author: Chief Justice MINTON. ABRAMSON, J., NOBLE, J.,

text:
    TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC., Appellant, v. Honorable Robert G. JOHNSON (Judge, Scott Circuit Court) and Jeff Sergent (Real Party in Interest), Appellees.
    No. 2007-SC-000647-MR.
    Supreme Court of Kentucky.
    March 19, 2010.
    Rehearing Denied Aug. 26, 2010.

      Brent Robert Baughman, Mark Scott Riddle, Greenebaum, Doll & McDonald, PLLC, Jeffrey Alan Savarise, Fisher & Phillips, Louisville, KY, John Choate Roach, Ransdell & Roach, PLLC, Lexington, KY, Counsel for Appellant.
    Robert G. Johnson, Georgetown, KY, Counsel for Appellee, Honorable Robert G. Johnson (Judge, Scott Circuit Court).
    Dennis Franklin Janes, Herbert Lee Se-gal, Segal, Lindsay & Janes, PLLC, Louisville, KY, Elizabeth Snow Hughes, Nora Ann Koffman, Gess, Mattingly & Atchison, PSC, Jeffrey Scott Walther, Robert Louis Roark, Walther, Roark & Gay, PLC, Kimberly Lynn Dawahare, Lexington, KY, Counsel for Appellee, Jeff Sergent (Real Party in Interest).
   Opinion of the Court by

Chief Justice MINTON.

The Petition for Rehearing, filed by Ap-pellee Jeff Sergent (Real Party in Interest), having been granted by the Court August 27, 2009; the additional briefing, ordered on the Court’s own motion October 1, 2009, having been completed; the case having been submitted to the Court for further review; and being otherwise fully and sufficiently advised;

The Court ORDERS that the Opinion of the Court by Justice Noble, rendered March 19, 2009, is WITHDRAWN; and the attached Opinion of the Court by Chief Justice Minton is RE-ISSUED in lieu thereof. The re-issued opinion affirms the judgment of the Court of Appeals denying the requested writ.

All sitting. All concur.

I. FACTS AND PROCEDURAL HISTORY.

Jeff Sergent and other plaintiffs claiming to represent a putative class of 1,000 or more persons filed a wage-and-hour dispute in the Scott Circuit Court in 1999. The following year, the Scott Circuit Court granted Toyota Motor Manufacturing Kentucky’s motion to dismiss the dispute based on Early v. Campbell County Fiscal Court, which held that a circuit court did not have original jurisdiction to hear wage- and-hour disputes. Sergent alleges that he argued to the trial court that it did have jurisdiction over the wage-and-hour dispute. Sergent appealed the dismissal, the Court of Appeals affirmed, and this Court denied discretionary review in 2003. Ser-gent then turned to the Kentucky Department of Labor to litigate the wage-and-hour dispute through the administrative process.

In 2005, while those administrative claims with the Department of Labor were ongoing, this Court decided that circuit courts did have original, parallel jurisdiction over wage-and-hour disputes in Parts Depot, Inc. v. Beiswenger. About fourteen months later, Sergent returned to the Scott Circuit Court with a motion under Kentucky Rules of Civil Procedure (CR) 60.02(f) seeking to reopen his wage-and-hour dispute with Toyota based upon the change in the interpretation of the law resulting from our holding in Parts Depot. The circuit court granted Sergent’s motion, after which Toyota sought a writ of prohibition in the Court of Appeals. The Court of Appeals denied the writ, and Toyota appealed that denial to this Court.

While this writ appeal was pending in this Court, we rendered Asset Acceptance, LLC v. Moberly, which held that an immediate appeal from a trial court’s reopening a judgment under CR 60.02(f) was available where the trial court granted reopening under CR 60.02(f) when the motion appeared to be an untimely attempt to reopen under CR 60.02(a)-(c). Toyota then attempted to file a direct appeal to the Court of Appeals under Asset Acceptance. We granted transfer of Toyota’s Asset Acceptance appeal, which we then dismissed as untimely.

In March 2009, we rendered an opinion in the writ appeal that reversed the Court of Appeals and granted the writ Toyota sought. In August 2009, we granted rehearing in the writ appeal. In October 2009, we ordered that the parties prepare supplemental briefs in the writ appeal concerning whether Toyota was entitled to relief under Asset Acceptance.

II. ANALYSIS.

This Court has made clear that we are “loath to grant the extraordinary writs unless absolutely necessary” because “a writ bypasses the regular appellate process and requires significant interference with the lower courts’ administration of justice.... Thus, to say that writ petitions should be reserved for extraordinary cases and are therefore discouraged is an understatement.” Toward that end, we have “articulated a strict standard to determine whether the remedy of a writ is available.”

We recognize two broad classes of cases in which a writ may be properly granted. The first is when a lower court “is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court....” The second is when a “lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition [for a writ] is not granted.” Under a special subclass of the second class of writ cases, a writ may issue even absent irreparable injury to the writ-petitioner if the lower court is acting erroneously and a supervisory court believes that “if it fails to act the administration of justice generally will suffer the great and irreparable injury.”

We conclude that this case does not meet the requirements for either class of cases for which a writ may properly issue, so we withdraw our former opinion and affirm the Court of Appeals’ denial of the writ.

A. First Class of Writ Cases: Trial Court Had Jurisdiction.

To determine if this is one of the first type of cases for which a writ could properly be granted, we must determine whether the trial court was proceeding outside its jurisdiction. Originally, we rendered an opinion in this case granting the writ. We did so in part because we found that the trial court lacked jurisdiction “[b]ecause CR 60.02(f) does not apply to the facts of this ease....” We posited that “a change in the law is not a sufficiently extraordinary circumstance to grant any relief under CR 60.02, except where the direst injustice would result otherwise.” And we concluded that “Ser-gent faces no such injustice.”

1. Trial Court Had Jurisdiction to Rule on CR 60.02(f) Motion.

We granted rehearing, and we now state clearly that any attempt on our part in our original opinion to suggest that a trial court lacked jurisdiction to rule on an otherwise properly filed CR 60.02(f) motion — a motion filed in a court having subject-matter jurisdiction and exercising personal jurisdiction over the parties to the action — was in error.

Generally speaking, a trial court would not lack jurisdiction to rule on an otherwise properly filed CR 60.02(f) motion. But we recognize that there are two circumstances in which the trial court would lack jurisdiction to grant relief upon a CR 60.02 motion. First, as to subsections (a) through (c) of CR 60.02, some authority would suggest that a trial court lacks jurisdiction to reopen a judgment under these subsections if a year or more has passed since entry of judgment. Second, our opinion in Asset Acceptance suggests that the trial court would lack jurisdiction to reopen a judgment essentially on CR 60.02(a)-(c) grounds if the CR 60.02 motion was not filed within one year of the judgment even if the CR 60.02 motion were filed under the guise of a CR 60.02(f).

In Asset Acceptance, the untimely CR 60.02 motion, filed two years after entry of default judgment, was purportedly based on CR 60.02(f). But the party opposing reopening argued that the motion was actually grounded on excusable neglect under CR 60.02(a). The party seeking reopening alleged that she was unaware of the default judgment, despite receiving notice, and was incapable of managing her own affairs for some time because of substance abuse rehabilitation. Leaving unresolved the issue of whether the CR 60.02 motion had actually been filed on the basis of CR 60.02(a) grounds of excusable neglect, we vacated the Court of Appeals’ dismissal of the appeal of the reopening and remanded “for consideration of Asset’s contention that Moberly’s 60.02 motion was barred by limitations and therefore outside the trial court’s authority to grant.” We instructed the Court of Appeals that:

If the Court determines that Moberly’s motion stated “a reason of an extraordinary nature” rather than mistake, excusable neglect or one of the more common grounds for relief, the availability of which was barred by the one-year limitation period in CR 60.02, then the appropriate course would be again to dismiss the appeal.

Toyota contends that it is entitled to a writ because Asset Acceptance shows that the trial court did not have jurisdiction to grant reopening under CR 60.02(f). Ser-gent distinguishes Asset Acceptance by asserting that his CR 60.02(f) motion was not a disguised CR 60.02(a)-(c) motion because his motion was not premised on any grounds covered by subsections (a), (b), or (c) of CR 60.02, such as perjury, fraud, newly discovered evidence, excusable neglect, or mistake. Toyota contends that Sergent’s purported CR 60.02(f) motion is a disguised CR 60.02(a) motion premised on mistake, noting that the trial court itself had found that the law had not really changed but instead had been misinterpreted. Sergent argues that he did not seek reopening nor did the trial court grant it on the basis of mistake — of law or otherwise. Sergent asserts that he sought reopening and the trial court properly granted it because the change of law constituted extraordinary circumstances.

We agree with Sergent. Although we have frequently held that a change in the law, by itself, was not sufficient to create extraordinary circumstances warranting relief under CR 60.02(f), we are not aware of any reported cases holding that such a motion seeking CR 60.02(f) relief was in essence actually a motion seeking relief for mistake under CR 60.02(a). In fact, we recently rejected a criminal appellant’s attempt to argue that a change in law necessitated the grant of CR 60.02 relief to correct a mistake of law, instead noting that the common-law writ of coram nobis, which CR 60.02 essentially replaced, existed in the law for the purpose of correcting mistakes of fact, not mistakes of law.

The trial court’s dismissal of Sergent’s wage-and-hour dispute could not reasonably be termed a mistake because at the time of entry the trial court’s ruling comported with the prevailing construction of the law that wage-and-hour claims had to be brought first in administrative proceedings. And the Court of Appeals affirmed the trial court’s dismissal; we denied discretionary review.

Sergent neither directly nor ostensibly alleged a mistake when seeking reopening under CR 60.02(f). In fact, by stating in the order granting this motion that the law had not really changed but had been misinterpreted, the trial court echoed our conclusion in Parts Depot that Early had misconstrued the governing statutes. And some Kentucky cases generally state that it is inappropriate to grant relief under CR 60.02(a) on the basis of judicial mistake.

Because Sergent’s CR 60.02 motion could not reasonably be construed as premised on a mistake by the trial court in originally dismissing the action, the trial court did not lose jurisdiction to rule on the motion solely by reason that the CR 60.02 motion was filed more than a year after the original judgment of dismissal. In short, since Sergent’s motion was properly brought under CR 60.02(f), the strict one-year time limitation set forth for actions brought under CR 60.02(a)-(e) was inapplicable. So the trial court had the jurisdiction to rule upon the merits of Ser-gent’s motion.

Having determined that, in the present case, the trial court did not lack jurisdiction to consider the CR 60.02 motion, we note that, in the future, the availability of an immediate appeal under Asset Acceptance will mean that a remedy exists by application to an appellate court when a trial court improperly reopens a case under CR 60.02(f) when the case actually involves an untimely CR 60.02(a)-(c) motion and, thus, will preclude the availability of writs in such eases.

2. Law of the Case Bar to Jurisdiction Rejected.

Toyota raised in the Court of Appeals an argument that the law of the case doctrine prevented the trial court from exercising jurisdiction to rule on or grant CR 60.02 relief. Toyota asserted that the original decision of the trial court dismissing Sergent’s action for lack of jurisdiction to hear the dispute — a decision that was not disturbed by the appellate courts — operated to block jurisdiction to consider CR 60.02(f) relief by operation of the law of the case. We disagree. We believe that a trial court’s jurisdiction to determine whether extraordinary circumstances merit relief from a judgment includes jurisdiction to determine whether extraordinary circumstances also merit application of one of the exceptions to the law of the case doctrine.

Toyota cites Kentucky Board of Medical Licensure v. Ryan, as suggesting that the trial court would lack jurisdiction to rule on a CR 60.02 motion under the law of the case doctrine. The holding in that case is inapt. Although the Medical Licen-sure Board argued that the trial court erroneously ignored the law of the case and lacked jurisdiction to order it to conduct a CR 60.02 hearing, we simply held that a trial court did not have jurisdiction to order the Board to hear a CR 60.02 motion because such motions could only properly be filed in courts and not before an administrative agency such as the Board. Our opinion did not suggest that application of the law of the ease doctrine would preclude a court from having jurisdiction to hear a CR 60.02 motion. Furthermore, to the extent that the Court of Appeals’ unpublished opinion in Davis-Johnson ex rel. Davis v. Parmelee holds that law of the case would deprive a trial court of jurisdiction to rule on a CR 60.02(f) motion, including the question of whether extraordinary circumstances merit an exception from the law of the case doctrine, it is hereby overruled.

In short, we conclude that the law of the case doctrine does not invariably deprive a trial court of jurisdiction to reconsider under CR 60.02(f) an issue already decided if the law upon which the original decision was based — including a controlling appellate opinion — has materially changed.

B. Second Class of Writ Cases: No Irreparable Injury Shown.

Having determined that the trial court was not acting outside its jurisdiction in ruling on Sergent’s CR 60.02(f) motion, we must now determine whether this case meets the requirements for the second class of cases in which writs may properly be granted: those cases in which the trial court was acting erroneously within its jurisdiction and irreparable injury to a party or to the justice system will result for which there is no adequate remedy by appeal.

We note that a trial court’s ruling on a CR 60.02(f) motion is reviewed for an abuse of discretion. We further note that Kentucky precedent holds that usually a change in the law does not constitute an extraordinary reason meriting relief under CR 60.02(f). Nonetheless, we need not reach the merits of whether the trial court erred in concluding that the change in the law here constituted extraordinary reasons or circumstances justifying relief under CR 60.02(f) or in concluding that the CR 60.02(f) motion here was filed within a reasonable time. Even assuming solely for the sake of argument that the trial court did act erroneously within its jurisdiction, relief by writ is still not available unless Toyota can show that absent a writ, either Toyota will suffer an irreparable injury that cannot be remedied on appeal, or the orderly administration of justice itself would suffer an irreparable injury.

As we have made clear, “[ijncon-venience, expense, annoyance, and other undesirable aspects of litigation” are insufficient to constitute irreparable injury. Rather, the injury “should be of a ruinous or grievous nature....” We conclude that Toyota would not suffer such a ruinous injury if the writ is not granted. Toyota is already defending this action or one very similar to it in the administrative proceeding. The fact that Sergent may seek a greater recovery in a judicial proceeding — attorney fees and liquidated damages — than he would in an administrative proceeding is not such an egregious, irreparable harm to justify a writ. After all, Sergent should have been entitled to proceed in circuit court all along and was forced to pursue administrative relief because of the now-discarded holding of Early.

The orderly administration of justice will not be irreparably harmed if the writ is not granted. That type of “rare exception []” to the general rule that a petitioner must suffer an irreparable injury in order to be entitled to a writ “tend[s] to be limited to situations where the action for which the writ is sought would violate the law....” But the reopening here would not violate the law or result in great injustice even in the face of the argument that the trial court’s reopening several years after the original dismissal of the court action impinges on the principle of recognizing the finality of judgments. Despite the benefits of finality to parties and to the judicial system in general, CR 60.02(f) recognizes that occasionally “extraordinary circumstances” merit the reopening of final judgments to allow a party to have a fair opportunity to present a claim on the merits in court especially where doing so would not be inequitable to the other party. Here, it is possible that the system of justice will actually benefit from permitting Sergent’s claims to be heard on the merits in the trial court when these claims were originally dismissed based upon an erroneous and abandoned misreading of the law. Since the administrative proceeding had not yet come to a conclusion, we do not believe it would be inequitable for Toyota to face a trial in the circuit court especially since discovery obtained in the administrative forum could presumably be useful in the circuit court proceedings.

Neither Toyota nor our system of justice will be irreparably harmed if we decline to issue a writ. Therefore, it is not “absolutely necessary” for us to grant a writ to Toyota. In other words, the facts of this case are not so “extraordinary” as to make it “absolutely necessary” for us to issue a writ in order to protect Toyota against a lawsuit Sergent should have been permitted to maintain in the first place. Nor does the trial court’s granting CR 60.02(f) relief fourteen months after a significant change in the law call our system of justice into disrepute. Accordingly, we affirm the judgment of the Court of Appeals and deny the writ.

III. CONCLUSION.

For the foregoing reasons, the judgment of the Court of Appeals to deny the writ is affirmed.

All sitting. CUNNINGHAM, SCHRODER, and VENTERS, JJ., concur. ABRAMSON, J., concurs by separate opinion in which MINTON, C.J., joins. NOBLE, J., dissents by separate opinion in which SCOTT, J., joins.

ABRAMSON, J.,

Concurring.

I concur with the majority but acknowledge the dissent’s salient point regarding the finality of judgments. I write separately to emphasize that I view today’s opinion as quite narrow in scope. Simply put, I do not believe that we are opening the floodgates to the unsettling of longstanding final judgments because this case presents an instance of truly extraordinary circumstances, indeed one unlikely to recur often if ever again. The final judgment at issue is not an adjudication on the merits but rather a threshold final judgment, dismissing a case for lack of jurisdiction based on an appellate decision which, unfortunately, misinterpreted a statute that provided for original jurisdiction in the circuit court. While the plaintiffs’ wage-and-hour claims were still pending administratively (a factor of considerable significance in my analysis), the erroneous interpretation of the statute was corrected by this Court in Parts Depot v. Beiswen-ger, supra, giving full recognition to the right that had existed all along statutorily. This unique scenario provided grounds for a CR 60.02(f) motion in the circuit court and, because the circumstances are so clearly extraordinary, our denial of a writ presents no real threat to the finality of judgments generally.

MINTON, C.J., joins this concurring opinion.

NOBLE, J.,

Dissenting.

This case is over ten years old. The action was filed in Scott Circuit Court in August 1999. On November 22, 2000, the trial court entered summary judgment in favor of Toyota, applying Early v. Campbell County Fiscal Court, 690 S.W.2d 898 (Ky.App.1985), to the effect that the Ap-pellees herein were required to proceed administratively on their wage and hour claim before the circuit court could review it. Appellees appealed to the Court of Appeals, which affirmed the trial court, and this Court denied discretionary review on February 12, 2003. The circuit court’s dismissal of the case became final on that date. CR 76.30.

Then, in 2005, this Court reversed the longstanding precedent of Early in Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354 (Ky.2005), holding that circuit courts have parallel jurisdiction with the administrative agencies, and that the claimant could elect how to proceed.

The extraordinary circumstances Appel-lees complain of are that they were deprived of their choice of forum and compelled to proceed administratively. Unless this Court is prepared to say that the preference for proceeding in circuit court rather than through an administrative proceeding is so fundamental as to come under the aegis of due process of law, then I have difficulty finding extraordinary grounds for relief under CR 60.02(f). The Appellees were not denied due process. The administrative proceeding provides a sufficient forum and ample opportunity for the Appellees to vindicate any interests or rights they might have. They should at the very least be required to show how they are harmed if they are to be given relief from a final judgment. They have not done so.

In August 2009, this Court considered a motion for rehearing based on an Opinion entered by a vote of 5-2 in March of 2009. In that Opinion, we held that the Scott Circuit Court did not have jurisdiction to hear the CR 60.02 motion filed in this action. On review, I agreed with the rest of the Court that the Opinion was over-broad in stating that the trial court did not have jurisdiction to hear a CR 60.02 motion. Generally speaking, a trial court does have subject matter jurisdiction to hear CR 60.02 motions. However, a trial court does not have jurisdiction to proceed on a CR 60.02 motion based on grounds subsections (a) to (c) in the rule after one year has expired or on (f) for “extraordinary reasons” when the claim is a mere subterfuge for an untimely motion in reality based on grounds in (a) to (c). See Asset Acceptance, LLC v. Moberly, 241 S.W.3d 329 (Ky.2007).

Also, even with jurisdiction, a trial court can be prevented from proceeding by issuance of a writ based on the “certain special cases” category adopted in Bender v. Eaton, 343 S.W.2d 799 (Ky.1961), later approved by this Court in Hoskins v. Maride, 150 S.W.3d 1, 3 (Ky.2004). This comes through a “Class 2” writ, where a trial court has jurisdiction, but is proceeding erroneously. Ordinarily, a petitioner must show that he has no adequate remedy by appeal and will suffer great and irreparable harm to obtain such a writ, but the “certain special cases” category allows an exception to the second requirement where the error will cause a substantial miscarriage of justice, and correction of the error is “necessary and appropriate in the interest of orderly judicial administration.” Bender, 343 S.W.2d at 801; see also Hos-kins, 150 S.W.3d at 20.

Thus, to determine if a court, within its jurisdiction, should be subject to a “special cases” writ, an appellate court must determine three things: the lower court is acting erroneously, there is no adequate remedy by appeal, and the orderly administration of justice will be adversely affected by the substantial miscarriage of justice. In reviewing such a writ, the court necessarily must review whether the trial court is indeed acting erroneously as part of the analysis for the special cases writ.

I believe the trial court was acting within his jurisdiction but was doing so very erroneously. The judge found that there were extraordinary reasons to set aside a six year old final judgment because interpretation of the law had changed. In doing so, he at least implicitly found that proceeding in circuit court was superior to proceeding in an administrative tribunal. That administrative proceeding was then ongoing. He elevated the right to choose a forum, which is granted by the legislature and not an inherent right, to at least the level of, if not a greater height than, due process.

But the mere fact that it was “unfair” that Appellees did not get to choose a forum cannot be more important than the ability to rely on the finality of judgments. “The principle of res judicata or finality of judgments is central to our legal system.” Bolin v. T & T Mining, 231 S.W.3d 130, 133 (Ky.2007); see also Baze v. Commonwealth, 276 S.W.3d 761, 768 (Ky.2008) (“Our interest in the finality of judgments ... is axiomatic”). That principle can only be overcome in extraordinary circumstances. See, e.g., Bishir v. Bishir, 698 S.W.2d 823, 826 (Ky.1985) (“The strong and sensible policy of the law in favor of the finality of judgments has historically been overcome only in the presence of the most compelling equities.”). Allowing the resurrection of long final cases “would create endless possibilities for frivolous claims that would wreak havoc upon the finality of judgments,” Bowling v. Commonwealth, 168 S.W.3d 2, 11 (Ky.2004), rendering the principle all but meaningless. Unless the denial of Appellees’ choice of forum was so “unfair” as to rise to the level of a due process violation — which it certainly did not — the interest in finality of the judgment, especially after six years, must carry the day.

Having concluded that the trial court was acting erroneously, can it be said that Toyota does not have an adequate remedy by appeal? In this instance, I do not think it does. Having relied on the final judgment, and proceeded in another forum in good faith, reopening the final judgment in this case does more harm than cause mere general inconvenience. If nothing else, the doctrine of equitable laches should apply to a judgment that was six years old when the trial court attempted to reopen it. And, like every other person and business in the Commonwealth, Toyota is entitled to the orderly administration of justice, which we cannot have if final judgments can be set aside simply because one of the litigants received an undesirable outcome. There is no adequate remedy for lost time and the nullification of six years of reliance on the finality of a judgment. Where is the concern for fairness to Toyota?

If all that is necessary to set aside a six-year-old final judgment is a change in the law, then there can be no doubt that the orderly administration of justice will be irreparably harmed. As the majority candidly admits, this Court does not usually alter final judgments because the law changes. Yet the circuit court’s whimsical approach in this case (and this Court’s acquiescence to it) does harm to repose, and to the law of the case doctrine.

The majority says that a trial court’s jurisdiction to hear a CR 60.02 motion allows the court to apply one of the exceptions to the law of the case doctrine, but does not say which one, unless it is the same “extraordinary circumstances” that serve as the basis of the motion. There is nothing so extraordinary about this case that would set it apart from countless other cases where a subsequent change in the law affects the final judgment. Such a circumstance could be envisioned if a change in the law affected a litigant’s freedom, or his life, or appropriate medical treatment, or removal from an injurious environment, for example, but I fail to see how being unable to choose a forum rises to that level. Appellees were not denied any fundamental right by operation of law of the case.

I particularly cannot agree with the following language in the majority opinion:

In short, we conclude that the law of the case doctrine does not invariably deprive a trial court of jurisdiction to consider under CR 60.02(f) an issue already decided if the law upon which the original decision was based — including a controlling appellate opinion — has materially changed.

This statement clearly invites a CR 60.02 motion for every change in the law in the future against judgments, no matter how old. I cannot imagine anything that would wreak more havoc on the orderly administration of justice. Obviously, I believe that Toyota is entitled to a special cases writ.

And, to clarify, I do not think that the holding in Asset Acceptance prevents issuance of a special cases writ. If there was no mistake, and that is not the actual basis for the CR 60.02(f) motion, then Toyota would not be entitled to an Asset Acceptance appeal. However, that would not preclude the need for consideration of a special cases writ. Consequently, by no means does the holding in Asset Acceptance relieve this Court of the necessity to hear a writ case on a CR 60.02 motion.

I believe that the majority view will endanger the orderly administration of justice, in particular, the application of finality to cases. I cannot agree with the majority’s assumption that going forward in this ease in circuit court at this late date would actually benefit the progression of law in this state. To the contrary, there is nothing unique or unusual in these wage and hour claims beyond routine operation of law. Similarly, the claim that allowing the Appellees’ cases to proceed furthers justice by giving them access to court mistakenly assumes that they would otherwise have no access to a remedy. Yet it is clear that the Appellees had, and have, a forum other than the circuit court to address these claims.

I would therefore reverse the Court of Appeals, and order the issuance of the writ prohibiting reopening of this case at this late date.

SCOTT, J., joins this dissenting opinion.

      . 690 S.W.2d 398 (Ky.App. 1985).

      . 170 S.W.3d 354 (Ky.2005).

      . CR 60.02(0 provides that: "On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding” upon "any other reason of an extraordinary nature” so long as the motion is "made within a reasonable time....”

      . 241 S.W.3d 329 (Ky.2007).

      . CR 60.02 provides:
      On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon die following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this rule does not affect the finality of a judgment or suspend its operation.

      . Toyota Motor Mfg., Kentucky, Inc. v. Johnson, No.2007-SC-000647-MR, 2009 WL 735835 (Ky. March 19, 2009).

      . Cox v. Braden, 266 S.W.3d 792, 795-96 (Ky.2008).

      . Id. at 796.

      . Hoskins v. Maride, 150 S.W.3d 1, 10 (Ky.2004).

      . Id.

      . Bender v. Eaton, 343 S.W.2d 799, 801 (Ky.1961).

      . 2009 WL 735835 at *1.

      . Id. at *2.

      . Id.

      . See Marcelli v. Walker, 313 Fed.Appx. 839, 841 (6th Cir.2009) (“However, [a] motion under [federal] Rule 60(b) must be made within a reasonable time-and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of proceeding. Fed.R.Civ.P. 60(c)(1). The time limit, as it relates to motions under Rule 60(b)(1), (2), and (3), is jurisdictional. In this case, Mar-celli filed his motion to reopen on June 10, 2008-sixteen months after the district court's final judgment on February 13, 2007. As Marcelli stated that his motion was based on “Mistakes; Inadvertence; Excusable Neglect” under Rule 60(b)(1) ... we find Marcelli’s Rule 60(b) motion untimely filed. Thus, the district court lacked jurisdiction to consider the motion, and it must be denied.”) (case citations and internal quotation marks omitted). But see Willis v. Jones, 329 Fed.Appx. 7, 15 (6th Cir.2009) (questioning Marcelli on that point):

      . See generally Asset Acceptance, 241 S.W.3d at 333-34 (noting that federal courts have recognized an exception to general rule that only final judgments are immediately appeal-able which "permit[s] an immediate appeal from orders setting aside a judgment when the trial court lacked jurisdiction to grant that relief[,] ” referring to this exception as "[t]his so-called jurisdictional exception” and choosing to adopt this exception as: “Where a final judgment has been ordered reopened, where the disrupted judgment is more than a year old, and where the reason offered for setting it aside is allegedly an extraordinary circumstance under CR 60.02(f), permitting an immediate appeal helps to maintain the important balance between, on the one hand, the equitable insistence on justice at all costs and, on the other, the equally vital insistence that litigation must at some point conclude and reasonable expectations founded upon long-established final judgments must not lightly be overturned. This is the balance that the limitations provisions of CR 60.02 attempt to strike, and we agree with Asset that when that balance is threatened by the trial court’s alleged disregard of those provisions, an immediate appeal is appropriate.”) (emphasis added; internal quotation marks omitted)).

        See also id. at 334-35:
      In sum, we agree with Asset that in the narrow circumstances presented by this case, an order setting aside a judgment more than a year old pursuant to the 'reason of an extraordinary nature' provision of CR 60.02(f) is subject to immediate appellate review to ensure that CR 60.02(f) has not been invoked to, in effect, evade the one-year limitations period CR 60.02 imposes on claims appropriately regarded as falling under CR 60.02(a), (b), or (c).

      . 241 S.W.3d at 331.- See. also CR 60.02, which provides, in pertinent part, that "[t]he motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken.”

      . Asset Acceptance, 241 S.W.3d at 335.

      . Id.

      . See, e.g., Bishir v. Bishir, 698 S.W.2d 823, 826 (Ky.1985).

      . Leonard v. Commonwealth, 279 S.W.3d 151, 161-62 (Ky.2009) ("He first argues that the purpose of CR 60.02, under which the motion giving rise to this appeal was filed, is to allow a court to correct a mistake.... As Appellant correctly notes, CR 60.02 replaced the common law writ of coram nobis. That writ, however, was aimed at correcting factual errors, not legal errors. Appellant is not seeking remediation of a factual error; rather, he is seeking to correct the legal decision that his ineffective assistance claims were procedurally barred, a decision that was correct under the case law in existence at the time.”) (citation omitted).

      . See Parts Depot, 170 S.W.3d at 361-62, overruling Early and Noel v. Season-Sash, Inc., 722 S.W.2d 901 (Ky.App.1986) ("We conclude that both Early and Noel misconstrued the effect of the statutory scheme.”).

      . McMillen v. Commonwealth, 717 S.W.2d 508, 509 (Ky.App.1986) ("The court below added the language to the conditional discharge order on the authority of CR 60.02(a). That rule provides for relief from a final judgment on the grounds of mistake, inadvertence, surprise, or excusable neglect. The trial court stated that he would have used the added language in the initial order had it occurred to him that appellant would refuse treatment in order to get discharged. However, it has been held that relief under CR 60.02 is not available for judicial errors or mistakes. Thus, CR 60.02 did not give authority for the trial court's actions.”) (citations omitted). See also James v. Hillerich & Bradsby, Inc., 299 S.W.2d 92, 93 (Ky.1956) ("Although CR 60.02 provides authority for reopening or vacating a judgment after 10 days, this Rule is not available for correction of an error or mistake of law by the court."); Roberts v. Osborne, 339 S.W.2d 442, 443 (Ky.1960), citing James ("The asserted error of the judge in signing the July 1 order [dismissing action] was a judicial error and not a clerical one. He had no jurisdiction on September 9 to correct the error (CR 60.02 not being applicable.)”).

      . Toyota does not refute Sergent’s assertion that Toyota did not make this law of the case argument in the trial court.

      . 151 S.W.3d 778 (Ky.2004).

      . See id. at 779.

      . See id. at 780.

      . No.2003-CA-000848-MR, 2004 WL 1093039 (Ky.App. May 14, 2004).

      . Though we have explained that the law of the case doctrine did not deprive the trial court of jurisdiction to rule on Sergent’s CR 60.02 motion, we conclude that no irreparable injury occurred even assuming for the sake of argument that the trial court erred in reopening in light of this doctrine or election of remedies.

      . Hoskins, 150 S.W.3d at 10.

      . Bender, 343 S.W.2d at 801.

      . Fritsch v. Caudill, 146 S.W.3d 926, 930 (Ky.2004).

      . Radford v. Lovelace, 212 S.W.3d 72, 78 (Ky.2006), overruled on other grounds by Cardine v. Commonwealth, 283 S.W.3d 641, 646-47 (Ky.2009).

      . Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 808 (Ky.2004).

      . See Bethlehem Minerals Co. v. Church and Mullins Corp., 887 S.W.2d 327, 329 (Ky.1994), citing Fortney v. Mahan, 302 S.W.2d 842 (Ky.1957) (stating that in ruling on CR 60.02 motion, trial court should consider two factors: "(1) whether the moving party had a fair opportunity to present his claim at the trial on the merits and (2) whether the granting of CR 60.02(f) relief would be inequitable to other parties.”).

      . Cox, 266 S.W.3d at 795.

      . Id.

      . Id.


source: Caselaw Access Project

author: Justice NOBLE.

license: Public Domain

text:
    MEMBERS CHOICE CREDIT UNION; Beacon Community Credit Union; Service One Credit Union; C & O Credit Union; Greater Kentucky Credit Union Inc.; Kentucky Employees Credit Union, Appellants, v. HOME FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellee.
    No. 2008-SC-000877-DG.
    Supreme Court of Kentucky.
    May 20, 2010.
    Rehearing Denied Nov. 18, 2010.

      David Thomas Wilson, II, Skeeters, Bennett, Wilson & Pike, Radcliff, KY, Counsel for Appellants.
    Jill F. Endicott, Dinsmore & Shohl, LLP, Louisville, KY, Counsel for Appellee.
   Opinion of the Court by

Justice NOBLE.

The sole question presented in this appeal is whether the statutory limitation on credit union membership in KRS 286.6-107, as amended in 1984, precludes membership based on a geographic connection. The Court of Appeals held that it does. This Court disagrees and therefore reverses.

I. Background

The Department of Financial Institutions (“DFI”) charters, regulates, and supervises financial institutions in Kentucky, including banks, trust companies, savings and loan associations, and credit unions. Included under its purview is implementation of KRS 286.6-107, which places limits on membership in credit unions. Since 1984, the statute has limited credit union membership “to persons having a common bond of similar occupation, association or interest.” KRS 286.6-107(2).

Previous versions of the statute had specifically allowed membership based on a “common bond” (or, as the statute then put it, “mutual affiliation”) of geography, known in the industry as a “community” field of membership. Even after the statute was amended to remove the geographic and other categories to read as it now does, however, DFI had an informal policy in place allowing credit union membership where the “common bond” was geography.

Upon discovery of this informal policy in 2006, Appellee Home Federal Savings and Loan Association filed a petition for a declaratory judgment against DFI in the Franklin Circuit Court. Home Federal is a federally chartered thrift located in Ash-land, Kentucky. It sought a declaration that DFI had acted outside its statutory authority, and had unconstitutionally acted in a legislative capacity, by chartering credit unions with a geographic field of membership after the current version of the statute was enacted.

In 2007, the six Appellant credit unions sought and were granted leave to intervene as defendants. The credit unions were all chartered and are regulated by DFI, and each alleged that they had previously been granted permission by DFI to amend their bylaws to allow geographic fields of membership.

The circuit court granted summary judgment in favor of Home Federal, concluding that DFI was no longer authorized to charter credit unions with geographic fields of membership. The court began by analyzing the language of the statute. The court found that the current version of the statute was patterned after the Model Credit Union Act of 1979, but only in part because the 1984 amendments to the statute omitted the model act’s language that expressly allowed geographic and several other specific fields of membership. Based on the deviation from the model act, the court held that the legislature had “considered and rejected the option of allowing community based, or geographic, fields of membership” when it amended the statutes. The court then prospectively enjoined DFI “from approving articles of incorporation or bylaws that provide for a geographic field of membership for credit unions” and from approving “the amended bylaws of [the] [intervening [credit unions] allowing a geographic field of membership,” and enjoined the intervening credit unions from “accepting new members whose only basis for membership is ‘a common bond of interest’ that is based on geography.”

The Court of Appeals affirmed, adopting as its own the trial court’s discussion of whether the statute allows geographic fields of membership.

II. Analysis

As noted above, the sole question before the Court is whether the current version of the credit union membership statute allows geographic fields of membership for state-chartered credit unions. The obvious place to start is with the language of the statute itself.

Currently, KRS 286.6-107 in its entirety states:

(1) The membership of a credit union shall be limited to and consist of the subscribers to the articles of incorporation and such other persons within the common bond set forth in the bylaws as have been duly admitted members, have paid any required entrance fee or membership fee, or both, have subscribed to one (1) or more shares, and have paid the initial installment thereon, and have complied with such other requirements as the articles of incorporation or bylaws specify.
(2) Credit union membership shall be limited to persons having a common bond of similar' occupation, association or interest.

Both subsections include limiting language (“shall be limited”) and refer to a “common bond” among all the members of the credit unions. The first subsection states that the membership shall be limited to persons sharing the common bond described in the founding documents of the credit union; the second subsection states the limits on allowable common bonds.

The common-bond requirement is not defined in the credit union statutes. It is, however, a term of art employed with regard to the credit union industry. Black’s Law Dictionary defines the “common-bond doctrine” as “[t]he rule that prospective members of a credit union must share some connection (such as common employment) other than a desire to create a credit union.” Black’s Law Dictionary 292 (8th ed. 2004). The allowable common bonds under the statute are occupation, association, and interest.

Occupation, of course, refers to a person’s work, job or employment. See id. at 1109 (defining “occupation” as “[a]n activity or pursuit in which a person is engaged; esp., a person’s usual or principal work or business”). This is a relatively concrete category, intended to create a field of membership for a group of persons who have the same job or profession, such as accounting or plumbing. Based on the plain language of the term alone, it is not broad enough to cover a geographic field of interest.

The other two categories are much broader, however. “Association” is defined as “1. The process of mentally collecting ideas, memories, or sensations. 2. A gathering of people for a common purpose; the persons so joined. 3. An unincorporated organization that is not a legal entity separate from the persons who compose it.” Id. at 132. “Interest” is defined as “1. The object of any human desire; esp., advantage or profit of a financial nature .... 2. A legal share in something; all or part of a legal or equitable claim to or right in property_” Id. at 828. The definition in Black’s also includes this postscript: “Collectively, the word includes any aggregation of rights, privileges, powers, and immunities; distributively, it refers to any one right, privilege, power, or immunity.” Id.

Unfortunately, the terms “association” and “interest” are too vague to allow easy interpretation based on plain language alone.

The Appellants argue that the words, which were added by the 1984 amendment to the statute, were intentionally vague so as to broaden the permissible fields of credit unions. This approach clearly has some appeal because the 1984 amendment substituted the generic language for the previous specific categories. The Appellants also argue that the lower courts’ readings of the amendments to the statute — i.e., as a rejection of those specific categories considered during the drafting of the statute but ultimately not listed— would lead to an absurd result because it would effectively nullify all the traditionally accepted fields of membership.

The Appellee responds that the legislature’s decisions not to list the previously allowed categories and to consider and then reject the model act’s language concerning specific categories, including a geographic field, are indicative of its intention to omit some fields of membership. The Appellee also argues a broad reading of the statute renders its limiting language effectively a nullity.

Both sides claim support in the history of the statute, particularly in the various changes in allowable membership over time. A review of that history is therefore necessary.

Since 1922, the General Assembly has regulated the formation of state-chartered credit unions. See 1922 Ky. Acts ch. 110. Originally, there were no limitations on their membership. See 1922 Ky. Acts ch. 110, § 5 (codified as Ky. Stat. 883g-5). At the time, the membership portion of the statute read:

The membership of the corporation shall consist of the incorporators and such persons, societies, associations, co-partnerships, and corporations as have been duly elected to membership and have subscribed for one or more shares and have paid for the same in whole or in part, together with the entrance fee as provided in the by-laws and have complied with such other requirements as the articles of incorporation may contain.

Id.

In 1940, the General Assembly amended the statute to limit credit union membership to four specific “fields,” one of which was geographic, albeit limited to two thousand members. See 1940 Ky. Acts ch. 19. This version of the statute kept intact the language from the 1922 statute, albeit with minor variations in punctuation and a few added words, but added the following proviso:

Provided, however, that membership in each corporation organized under the terms of this Act, shall be limited to those persons, societies, associations, co-partnerships, and corporations, who or which, independent of their membership in the credit union, shall have a mutual affiliation, with another, by either (1) duly enrolled membership in a religious, social, or educational group or association, or (2) by identity of profession, occupation, trade, or business or bona fide members of a common bona fide profession, occupation, trade, or business group, or (8) by the identity of their employer, or (4) by their location for residential or occupational purposes, within an area, to be defined in the bylaws, containing, at the time the credit union is so organized, not more than two thousand persons, societies, associations, co-partnerships, or corporations, who or which, by the purchase of shares and election to membership, might become members of such credit union.

Id. When the General Assembly revised Kentucky’s statutes in 1942, section 883g-5 was renumbered and recodified as KRS 290.080, with no substantive changes. The 1940 version of the statute remained in place until 1984, when the General Assembly repealed it and enacted in its stead KRS 290.107.

Appellee claims that the 1984 amendments to the credit union statutes that followed were patterned after the Model Credit Union Act of 1979. The relevant part of the model act states,

(1) The membership of a credit union shall be limited to and consist of the subscribers to the articles of incorporation and such other persons within the common bond set forth in the bylaws as have been duly admitted members, have paid any required fee, or both, have subscribed to one or more shares, and have paid the initial installment thereon, and have complied with such other requirements as the articles of incorporation or bylaws specify.
(2) Credit union membership may include, but is not limited to groups having a common bond of similar occupation, association, or interest, or to groups who reside within an identifiable neighborhood, community, or rural district, or to employees of a common employer, or to persons employed within a defined business district, industrial park or shopping center, and members of the immediate families of such persons.

Model Credit Union Act § 4.10 (1979).

The bill that was actually proposed in 1984, however, was slightly different from the model act. The bill incorporated the first subsection of the model act almost word for word. The bill’s second subsection, unlike the model act, stated,

Credit union membership shall be limited to persons having a common bond of similar occupation, association, or interest, or to persons who reside within an identifiable neighborhood, community, or rural district, or to employees of a common employer, or to persons employed within a defined business district, industrial park or shopping center, and members of the immediate family of such persons.

S.B. 255, § 11(2), 1984 Gen. Assem., Reg. Sess. (Ky. 1984), reprinted in 1 Journal of the Senate of the General Assembly of the Commonwealth of Kentucky 475, at 477 (February 28, 1984) (emphasis added). Unlike the model act, this version was not permissive as to who could be members of credit unions, employing the language “shall be limited” rather than “may include, but is not limited,” and replaced “groups” with “persons.”

The final version of the bill, the one passed and signed into law, was even more different from the model act. It retained the subsection (1) language but removed from the second subsection any mention of geographic or other specific fields, stating only that “[cjredit union membership shall be limited to persons having a common bond of similar occupations, association or interest.” KRS 290.107(2) (1984). In 2005, KRS 290.107 was renumbered as KRS 286.6-107. See 2006 Ky. Acts ch. 247, §§ 38-39. The language currently in force is that which was enacted in 1984.

In January 2006, DFI proposed an administrative regulation to establish filing requirements for the amendment or establishment of the bylaws of a credit union serving a community field of membership. See 32 Ky. Admin. Register 1497 (Feb. 2006) (proposed regulation approved by agency on Jan. 12 and filed with Legislative Research Commission on Jan. 13, with a proposed public hearing on Feb. 21). The regulation proposal was withdrawn in February. See 32 Ky. Admin. Register, at L-12 (June 2006). The Appellee claims that the proposed regulation was withdrawn “in the face of formal protests.” Despite withdrawing the regulation, DFI appears to have adopted an informal policy of allowing credit union charters based on geographic or community field of membership.

With this history in mind, this Court concludes that the Appellee’s argument that the terms “association” and “interest” should be read as excluding geographic and other traditionally accepted fields of membership because of the departure from the model act is not convincing. Admittedly, when a legislature’s enactment departs from the language of a model act, “it usually does so to express an intention different from the model act.” The Bank/First Citizens Bank v. Citizens & Assocs., 82 S.W.3d 259, 264 (Tenn.2002). But this approach is primarily relevant when the legislature is working in a vacuum, building first principles in an area of the law.

While the statutory history does show that the General Assembly considered and rejected portions of the Model Credit Union Act, it is also true that credit unions were already regulated by statute in Kentucky and had been so for over sixty years. And “statutes are construed by the courts with reference to the circumstances existing at the time of the passage.” United States v. Wise, 370 U.S. 405, 411, 82 S.Ct. 1354, 8 L.Ed.2d 590 (1962). The relevant comparison here is to the statutory language that existed at the time the legislature considered the model act. Where such context exists, it does not automatically follow that the legislature meant anything by a departure from the model act. Rather, the difference between the former and current versions of the statute is the primary indicator of the legislature’s intent to change the statute’s meaning. When the legislature amended the statute in 1984, it moved from specific, narrow allowable categories to more generic language. This indicates a legislative intent to broaden the allowable categories of membership, which would include at least those areas previously allowed, so long as they could reasonably be understood to fit within the current language of the statute.

This is not to say, of course, that the legislature’s decision to change to broader language in 1984 means that the categories of allowable membership are limitless. As noted above, “interest” is a very broad term, meaning the “object of any human desire.” If a shared interest in this sense were the only “limit” on credit union membership it would be no limit at all. For example, the mere interest in membership in a credit union together would be sufficient.

This is why the statute’s use of the phrase “common bond” is important. As noted above, that phrase is a term of art used in credit union law and means, at the very least, something more than a shared desire to have a credit union. The phrase, then, has a limiting effect on the allowable categories that follow it. The full extent of that effect, however, is only apparent when considered in the context of the overall history of credit unions and the evolution of the law related to them.

Credit unions were a European innovation that spread to the United States first at the state level and then to the federal level. As the U.S. Supreme Court has noted,

Credit unions originated in mid-19thcentury Europe as cooperative associations that were intended to provide credit to persons of small means; they were usually organized around some common theme, either geographic or associational. Following the European example, in the 1920’s many States passed statutes authorizing the chartering of credit unions, and a number of those statutes contained provisions similar to [the federal] common bond requirement.

Nat’l Credit Union Admin, v. First Nat’l Bank & Trust Co., 522 U.S. 479, 494 n. 6, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998). Kentucky was part of this trend, albeit without the strong common bond requirement initially, with its first credit union statute passing into law in 1922.

“During the Great Depression, in contrast to widespread bank failures at both the state and national level, there were no involuntary liquidations of state-chartered credit unions.” Id. As a result, Congress turned to credit unions, which had already proven successful at the state level, as an alternative to traditional financial institutions, first with the District of Columbia Credit Union Act in 1932 and then the Federal Credit Union Act (FCUA) two years later. “When Congress enacted the FCUA, sponsors of the legislation emphasized that the cooperative nature of credit unions allowed them to make credit available to persons who otherwise would not qualify for loans.” Id.

In essence, credit unions were designed so that people without the means to access traditional financial institutions, such as banks, could still obtain credit in the legitimate marketplace. See First Nat’l Bank and Trust Co. v. Nat’l Credit Union Admin., 988 F.2d 1272, 1274 (D.C.Cir.1993) (“Lacking the security necessary to obtain loans from banks, working Americans turned to loan sharks who typically charged usurious interest rates, which was thought to reduce the overall purchasing power of American consumers. Congress saw the solution to this problem in a system of federal credit unions that would provide credit at reasonable rates and thus would help spur economic recovery.” (citation omitted)); see also William A. Lovett, Banking and, Financial Institutions Law in a Nutshell 284 (1997), quoted in Black’s Law Dictionary 898 (8th ed. 2004) (“Credit unions were the last major thrift institutions developed in the United States.... What distinguished credit unions from mutual savings banks and savings and loan associations was their emphasis on a common bond of workers, church members, or people in a local area, wanting to borrow relatively small amounts at reasonable interest rates from each other, and help each other save to meet these short-term needs. Their goal was to provide a low interest rate alternative ... to loan sharks and pawnbrokers.”).

Credit unions differ from traditional banks in many ways. They are not-for-profit entities, are run by their members, and may provide services only to members. Additionally, they are not subject to income tax or many of the financial regulatory schemes, such as the Community Reinvestment Act.

Perhaps the most important distinction between credit unions and other financial institutions, however, is the common bond requirement. The requirement is a defining characteristic of credit unions, both at the federal and state levels. See, e.g., Wendy Cassity, Note, The Case for a Credit Union Community Reinvestment Act, 100 Colum. L.Rev. 331, 335 (2000) (“The ability to form a federal credit union hinges on the existence of a ‘common bond’ that is shared by a group of people.”); First Nat’l Bank and Trust Co., 988 F.2d at 1276 (noting the common bond requirement for state credit unions preceded the existence of federal credit unions).

The success of credit unions was thought to stem in large part from the common-bond requirement. See Nat’l Credit Union Admin., 522 U.S. at 494 n. 6, 118 S.Ct. 927 (“The cooperative nature of the institutions, which state-law common bond provisions reinforced, was believed to have contributed to this result.”). As a result, common bond provisions, which were already required by many states, were included in both federal acts authorizing federally chartered credit qnions. Id. The U.S. Supreme Court has stated that historic understanding of the role of the common-bond requirement “confirms that [it] was thought to reinforce the cooperative nature of credit unions, which in turn was believed to promote their safety and soundness and allow access to credit to persons otherwise unable to borrow.” Id.

Or, as the D.C. Circuit Court of Appeals stated more expressly of the requirement, at least as it exists under federal law,

The common bond requirement, an existing characteristic of state credit unions, was designed, in combination with the restriction that permitted credit unions to loan only to members, to ensure that credit unions would effectively meet members’ borrowing needs. It would seem, therefore, that Congress assumed implicitly that a common bond amongst members would ensure both that those making lending decisions would know more about applicants and that borrowers would be more reluctant to default. That is surely why it was thought that credit unions, unlike banks, could “loan on character.” The common bond was seen as the cement that united credit union members in a cooperative venture, and was, therefore, thought important to credit unions’ continued success.

First Nat’l Bank and Trust Co., 988 F.2d at 1276 (citation omitted).

Or, as a commentator has noted,
A credit union is unique in that it “loans on character.” It is a cooperative society, and its financial stability hinges on the interpersonal dynamics of its members: Lenders must be able to evaluate the ability and willingness of potential borrowers to pay back their loans, and borrowers must feel obligated to pay back those loans. If all of the members of a credit union share a common bond — for example, if they live in the same neighborhood or work for the same employer — they have more information about each other, and will suffer greater shame if they default on their loans. A common bond is thus a key element of a successful cooperative.

Cassity, supra, at 387 (citation footnotes omitted).

Whereas traditional banks and other financial institutions could serve only the more financially stable people, because they required people to leverage their property to obtain loans, credit unions were thought to serve those who were not wealthy by, in essence, allowing them to leverage their reputations instead. Credit was extended not on wealth but on character and standing in the community. Community and cooperation thus stood at the core of credit unions. The common-bond requirement was the means of injecting those values into the daily operations of credit unions.

These characteristics, though no doubt diluted given the size of modern credit unions and the lessening importance of community to modern life, continue in Kentucky’s credit union statutes. For example, “credit union,” under Kentucky law,

means a cooperative, nonprofit association, incorporated ... for the purposes of encouraging thrift among its members, creating a source of credit at a fair and reasonable rate of interest, and providing an opportunity for its members to use and control their own money on a democratic basis in order to improve their economic and social condition.

KRS 286.6-005. The common-bond requirement, which is the “cement” necessary to a credit union’s success, also continues under current law, appearing in both subsections of KRS 286.6-107.

In fact, this focus on the common-bond requirement provides a logical explanation for the legislature’s deviation from the model act. Previous versions of the statute had included the common-bond requirement, though it was called “mutual affiliation” in those earlier versions, and the legislature apparently wanted to keep it in the amended version. However, subsection (2) of the Model Act separates allowable membership into three groups, only one of which requires a common bond: “groups having a common bond of similar occupation, association, or interest”; “groups who reside” in certain geographical areas, but with no requirement that they share a common bond; and “persons employed” within certain business locations, but again with no requirement that they share a common bond. As the legislature wanted to restrict membership in credit unions to people who share a common bond, it did not want to include the latter two groups in its statute; and so, it omitted them, and relied on the common-bond requirement to limit the broad category it had included.

The common-bond requirement, particularly the history behind it, is the frame through which the statute should be viewed. It appears to be a sword that cuts both ways, in that it limits credit union membership overall while also showing that the categories listed in KRS 286.6-107(2) should be read broadly.

No doubt, the requirement is intended to serve as a limit on allowable credit union membership. As the U.S. Supreme Court has noted of the federal version of the requirement, “Because, by its very nature, a cooperative institution must serve a limited market, the legislative history of [the common-bond requirement of the FCUA] demonstrates that one of the interests ‘arguably ... to be protected’ by [the common-bond requirement] is an interest in limiting the markets that federal credit unions can serve.” Nat’l Credit Union Admin., 522 U.S. at 494 n. 6, 118 S.Ct. 927. This confirms that credit union membership, even where broad terms are used, is not limitless. In fact, our statutes previously limited membership to the relatively small number of two thousand members.

Yet those broad terms clearly evidence an intention to depart from the strict limits formerly included in the statute. The question is, how much of a departure was intended? And how exactly does the limiting aspect of the common-bond requirement affect the terms used in the Kentucky statute, “association” and “interest”?

In light of the history recounted above, the Appellants cannot realistically argue that they fall under the association category. “Association” is the easier of the two terms to understand because it shows up repeatedly in the various versions of the Kentucky statute. It appears in the very first version in 1922, but is not defined. The 1940 version of the statute did not define the word either, but it did express what the term traditionally meant as it related to credit unions. One of the allowed categories of membership under the 1940 statute was “duly enrolled membership in a religious, social, or educational group or association.” (Emphasis added.) Association, thus, refers to a formal group that exists for some purpose other than credit union membership. Examples of such groups include churches, philanthropic organizations, unions, and schools. The members of such organizations have common purposes and are likely to know each other, which demonstrate the common bond that lies at the heart of credit union success.

Though the term “association” is still broad, it is not so expansive as to include mere geographical proximity. Thus, it does not include the traditional community field of membership.

The Appellants, however, do fit under the interest category. The word “interest” does not appear in prior versions of the statute. It was a wholly new and intentionally broad term. However, it is not without a limit because the term must be construed in light of the common-bond requirement. A proposed interest-based field of membership cannot be so vague or tenuous that a reasonable person would fail to see a common bond between the persons sharing the interest. The interest must be definable and concrete enough to demonstrate the common bond. It must be a concrete enough interest to serve “as the cement [to] unite [ ] credit union members in a cooperative venture.” First Nat’l Bank and Trust Co., 988 F.2d at 1276. The definition from Black’s Law Dictionary is helpful here, with its emphasis on “advantage or profit of a financial nature” and “[a] legal share in something; all or part of a legal or equitable claim to or right in property.” The requisite interest is one that gives a member of the credit union incentives both to extend credit to the other members and to police the use of that credit.

Thus, that a group of persons share the same hobby or enjoy novels by the same author, while technically a shared interest, is insufficient to demonstrate the common bond required to form a credit union. The shared interest in such cases does not link such persons in any substantial way or create any sort of financial or legal interdependence.

A geographic connection is different, however. Persons who live in the same neighborhood or rural farming district do have a concrete shared interest that demonstrates a common bond. The persons in a neighborhood know each other and are aware of each others’ reputations, and thus have an advantage over strangers in evaluating each others’ credit-worthiness, at least to the extent that the theory underlying credit unions is correct. Moreover, such persons are linked financially since the value of one house affects the value of the others in the neighborhood. The extension of credit to a neighbor could have a direct effect on property values, since a default could lead to a foreclosure or a lien on a house. Thus, the shared interest is intimately linked to the operation of the credit union.

The same could be said of a rural farming district, where the farmers know each other and the success of the farming community as a whole is an interest shared by everyone in the community. Similar substantial interests — a shared stake, if you will — exist for other geographic categories and can be sufficient interests on which to base a credit union field of membership under the current statute. The shared interest here is a nexus of financial interdependence . that simply does not exist where the persons are separated by great distances or where their shared interest is insubstantial, such as a hobby.

Thus, this Court holds that a geographic or community field of membership is allowed under the current language of KRS 286.6-107.

For the foregoing reasons, the Court of Appeals is reversed and this matter is remanded for entry of a judgment consistent with this Opinion.

SCHRODER, SCOTT and VENTERS, JJ., concur.

MINTON, C.J.; ABRAMSON and CUNNINGHAM, JJ., concur in result only.

      . DFI is part of the Public Protection Cabinet and was formerly known as the Office of Financial Institutions.

      . Other issues, such as whether the Appellee had standing to sue and whether administrative remedies were exhausted, were addressed in the lower courts. Because those issues have not been pursued further in this appeal, this Court need not address them. To the extent that this Court could address them sua sponte because they touch on jurisdiction (e.g., the standing issue), it is unnecessary to do so because it does not appear that the lower courts erred in resolving them as they did.

      . Some commentators have argued that modern credit unions do not operate pursuant to these values, e.g., Cassity, supra, at 340 ("This species of credit union bears little external resemblance to the local neighborhood cooperative societies of the 1930s.”), and therefore they should be subject to the same regulatory schemes as banks, see generally id.


author: Chief Justice MINTON.

text:
    Scott CROUCH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000129-DG.
    Supreme Court of Kentucky.
    June 17, 2010.
    Rehearing Denied Nov. 18, 2010.

      V. Gene Lewter, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General of Kentucky, Jason Bradley Moore, Assistant Attorney General, Office of Criminal Appeals, Attorney General’s Office, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Chief Justice MINTON.

I. INTRODUCTION.

Scott Crouch does not deny that his conduct meets the elements necessary to convict him of the felony offense of theft of identity. Nevertheless, he argues that he should have been convicted of a different offense, the misdemeanor offense of giving a false name to a police officer. We disagree.

II. FACTUAL AND PROCEDURAL HISTORY.

The relevant facts underlying Crouch’s convictions do not appear to be in dispute. An officer observed Crouch traveling approximately ninety miles per hour in a fifty-five mile per hour zone. Another officer stopped Crouch’s vehicle, got Crouch out of the vehicle, and took Crouch to the officer’s vehicle. That officer asked Crouch for identification, but Crouch responded that he did not have any identification. The officer then asked Crouch his name, and Crouch replied that he was “John Kiger” and gave the officer a social security number. A records cheek of the social security number provided by Crouch showed that number belonged to John Ki-ger. The officer then searched Crouch’s vehicle and located a marijuana cigarette on the front passenger’s seat.

The officer then took Crouch, who the officer had no reason to believe was not someone named John Kiger, to the local jail. When the officer and Crouch entered the jail, a guard addressed Crouch as “Scott.” When the arresting officer said Crouch’s name was “John,” the guard showed the arresting officer a personal information sheet that contained a picture of Crouch and listed a social security number different from that which Crouch had given the arresting officer. At some point, Crouch admitted that he used the name “John Kiger” as an alias. When the social security number on the personal information sheet was checked, the authorities discovered that Crouch’s driver’s license had been suspended.

A grand jury indicted Crouch for one count of theft of identity, one count of reckless driving, one count of possession of marijuana, and one count of being a persistent felony offender in the first degree (PFO 1). The charges proceeded to trial.

A jury acquitted Crouch of the possession of marijuana charge but found him guilty of theft of identity, reckless driving, and of being a PFO 1. The jury recommended that Crouch be sentenced to five years’ imprisonment for the theft of identity conviction, enhanced to fifteen years’ imprisonment due to the PFO 1 conviction. The trial court sentenced Crouch in accordance with the jury’s recommendation, whereupon Crouch filed an appeal as a matter of right with the Kentucky Court of Appeals. A divided panel of the Court of Appeals affirmed, and we granted Crouch’s motion for discretionary review in order to examine various issues involving the charge of theft of identity. Finding no fault with the Court of Appeals majority opinion’s analysis or ultimate conclusions, we affirm.

III. ANALYSIS.

The crux of Crouch’s argument is that he should have been prosecuted for the misdemeanor offense of giving a false name to a police officer instead of the felony offense of theft of identity. Crouch presents several sub-arguments in support of his position, but all of those arguments are without merit.

A. The Relevant Statutes.

In order to analyze fully Crouch’s arguments, we must first set forth the relevant portions of the theft of identity statute and the giving a false name to a peace officer statute. KRS 514.160 governs the offense of theft of identity. In relevant part, KRS 514.160(1) provides as follows:

A person is guilty of the theft of the identity of another when he or she knowingly possesses or uses any current or former identifying information of the other person ..., such as that person’s ... name, address, telephone number, electronic mail address, Social Security number, driver’s license number, birth date, personal identification number or code, and any other information which could be used to identify the person, including unique biometric data, with the intent to represent that he or she is the other person for the purpose of:
(d) Avoiding detection....

The offense with which Crouch argues he should have been charged, giving a peace officer a false name, is governed by KRS 523,110(1), which provides:

A person is guilty of giving a peace officer a false name or address when he gives a false name or address to a peace officer who has asked for the same in the lawful discharge of his official duties with the intent to mislead the officer as to his identity. The provisions of this section shall not apply unless the peace officer has first warned the person whose identification he is seeking that giving a false name or address is a criminal offense.

B. The Trial Court Properly Denied Pretrial Amendment of the Indictment; Prosecutor Does Not Have Unfettered Discretion in Determining Appropriate Charge.

Before trial, Crouch unsuccessfully asked the trial court to amend the indictment to charge him with giving a false name to a peace officer. Crouch unsuccessfully argued before the Court of Appeals the refusal to amend the indictment as error. Crouch raises this issue again, quoting from the dissent from the Court of Appeals opinion, which stated, among other matters, that “the [trial] court erred in denying Crouch’s pretrial motion to amend the indictment....”

As the Court of Appeals majority correctly noted, however, a trial court lacks jurisdiction to change a valid indictment except as provided by Kentucky Rules of Criminal Procedure (RCr) 6.16. RCr 6.16 provides in pertinent part that a court “may permit an indictment, information, complaint or citation to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” (Emphasis added.) Clearly, changing the charge against Crouch from the felony offense of theft of identity to the misdemeanor charge of giving a false name to a peace officer would have resulted in Crouch being charged with an entirely different offense. So the trial court properly denied Crouch’s request to modify the indictment.

This conclusion also belies Crouch’s related argument that it is “a personal choice on the part of the officer or the Commonwealth’s Attorney to make the de-cisión under which statute to charge a person.” To the contrary, as we explained in Coleman, the choice of which — if any— offenses for which an indictment should be returned is a matter within the province of the grand jury. So, contrary to Crouch’s argument, a prosecutor does not have unfettered discretion to charge a defendant on a whim. The prosecution’s decision to seek identity theft charges against Crouch was not arbitrary or otherwise improper because the lack of a warning by the arresting officer meant that Crouch could not properly have been charged with giving a false name to a peace officer.

On a related note, Crouch’s reliance upon our recent unpublished decision in Commonwealth v. Stephens to buttress his argument that conduct similar to his may be, or should be, prosecuted only as giving a false name to a peace officer is unavailing. Stephens is readily distinguishable because, unlike Crouch, the defendant in that case was specifically warned by the arresting officer that giving a false name to a peace officer is a criminal offense. Stephens, therefore, offers no solace to Crouch.

Consequently, we emphatically reject Crouch’s baseless argument that prosecu-torial vindictiveness or, alternatively, sheer randomness was the reason he was charged with the felony theft of identity offense instead of the misdemeanor offense of giving a false name to a peace officer.

C. Crouch’s Conduct Meets the Elements of Theft of Identity, and We May Not Add Language to the Clear Terns of a Statute.

In order to convict Crouch of theft of identity under KRS 514.1(50(l)(d), the Commonwealth must have proven beyond a reasonable doubt that Crouch knowingly used another person’s identifying information with the intent to represent himself as that other person in order to avoid detection. There is no dispute that Crouch’s conduct met those elements.

In fact, Crouch gave the officer both Kiger’s name and social security number, each of which is specifically mentioned as being identifying information sufficient to subject someone to a theft of identity charge. By contrast, giving another person’s social security number to a peace officer would not be enough, standing alone, to support a charge of giving a false name to a peace officer because KRS 523.110(1) provides that a person commits the offense of giving a false name or address to a peace officer only when, after being sufficiently warned, the person “gives a false name or address to a peace officer who has asked for the same in the lawful discharge of his official duties with the intent to mislead the officer as to his identity.” So the fact that Crouch was not warned by the arresting officer, combined with the fact that Crouch gave the police officer both Kiger’s name and social security number, leads to the inescapable conclusion that Crouch’s conduct falls more properly under the theft of identity statute than the giving a false name or address to a peace officer statute.

In reality, Crouch does not seem to dispute vigorously that his conduct meets the statutory elements of the theft of identity offense as it is set forth at KRS 514.160. Nevertheless, Crouch asks us to hold that he could not have been convicted of theft of identity because he purportedly did not gain a pecuniary benefit. We decline to so hold.

The law is clear that a court may not engraft language onto a statute in order to achieve a desired result. As we have pointedly explained, “it is neither the duty nor the prerogative of the judiciary to breathe into the statute that which the Legislature has not put there.” And the General Assembly did not put into KRS 514.160(l)(d) any pecuniary gain requirement. So the identity theft was accomplished when Crouch gave Kiger’s name and social security number to the authorities in order to avoid detection, regardless of whether that theft caused Kiger ultimately to suffer an economic loss.

Our conclusion is not altered by the fact that the theft of identity statute is found in KRS Chapter 514, which contains theft offenses. As the Court of Appeals majority correctly observed, KRS 446.140 expressly provides that with the exception of the Uniform Commercial Code, “[tjitle heads, chapter heads, section and subsection heads or titles, and explanatory notes and cross references, in the Kentucky Revised Statutes, do not constitute any part of the law....” The fact that theft of identity is located in a statutory chapter dealing with theft, and a thief usually commits a theft in order to gain a pecuniary advantage, does not mean that we may graft pecuniary gain language onto KRS 514.160(l)(d). Likewise, the fact that other subsections of KRS 514.160, which set forth other ways a person may commit the crime of theft of identity, may contain a requirement that the theft be motivated by pecuniary gain is irrelevant to whether the particular subsection at issue contains — or should be construed as containing — an implied pecuniary gain requirement.

Finally, we are aware that in Stump v. Commonwealth, greatly relied upon by Crouch, the Court of Appeals seemed to rely upon the title of a statute as an aid in its statutory construction. But precedent clearly holds that “[although the title of an enactment itself is a proper consideration in its construction, the title of the KRS Chapter where an enactment is placed by the reviser of statutes has no role to play in its interpretation.” And it is clear that the Court of Appeals erred in Stump when it relied upon the title of a statute that was not part of the legislative enactment. So Stump is overruled to the extent that it stands for the proposition that a court may, as a tool of statutory construction, properly rely upon a statutory title that was not part of the enactment of the General Assembly.

D. Because the Statute is Clear, the Rule of Lenity is Inapposite.

Crouch contends that the rule of lenity requires that he be prosecuted for giving a peace officer a false name instead of theft of identity. We disagree. As we recently observed, the rule of lenity is “often invoked by criminal defendants seeking a more favorable construction of a statute”; and the rule “applies only if the statute at issue is genuinely ambiguous and even then only if the ambiguity cannot be resolved by resort to the other traditional rules of construction.” The rule of lenity has no place in the analysis of this case because the plain language of KRS 514.160(l)(d) leaves room for no ambiguities or doubts about its proper scope and application.

E. The Punishment is Not Disproportionate to the Crime.

Crouch argues at length that the punishment he received is disproportionate to the crime he committed. We disagree.

Crouch glosses over the fact that he would have been sentenced to only five years’ imprisonment for the theft of identity offense had he not also been convicted of being a PFO 1. It is entirely permissible for a recidivist to be punished more severely than a first-time offender. Indeed, Crouch’s sentence is not unduly disproportionate to other similarly situated defendants. Moreover, Crouch’s PFO 1-enhanced fifteen-year sentence is well below the twenty-year maximum sentence he could have received.

In short, in light of the potentially serious consequences for a victim of identity theft and the fact that Crouch’s penalty was enhanced by virtue of being a PFO 1 — while noting that enhancement did not result in Crouch receiving the maximum permissible sentence — we reject Crouch’s argument that his sentence was disproportionate to the offense he committed. Similarly, we reject Crouch’s baseless arguments that his convictions or sentence somehow violate his right to due process and equal protection.

IV. CONCLUSION.

For the foregoing reasons, we affirm the opinion of the Court of Appeals that affirmed the trial court judgment.

All sitting. All concur.

      . See Kentucky Revised Statutes (KRS) 514.160.

      . See KRS 523.110.

      . The final judgment issued by the trial court erroneously provides that Crouch was found guilty of the possession of marijuana charge. The Court of Appeals properly entered an order requiring the trial court to correct its judgment to reflect that Crouch was acquitted of the possession of marijuana charge.

      . The jury was not asked to recommend a penalty for the misdemeanor reckless driving conviction.

      . See, e.g., Coleman v. Commonwealth, 501 S.W.2d 583, 584 (Ky.1973) ("A trial court has no authority to amend an indictment to charge an additional or different offense, RCr 6.16. This has been the rule in this Commonwealth for a great number of years.... ”).

      . On a somewhat related note, Crouch also unsuccessfully argued to the Court of Appeals that the trial court erred by refusing to instruct the jury on the offense of giving a false name to a peace officer. Although he does not seem to raise that precise argument before us, Crouch’s brief does quote the Court of Appeals dissent contending that the trial court erred by refusing to instruct the jury on giving a false name to a peace officer. So it appears that Crouch has now abandoned this argument; but, out of an abundance of caution, we will briefly address it. Instructions must conform to the evidence, but no instruction should be given on a theory not supported by the evidence. See, e.g., Sanders v. Commonwealth, 301 S.W.3d 497, 500 (Ky.2010). It is beyond dispute that a person may not be found guilty of giving a false name to a peace officer “unless the peace officer has first warned the person whose identification he is seeking that giving a false name or address is a criminal offense.” KRS 523.110(1). Since there is no indication in the record that the arresting officer gave the requisite warning to Crouch, the Court of Appeals majority properly concluded that the trial court correctly declined to instruct the jury on the offense of giving a false name to a peace officer.

        .Coleman, 501 S.W.2d at 584 (“When a series of facts constituting a crime are presented to a grand jury it is entirely possible that they will support an indictment for several different offenses. This does not mean that the grand jury must indict upon all offenses that the facts will support nor does it mean it must indict upon the lesser offense that the facts will support. It has a choice in the matter and once that choice is made by the grand jury the defendant has no absolute right nor does the trial court have jurisdiction to change it except as authorized by RCr 6.16.’’).

      . No. 2006-SC-000305-DG, 2008 WL 2167980 (Ky. May 22, 2008).

      . Id. at *2.

      . See KRS 514.160(1) (“A person is guilty of the theft of the identity of another when he or she knowingly possesses or uses any current or former identifying information of the other person ..., such as that person's ... name ... [or] Social Security number ... with the intent to represent that he or she is the other person....”).

      . Commonwealth v. Gaitherwright, 70 S.W.3d 411, 413 (Ky.2002).

      . Arguably, Crouch acted to further his own pecuniary interests when he used Kiger’s name and social security number. Crouch sought to avoid detection because, in his own words, he had "outstanding warrants for ... a probation violation, failure to pay a fine, and failure to appear.” Using Kiger’s identity successfully likely would have caused Crouch to, at least temporarily, have avoided paying the financial consequences of his outstanding warrants. Also, if Crouch had been convicted, Kiger could have suffered an economic loss because all the court records associated with Crouch's conviction (arrest report, judgment of conviction, etc.) would have shown that Kiger — not Crouch — was responsible for payment of any fines and court costs. Because we ultimately reject Crouch’s unwarranted request to graft pecuniary-related language onto KRS 514.160(l)(d), we need not definitively address any further the possible pecuniary ramifications of Crouch's use of Kiger’s identity.

      .The fact that Kiger apparently suffered no readily identifiable tangible or intangible losses in the case at hand does not detract from the fact that identity theft generally has the potential to be devastating to its victims' finances and reputations.

      . 289 S.W.3d 213, 215 (Ky.App.2009).

      . Popplewell's Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d 456, 463-64 (Ky.2004) (internal footnote and emphasis omitted). Accord American Premier Ins. Co. v. McBride, 159 S.W.3d 342, 349 (Ky.App.2004) ("The title of an enactment given to it by the legislative body is a proper consideration in its construction. In contrast, the title of the KRS Chapter where an enactment is placed by the reviser or the location within the code where it is placed are not to be considered in its construction.”) (internal footnote omitted). Nothing in the title of the legislation that created KRS 514.160, nor the title of the legislation that amended KIRS 514.160, gives solace to Crouch. See 2000 Ky. Acts, Ch. 174 (H.B. 4), § 1 (creating crime of theft of identity); 2002 Ky. Acts, Ch. 175 (H.B. 79), § 8 (amending KRS 514.160).

      . Rodgers v. Commonwealth, 285 S.W.3d 740, 752 (Ky.2009).

      . Riley v. Commonwealth, 120 S.W.3d 622, 634 (Ky.2003).

      . Ogden v. Commonwealth, No. 2003-CA-002074-MR, 2004 WL 2011327 (Ky.App. Sept. 10, 2004) (defendant sentenced to a PFO 1-enhanced sentence of ten years' imprisonment for thefl of identity conviction).

      . Theft of identity is a Class D felony. KRS 514.160(2). Persons who are convicted of being a PFO 1 on the basis of an underlying Class D felony may be sentenced to a minimum of ten and a maximum of twenty years’ imprisonment. KRS 532.080(6)(b).