the Board’s immunity.

The Court of Appeals held that the sale or disposal of surplus property by the Grayson County Board of Education was a governmental, not a proprietary, function. That issue was not preserved by a cross-appeal, CR 76.21, thus is not before us for further review. Green River Dist. Health Dep’t v. Wigginton, 764 S.W.2d 475, 479 (Ky.1989), abrogated by statute on other grounds as recognized by Withers v. Univ. of Ky., 939 S.W.2d 340, 346 (Ky.1997).

However, the Court of Appeals also held that “by overwhelming implication,” KRS 160.310 constitutes a partial waiver of the governmental immunity of boards of education to the extent of the policy limits of any liability insurance policy purchased under the authority of that statute. Having so concluded, the Court of Appeals did not address Casey’s other contentions that KRS 160.160(1) and the 1998 budget bill (House Bill 321, Part V, § 35 (Ky.1998)) also waived the Board’s governmental immunity.

I. KRS 160.310.

There is a degree of déjá vu associated with this issue, because we indirectly construed KRS 160.310 in both Withers and Reyes v. Hardin County, 55 S.W.3d 337 (Ky.2001). However, we were not required in either case to specifically hold whether the statute provided a waiver of a board of education’s governmental immunity. As initially enacted in 1940 and compiled as KS 4399-20a and 4399-20b, the statute read:

Each board of education shall have power and authority to set aside funds to provide for liability and indemnity insurance against the negligence of the drivers or operators of school busses owned or operated by the board.
The indemnity bond or insurance policy shall be issued by some surety or insurance company or other insurance carrier duly authorized to transact business as such within this Commonwealth, and shall bind the surety, insurance company, or insurance carrier to pay any final judgment or judgments rendered against the insured or policy holder arising out of the death or injury to any school child or school children, for loss or damage to property of any such school children, or death or injury to any person or persons.
If the transportation of pupils be let out under contract, then such contract shall provide that the contractor shall carry indemnity or liability insurance against negligence in such an amount as the board of education may require and designate, said indemnity bond or insurance to be provided by a duly authorized surety or insurance company or other insurance carrier as set out in the foregoing paragraph.

(Emphasis added.) When the statutes were revised in 1942, KS 4399-20a and 4399-20b were combined and recompiled as KRS 160.310 to read:

Each board of education may set aside funds to provide for liability and indemnity insurance against the negligence of the drivers or operators of school busses owned or operated by the board. If the transportation of pupils is let out under contract, the contract shall require the contractor to carry indemnity or liability insurance against negligence in such amount as the board designates. In either case, the indemnity bond or insurance policy shall be issued by some surety or insurance company authorized to transact business in this state, and shall bind the company to pay any final judgment rendered against the insured for loss or damage to property of any school child or death or injury of any school child or other person.

KRS 160.310 (Banks-Baldwin 1942) (current version at KRS 160.310 (Michie 1999)) (emphasis added).

In Taylor v. Knox County Board of Education, 292 Ky. 767, 167 S.W.2d 700 (1942), our predecessor court held that the statute “does not make the board liable for the torts of its agents and employees, but it does permit the board to be sued and a judgment to be obtained which, when final, shall measure the liability of the insurance carrier to the injured party for whose benefit the insurance policy was issued.” Id., 167 S.W.2d at 702 (emphasis added). In 1960, the General Assembly amended KRS 160.310 so that the statute now reads, inter alia, that the policy “shall bind the company to pay any final judgment not to exceed the limits of the policy rendered against the insured .... (Emphasis added.) Obviously, the new language only codified Taylor ⅛ construction of the original language.

Taylor was decided prior to the 1946 enactment and the 1950 amendment of the Board of Claims Act. Following Taylor, we and our predecessor court applied its reasoning to a number of other statutes that either authorized or required a government agency to purchase a policy of liability insurance but did not expressly waive governmental immunity, holding that such statutes constituted implied waivers of governmental immunity to the extent of the liability limits of any insurance policy so purchased. See Reyes, 55 S.W.3d at 339, and Withers, 939 S.W.2d at 344 n. 4, for citations to the so-called “Taylor-line of cases” and the statutes interpreted by those cases. In partial response to those holdings, see Withers, 939 S.W.2d at 345, the General Assembly substantially revised the Board of Claims Act in 1986 to declare, inter alia, its intention to retain the inherent immunities of the Commonwealth, its agencies, and its employees, except where specifically waived by the Act or another statute.

The Commonwealth thereby waives the sovereign immunity defense only in the limited situations as herein set forth. It is further the intention of the General Assembly to otherwise expressly preserve the sovereign immunity of the Commonwealth, any of its cabinets, departments, bureaus or agencies or any of its officers, agents or employees while acting in the scope of their employment by the Commonwealth or any of its cabinets, departments, bureaus or agencies in all other situations except where sovereign immunity is specifically and expressly waived as set forth by statute.

KRS 44.072 (emphasis added). Directly addressing the Taylor-line of cases, the General Assembly then provided:

The ... purchase of liability insurance or the establishment of a fund for self insurance by the Commonwealth, its cabinets, departments, bureaus, or agencies or its agents, officers, or employees thereof for a government-related purpose or duty shall not be construed as a waiver of sovereign immunity or any other immunity or privilege thereby held ....

KRS 44.073(14) (emphasis added). Withers held that the 1986 amendments of the Board of Claims Act abrogated the Taylor-line of cases, and that “[hjenceforth, ... [w]e will find waiver only where stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.” 939 S.W.2d at 346 (emphasis added) (internal citations and quotations omitted). Absent such waiver, claims for damages against the Commonwealth, agencies enjoying governmental immunity, and employees enjoying official immunity “may be heard in the Board of Claims, but not elsewhere.” Id.

In Reyes v. Hardin County, we assumed that the abrogation of the “Taylor-line of cases,” as recognized by Withers, 939 S.W.2d at 346, also abrogated Taylor ⅛ construction of KRS 160.310, and compared the language of that statute to the language of KRS 67.186, which we were construing in Reyes, 55 S.W.3d at 341. Notwithstanding Casey’s protestations to the contrary, the language contained in KRS 67.186(1) and (2) is virtually identical to that contained in KRS 160.310, even after the 1960 amendment of the latter that added the language, “not to exceed the limits of the policy.” Specifically, KRS 67.186(1) and (2) provide:

(1) The fiscal court of any county in which there is a county operated hospital may provide for liability and indemnity insurance for the benefit of the hospital against the negligence of the employees of such hospital.
(2) The insurance policies so purchased by the fiscal court shall be purchased only from insurance companies authorized to transact business in this state, and any such policy shall bind the insurer to pay, subject to the terms and conditions of the policy, any final judgment, not in excess of the policy limits, rendered against the insured hospital or hospital employees for the death or injury of any patient, or damage to the property of any patient, resulting from the negligence of the hospital, its agents or employees.

(Emphasis added.)

Reyes found that the language of KRS 67.186(1) and (2), standing alone, did not satisfy the Withers test, 55 S.W.3d at 340, thereby strongly implying that the virtually identical language of KRS 160.310 was also insufficient. Compare KRS 67.180(2), expressly authorizing suits against counties having insurance coverage for motor vehicle accidents and workers’ compensation claims:

Suits instituted on such policies may be maintained against the county only for the purpose of obtaining a judgment which when final shall measure the liability of the insurance carrier to the injured party for whose benefit the insurance policy was issued, but not to be enforced or collectible against the county or fiscal court or the members thereof.

(Emphasis added.) That language constitutes an express, though limited, waiver of a county’s sovereign immunity. Monroe County v. Rouse, 274 S.W.2d 477, 479 (Ky.1954). In Reyes, 55 S.W.3d at 340, 342, we held the following language in KRS 67.186(3) to constitute a waiver of immunity per Withers “by such overwhelming implications from the text as [will] leave no room for any other reasonable construction”:

This section shall not be construed as waiving the immunity of the county or county operated hospital from suit only to the extent of the policy limits, and no judgment may be enforced or collected against the county, fiscal court, the members thereof, or such hospital but shall only measure the liability of the insurance carrier. No attempt shall be made in the trial of any suit to suggest the existence of any insurance which covers in whole or in part any judgment or award which has been rendered in favor of the claimant, but if the verdict rendered by the jury exceeds the limits of applicable insurance, the court shall reduce the amount of said judgment to a sum equal to the applicable limit stated in the policy.

(Emphasis added.) Reyes noted that the first clause of KRS 67.186(3) codified the holding in Ginter v. Montgomery County, 327 S.W.2d 98, 100 (Ky.1959), that waiver of a county’s sovereign immunity is triggered only by the actual purchase of liability insurance and is not triggered when a county fails to purchase insurance though authorized to do so. Reyes, 55 S.W.3d at 341-42. Reyes then held that references in the remainder of the subsection to “the trial of any suit,” a “verdict rendered by the jury,” and a reduction of the judgment by “the court,” left “no room for any other reasonable construction,” per Withers, except that the purchase by a county of a policy of insurance under KRS 67.186 authorized a suit in a judicial court against that county for damages not to exceed the liability insurance limits of the policy purchased. Reyes, 55 S.W.3d at 343.

Unlike KRS 67.186(3), KRS 160.310 contains no references to suits, jury verdicts, or courts. Like KRS 67.186(2), it only requires the insurer to pay any final judgment rendered against the insured, not to exceed the policy limits. Immunity, however, means immunity from suit. Lexington-Fayette Urban County Gov’t v. Smolcic, 142 S.W.3d 128, 135-36 (Ky.2004). To the extent that an entity is immune from suit, perforce no judgment can be rendered against it in a judicial court. Thus, we conclude that KRS 160.310 does not waive a board of education’s governmental immunity from suit either expressly or by “such overwhelming implications from the text as [will] leave no room for any other reasonable construction.” Withers, 939 S.W.2d at 346. In fact, one reasonable construction of KRS 160.310 is that it authorizes a board of education to purchase a policy of liability insurance that provides coverage for suits brought in judicial courts when the board or its employee is not cloaked with immunity, e.g., when the board is sued for damages caused while performing a proprietary function, or when an employee is sued for damages caused by the negligent performance of a ministerial act or the bad-faith performance of a discretionary act. We overrule Taylor v. Knox County Board of Education, 292 Ky. 767, 167 S.W.2d 700 (1942), and Board of Education of Rockcastle County v. Kirby, 926 S.W.2d 455 (Ky.1996), to the extent that they hold that KRS 161.310 provides a waiver of a board of education’s governmental immunity.

II. KRS 160.160(1).

Casey also asserts that the following language in KRS 160.160(1) constitutes a waiver of a board of education’s governmental immunity against suit in a judicial court:

Each board of education shall be a body politic and corporate with perpetual succession. It may sue and be sued; make contracts; expend funds necessary for liability insurance premiums and for the defense of any civil action brought against an individual board member in his official or individual capacity, or both, on account of an act made in the scope and course of his performance of legal duties as a board member; ...

(Emphasis added.) We have already held in this opinion and in Withers, 939 S.W.2d at 346, that mere authorization to purchase liability insurance does not constitute an implied waiver of immunity. Since Casey did not sue any individual Board members of the Grayson County Board of Education, we are not now required to construe the statutory language authorizing the expenditure of funds for the defense of a civil action brought against an individual board member “in his official ... capacity.” However, in Wallace v. Laurel County Board of Education, 287 Ky. 454, 153 S.W.2d 915 (1941), our predecessor court held that the “sue and be sued” language in KRS 160.160(1) authorizes suits on contracts or to protect one’s property, but not for torts. Id., 153 S.W.2d at 917. We agree and also overrule Board of Education of Rockcastle County v. Kirby to the extent that it can be construed to hold otherwise.

III. 1998 BUDGET BILL.

The biennial budget bill enacted by the 1998 General Assembly contained the following provision:

Notwithstanding any provision of the Kentucky Revised Statutes to the contrary, to the extent that any governmental agency purchases motor vehicle liability insurance, sovereign immunity shall be waived to the extent of the insurance coverage.

House Bill 321, ch. 615, Part III, § 35 (Ky.1998).

The assistant superintendent of Grayson County Schools testified that the Board had purchased a motor vehicle liability insurance policy that provided coverage for school buses and maintenance vehicles but did not provide coverage for forklift accidents. A copy of that policy was furnished to Casey’s attorney but was not filed in this record. The Comprehensive Business Policy issued by the Indiana Insurance Company that is at issue in this case provides general liability coverage, including coverage for forklift accidents, but specifically excludes “commercial auto coverage.” Casey argued at the trial level that a forklift was a “motor vehicle” as defined in KRS 189.010(19) and KRS 304.39-020(7), apparently hoping to convert his forklift accident into a motor vehicle accident and thereby convert the board of education’s general liability insurance policy into a motor vehicle liability insurance policy for purposes of section 35 of Part III of House Bill 321. The Grayson Circuit Court held that a forklift is not a motor vehicle, citing Manies v. Croan, 977 S.W.2d 22, 23 (Ky.App.1998) (all-terrain vehicle is not a motor vehicle), and Kenton County Public Parks Corp. v. Modlin, 901 S.W.2d 876, 878 (Ky.App.1995) (golf cart being operated on a golf course is not a motor vehicle). Casey has not pursued that issue on appeal.

Furthermore, we agree with the Gray-son County Board of Education that section 35 of Part III of the 1998 budget bill violated the first clause of Section 51 of the Constitution of Kentucky, viz.:

No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title ....

The title of House Bill 321 was:

AN ACT relating to appropriations providing financing for the operations, maintenance, support, and functioning of the government of the Commonwealth of Kentucky and its various officers, cabinets, departments, boards, commissions, institutions, subdivisions, agencies, and other state supported activities.

The purpose of Section 51 “was to prevent the evil that had grown up of legislating in one act upon as many distinct and wholly disconnected subjects as the legislative body saw fit, without any indication in the title of the act as to what its contents might be.” Talbott v. Laffoon, 257 Ky. 773, 79 S.W.2d 244, 246 (1934). It was intended to prevent surprise and fraud upon the members of the General Assembly and other interested parties, thus precluding the practice of “log rolling.” Commonwealth, ex rel. Meredith v. Johnson, 292 Ky. 288, 166 S.W.2d 409, 411 (1942). In Commonwealth, ex rel. Armstrong v. Collins, 709 S.W.2d at 444, we held that the General Assembly could in its biennial budget bill suspend or modify existing statutes if the suspensions or modifications were germane to the broad subject of appropriations, e.g., the suspension of statutes providing for automatic raises for state employees. Section 35 of Part III of the 1998 budget bill, however, was not germane in any way to “appropriations providing financing for the operations, maintenance, support, and functioning” of any governmental agency. It did not authorize the purchase of automobile liability insurance and did not require the Commonwealth to pay any judgment, much less appropriate any state funds for either purpose. The only statute it attempted to modify was KRS 44.073(14) (purchase of insurance does not waive immunity), which also did not authorize the purchase of insurance or require the Commonwealth to pay any judgment, or appropriate any state funds for either purpose. Because the waiver embodied in section 35 was not germane to the subject of the biennial budget bill and was not stated in its title, we hold that section 35 of Part III of the 1998 budget bill was unconstitutional. Ky. Const. § 51.

Accordingly, we reverse the Court of Appeals and reinstate the judgment of the Grayson Circuit Court.

LAMBERT, C.J.; GRAVES, JOHNSTONE, KELLER, and SCOTT, JJ., concur.

WINTERSHEIMER, J., concurs in result only without separate opinion.

      . 1940 Ky. Acts, ch. 65.

      . 1960 Ky. Acts, ch. 97.

      . 1946 Ky. Acts, ch. 189, §§ 1, 3, par. 1.

      .1950 Ky. Acts, ch. 50, § 1.

      .As noted in Yanero, 65 S.W.3d at 519, it was common in 1986 to interchange the terms “sovereign” and "governmental” immunity. We interpret the reference to “sovereign immunity” in this statute to include governmental immunity of state agencies and qualified official immunity of state employees where applicable.

      . See note 6, supra.

      . 1986 Ky. Acts, ch. 499, § 1.

      . 1986 Ky. Acts, ch. 499, § 2(14).

      . Note that claims against counties cannot be brought in the Board of Claims. Commonwealth v. Harris, 59 S.W.3d 896, 901 (Ky.2001). In addition to the waiver in KRS 67.180(2), KRS 65.2005 requires a county to pay any judgment rendered against a county employee because of the negligent performance of a ministerial act, subject to certain exceptions and limitations. Schwindel, 113 S.W.3d at 167.

      . Because Casey filed his claim in circuit court and not in the Board of Claims, we need not address the suggestion raised at oral argument that the policy might also provide coverage for awards or judgments of the Board of Claims.

      . 1998 Ky. Acts, ch. 615, Part III, § 35, at 3849.

      . The provision expired at the conclusion of the biennium on June 30, 2000. KRS 48.310(1); Commonwealth, ex rel. Armstrong v. Collins, 709 S.W.2d 437, 445 (Ky.1986) (suspension or modification of statute by budget bill provision "is temporary only, expiring at the end of the biennium''). Thus, whatever effect the provision may have had on KRS 44.073(14) existed only during the period July 1, 1998 to June 30, 2000.

      .1998 Ky. Acts, ch. 615, at 3747.


author: /s/ Joseph E. Lambert Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Jack W. STEINER, Jr. KBA Member No. 67445, Respondent.
    No. 2004-SC-000909-KB.
    Supreme Court of Kentucky.
    March 17, 2005.
   OPINION AND ORDER

Jack W. Steiner, Jr., engaged in the practice of law in this Commonwealth from 1982 through February 2002, when he voluntarily ceased practice due to a multiplicity of health and later legal and disciplinary problems. His license to practice was temporarily suspended by this court’s Opinion and Order of June 12, 2003. Based on the circumstances hereinafter discussed, the Respondent, Jack W. Steiner, Jr., (STEINER) asks he be sanctioned with an indefinite suspension with leave to seek reinstatement after two (2) years from February 2002 (if then deemed qualified), further conditioned upon satisfaction of any remaining restitution due his former law firm. The Kentucky Bar Association (KBA) seeks permanent disbarment.

Effective October 1, 1998, SCR 3.380 (degrees of discipline) was amended to add “permanent disbarment” as a sanction for violations of the Rules of Professional Conduct. At the same time, SCR 3.520 (reinstatement in case of disbarment) was repealed.

This case commenced with a two-count charge issued on July 26, 2002 by the Inquiry Commission. It charged STEINER with violating SCR 3.130-1.15(a) and (b) for failing to keep clients funds separate from his own property, failing to keep the funds in a separate bank account, failing to keep appropriate records, failing to properly notify his clients of the receipt of all of these funds and failing to promptly deliver to his clients all of that portion of the funds, to which they were entitled. STEINER was also charged with violating SCR 3.130-8.3(a), Os) and (c) for misappropriating funds and defrauding his clients and his law firm/partners of funds due them.

The case was assigned to a trial commissioner and evidentiary hearings were conducted on December 15 and 16, 2003. At the conclusion of the evidence, the commissioner found STEINER guilty of violating SCR 3.130-1.15(a) and (b), noting STEINER had admitted same in his Answer and during the hearing. He also found STEINER violated SCR 3.130-8.3(a), (b) and (c), relying upon STEINER’s admissions during the hearing. In making his decision and recommendations, the commissioner considered STEINER’s defense by way of mitigation, noting the “tragic events in the respondent’s past, while sad and regrettable, do not excuse or mitigate the respondent’s conduct.” The trial commissioner recommended “permanent disbarment” as the appropriate sanction. After due consideration, the KBA unanimously upheld the report and recommendations of the trial commissioner and voted 16 to 3 for “permanent disbarment.”

In reviewing, we note “the Findings of Fact by the trial commissioner and the Board of Governors are advisory only, SCR 3.360; SCR 3.370(7). We make an independent review of the record and findings of fact” Kentucky Bar Assoc. v. Berry 626 S.W.2d 632, 633 (Ky.1981). It is our job to establish the appropriate sanction. SCR 3.380.

Albeit, the record and briefs evidence arguments over STEINER’s mental state during the violations, we do not read the record as a contest of the violations, since they were essentially admitted, both by the Answer and testimony of STEINER. The record, as we view it, is one in mitigation. Thus, to put our decision in context, we will comment on both the facts of the violations, as well as the evidence in mitigation thereof, as counsel has requested.

STEINER engaged in the practice of law from 1982 through February 2002, after which he ceased practice. During the later years, he was a partner in the firm of Sitlinger, McGlincy, Steiner, Theiler & Karem of Louisville, Kentucky. While so engaged, he handled them subrogation cases, predominantly for several insurance companies. Once a judgment was obtained on behalf of the company, certain payments were made by third-party judgment debtors to satisfy the subrogation judgment. The payments by the judgment debtors where made to STEINER as attorney for the judgment creditors via representation of same through his firm.

Over a period of time commencing in 1996, through February 2002, certain funds collected from judgment debtors by STEINER were not placed into the firm’s escrow account for payment to clients; rather STEINER misappropriated these funds for his own use. The total amount was $92,978.93. Testimony at the hearing indicated there were over one hundred (100) instances where STEINER converted clients’ funds to his own use. In his Answer and testimony, STEINER admitted he did not keep client funds separate from his own property, did not keep them in a separate bank account, and did not properly notify clients of the receipt of the funds. He also admitted he took the monies described above for his own use and admitted his conduct involved misrepresentation, dishonesty and deceit.

In February 2002, STEINER underwent heart by-pass surgery and began a period of recuperation at home. It was during this period of time, while taking over his work, that his firm discovered his deceptions. Yet, when first approached by his partners about the theft, he denied it. Only when presented with evidence proving his theft, did he acknowledge his misappropriations.

At the time of the hearing, STEINER was 53 years old and had been married to his wife, Laura, for 26 years. He graduated from high school in Louisville, Kentucky in 1968 and by 1972 was employed as a policeman with the Jefferson County Police Department, where he stayed approximately ten (10) years. In the late 1970’s he attended the University of Louisville School of Law night program, graduating with a law degree in 1981. He was licensed to practice law in 1982.

STEINER had married first in 1967 at an early age. He and his then wife, Francis, had two children, a son Jackie born in 1968 and a daughter, born in 1973. STEINER and Francis divorced in 1976 and STEINER was awarded primary custody of their son, Jackie, while Francis was awarded primary custody of their daughter, Jennifer. STEINER raised Jackie on his own for two years until he married his present wife, Laura, in 1978.

By the summer of 1990, Jackie was 23 years old and near graduating from a culinary program at Sullivan College in Louisville, Kentucky. While on a trip in Seattle, Washington, that summer, STEINER and Laura received news Jackie had died in his sleep. The autopsy disclosed Jackie died from a drug overdose.

At the time of Jackie’s death, STEINER was on extension for his 1989 income taxes; he obtained another extension later, which put the due date to October 15, 1990. However, on September 12, 1990, STEINER was involved in a motor vehicle accident, wherein he suffered serious and life threatening injuries. For approximately three to four years thereafter, he failed to file state or federal income tax returns.

In 1994 and 1995, he began the process of preparing these back returns and making arrangements to pay back taxes. Regarding his federal income taxes, STEINER had to borrow approximately $175,000.00 to pay off the IRS. He asserts that the repayment of these loans compromised his ability to make regular payments on his ongoing estimated taxes, creating financial pressure. Yet, at this same time, he was heavily involved in numerous community and public service activities. He was elected president of the Louisville Bar Association in 1998. One of the witnesses at the hearing noted because of the large number of civic organizations in which STEINER was participating, his law practice, in some ways, was becoming secondary.

Mr. George Wade Rowatt, Jr., Ph.D. (ROWATT) testified at the hearing for STEINER. ROWATT is a pastoral counselor, as well as a marriage and family counselor and has been involved in counseling for thirty (30) years. Over the years ROWATT has specialized in three to four areas; marriage and family therapy, adolescents in crisis, ministers in crisis, and other traumatized persons. He has worked individually in the areas of depression and grief, particularly with persons who have complicated grief situations, as well as some work with addictions.

ROWATT first met STEINER around the spring of 2002, due to contact from his wife in regards to marriage counseling. He has been working with STEINER since. ROWATT testified that STEINER had not accepted the reality of the death of his son, had not faced his painful emotions relating thereto, had not dealt with the memories and therefore had not returned to a normal level of functioning since his son’s death. In ROWATT’s opinion, STEINER’s ability to function was interrupted greatly, both in his family and in his profession. ROWATT characterized STEINER’s car wreck of September 1990, as an indication of how immobilized he was by his improper handling of his grief. STEINER’s inability to handle his taxes and tax payments were also an indicator of his deterioration in ROWATT’s opinion.

ROWATT was aware that STEINER had been arrested for DUI in 2000, but did not feel he was an alcoholic; rather he felt he was a problem drinker using the alcohol to self-medicate his grief in order to forget the memories and to run from the pain he had not faced. According to ROWATT, STEINER did not face the issues as he should have. In particular, ROWATT testified STEINER only made his way through the denial stage, the preliminary step in the grieving process. The more involved and meaningful steps in the grieving process where not addressed by STEINER until he began professional counseling in 2002. In his opinion, STEINER’s “arrested and complicated grieving process” manifested itself in STEINER’s inability to make good decisions. ROWATT characterized his lifestyle and approach following the death of his son as not really caring about himself; a point which ROWATT believed contributed to his health problems. ROWATT further noted undiagnosed and untreated problems arising from an “incomplete grieving process” may continue for years until the person eventually receives appropriate help. In his opinion, unless complicated grief is addressed appropriately, it can continue for well beyond twelve (12) years. In short, in his opinion, STEINER’s thinking and decision-making process was impaired and led to the unfortunate events which are the subject of the present disciplinary proceedings. Noting that STEINER’s counseling is still ongoing, he felt if STEINER continues to appropriately deal with his grief process, it’s reasonably probable that the conduct which led to this disciplinary proceeding will not recur. He did believe STEINER knew rationally that what he was doing was wrong.

Dr. Andrew Cooley (COOLEY), a board certified psychiatrist, testified for the KBA. COOLEY is the director of Central State Hospital in Louisville, Kentucky. After reviewing various exhibits, as well as the record, including ROWATT’s handwritten case notes, COOLEY was of the opinion that STEINER was not suffering from any sort of mental disorder, such as depression, that would have caused him any impairment in cognition or judgment. In COOLEY’s opinion, STEINER’s ability to maintain his duties and performances, including extensive volunteer work at the level he did, was indicative that STEINER did not have a mental disease during the questionable periods of time. He noted that ROWATT, in his notes, quoted STEINER as saying “I made a big bad decision to hide the money.”

Notwithstanding our rule changes concerning “permanent disbarment,” the concepts of rehabilitation and reinstatement have not been written out of our rules. However, the burden of a credible defense to the charge, supported by either fact or law, still remains with the Respondent, Kentucky Bar Assoc. v. Layton, 97 S.W.3d 452, 453 (Ky.2003); and the “public is entitled to rely on an attorney’s admission to the practice of law as a certification of the attorney’s honest, high ethical standards and good moral character.” Kentucky Bar Assoc. v. Collis, 535 S.W.2d 95,96 (Ky.1975). “[0]ne purpose for disbarment of an attorney is to uphold the ideals and traditions of an honorable profession.” In re Lynch, 238 S.W.2d 118 (Ky.1951).

Those admitted to the bar of this state “must be of good moral character...” SCR 2.011 “The term ‘good moral character’ includes qualities of honesty, fairness, responsibility.. .and respect for the rights of others.... ” The purpose “is to exclude from the practice of law.. .persons possessing character traits that are likely to result in injury to future clients... or in a violation of the Code of Professional Responsibility.” SCR 2.011(1) “Fitness is the assessment of mental and emotional health as it affects the competency of a.. .lawyer.” SCR 2.011(2).

In recognition of the significant effects mental, psychological or emotional conditions may have, and have had, on our profession, this court set up the Kentucky Lawyers Assistance Program (KYLAP) in 2003. See, SCR 3.910. Its function is to assist members of our bar in dealing with and working through “impairments” within the context of various practices. Under KYLAP, impairment “includes any mental, psychological or emotional condition that impairs or may foreseeably impair a persons’ ability to practice law.. .Impairment may result from addiction to intoxicants or drugs, chemical dependency, substance abuse, mental disease, mental disorder or defect, or psychological or emotional illness.” SCR 3.900(1).

Except for enumerated instances, communications to and information gathered by KYLAP, are confidential. SCR 3.990. SCR 3.970(1), allows any member of the KBA who is the subject of a pending admission or disciplinary proceeding to authorize the appropriate agency to make a confidential request for assistance from KYLAP in evaluating or addressing any actual or potential impairment which may be relevant to the issues which the agency is charged with considering. This court set up KYLAP for the use of the members of this bar, not only in disciplinary proceedings, but on admission, restoration, reinstatement, as well as other matters. See, SCR 3.970-5(a) and 3.980(1). It goes without saying that KYLAP is staffed with people who know and understand “impairment” within the context of our profession. With the hopes of reminding the bar of KYLAP’s purpose, we are considerate of the fact that the events and the treatment initially undertaken by STEINER in this case occurred prior to the creation of KYLAP.

In Layton, supra, we held the Respondent had presented no credible defense to the charge supported by either fact or law, even though we noted his current treatment for a “bi-polar disorder.” This comment reflects our opinion that except where expressly set out, the Kentucky Rules of Professional conduct have no mental element. SCR 3.130. In short, the mental state of an attorney is an issue of interest to this court, and to the bar itself, in the context of disciplinary proceedings, but it is one that addresses itself to mitigation, not defense. Layton, supra. In this case, we find the testimony of COOLEY, a board certified psychiatrist, to be controlling. COOLEY was clear in his opinion that the Respondent suffered from no mental disease or disorder which would impede his ability to know right from wrong and we find no evidence presented by the Respondent to the contrary. Nor do we find any causal relationship between the conduct admitted and the claimed disability. Even ROWATT acknowledged he believed STEINER knew right from wrong on a rational basis.

The opinion of ROWATT that STEINER’S conduct evolved from the death of his son, an improper grieving process, and a failure to deal appropriately with memories, which ultimately led to an interruption of the Respondent’s ability to function, was based solely on conversations with the Respondent and his wife. Many witnesses testified to the contrary; that they were shocked to find the Respondent was claiming any functional problems. During the time period that STEINER was taking money from his clients and his firm, he was organizing golf outings for the Louisville Bar Association. He was on the Jefferson County Law Library Board, and served as treasurer of the entity for several years. In 1998, he was elected president of the Louisville Bar Association and was very proactive in seeing to the best interest of the Bar Association. Obviously from this evidence, he operated on a much higher level than the evidence he introduced.

Were this a case where STEINER initially sought treatment, voluntarily disclosing his instances of unprofessional conduct, we might feel more reassured and sympathetic, but admittedly each case stands on its own facts; even emotional injuries. Six years of pilfering, in over a 100 instances, even without a prior disciplinary record, is not something that reassures us of a more honest approach in the future.

For the foregoing reasons, we find the discipline recommended is appropriate, and, therefore, this court adopts the recommendation of the Board of Governors.

It is therefore ORDERED that:

1. The Respondent, Jack W. Steiner, Jr., is permanently disbarred from the practice of law in Kentucky, pursuant to SCR 3.380, having been found guilty of violating SCR 3.130.1.15(a) and (b); 3.130-8.3(a),(b) and (c).
2. The Respondent, Jack W. Steiner, Jr., shall pay the costs of this action in the sum of $5,350.14, for which execution may issue from this court upon finality of this Opinion and Order.

All concur.

ENTERED: March 17, 2005.

/s/ Joseph E. Lambert Chief Justice

      . The ABA standards for imposing lawyers sanctions allows disbarment as an appropriate sanction, but in the context of the ABA, disbarment anticipates a severe term of suspension for at least five (5) years. The ABA does not recognize permanent disbarment, as does Kentucky since its rule amendments of October 1, 1998.

      . However, KYLAP's staff cannot engage in any activity which constitutes the practice of law or medicine. SCR 3.910(2).