author: Justice VENTERS. CUNNINGHAM, J.,

text:
    H.C. “Blue” HILL, Movant, v. PETROTECH RESOURCES CORPORATION and John Burness, Respondents.
    No. 2010-SC-000182-I.
    Supreme Court of Kentucky.
    Oct. 21, 2010.

      Matthew James Baker, Bowling Green, KY, Counsel for Movant.
    Michael Scott Vitale, English, Lucas, Priest and Owsley, Bowling Green, KY, Counsel for Respondents.
   Opinion of the Court by

Justice VENTERS.

The question presented in this case is one of first impression in Kentucky: whether a court may enjoin the expression of certain thoughts and opinions before a final adjudication determining that the expression is unprotected by the federal or Kentucky Constitution. We conclude that the circuit court’s broad-sweeping and vaguely worded injunction against future expression, before final adjudication of its defamatory character, constitutes an improper prior restraint on speech in violation of the First Amendment of the United States Constitution and Section Eight of the Kentucky Constitution. Given the heavy presumption against the constitutionality of any prior restraint of expression, the issuance of the temporary injunction was an abuse of the circuit court’s discretion that presents this Court with extraordinary cause to grant the relief sought by the Movant under CR 65.09. Price v. Paintsville Tourism Com’n, 261 S.W.3d 482, 483 (Ky.2008); National Collegiate Athletic Association v. Lasege, 53 S.W.3d 77, 84 (Ky.2001).

For the reasons set forth below, we grant Hill’s motion for relief, and vacate the circuit court’s temporary injunction as an impermissible prior restraint on speech.

I. FACTUAL AND PROCEDURAL BACKGROUND

From the limited record before us, the facts appear to be as follows. Respondent John Burness is the sole shareholder of Respondent Petrotech Resources Corporation. Petrotech engages in oil and gas drilling, and to finance its operations, Burness sometimes solicits investments by members of the general public. Among those investors was James Eickman, a resident of Arkansas, who invested $8,500.00 in the Respondents’ drilling operations. Believing that there was improper conduct by the Respondents associated with his investment, Eickman sought the return of his funds. With this objective, Eickman retained Movant, H.C. “Blue” Hill, a/k/a Colt Ledger. It appears from the record that Hill’s company, Colt Ledger & Associates, seeks to recover investments for its clients using, to put it mildly, highly aggressive collection techniques.

In Hill’s initial communication with Respondents he alleged that they were “in violation of several state and federal statutes and regulations.” He threatened to file complaints with authorities in Kentucky and Arkansas, and with the federal government unless Eickman’s money was returned. Hill also threatened to “post [his] findings on every known blog site dealing with investment scams,” and to “notify [Respondents’] potential client base of [their] activity.”

When Respondents refused to refund Eickman’s investment, Hill began to follow through on his threats. Among other things, he posted on the internet statements that Respondents were engaged in illegal conduct, had violated securities and criminal laws, and that “MOST OF WHAT THEY DO IS CROOKED.” (Capitalization in original). He also directly contacted Respondents’ customers, clients, and investors, including the City of Edmonton, with whom Respondents were negotiating a substantial gas contract, claiming that Respondents were engaged in illegal activity.

In response to Hill’s activities, on August 13, 2009, Respondents filed a complaint in Barren Circuit Court alleging, among other things, defamation and invasion of privacy, requesting damages and injunctive relief. On November 24, 2009, Respondents filed a motion for a temporary injunction pursuant to CR 65.04 seeking to enjoin Hill from making further defamatory comments relating to them.

On November 30, 2009, the circuit court entered an order that enjoined Hill “from directly and/or indirectly contacting any customers, clients, investors, and/or business associates of [Respondents] for the purpose of defaming the [Respondents], and shall likewise be enjoined from publishing, by any means, manner, or media, or otherwise making [any defamatory] public comments pertaining in any way to the [Respondents] or [their] business dealings.” The injunction was to remain in effect throughout the pendency of the action, or until further orders of the court.

Hill subsequently moved for interlocutory relief in the Court of Appeals pursuant to CR 65.07. The Court of Appeals denied the motion, thereby upholding the temporary injunction. Hill’s petition for relief from the injunction is now before this Court pursuant to CR 65.09.

For the reasons set forth below, we hold that both the United States Constitution and the Kentucky Constitution forbid the issuance of an injunction to restrain allegedly defamatory speech until the falsity of the speech has been finally adjudicated in the trial court. Since there has been no final determination upon that issue in this case, we grant Hill’s motion for relief, and vacate the circuit court’s injunction as an impermissible prior restraint on speech.

II. ANALYSIS UNDER THE FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION

As explained below, the temporary injunction entered by the circuit court is an improper prior restraint of speech under the First Amendment of the United States Constitution.

A Rule Against Prior Restraint of Speech

Since New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Supreme Court has recognized a tension between protection of reputation and protection of freedom of expression. Of course, the tension is strongest when there is a media defendant, the subject matter is one of public interest, or the plaintiff is a public official or a public figure. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). “This case does not come close to implicating such weighty concerns. Nevertheless, it is clear that even where a purely private matter between private parties is at issue, the defendant’s freedom of expression is still implicated, and the First Amendment still affords some, though less substantial, protections.” Innes v. Howell Corp., 76 F.3d 702, 709 (6th Cir.1996) (citing Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)) (describing “an employee’s false criticism of his employer on grounds not of public concern” as an example of less important but still-protected speech, cited with approval in Dun & Bradstreet, 472 U.S. at 760, 105 S.Ct. 2939).

Moreover, a fundamental principle which has emerged from the cases interpreting the First Amendment is that governmental units and courts may not impose a prior restraint on speech. See Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (“[Pjrior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights”); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973) (a prior restraint should not “swee[pj” any “more broadly than necessary”). As such, the Constitution forbids it. See Carroll v. President and Comm’rs of Princess Anne, 393 U.S. 175, 183-184, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968) (An “order” issued in “the area of First Amendment rights” must be “precis[ej” and narrowly “tailored” to achieve the “pin-pointed objective” of the “needs of the case”); see also Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987) (regulation prohibiting “all ‘First Amendment activities’ ” substantially overbroad); Tory v. Cochran, 544 U.S. 734, 738, 125 S.Ct. 2108, 161 L.Ed.2d 1042 (2005).

“Any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity. Respóndenos] thus earr[y] a heavy burden of showing justification for the imposition of such a restraint.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971) (citations omitted).

The temporary injunction that prohibits Hill from making future statements about Respondents is a prior restraint on speech. Therefore, our review begins with a presumption that the injunction is invalid.

B. The Traditional Rule Forbidding Injunctions Against Defamation

Aside from the First Amendment’s heavy presumption against prior restraints, courts have long held that equity will not enjoin a libel. See Nebraska Press Ass’n, 427 U.S. at, 96 S.Ct. 2791; Kramer v. Thompson, 947 F.2d 666, 677-78 (3rd Cir.1991); Community for Creative NonViolence v. Pierce, 814 F.2d 663, 672 (D.C.Cir.1987) (“The usual rule is that equity does not enjoin a libel or slander and that the only remedy for defamation is an action for damages.”); American Malting Co. v. Keitel, 209 F. 351, 354 (2d Cir.1913) (“Equity will not restrain by injunction the threatened publication of a libel, as such, however great the injury to property may be. This is the universal rule in the United States.... ”); Metropolitan Opera Ass’n, Inc. v. Local 100, Hotel Employees and Restaurant Employees International Union, 239 F.3d 172, 177 (2d Cir.2001); 42 Am.Jur.2d, Injunctions, § 97 (2010) (“The general rule is that equity does not enjoin libel, rather, the only remedy for defamation is an action for damages, and there is a heavy presumption that prior restraints on expression are unconstitutional.”), (footnotes omitted)

“Although the rule has been severely criticized by legal scholars, and the courts have occasionally deviated therefrom in extreme cases or where a collateral ground of equity jurisdiction could be found, it appears to be clearly established by the large majority of the cases upon this question that equity will not grant an injunction against the publication of a personal libel or slander in the absence of some independent ground for the invocation of equitable jurisdiction.” W.E. Shipley, Annotation, Injunction as a Remedy Against Defamation of Person, 47 A.L.R.2d 715 (1956).

The traditional rule against enjoining defamation is of long-standing effect, having been first established in eighteenth-century England. Balboa Island Village Inn, Inc. v. Lemen, 40 Cal.4th 1141, 57 Cal.Rptr.3d 320, 156 P.3d 339, 349 (2007) (discussing historical background of rule). As later discussed, while there appears to be an emerging modern trend toward permitting such injunctions upon a final adjudication that the speech under question is false, there nevertheless remain staunch advocates of the traditional rule that a prior restraint on speech is unacceptable under any circumstances. This position, along with supporting authorities, is defended by prominent constitutional law professor Erwin Chemerinsky in his law review article, Injunctions in Defamation Cases, 57 Syracuse L.Rev. 157 (2007).

Defenders of the traditional rule argue that we should not disturb the maxim that equity will not enjoin defamation, and that injunctions should never be allowed as a remedy in defamation cases. Professor Chemerinsky argues that even after a judicial determination that the speech at issue is false, “[t]he injunction means that a person can only speak by going before the judge and getting permission. That is the very essence of a prior restraint.” Id. at 163. He advocates that “[i]f history matters in interpreting the First Amendment, it could not be clearer: injunctions were not allowed as a remedy in defamation actions.” Id. at 168. In his view, it is always the case that “damages, not injunctions, are the appropriate remedy in a defamation action,” id. at 169, “even in the case of the “judgment proof defendant^]” Id. at 170. Under the traditional rule, it is of no concern that the defendant may not be able to pay the damage award because “[cjourts ... do not find that damages remedies are inadequate simply because the plaintiff cannot afford to pay them.” Id. However, as next discussed, we find that this absolutist view is flawed.

C. False, Defamatory Speech is Unprotected Speech

The rationale of the traditional rule is severely undercut by the countervailing view that defamatory speech is unguarded by the Constitution. Application of the rules relating to unprotected speech would compel the conclusion that the First Amendment is not even implicated in the case of false, defamatory speech, and therefore the Constitution poses no bar to any injunction restraining such speech.

“From 1791 to the present,” the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” R.A.V. v. St. Paul, 505 U.S. 377, 382-383, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) (Kennedy, J., concurring in judgment), include obscenity, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); defamation, Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952); fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); incitement, Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam); and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834 (1949). These are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); U.S. v. Stevens, — U.S. -, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010).

Defamation’s place on the list of unprotected speech is secure. As straightforwardly stated in Beauhamais almost sixty years ago, “[ljibelous utterances [are not] within the area of constitutionally protected speech.” Beauharnais, 343 U.S. at 267, 72 S.Ct. 725.

The traditional view, however, is also subject to fair criticism. What is or is not defamatory expression cannot often be summarily ascertained. A rush to enjoin distasteful, annoying, unpopular, or even damaging speech would often result in the suppression of truthful, legitimate discourse. Thus, given the flaws inherent in each of the foregoing views, we find it appropriate to consider a more modern and moderate analysis that recognizes the need to minimize the damage of unprotected, defamatory speech in a way that preserves the important constitutional values of free speech and due process.

D. Modem Rule Permitting Injunctions Against Defamation

The recognition that false, defamatory speech is unprotected by the First Amendment has resulted in the development of a modern, superseding rule concerning the enjoining of defamatory speech. Under the modern rule, once a judge or jury has made a final determination that the speech at issue is defamatory, the speech determined to be false may be enjoined. The rule has been stated as follows:

[T]he prohibition [against enjoining defamation] is not absolute, as there are exceptional cases in which a prior restraint is acceptable. For instance, an injunction would issue to prohibit a defendant from reiterating statements which had been found in current and prior proceedings to be false and libelous to prevent future injury to the libel plaintiff’s personal reputation and business relations. An injunction restraining the publication of matter defaming a plaintiff personally [is] proper where there [is] no adequate remedy at law because of the recurrent nature of the defendant’s invasions of the plaintiffs rights, the need for a multiplicity of actions to assert the plaintiffs rights, the imminent threat of continued emotional and physical trauma, and the difficulty of evaluating the injuries in monetary terms.

42 Am.Jur.2d, Injunctions, § 97 (2010) (footnotes omitted); see also Pittsburgh Press Co., 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669; Metropolitan Opera Ass’n, Inc., 239 F.3d 172 (preliminary injunction against picketing and statements made in labor dispute reversed; equity will enjoin a libel only in extraordinary circumstances); San Antonio Cmty. Hosp. v. Southern Calif. Dist. Council of Carpenters, 125 F.3d 1230 (9th Cir.1997) (admitted falsity); Kramer, 947 F.2d 666 (injunction reversed; Pennsylvania law; extensive review of modern and historical authorities); Lothschuetz v. Carpenter, 898 F.2d 1200 (6th Cir.1990) (injunction permitted if prior adjudication of falsity; District of Columbia law); Karhani v. Meijer, 270 F.Supp.2d 926 (D.Mich.2003) (temporary restraining order enjoining libel and ethnic intimidation would be unconstitutional prior restraint); Aguilar v. Avis Rent A Car System, Inc., 21 Cal.4th 121, 87 Cal.Rptr.2d 132, 980 P.2d 846 (1999) (narrowly drawn injunction prohibiting ethnic intimidation upheld); Balboa Island Village Inn, Inc., 156 P.3d 339; Sid Dillon Chevrolet-Oldsmobile-Pontiac, Inc. v. Sullivan, 251 Neb. 722, 559 N.W.2d 740 (1997) (injunction denied; no prior adjudication of falsity); O’Brien v. Univ. Cmty. Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975) (injunction proper if prior judicial determination of falsity); Nolan v. Campbell, 13 Neb.App. 212, 690 N.W.2d 638 (2004) (narrowly drawn injunction proper where prior adjudication of falsity).

The emergence of the modern rule was anticipated by now U.S. District Judge William O. Bertelsman in his 1971 law review article, Injunctions Against Speech and Writing: A Re-evaluation, 59 Ky. L.J. 319 (1971). In the article, Judge Bertels-man suggested that the traditional view, which was firmly entrenched at the time, should be reevaluated, and that injunctions could be constitutionally granted in defamation and privacy cases under a standard similar to the rule as stated above. More recently, in Lassiter v. Lassiter, 456 F.Supp.2d 876, 882 (E.D.Ky.2006), Judge Bertelsman addressed the matter further.

In Lassiter, after discussing developments in the law since the publication of his 1971 article, Judge Bertelsman noted that this Court had not addressed the issue, but he surmised that when afforded the opportunity to rule on the propriety of injunctive relief against defamation or invasion of privacy, we would, if we permitted an injunction at all, do so only under the following standards:

1. That the injunction be clearly and narrowly drawn so as not to prohibit protected expression;
2. That the falsity or illegality of the expression be finally adjudicated prior to the issuance of the injunction;
3. That the falsity or illegality be established by at least clear and convincing evidence;
4. That the enjoined expression not be political in nature, or otherwise protected by the First Amendment, or on a subject so imbued with the public interest that its publication outweighs the social policy in the protection of reputation and privacy; and
5. That the usual equitable requirements for an injunction be met. Id. at 884.

We generally agree with the formulation suggested by Judge Bertelsman, and adopt all of it except the requirement that the falsity of the speech at issue be proven by clear and convincing evidence. While Judge Bertelsman proffers a commendable suggestion advancing the cause of freedom of speech, the rule as it has developed in other jurisdictions has not required an elevated standard of proof, and we believe that the well-established preponderance of evidence standard normally used in civil cases strikes the proper balance between the traditional rule that defamation cannot be enjoined at all and the recognition that false, defamatory speech is unprotected speech.

Thus, as a matter of first impression, we adopt the modern rule that defamatory speech may be enjoined only after the trial court’s final determination by a preponderance of the evidence that the speech at issue is, in fact, false, and only then upon the condition that the injunction be narrowly tailored to limit the prohibited speech to that which has been judicially determined to be false.

E. Application of Modem Rule to this Case

Application of the modern rule that defamatory speech may be enjoined only following a final determination that the speech is false compels the result that Hill be granted the relief requested in his CR 65.09 motion, and that the injunction entered by the circuit court be set aside.

We first note that the cases cited by the Respondents in support of the injunction, Lothschuetz, 898 F.2d 1200 and In re Davis, 347 B.R. 607 (W.D.Ky.2006), follow the modern rule as described above, and provide no support for the temporary injunction.

In Lothschuetz, the defendants (Carpenter and Carpenter Radio Co.), among other things, sent correspondence to agencies and politicians alleging that co-plaintiffs (Lothschuetz, Carolyn C. Hill, and United Telecommunications, Inc.) had violated conflict-of-interest laws, had ignored ethical responsibilities, and had stolen defendants’ communications equipment. The plaintiffs filed an action alleging, among other things, libel. Following discovery violations, the trial court entered a default judgment against both defendants, thereby finally adjudicating the complained of statements to be false. Id. at 1204. See Davis v. Tuggle’s Adm’r, 297 Ky. 376, 178 S.W.2d 979 (1944) (The fact that no defense was offered in first suit does not affect conclusiveness of judgment in subsequent litigation between same parties over same subject matter, since rule as to conclusiveness of judgment applies to a judgment by default or decree pro confesso). The trial court awarded the plaintiffs nominal damages, but refused their request for an injunction preventing future defamatory comments by the defendants.

On appeal, the Sixth Circuit held “[I]n view of Carpenter’s frequent and continuing defamatory statements, an injunction is necessary to prevent future injury to Carolyn Hill’s personal reputation and business relations, [citations omitted], ... [but] would limit the application of such injunction to the statements which have been found, in this and prior proceedings to be false and libelous.” Lothschuetz, 898 F.2d at 1208-1209 (Wellford, Judge, concurring in part and dissenting in part) (emphasis added).

Thus, in Lothschuetz, unlike in the present case, there had been a definitive adjudication (albeit by default judgment) that the defendants’ public accusations were false, and the injunction was narrowly confined to those statements proven to be false as a matter of res judicata.

Similarly, in In re Davis, 347 B.R. 607, the Davises opened a webpage that contained material suggesting that Kenneth Mitán and his family, including Frank Mi-tan, were con artists, and that one should avoid doing business with them. The Bankruptcy Court found for the Davises on all claims except Frank’s claim for libel. The court awarded Frank Mitán nominal damages, ordered any reference to Frank to be stricken from the Davises’ website, and enjoined the Davises from operating the offensive website or any similar website for the duration of their Chapter 13 plan. Id. at 610.

Upon review, the federal District Court recognized this country’s “rich tradition of freedom of speech” and that “[a]ecordingly, the courts must tread lightly when enjoining speech.” Id. at 612-613. The court nevertheless concluded that “[t]he freedom of speech is not an absolute right, and a court may use its equitable power to protect an entity from defamatory speech where there is no adequate remedy at law.” Id. at 613 (citing Lothschuetz, 898 F.2d 1200, and Pittsburgh Press Co., 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669). The District Court then held:

The Davises do not object to the order compelling them to remove all reference to Frank Mitán so much as they object to the enjoining of their entire website for the duration of their Chapter 13 plan, a period that could be as long as five years. 11 U.S.C. § 1322. The court agrees that the scope of this injunction is overly broad. While Frank Mitán may be entitled to injunctive relief to protect him from future defamation, this relief does not require the Davises’ complete silence over a multi-year period. Although the Bankruptcy Court’s description of the website as a “scandal sheet” may be apt, there has been no finding that it is defamatory with regard to anybody but Frank. On remand, the Bankruptcy Court is to reconsider the scope of its injunction. To the extent that Frank still requires protection from defamation, the Court is to craft a solution that provides that protection without unduly trampling on the Davises’ right to publish.

Id. (emphasis added).

Accordingly, in Davis, there had been a final adjudication that the Davises’ statements concerning Frank Mitán were false, unlike our present case in which there has been no final adjudication of the falsity of Hill’s speech. Further, Davis narrowly tailored the remedy to restrain only such speech that had been finally adjudicated as false.

In summary, neither Lothschuetz nor Davis supports, as suggested by the Respondents, a broad authority for courts to enjoin allegedly defamatory speech prior to final adjudication that the speech is false. Thus, Lothschuetz and Davis provide no support for the temporary injunction entered in this case.

Upon application of the modern rule as described above to the circumstances of the present case, we need go no further than to note that the speech alleged to be false and defamatory by the Respondents has not been finally adjudicated to be, in fact, false. Only upon such a determination could the speech be ascertained to be constitutionally unprotected, and therefore subject to injunction against future repetition. We are mindful that the rule announced herein delays the availability of injunctive relief during the time it takes to litigate the issue. Thus, while the rule may temporarily delay relief for those ultimately found to be innocent victims of slander and libel, it prevents the unwarranted suppression of speech of those who are ultimately shown to have committed no defamation, and thereby protects important constitutional values. We trust that our trial courts will use their discretion to balance those competing interests by bringing such cases to final adjudication in a reasonably timely manner.

Accordingly, we grant the relief requested by Movant in his CR 65.09 motion, and dissolve the circuit court’s injunction. We also hold, consistent with our determination herein, that upon a final adjudication of the falsity of any statements made by Hill, a narrowly tailored injunction may be issued, covering only those specific statements found by a jury or by a judge in a bench trial, to be false.

III. ANALYSIS UNDER THE SECTION ONE AND SECTION EIGHT OF THE KENTUCKY CONSTITUTION

Independently of the First Amendment analysis set forth above, we also conclude that the injunction is in violation of the free speech provisions set forth in Section 8 and Section 1(4) of our Kentucky Constitution. We begin by noting that there is no authority addressing the specific issue before us under the Kentucky Constitution, and so our references are principally limited to the text of the relevant provisions of the Kentucky Constitution, and the 1890 Constitutional Debates addressing the drafters’ understanding of their meaning.

Section 1(4) of the Kentucky Constitution provides as follows: “All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: ... Fourth: The right of freely communicating their thoughts and opinions.”

Section 8, titled “Freedom of speech and of the press,” provides as follows: “Printing presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof. Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.” (emphasis added).

Read literally, the provision would appear to prohibit any restriction of speech on any subject, though the speaker would thereafter be subject to any criminal or civil consequences available through our court system. Thus, as relevant to the present case, a reasonable restatement of the second sentence of Section 8 may well be as follows: “No prior restraint against speech shall issue against a speaker by injunction, but if the speaker goes too far, he must thereafter answer civilly or criminally in the Courts of the Commonwealth.” Thus, Section 8 could reasonably be interpreted as supporting the traditional rule that defamatory speech may not be enjoined at all. In any event, the provision does not support the Respondents’ position that courts may broadly enjoin defamatory speech. The issue, then, is whether speakers, such as Hill, may, under Section 8, have protections above and beyond the floor established by the First Amendment.

While the unmistakable clarity of Section 8 may compel, in certain instances, greater protection to speech than the First Amendment, at the same time, in interpreting the provision, it must also be recognized, as previously discussed, that some categories of speech are undeserving of any constitutional protection at all, including false, defamatory speech. In this vein, we conclude that Section 8 may be interpreted consistently with the modern rule that defamatory speech may be enjoined following a judicial determination of falsity.

Since the late 1500’s the common law has afforded a cause of action for damage to a person’s reputation by the publication of false and defamatory statements, not only to allow an individual to vindicate his good name, but also to allow him to obtain redress for harm caused by the statements. Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). Thus, there is a long-standing cause of action, predating our 1891 Constitution, permitting a plaintiff to seek remedy through the courts against those spreading false information about him. It follows that Section 8 must be interpreted with this principle in mind, and with the recognition that its drafters understood this limitation on speech. The debates themselves reflected a strong sentiment against the tolerance of defamation. For example, in his discussion of Section 8 before the Convention, Delegate C.J. Bronston, of Lexington, in the colorful language of the times, orates as follows:

... “Is libel worse than murder?” I answer the gentleman, in the presence of this intelligent audience, yes, it is worse than murder. You may kill a man and put him away beneath the sod, and there, over his mouldering body, may grow the green grass, and his children and grandchildren may come about and shed a tear; but take from him his reputation, and he is a living corpse walking among men — a stench in their nostrils — a being subject to the scorn of the human race. Worse than murder; because the man who strikes down his fellow-man invokes at once the anger and the determination of every human being to prosecute him; but let him, by the insidious means of the press, strike down a man’s character, and the people have their prurient taste gratified for a moment, and then forget, as it were, and leave the poor wretch to wander degraded throughout this life.

1 1890 Kentucky Constitutional Convention Debates, 543.

As previously discussed, false defamatory speech enjoys no constitutional protections under the First Amendment. Section 8 should be similarly construed, and this construction, as reflected in the comments of Delegate Bronston, would be consistent with the sentiments of its drafters. False, defamatory speech advances no public interest, whereas there is an important right of long-standing recognition allowing a citizen redress, through the courts, of protection against false, defamatory statements against his good name and reputation.

Accordingly, we conclude a reasonable interpretation of the phrase “being responsible for the abuse of that liberty [to speak freely]” (emphasis added) would, in addition to monetary damages, also include a speaker’s “being responsible” to respect, and abide by, a final determination by a judge or jury that his defamatory speech is false. This obligation of “being responsible” would seem to include a duty to retrain from repetition of speech adjudicated to be false, and, it follows, would also include the responsibility to abide by a narrowly tailored injunction against repetition of the false speech.

As such, Section 8 may be interpreted consistently with authorizing an injunction once speech has been finally adjudicated as false. We so interpret the provision. See Balboa Island Village Inn, Inc., 156 P.3d 339, (Interpreting a California constitutional provision similar to Section 8 as permitting an injunction against defamatory speech upon an adjudication of falsity.).

In summary, consistent with the modern rule, we construe Section 8 as permitting an injunction against false, defamatory speech, but only upon a final judicial determination that the speech is false. See CR 65.01. “A party may obtain injunctive relief in the circuit court by permanent injunction in a final judgment.” (emphasis added.) Until such determination of falsity, however, the provision is best interpreted as proscribing a preliminary restraint upon the alleged defamatory speech. We hold that neither a restraining order under CR 65.03, nor a temporary injunction under CR 65.04 may be used to enjoin allegedly defamatory speech.

CONCLUSION

For the foregoing reasons we grant Hill’s motion for CR 65.09 relief, and vacate the temporary injunction. If, however, upon final adjudication in the trial court, specific and particular statements alleged to have been made by Hill are found to be false, the trial court may then enter a narrowly tailored injunction to prevent further dissemination of the false and defamatory statements.

All sitting. MINTON, C.J., ABRAMSON, NOBLE, SCHRODER and SCOTT, JJ., concur. CUNNINGHAM, J., concurs in result only by separate opinion.

CUNNINGHAM, J.,

Concurring in Result Only:

“Who steals my purse steals trash; ‘tis something, nothing. ‘Twas mine, ‘tis his, and has been a slave to thousands. But he that filches from me my good name robs me of that which not enriches him, and makes me poor indeed.”

It is precisely for this reason, so cogently expressed by Shakespeare, that our law does not protect defamation of character. John Burness and Petrotech were in the process of being defamed and maligned. They have resorted to the protection of the court — not the vindication of the street — to protect their good names.

Therefore, while I concur with the excellent writing and rationale of Justice Ven-ters, I wish to make clear that, in my view, the courts are still able to protect one from perpetual vilification.

I write to express my concern about the term, “final adjudication,” used by the majority. It would have been sufficient, in my opinion, if the trial court, in this case, had conducted a full blown hearing and had entered findings on the falsity of the statements, even though other claims might still be pending. To that extent, there would not have been a “final adjudication” of the case, but there would have been one on the falsity of the statements. To my mind, that would have been sufficient “adjudication” to have protected the constitutional rights of the declarant as well as the reputation of the person aggrieved. Such was not done here and, thus, I concur in result.

I am heartened by the words of Justice Venters that “upon a final adjudication of the falsity of any statements made by Hill, a narrowly tailored injunction may be issued. ...” It is my opinion that a temporary injunction may still be obtained if the trial judge holds a hearing and makes a finding that the statements are, in fact, false. This would allow a temporary injunction to be in place to protect the reputation of the complainant as the lawsuit proceeds to a conclusion.

With the expression of this view, I concur in result only.

      . The involvement of a media defendant usually implicates freedom of the press as well as freedom of speech.

      . We emphasize at this point that the discussion herein excludes injunctions that may relate to media defendants, public figures, and matters of public interest. An entirely separate set of rules is implicated when the litigation involves these parties and issues. See New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 and its progeny.

      . Judge Wellford’s dissent on this point was joined by Judge Hull, and was thus the majority opinion upon the issue. Judge Guy, who wrote the lead opinion, agreed with the District Court that the injunction requested by the plaintiffs was an unwarranted prior restraint on freedom of speech, citing Community for Creative Non-Violence, 814 F.2d at 672 (‘‘[t]he usual rule is that equity does not enjoin a libel or slander and that the only remedy for defamation is an action for damages.’ ”).

      . While there may be indicia of falsity in the record before us, nevertheless, it is possible that, ultimately, it may be determined that Hill’s speech, or part of it, is truthful, and he is aiding the public interest by exposing questionable investment solicitations by Respondents.

      . As previously noted, the circuit court’s order enjoined Hill "from directly and/or indirectly contacting any customers, clients, investors, and/or business associates of Plaintiffs for the purpose of defaming the Plaintiff[s], and shall likewise be enjoined from publishing, by any means, manner, or media, or otherwise making [any defamatory] public comments pertaining in any way to the Plaintiffs or Plaintiffs’ business dealings.” This wide-sweeping language could well serve as a model of an injunction that does not meet the narrow tailoring requirements necessitated by the rule as explained. Thus, in any event, based upon its wording, it would be necessary to vacate the injunction as impermissibly overly-broad.

      . Article I, section 2, subdivision (a) of the California Constitution states: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.”


source: Caselaw Access Project

license: Public Domain

text:
    Chester HOGSTON, Appellant, v. BELL SOUTH TELECOMMUNICATIONS; Honorable James Kerr, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2010-SC-000299-WC.
    Supreme Court of Kentucky.
    Nov. 18, 2010.

      Robert J. Greene, Kelsey E. Friend Law Firm, Pikeville, KY, Counsel for Appellant, Chester Hogston.
    James Burke Cooper, Boehl, Stopher & Graves, LLP, Lexington, KY, Counsel for Appellee, Bell South Telecommunications.
   OPINION OF THE COURT

This appeal concerns an Administrative Law Judge’s (ALJ’s) refusal to award the claimant double benefits under KRS 342.730(l)(c)2, having found there to be no connection between the cessation of his employment and the injury for which he sought double benefits. The Workers’ Compensation Board and the Court of Appeals affirmed. Appealing, the claimant asserts that the decisions below result from a misapplication of the decision in Chrysalis House, Inc. v. Tackett. We reverse because we agree that the claimant is entitled to double benefits, but we decline his invitation to limit Chrysalis House to instances where an employee would otherwise profit from illegal conduct.

The claimant began working for the defendant-employer in 1977 as a lineman. He became a facility technician early in 2000, which required him to work in a bucket truck; go into manholes; and climb poles and ladders when a bucket truck could not be used. The job also required lifting, squatting, and bending.

The claimant had a history of injuries that required surgeries to both of his knees. The record indicates that he received temporary total disability benefits for a work-related right knee injury that occurred in the 1980s and injured his left knee twice, while playing football in 1976 and while working in 1997. He sustained the right knee injury presently at issue in a work-related fall that occurred in January 2006.

Dr. Shockey performed surgery to repair medial and lateral meniscal tears in the right knee in March 2006. He later reported a good surgical result and assigned a 4% permanent impairment rating but no restrictions. He also reported a finding of “gouty arthropathy of the knee” but indicated that it was unrelated to the January 2006 injury.

The claimant returned to work after recovering from his work-related right knee injury. Dr. Shockey testified when deposed that he performed two additional knee surgeries, in June and December 2007, to address conditions he considered to be unrelated to the January 2006 injury. He assigned a 10% impairment rating in July 2007, after the second right knee surgery, but attributed the claimant’s restrictions to the left knee. He noted in August 2007 that the claimant’s right knee was doing well but that his left knee was painful. Moreover, the claimant had difficulty when ascending and descending inclines and with lifting. He also had difficulty with his hands, including frequent numbness in the median nerve distribution. Dr. Shockey restricted the claimant from significant climbing or heavy lifting and performed bilateral carpal tunnel releases, which he stated were non-work-related. He later performed left knee surgery and attributed the need for surgery to the combined effects of the 1976 injury and the 1997 injury, the latter of which he characterized as being work-related.

At some point the employer offered the claimant light-duty work in the office. He remained on the payroll until January 10, 2008, when he was terminated because his permanent medical restrictions prevented him from performing the duties of a facility technician, particularly climbing poles and ladders. He supported his application for workers’ compensation benefits with Dr. Shocke/s medical records. The claimant testified at the hearing that his permanent physical restrictions resulted from his non-work-related carpal tunnel and left knee conditions.

The ALJ awarded benefits based on the 4% permanent impairment rating that Dr. Shockey assigned to the January 2006 injury. Having found that the claimant’s physical restrictions did not result from the injury, the ALJ relied on Chrysalis House as a basis to refuse to award double benefits under KRS 342.730(7 )(c)2.

KRS 342.730(7 )(c)2 provides as follows:

If an employee returns to work at a weekly wage equal to or greater than the average weekly wage at the time of injury, the weekly benefit for permanent partial disability shall be determined under paragraph (b) of this subsection for each week during which that employment is sustained. During any period of cessation of that employment, temporary or permanent, for any reason, with or without cause, payment of weekly benefits for permanent partial disability during the period of cessation shall be two (2) times the amount otherwise payable under paragraph (b) of this subsection. This provision shall not be construed so as to extend the duration of payments.

The court acknowledged in Chrysalis House that KRS 342.730(l)(c)2 “appears at first blush to provide clearly and unambiguously for a double benefit during a ... cessation of employment at the same or a greater wage ‘for any reason with or without cause.’ ” The court determined, however, that the provision is a subsection of KRS 342.730(1) that must be interpreted in the context in which it was written. Thus, when read in light of the fact that KRS 342.730(1) provides income benefits based on “disability” due to impairment from a work-related injury, KRS 342.730(( )(c)2 permits a double benefit “during any period that employment at the same or a greater wage ceases ‘for any reason with or without cause,’ provided that the reason relates to the disabling injury.”

The claimant argues that Chrysalis House ignored the plain language of KRS 342.730(l)(c)2, which is more specific than KRS 342.730(1), and that the decision’s precedential value should be limited to its facts, i.e., to instances where an employee would otherwise profit from the consequences of an illegal act. We disagree.

The court decided Chrysalis House as a matter of statutory interpretation, not as a matter of public policy with respect to an individual’s right to profit from an illegal act. As a consequence, the court remanded the claim for the ALJ to determine “whether employment at the same or a greater wage ceased for reasons related to [Tackett’s] injury.” The rationale supporting the court’s interpretation of KRS 342.730(1 )(c)2 applies equally to the present facts, which involve no allegation of illegal conduct.

What distinguishes this case from Chrysalis House for the purpose of KRS 342.730(l)(c)2 is that the claimant sustained multiple work-related injuries that involved both of his knees. Mindful that KRS 342.730(1) permits disability from previous work-related injuries other than coal workers’ pneumoconiosis or traumatic hearing loss to be considered for certain limited purposes, we hold that KRS 342.730(( )(c)2 includes a cessation of employment due to the disabling effects of previous work-related injuries as well as the injury being compensated.

Dr. Shockey attributed the claimant’s permanent medical restrictions to his left knee, but he attributed part of the disability they produced to the effects of the 1997 work-related injury. Although the ALJ found there to be “no connection” between the cessation of the claimant’s employment and the 2006 work-related knee injury for which he sought compensation, Dr. Shockey’s uncontroverted testimony linked the reason for the claimant’s termination to work-related disability.

The decision of the Court of Appeals is reversed, and this claim is remanded for the entry of an award under KRS 342.730(Z)(c)2.

All sitting. All concur.

      . 283 S.W.3d 671 (Ky.2009).

      . 283 S.W.3d at 674.

      . Id.

      . 283 S.W.3d at 675.

      . KRS 342.730(l)(e) excludes such disability for the purpose of determining the extent of partial disability or duration of benefits but makes no reference to enhanced benefits or to work-related conditions not previously compensated under Chapter 342. KRS 342.730(l)(a) excludes such disability but permits disability from previous work-related injuries to be considered when finding a worker to be totally disabled.


author: Justice VENTERS.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Carlene SLUSHER, Administratrix of the Estate of Donald Slusher, Deceased, Appellee.
    No. 2009-SC-000513-DG.
    Supreme Court of Kentucky.
    Nov. 18, 2010.

      John Fredrick Vincent, Martin, Justice, Vincent & Lavender, Ashland, KY, Counsel for Appellant.
    Samuel Girdner Davies, Barbourville, KY, Counsel for Appellee.
   Opinion of the Court by

Justice VENTERS.

This case involves the right of a worker to recover under his personal policy of uninsured motorist protection (UM) and underinsured motorist protection (UIM) for uncompensated injuries sustained in a work-related motor vehicle accident caused by the negligence of a co-worker. Appellant, State Farm Mutual Automobile Insurance Company, appeals from an opinion of the Court of Appeals which upheld a determination by the Knox Circuit Court that Appellee, Carlene Slusher, Adminis-tratrix of the Estate of Donald Slusher, was entitled to collect under either the UM or UIM provisions of a motor vehicle insurance policy issued by State Farm to Appellee’s decedent, Donald Slusher. For reasons set forth below, we reverse the Court of Appeals, and remand to the Knox Circuit Court for dismissal of the Estate’s claims against State Farm.

FACTUAL AND PROCEDURAL BACKGROUND

Donald Slusher and Arlie Napier were both working as truck drivers in the employ of James Long Trucking, which had a contract to haul refuse from a coal processing site in Bell County, Kentucky. After parking his truck, Donald was on duty, waiting for his next load in a concrete block structure located at the site. Meanwhile, Napier had parked his twenty-ton 1988 Mack haul truck uphill from, and facing, the concrete block building. According to investigators, Napier left his truck with the engine running and the transmission in neutral. He set the hand brake but failed to set the parking brake. He also failed to turn the wheels toward the adjacent berm to prevent the vehicle from rolling down the slope toward the concrete block structure. The Mack truck was owned by James Long Trucking and was covered by a liability insurance policy issued by Progressive Insurance Company.

Several minutes after Napier parked the coal truck, it rolled into the concrete block building, demolishing it and killing Donald and another person. An accident investigation by the Federal Mine Safety and Health Administration concluded that the cause of the accident was Napier’s negligence in parking the truck.

Donald’s wife, Carlene, was appointed Administratrix of his estate. The parties stipulate that Donald’s death occurred during the course of his employment and that the accident was covered by the Kentucky Workers’ Compensation Act, KRS Chapter 342. Carlene sought and received all workers’ compensation benefits to which she was entitled from James Long Trucking’s workers’ compensation carrier. Because of KRS 342.690(1), the exclusive remedy provision of the Workers’ Compensation Act, the Estate could not directly assert a wrongful death claim against Napier.

At the time of his death, Donald had an automobile insurance policy issued by State Farm which covered his personal vehicle. The State Farm policy had both UM and UIM provisions, each with a $50,000.00 per person coverage limit. However, when the Estate sought payment under these provisions, State Farm denied the claim on the grounds that the policy language limited the UM and UIM liability to damages that the Estate was “legally entitled to collect” from the owner or operator of an uninsured or underin-sured motor vehicle and KRS 342.690(1) eliminated the Estate’s legal entitlement to collect any damages from either the employer or a co-worker in excess of the workers’ compensation benefits paid on account of Donald’s death.

After denial of its claim, the Estate filed suit against State Farm in Knox Circuit Court seeking payment of the UM policy limits (if the truck was determined to be uninsured) or the UIM policy limits (if the truck was determined to be underin-sured). The Estate eventually filed a motion for partial summary judgment on the issue of coverage under the policy. The circuit court entered an order granting the Estate partial summary judgment on two issues. First, the circuit court held that the insurance policy contained both UM and UIM coverage and that Donald was covered by the policy at the time of the accident. Second, citing Philadelphia Indemnity Ins. Co. v. Morris, 990 S.W.2d 621 (Ky.1999), the court held that the exclusive remedy provisions of the Workers’ Compensation Act did not bar the Estate from asserting a claim against State Farm under the policy. State Farm appealed that decision; however, the Court of Appeals dismissed this initial appeal as interlocutory because the circuit court had made no finding concerning damages.

The parties then entered into an Agreed Stipulation of Facts which provided, among other things, that “[t]he policy maintained uninsured motorist’s coverage with limits of $50,000.00 per person[,]” and “[sjhould coverage be applicable, the amount of damages sustained by the Plaintiff Estate meet [sic] the $50,000.00 limit for uninsured motorist’s coverage under the State Farm policy.”

On January 7, 2008, the circuit court entered a $50,000.00 judgment against State Farm based upon its “review of the Stipulation of Facts entered by and between the parties hereto and the Court having previously entered an order addressing the coverage issue for uninsured motorist’s coverage on January 17, 2007 and finding such coverage under the State Farm policy in existence.... ” Thus, the Stipulation of Facts and the circuit court’s order of January 7, 2008, referenced only UM coverage; neither mentioned UIM coverage. Again, however, we construe the circuit court’s orders as holding that the Estate is entitled to a $50,000.00 recovery under whichever of the two provisions may be applicable.

Following entry of the January 7, 2008 Judgment, State Farm again appealed to the Court of Appeals. The Court of Appeals affirmed the circuit court, although on different grounds. In concluding the exclusive remedy provisions of the Workers’ Compensation Act did not apply, the Court of Appeals used the “essential facts” approach contained in U.S. Fidelity and Guar. Co. v. Preston, 26 S.W.3d 145 (Ky.2000) and Nationwide Mutual Insurance Co. v. Hatfield, 122 S.W.3d 36 (Ky.2003). Using this approach, the Court of Appeals concluded that to recover UM or UIM benefits an insured need only prove: (1) the fault of the uninsured or underinsured motorist; and (2) the extent of damages caused by the uninsured or underinsured motorist. The court concluded that since the parties had stipulated to both Napier’s negligence in causing the accident and damages sufficient to consume the $50,000.00 UM or UIM coverage limit, the Estate was entitled to summary judgment upon its claim for recovery under either the UM or UIM provisions of the policy. We accepted discretionary review to examine an insured’s entitlement to UM or UIM coverage when he is injured by a coworker in a work-related motor vehicle accident and, because of the exclusive remedy provisions of the Workers’ Compensation Act, is not legally entitled to collect any further amounts from either his employer or co-worker.

ANALYSIS

State Farm argues that the plain language of the policy, the exclusive remedy provisions of the Workers’ Compensation Act, and applicable case authorities compel the conclusion that it has no liability under either the UM and UIM provision. For the reasons discussed below, we agree.

Donald’s State Farm policy includes the following provision governing entitlement to UM and UIM coverage: “We will pay compensatory damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured [underinsured] motor vehicle.” As a general rule, the construction and legal effect of an insurance contract is a matter of law for the court. Morganfield Nat’l Bank v. Damien Elder & Sons, 836 S.W.2d 893, 895 (Ky.1992). While “it [is] clear that ambiguous language must be liberally construed so as to resolve all doubts in favor of the insured ... where not ambiguous, the ordinary meaning of the words chosen by the insurer is to be followed.” Bituminous Cas. Corp. v. Kenway Contracting, Inc., 240 S.W.3d 633, 638 (Ky.2007). “Or stated another way, words which have no technical meaning in law, must be interpreted in light of the usage and understanding of the common man.” Id.

Stating that “in 1999 our Supreme Court addressed this very issue,” the trial court relied upon Morris, 990 S.W.2d 621, for the proposition that “KRS 342.690 has been found to not bar the way when an employee seeks underinsured/uninsured motorist benefits that exceed his or her workers’ compensation award.” However, Morris is distinguishable from this matter because there the tortfeasor was a third party, not a co-worker protected from liability by our workers’ compensation law. The exclusive remedy provisions of Chapter 342 were not involved there. Similarly, G & J Pepsi-Cola Bottlers, Inc. v. Fletcher, 229 S.W.3d 915 (Ky.App.2007), cited by the Court of Appeals for the rule that an injured employee who receives workers’ compensation benefits has a right to seek additional coverage under both his own UIM policy and his employer’s, is distinguishable for the same reason — the tort-feasor in that case also was not a fellow employee.

The Court of Appeals found the phrase “legally entitled to collect” to be ambiguous when considered in the context of the statutory immunity from liability as provided under KRS 342.690(1). See Preston, 26 S.W.3d 145; and Hatfield, 122 S.W.3d 36. To resolve the perceived ambiguity, it resorted to the “essential facts” approach from Coots v. Allstate Ins. Co., 853 S.W.2d 895, 899 (Ky.1993) which holds:

UM coverage and UIM coverage are treated coextensively in many standard insurance policies, and in some cases are offered as a combined coverage. In both, proof that the offending motorist was at fault and proof of the amount of damages caused by the offending motorist are not preconditions to coverage, but only essential facts that must be proved before the insured can recover judgment in a lawsuit against the insurer on the contract of insurance.

Contract language, like statutory language, may be clear on its face and yet contain a latent ambiguity. Thornhill Baptist Church v. Smither, 273 S.W.2d 560, 562 (Ky.1954); see also Carroll v. Cave Hill Cemetery Co., 172 Ky. 204, 189 S.W. 186, 190 (1916) (“A latent ambiguity is one which does not appear upon the face of the words used, and it is not known to exist until the words are brought in contact with the collateral facts.”) As explained further below, under facts peculiar to each case, the contract language in Preston (“legally entitled to recover”) and Hatfield (“a legal right to recover”) exposed a latent ambiguity when confronted with applicable laws of foreign jurisdictions that reflected public policies of those jurisdictions sharply at odds with Kentucky law. However, when the interplay between the policy language now before us and the exclusive remedy provisions of the Workers’ Compensation Act is examined, we find no ambiguity in the policy language, and we can find no construction of such language that would support a conclusion that the Estate was “legally entitled to collect” any amounts from either the owner of the vehicle, James Long Trucking, or its driver, Napier, over and above the workers’ compensation benefits already awarded under the Act.

The exclusive remedy provision of the Kentucky Workers’ Compensation Act, which is contained in KRS 842.690, provides as follows:

If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death.... The exemption from liability given an employer by this section shall also extend to such employer’s carrier and to all employees, officers or directors of such employer or carrier....

“Essentially, the exclusive remedy provision grants immunity for liability arising from common law and statutory claims, meaning such claims cannot be pursued in the courts of this Commonwealth.” Kentucky Employers Mut. Ins. v. Coleman, 236 S.W.3d 9, 13 (Ky.2007). The effect of this statute is that “KRS 342.690(1) and its predecessor statute shield a covered employer and its insurer from any other liability to a covered employee for damages arising out of a work-related injury.” Id. (quoting Travelers Indemnity Co. v. Reker, 100 S.W.3d 756, 760 (Ky.2003)). “[T]he exemption from liability granted to an employer by KRS 342.690(1) is also extended to all employees of the employer.” Fireman’s Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 464 (Ky.1986).

As the above authorities demonstrate, except for the workers’ compensation benefits that have already been awarded pursuant to KRS Chapter 342, the Estate is not now, nor will it ever be, “legally entitled to collect” any further amounts from either James Long Trucking or Napier. Since the contractual language of the State Farm policy affords payment of UM or UIM benefits only for “bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured [un-derinsured] motor vehicle,” under the facts of this case, the Estate may not collect under its UM or UIM coverage.

While the Court of Appeals determined that the policy language was ambiguous, its declaration to that effect was coneluso-ry, and it identified no alternative interpretation of the language. The two decisions upon which it principally relied to find ambiguity in the State Farm policy language are Preston, 26 S.W.3d 145 and Hatfield, 122 S.W.3d 36. However, in each of those cases the legal bar to recovery against the third-party tortfeasor was the application of foreign law to a Kentucky resident claiming coverage under a Kentucky-issued policy of UM or UIM insurance. In Hatfield, Missouri’s sovereign immunity law prevented further recovery from the tortfeasor, a Missouri municipal fire department employee. In Preston, Georgia’s comparative negligence law prevented recovery by the sixty-percent at fault plaintiff from the forty-percent at fault tortfeasor. Thus, in those cases, the laws of foreign jurisdictions which barred recovery where Kentucky law would allow recovery exposed the latent ambiguity of the insurance policy language. In Preston, did “legally entitled to recover” mean “legally” under Georgia law or “legally” under Kentucky law? In Hatfield, did “a legal right to recover” mean “legal” under Missouri law or “legal” under Kentucky law?

In both Preston and Hatfield we interpreted a Kentucky insurance policy issued to a Kentucky resident as being consistent with Kentucky law, and we refused to subordinate Kentucky public policy to the conflicting public policy of another state. Central to the Preston decision was our recognition that “[flaws unique to other jurisdictions, e.g., regarding statutes of limitations, interspousal immunity, workers’ compensation, and comparative or contributory negligence, should not bind and define the public policy of Kentucky.” Preston, 26 S.W.3d at 147-148 (emphasis added). In the present matter, Kentucky public policy is expressed in KRS 342.690(1), and we are not confronted with the law of a foreign jurisdiction that conflicts with that Kentucky policy. Our decision in this case is not inconsistent with our holdings in Hatfield and Preston.

The conclusion we reach is also consistent with the conclusion reached by the majority of other jurisdictions that have considered the issue. See John P. Luding-ton, Annotation, Automobile Uninsured Motorist Coverage: “Legally Entitled to Recover” Clause as Barring Claim Com-pensable Under Workers’ Compensation Statute, 82 A.L.R. 4th 1096 § 6(a) (1990) (“[A]n employee is not entitled to uninsured motorist benefits under his or her own automobile insurance policy for injuries resulting from a coemployee’s [sic] negligent operation of a motor vehicle, because an uninsured motorist carrier is liable only for the damages which an insured is legally entitled to recover’ from owners or operators of uninsured motor vehicles, and the workers’ compensation law grants immunity from suit to a co-employee for injuries compensable by workers’ compensation benefits.”)

In summary, for the reasons explained, we are constrained to conclude that both the trial court and Court of Appeals erred in their holdings that the Estate was entitled to collect benefits under either the UM or UIM provisions of the State Farm policy.

CONCLUSION

For the foregoing reasons the judgment of the Court of Appeals is reversed, and the cause is remanded to the Knox Circuit Court for entry of a judgment in favor of State Farm.

All sitting. All concur.

      . The trial court's order entered January 17, 2007, granting partial summary judgment to the Appellee referenced both UM and UIM coverage; however, the final judgment entered January 7, 2008, referenced only UM coverage. As read together, we construe the trial court’s orders as awarding a $50,000.00 judgment to the Estate pursuant to whichever provision would be applicable.

      . Following the accident Napier gave a statement in which he claimed to have set the parking brake. For purposes of this litigation the parties stipulate that the accident "occurred as a result of the negligent failure of the operator of the haul truck to set the parking brake and turn the wheels toward the burm [sic] when leaving the truck parked, and utilizing only the hand brake.”

      .Appellee notes that the applicability of coverage under the Progressive policy has not been determined. We agree, but we conclude that the applicability of the policy is not material under the circumstances now before this Court.

      . The Mine Safety and Health Administration conducted the lead investigation because the accident occurred at a coal mining site.

      . Because of the exclusive remedy provisions of the Workers’ Compensation Act, KRS 342.690(1), no claim was pursuable against the liability carrier on the truck, Progressive Insurance Company. The record does not disclose the results of any claim by the workers’ compensation carrier against Progressive Insurance, nor is this relevant to our review.

      .The Estate’s theory that the vehicle may be deemed "uninsured” or "underinsured” derives from the fact that, although the truck was covered by a policy issued by Progressive Insurance at the time of the accident, the policy was essentially a nullity because performance under the policy was excused by the exclusive remedy provisions of the Workers’ Compensation Act.

      . The stipulation refers only to uninsured motorist coverage, not underinsured coverage. However, the stipulation is to the amount of damages and reason dictates that if the amount of damages meets the $50,000.00 UM limit, it likewise meets the same UIM limit.

      . State Farm suggests the circuit court’s orders should be interpreted to have found for the Estate solely under the UM provision, and that coverage under that provision is the only issue before this Court. It maintains that coverage under the UIM provision remains to be litigated in circuit court. However, the January 17, 2007 order clearly awarded summary judgment under the UIM provision as well as the UM provision, and we accordingly reject State Farm's interpretation.

      .State Farm asserted the argument before the Court of Appeals that recovery under the UM provision of the State Farm policy was barred because there was a liability policy on the truck. The Court of Appeals declined to address the argument on the grounds that it was insufficiently preserved by State Farm’s failure to raise the argument to the circuit court or list it as an issue on its prehearing statement. State Farm again raises this issue before us, and the Estate has moved to strike the arguments from the Appellant’s brief. As further discussed herein, we do not rely on this argument in reaching the merits of this case, and by separate order we have denied the Estate’s motion to strike.

      . The UM statute, in KRS 304.20-020(1), uses similar language, that is, "legally entitled to recover....”

      . Because the policy provision under review is not ambiguous, reference to the essential facts approach was unnecessary. We note, however, that in its application of the essential facts approach, the Court of Appeals appears to have synthesized a rule whereby to recover under the essential facts approach, the insured need only prove: (1) the fault of the uninsured or underinsured motorist, and (2) the extent of damages caused by the uninsured or underinsured motorist. However, this abridgment of the rule fails to properly consider an individualized analysis of a particular policy’s language and its interplay with statutory public policy exemptions to tort liability, such as the exclusive remedy provisions of the Workers' Compensation Act. Under the essential facts approach, a third step would be required. Assuming contractual language similar to the provisions under consideration, a review to discover any applicable statutory bar to the plaintiff’s entitlement to collect from the tortfeasor(s) would be necessary. Upon application of this step, the Estate is not entitled to collect under the essential facts approach.

      . While some of the policies examined in other jurisdictions use the language "legally entitled to recover” and "amounts due," we discern no difference between that phrasing and the wording "legally entitled to collect.” Cases cited-include: Allstate Ins. Co. v. Boynton, 486 So.2d 552 (Fla.1986) (a mechanic injured by a car on which his co-employee was working was held not entitled to recover under his own uninsured motorist policy because of the co-employee's immunity from suit); Ex parte Carlton, 867 So.2d 332 (Ala.2003) (employee injured as a passenger in a vehicle driven by a co-employee was, under Workers’ Compensation Act, not legally enti-tied to recover from owner or operator of uninsured vehicle, for purposes of uninsured motorist statute, and, therefore not entitled to UM benefits under his insurance policy); Wachtler v. State Farm Mut. Auto. Ins. Co., 835 So.2d 23 (Miss.2003) (insured was not "legally entitled to recover” from co-employee driving truck that struck insured and, therefore, was not entitled to UM benefits under personal automobile policies; the exclusive remedy provision of the Workers' Compensation Act barred recovery from co-employee); Williams v. Thomas, 187 Ga.App. 527, 370 S.E.2d 773 (1988) (an employee who suffered an on-the-job injury when struck by a motor vehicle owned by his employer and operated by his co-employee while in the scope of employment, and for which the employee was awarded workers’ compensation benefits, held not entitled to recover uninsured motorist benefits under his own automobile insurance policy); Williams v. Country Mut. Ins. Co., 28 Ill.App.3d 274, 328 N.E.2d 117 (1975) (collision between two employees’ automobiles on their employer's premises in the course of employment, was within the purview of the state workers’ compensation law; the injured employee’s sole recourse was under the workers’ compensation statute, and there was no coverage under the injured employee’s UM coverage, even though the co-employee was uninsured); Lee v. Allstate Ins. Co., 467 So.2d 44 (La.App.1985) (employee injured in an automobile accident caused by co-employee held not entitled to recover from his co-employee's insurer or from his own UM carrier as both insurers were entitled to avail themselves of the exclusive remedy provision of the state workers’ compensation statute.).


text:
    Semonin T. MOORMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000420-MR.
    Supreme Court of Kentucky.
    Nov. 18, 2010.

      Steven Jared Buck, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, Kenneth Wayne Riggs, Assistant Attorney General, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice VENTERS.

Appellant, Semonin T. Moorman, appeals as a matter of right from a judgment entered upon a jury verdict convicting her of first-degree manslaughter and sentencing her to twenty years’ imprisonment.

In this appeal she raises two arguments. First, that her conviction is invalid because one of the assistant Commonwealth’s attorneys involved in her prosecution had not been properly sworn in as a member of the Kentucky bar, and was therefore an unlicensed attorney at the time of trial; and second, that the trial court erred when it disallowed evidence of the alleged victim’s violent behavior which Appellant claims was relevant to her use of self-defense; and, that the trial court erred by disallowing evidence relating to the victim’s prior drug use.

For the reasons explained below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In the light most favorable to the verdict, the facts relevant to this appeal are as follows. On the afternoon of July 28, 2007, Patricia Shoulders went to the residence of Tasha Bryant. Shoulders, who appeared to have no serious injuries, told Bryant that she had just been in a fight and wanted to use the telephone. As they talked, Appellant, with several other persons, approached the Bryant residence. When Appellant demanded that Shoulders come off the porch, Shoulders responded, “No Tasha, I don’t want to fight anymore, I don’t want to fight them anymore.” Appellant then went onto Bryant’s porch armed with a knife and began fighting with Shoulders. Bryant saw a knife in Appellant’s hand as she approached. After several minutes of fighting, Appellant left and Shoulders, obviously wounded, slumped over onto Bryant’s knees. Shoulders was transported to the hospital, where she was pronounced dead. The cause of death was a stab wound. A knife with Shoulders’s blood on it was found in Bryant’s yard.

Appellant was indicted for Shoulders’s murder. At trial, she claimed that prior to the scuffle on Bryant’s porch, Shoulders had attacked her from behind with a hammer in the Iroquois housing project across the street from Bryant’s residence; that she stabbed Shoulders then to ward off the attack; and that she did so in self-defense. The medical evidence established that the stab wound was a deep wound to Shoulders’s left lung and right ventricle of her heart, and that the wound was an “immediately life threatening injury.” Appellant does not challenge the sufficiency of the evidence to support her conviction. At the conclusion of the trial, the jury convicted Appellant of first-degree manslaughter.

II. THE INVOLVEMENT OF AN UNLICENSED ATTORNEY IN APPELLANT’S TRIAL WAS HARMLESS ERROR

Appellant first contends that her conviction was improper because an unlicensed attorney participated in the presentation of the Commonwealth’s case against her. While she has identified no specific prejudice resulting from his participation in the trial, she argues that the error was structural, and is therefore not subject to harmless error analysis.

At the final sentencing hearing, it was disclosed to the trial court that, at the time of the trial, Logan Sims, one of the two assistant prosecutors who presented the case against Appellant, had not been properly admitted to the Kentucky Bar pursuant to SCR 2.120. The other assistant prosecutor who tried the case, Arthur McLaughlin, was properly licensed as an attorney.

It is uncontested that Sims passed the Kentucky bar examination in October 2008, but was out of the country at the time of the formal swearing-in ceremony before the Kentucky Supreme Court. When he returned, a circuit court judge administered the constitutional oath to him and he began working in the Commonwealth’s attorney’s office. Sims and the judge who administered the oath were apparently unaware of SCR 2.120, which in relevant part provides:

When an applicant is approved for admission [to the bar] that applicant must apply for and be granted a certificate of admission prior to engaging in the practice of law in this state. As prerequisites for the issuance of such a certificate an applicant ... shall be administered the Constitutional Oath of Office either by a Justice of the Supreme Court or by the Clerk of the Supreme Court. Upon completion of the prerequisites, the Clerk shall deliver to the applicant a certificate of admission on a form approved by the Court, and the issuance of the certificate shall be duly recorded by the Clerk.

(emphasis added).

After the trial, Sims learned from the Kentucky Bar Association that the administration of the oath by the circuit court ■judge was insufficient for his admission into the bar. The Commonwealth concedes that Sims was not properly admitted to the bar at the time of the trial. Appellant does not contend that Sims or the Commonwealth’s attorney had any knowledge of the mistake, or otherwise acted in bad faith. When informed of the error, Sims’s work at the Commonwealth attorney’s office was suspended until the oath was administered in accordance with the rule.

KRS 15.760(3) provides, in relevant part, that “All assistant Commonwealth’s attorneys shall be licensed practicing attorneys.” (emphasis added). Because Sims had not complied with the oath requirements of SCR 2.120, he was not properly licensed during Appellant’s trial. For this reason, error occurred as a result of his participation in the trial as an assistant Commonwealth’s attorney, even if as the Commonwealth suggests, his role at trial was subordinate to that of the other prosecutor, Mr. McLaughlin.

The Kentucky Constitution Section 228 specifies who is required to take the constitutional oath, and the form of the oath:

Members of the General Assembly and all officers, before they enter upon the execution of the duties of their respective offices, and all members of the bar, before they enter upon the practice of their profession, shall take the following oath or affirmation: I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of ... according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God.

(emphasis added). Significantly, however, our Constitution is silent upon the issue of who may or must administer the oath. Section 116 of the Kentucky Constitution directs that the Supreme Court, “shall by rule, govern admission to the bar and the discipline of members of the bar.” SCR 2.120 is a clear manifestation of that constitutional directive.

Though there was error relating to Sims’s participation in the trial, it is fundamental that “no error or defect in any ruling ... or in anything done or omitted by the court ... is ground for granting a new trial or for setting aside a verdict ... unless it appears to the court that the denial of such relief would be inconsistent with substantial justice.” RCr 9.24. Moreover, we “must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.” Id. “Virtually all errors, therefore, are subject to harmless error analysis.” Crossland v. Commonwealth, 291 S.W.3d 223, 231 (Ky.2009).

Appellant argues that this case presents a matter of structural error and is not subject to harmless error analysis. “Structural” errors are errors “which are, per se, reversible because they undermine the fundamental legitimacy of the judicial process.” Id. at 232. Structural errors are, therefore, not subject to harmless error analysis at all. “In such cases, the error ‘necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’” Washington v. Recuenco, 548 U.S. 212, 219, 126 S.Ct. 2546,165 L.Ed.2d 466 (2006) (citation and footnote omitted).

We are unable to discern any federal constitutional provision which implicates the right of a defendant to be tried by a licensed attorney. Moreover, because Section 228 of our Constitution provides only that the oath must be administered prior to entering the practice of law, without directing who must administer the oath, that fact that Sims swore the prescribed oath before an official generally authorized to administer oaths avoided constitutional error. Thus, we cannot construe Sims’s participation in the trial as an error of constitutional magnitude. Having the required educational background, and having passed the Kentucky Bar exam and the character/fitness review, he was otherwise competent to participate in the trial. Certainly the participation of an ineffectively sworn prosecutor does not measure up to the substantial constitutional reasons found to be structural error in the cases listed above (see footnote 4). The error here did not render the trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. Thus, we conclude that the error, in this case, was not structural, and is subject to harmless error review.

Appellant has identified no prejudice whatsoever as a result of Sims’s taking the oath in means contrary to SCR 2.120. The manner in which he took the oath had no effect on his trial performance or the evidence presented, and the jury’s verdict would have been the same. The status of Sims’s law license played no part at all in Appellant’s conviction. Thus, the error did not substantially sway the verdict, and is accordingly regarded as harmless. See Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky.2009).

Additionally, we find that the longstanding de facto officer doctrine requires us to affirm the judgment. In Rice v. Commonwealth, 66 Ky. 14, 8 Bush 14, 1867 WL 4050 (1867), a defendant in a criminal matter and his surety challenged the validity of a bail bond “because the police judge [before whom the bond was executed] had been qualified before a notary public who had no legal authority to administer official oaths.” Kentucky’s then highest court rejected the challenge, holding:

“[W]hen a man is exercising and discharging the general duties of an office, claiming right thereto under a commission or appointment, he is an officer de facto; and generally, if not universally, his acts are good as to third parties, however irregular his appointment or qualification!;.] ... We do not say that, even as the police judge was acting under a regular commission and appointment, that this oath would be void; but if it was legally invalid as to himself, his acts as to third parties, are binding.

(emphasis added)

More recently, in Trimble County Fiscal Court v. Trimble County Bd. of Health, 587 S.W.2d 276, 281 (Ky.App.1979), the Court of Appeals, upheld the validity of an action of a county health board despite the disqualification of a board member, stating, “Mrs. Harmon did not automatically forfeit and vacate her Board membership, and that at the very least, she was a de facto member and was entitled to perform her duties while in possession of the office .... Mrs. Harmon was at least a de facto officer, and her vote and presence were properly counted.” The United States Supreme Court applied the de facto officer doctrine in Ryder v. U.S., 515 U.S. 177, 180-181, 115 S.Ct. 2081, 132 L.Ed.2d 136 (1995):

“The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.... The doctrine has been relied upon by this Court in several cases involving challenges by criminal defendants to the authority of a judge who participated in some part of the proceedings leading to their conviction and sentence.”

It is beyond reasonable dispute that if the defective oath-taking invalidated Sims’s admission to the bar and his office as an assistant Commonwealth’s attorney, he was, nonetheless, a de facto officer. While an apparent violation of SCR 2.120 may be a matter of concern to this Court in its constitutional oversight of the practice of law in courts of Kentucky, it affords Appellant with no legitimate complaint as to the validity of her conviction.

Appellant and the Commonwealth have directed our attention to decisions of several states and federal courts that have considered this issue. We are satisfied that the opinion we reach today is consistent with a clear majority of those jurisdictions. We stand, however, not upon the numerical superiority of the courts that agree with us, but upon the superior foundation of law and reason upon which such decisions are based. Appellant is entitled to no relief under this argument.

Ill THE TRIAL COURT DID NOT ERR IN EXCLUDING EVIDENCE RELATING TO HER FEAR OF THE VICTIM

As part of her case-in-chief, Appellant sought to introduce evidence concerning Shoulders’s prior drug use and prior threats of violence directed against various other persons, but of which she was not aware. The trial court ruled that the defense could introduce evidence of specific violent acts or threats made by Shoulders to Appellant, but that it could not use general reputation evidence of Shoulders’s propensity to violence. The trial court also ruled that Appellant could introduce evidence of Shoulders’s drug use in the twenty-four hours prior to the stabbing, but could not introduce evidence concerning her substantial prior history of drug abuse. Appellant presented the excluded evidence through the avowal testimony of five witnesses.

A Prior Threats Heard By Other Persons

Avowal testimony was presented that the day before the stabbing Shoulders stated “when I see the red bitch [referring to Appellant] I’m going to beat her with this hammer”; that on the morning of the stabbing she was twirling a hammer saying “I can’t wait until this red bitch get up. I’m gonna whoop her ass”; that Shoulders frequently threatened people with a hammer; that Shoulders always carried a weapon — usually a razor or a hammer; that she threatened to cut people with a razor; that she once smacked a police officer on the back; that she threatened Appellant on a constant basis; that she threatened a hairdresser with a hammer; that she made various other threats to other people; and that she would call children “sissy dick bitch.”

The principles relevant to prior violent acts and threats by the victim in a self-defense case were addressed in Saylor v. Commonwealth, 144 S.W.3d 812, 815-816 (Ky.2004), and are fairly summarized as follows. Generally, a homicide defendant may introduce evidence of the victim’s character for violence in support of a claim that he acted in self-defense or that the victim was the initial aggressor. KRE 404(a)(2). Such evidence may only be in the form of reputation or opinion, not specific acts of misconduct. KRE 405(a). An exception exists, however, when evidence of the victim’s prior acts of violence, threats, and even hearsay evidence of such acts and threats, is offered to prove that the defendant so feared the victim that he believed it was necessary to use physical force (or deadly physical force) in self-protection, “provided that the defendant knew of such acts, threats, or statements at the time of the encounter.” Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2.15[4][d] (4th ed.2003). “Obviously, such evidence could not be used to prove fear by the accused without accompanying proof that the defendant knew of such matters at the time of the alleged homicide or assault.” Id. (citing Baze v. Commonwealth, 965 S.W.2d 817, 824-25 (Ky.1997)). Appellant cites us to no evidence demonstrating that, at the time she stabbed Shoulders, she was aware of the specific acts of violence and the threats of violence described in the avowal testimony. As such, the avowal evidence was properly excluded.

B. Prior Drug Use By Alleged Victim

Avowal testimony was also presented that Shoulders was a “crack whore”; that she used as much crack cocaine and marijuana as she could on a daily basis; that she let others use her residence to get high if they would provide her with cocaine; that she frequently used drugs; that she attempted to borrow money for drugs and became angry when anyone refused her; and that she would sell her food vouchers to get drugs.

In order to be admitted at trial, evidence must be relevant. KRE 402. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” KRE 401. However, even relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” KRE 403.

Evidence of Shoulders’s habitual drug use was of minimal relevance to any issue in the trial. Since Appellant admitted to stabbing Shoulders, the only real factual issue was whether the stabbing occurred at Bryant’s residence with Appellant as the aggressor, or across the street in the housing project in self-defense against Shoulders’s hammer attack. The probative effect of Shoulders’s history of heavy drug use was slight or non-existent. Accordingly, the evidence was excludable upon relevancy grounds alone.

As previously noted, however, the trial court permitted evidence of Shoulders’s drug use twenty-four hours prior to the murder. Further, medical evidence was presented demonstrating through postmortem blood and urine tests that she had recently used cocaine and marijuana. Also, Appellant testified to Shoulders’ heavy drug use. In summary, significant evidence of Shoulders’s drug use was, in fact, presented, and the jury was aware that she was a habitual drug user. Additional testimony upon the issue would have amounted to a “needless presentation of cumulative evidence.” See Hillard v. Commonwealth, 158 S.W.3d 758, 762-63 (Ky.2005) (evidence of victim’s sexual history to prove sexual orientation was cumulative where testimony was already elicited concerning victim’s prior sexual relationship with another witness). We conclude that the trial court did not abuse its discretion in excluding the additional evidence of Shoulders’s prior drug use. Love v. Commonwealth, 55 S.W.3d 816, 822 (Ky.2001) (trial court’s KRE 401 relevancy determinations and KRE 403 prejudice determinations are reviewed under the abuse of discretion standard).

IV. CONCLUSION

For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.

All sitting. All concur.

      . Ky. Const. § 110(2)(b)

      . The Commonwealth argues that this issue is not properly preserved because Appellant failed to obtain a ruling from the trial court upon the issue. Although Appellant did not specifically request any relief from the trial court relating to the issue, she made clear that she sought to preserve the issue for appellate review, and the Commonwealth specifically stipulated that the issue was preserved. In light of the Commonwealth’s stipulation, we will treat the issue as preserved and address the argument on the merits.

      . In its brief the Commonwealth states, "When Sims was hired by the Commonwealth Attorney, he was administered the required oath for that office." (emphasis added) During the discussion at the sentencing hearing, the Commonwealth stated that Sims was "sworn in by a circuit court judge” and "thought one substituted for the other,” in context meaning that being sworn in by a circuit judge substituted for the oath administered by a justice of the Supreme Court or the Clerk of the Supreme Court. Accordingly, the record discloses no basis for the Commonwealth’s statement that the circuit judge administered the oath for the office of assistant commonwealth's attorney as opposed to the constitutional oath for admission to the bar. In her brief Moorman states that when Sims "began working in the commonwealth’s attorney's office, he went before a circuit court judge to be "sworn into the bar.” We will base our review upon Moorman’s concession that the oath administered to Sims by the circuit court was the constitutional oath for bar admission.

      . Among those types of errors which have been found to be structural are: Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of public trial); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of self-representation at trial); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (complete denial of counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (biased trial judge); see Recuenco, 548 U.S. at 219 fn. 2, 126 S.Ct. 2546. See also Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958) (coerced confession).

      . KRS 62.020(1) provides that "the official oath of any officer may be administered by: (a) any state or federal judge with Kentucky jurisdiction [.] ” Judges in Kentucky, by specific statute, rule, or inherent authority to operate their courts generally have broad authority to administer oaths, but obviously lack the authority to induct new members of the bar.

      . See Old Republic Ins. Co. v. Ashley, 722 S.W.2d 55, 58 (Ky.App.1986): "[T]he appellate court may affirm the judgment if the record on appeal discloses any ground on which the decision could properly have been made.”

      . As discussed below, the trial court’s ruling excluding Shoulders’s public reputation for violence (as opposed to specific acts) was error. Appellant however, does not raise this ruling as a point of error, and thus we deem the argument to be waived.